Volume 16 — New Jersey Law Reports

Matter of conviction of John I. Johnson for profane swearing. On Certiorari to the court of General Quarter Sessions of Monmouth county. This case was brought before this court on Certiorari, to reverse a conviction under the 8th section of the act, entitled “An act for suppressing vice and immorality.” Rev. Laws 378.

In ejectment for lands in Bergen county. On rule to shew cause &c. This action was commenced for the recovery of the possession of a parcel of land in the county of Bergen, and the cause was tried at the Bergen Circuit, in March term 1835, before Mr. Justice Ryerson, and a verdict was rendered for the Lessor of the plaintiff. The Lessor of the plaintiff claimed title under the will of his father, Jacob Berdan, deceased.

<p>If the plaintiff declared on a bond made to two, and sets up his title thereto, by an assignment from both obligees, executed by only one of them, in the names of himself and his co-obligee, without shewing his authority for so doing, his declaration is bad.</p> <p>One of several obligees in a bond, may not assign it, nor may he do so, in the names of himself and co-obligees, unless specially authorized to do so.</p> <p>A plea denying the assignment in modo et forma should conclude not with a verification, but to the country, and is bad on demurrer.</p> <p>Joint obligees' of a bond, are joint-tenants only as to the right of action, for the sake of the remedy, but not in the proceeds, which belong to the survivor and the representatives of the deceased co-obligee.</p>

<p>A sheriff selling property on execution, the proceeds whereof exceed the sum due thereon, is entitled to centage only on the sum raised for the plaintiff.</p>

<p>On Certiorari to a J ustice of the peace.</p>

<p>In ejectment for lands in Salem.</p>

On Certiorari to Burlington Common Pleas. THE STATE OF THE CASE. Timothy Hulit and Isaac Pullen, sued Richard Jaques and Samuel R. Jaques, in an action of debt, before a justice.

The following state of the case, exhibits the question argued before, and decided by the court. STATE OF THE CASE. This was an action of covenant, for the recovery of the 3d. payment under an article of agreement between the parties, that defendants in error,.

<p>On Certiorari to a Justice of the Peace.</p>

<p>In action upon a judgment in favor of plaintiff as constable, tlie plaintiff styling himself, in the second suit, late constable, may recover, notwithstanding the variance between the record produced, of the former judgment, and that stated in his demand. The words “late constable,” are only descriptive, and may be rejected as surplusage, in a justices’s court, where technicality is not rigidly required.</p> <p>A record stating that “I. C. one of the defendants appeared and confessed judgment for, &c., Whereupon, I gave judgment for the plaintiff, for the sum, &c., is erroneous; but it is a judgment in that action, and therefore against both defendants, and cannot be reversed on a Certiorari brought to set aside a second judgment founded thereupon.</p>

<p>On Certiorari to the Common Pleas of Middlesex.</p>

<p>On demurrer, in case for trover and conversion.</p>

<p>If a promissory note be delivered to one partner of a firm, as collecting agent of the plaintiff, the refusal of such partner to re-deliver the note, could not make the firm liable for the amount of the note.</p> <p>The refusal of the court to charge the jury, when requested so to do upon a question of law, is error.</p>

On Certiorari to a justice of the peace: THE STATE OF THE CASE. Jacob D. Trimmer the defendant in Certiorari, sued Jacob Trimmer junior, before Neighbour, the plaintiff in this court, he then being a justice of the peace, in an action of trespass on the case.

<p>On rule to shew cause why the writ of attachment should not be quashed &c.</p>

<p>IN CASE.</p> <p>On bill of privilege. On motion to set aside proceedings.</p>

In ejectment for land in Gloucester. On rule to shew cause, &c. At a former term, a rule had been granted calling on the defendant to shew cause, why the verdict in this cause in favor of the defendant, should not be set aside, and a new trial granted.

In ejectment. In this case, a commission was issued out of this court, directed to Samuel Woodson and Henry P. Bates to take the deposition of Elias Bates of the state of Missouri. The commissioners, went before a justice of the peace, of that state, and were sworn faithfully to discharge the duties assigned them &c. The witness instead of being sworn by the commissioners, was sworn by the same justice of the peace.

<p>The affidavit, on appealing from a justice’s judgment upon a verdict, must appear to be in the same cause, to give jurisdiction to the Common Pleas.</p> <p>The action in a justice’s court, on partnership accounts, must be in debt.</p> <p>It is not necessary to entitle the affidavit, if it shews upon the face of it, that it is an affidavit in the proper suit.</p>

<p>On Certiorari to Somerset Common Pleas, in matter of appeal.</p>

This was an action of trover, to recover the value of a crop of rye, sown by one Davis; and by him sold by parol, while growing, to Eager. Subsequently and while the grain was still growing, Davis sold the land on which the grain stood, to West-brook, who gathered the grain, and afterwards appropriated it to his own use. The following is the state of the case. Wilhelmus Westbrook Abraham Westbrook and Peter Vannoy — appellants and James Eager appellee. Sussex Pleas.

<p>On Certiorari to a Justice of the Peace.</p>

This case was brought up by Certiorari to the Monmouth Common Pleas, on affirmance of the judgment of a justice of the peace, in a qui tarn action, under the “ timber act.” The principal question in controversy, was, the proper construction of that act, as to the jurisdiction and authority of Courts for the trial of small causes, in questions involving enquiries into title or possession of lands.

<p>The term of office of Chosen Freeholders, although chosen at the annual town meetings in March in some counties, and April in others, commences at the time of the organization of the Board, at their annual'meeting on the second Wednesday in May — and continues till the like organization, in the following year.</p> <p>Proof of due notice for the meeting of the Freeholders appointed to review a road, may be taken and certified by them, or shown aliunde to the Court, by affidavits referred to in their certificate, or else taken under a rule of the Court.</p> <p>Affidavits without such reference, taken by justices of the peace, are not to be received.</p>

<p>On Certiorari to a justice of the peace.</p>

This was a Certiorari to a justice of the peace, to remove his proceedings on a conviction for disturbing religious worship.

On Certiorari to Salem Orphans’ Court. This was a controversy respecting claims upon the estate of a person who died insolvent, and the dispute arose concerning the mode of ascertaining the balance remaining in the administra-' tor’s hands, for distribution.

This was a Certiorari directed to the Common Pleas of Hunterdon county, removing the judgment and proceedings of that Court upon a writ of attachment issued from that Court, under the “ Act for the relief of creditors against absconding and absent debtors” passed 8th of March, 1798. The objection to the proceedings of the Common Pleas, was, that the Sheriff’s return to the service of the writ does not in all things show a compliance with the directions of the act.

<p>On Certiorari to Salem Orphans’ Court.</p> <p>This was a proceeding upon an assignment, under the act of 23d of February 1820, Rev. L. 674, regulating voluntary assignments for the benefit of creditors.</p>

<p>A return of a road signed by four of the surveyors, without shewing that the other two were present, or had notice of the time and place of meeting, is fatally defective.</p> <p>The return stating the beginning point of the road ; to be at or near a certain place is too vague, so also if its termination is expressed in the same or like terms. 0</p> <p>The return should set out the road in its whole length, with such precision, that the landholders, and he or they who may have to open or use it, may have no difficulty in ascertaining where they have a right to travel, or where they would be trespassing.</p>

<p>This was an action of dower unde nihil habet.</p> <p>Tiie question came before the Court, upon a demurrer to the second of the following pleas.</p> <p>Mary Berrien v. Elias Conover.</p> <p>Yew Jersey Supreme Court. In Dower,</p> <p>For her reasonable dower of one dwelling house, one barn, one cow house, one stable, one garden, one orchard, forty acres of arable land, forty acres of pasture land, forty acres of meadow land and forty acres of woodland, situate in the township of Franklin, in the county of Somerset.</p> <p>To the Count in dower, filed in this cause, on the part of the plaintiff; the defendant, by James S. Green, Esq., his attorney, appeared and pleaded, first, that the said Mary ought not to have her dower of &c. as the reasonable dower of the said Mary, of the endowment of John Berrien, heretofore her husband, because he says, that the said John Berrien, heretofore her husband, was not, either on the day he married the said Mary Berrien, or ever after, seized of such an estate of and in the said premises, with the appurtenances aforesaid, whereof &c. that he could endow the said Mary Berrien, thereof, and of this, he puts himself upon the country; &e.</p> <p>And for further plea in this behalf, the said Elias Conover by leave of the Court, here for this purpose first had and obtained, according to the form of the statute in such case made and provided, says, that the said Mary Berrien ought not to have or maintain her aforesaid action thereof against him, because he says, that the right and title of the said Mary Berrien, if any, to the said dwelling house, barn, cow house, stable, garden, orchard, forty acres of arable land, forty acres of pasture land, forty acres of meadow land, forty acres of woodland, with the appurtenances, and her cause of action, if any, did not accrue within twenty years, next before the commencement and institution of this action against him, the said Elias Conover, in this behalf, in manner and form, as the said Mary Berrien has counted against him, and this he is ready to verify, wherefore he prays judgment, if the said Mary Berrien ought to have or maintain her aforesaid action thereof, against him.</p> <p>And the said Mary, as to the plea of the said Elias, by him secondly above pleaded, in bar, says, that that plea and the matter in the same contained, are not sufficient in law, to bar her, the said Mary, from having her dower of the said dwelling house, barn, cow house, stable, garden, orchard, forty acres of arable land, forty acres of pasture land, forty acres of meadow land, forty acres of woodland with the appurtenances. And that she hath no necessity, neither is bound by the law of the land, to answer to the said plea, in manner and form aforesaid, above pleaded. And this she, the said Mary, is ready to verify. Wherefore, for want of a sufficient answer in this behalf, the said Mary prays judgment, and her dower of the said dwelling house, barn, cow house, stable, garden, orchard, forty acres of arable land, forty acres of pasture land, forty acres of meadow land, forty acres of woodland with the appurtenances, to be adjudged to her, &c.</p> <p>To this demurrer, the defendant has joined in demurrer, and the question is, whether the second plea of the defendant, is good or bad.</p>

In debt on Collector’s bond. This action was brought against Samuel Wilson, as Collector, and his sureties on a Collector’s bond to the Chosen .Freeholders of Warren county. The state of the case is sufficiently exhibited in the opinion of Mr. Justice Ryerson, who delivered the decision of the Court.

On Certiorari to the Hunterdon Quarter Sessions. The following is the state of the case. The Overseers of the Poor of Alexandria, v. The Overseers of the Poor of Bethlehem. Supreme Court, On Certiorari to the Sessions • of Hunterdon. This Certiorari was brought to remove before this Court, an order of the sessions of Hunterdon quashing an order made by justices Larason and Huff, removing Catharine Petty the pauper from the township of Alexandria, to the township of Bethlehem.

On motion for a mandamus to the Hunterdon Common Pleas, on appeal. This case was argued at May term 1837, on a motion for a mandamus to the Hunterdon Pleas to restore to their files, an appeal from the judgment of a justice of the peace, which- had been dismissed by the Court of Common Pleas, for reasons contained in the following state of the case agreed upon by the attorneys on the appeal. Hunterdon Pleas of the special term of March, A. D. 1837.

<p>Judgment reversed because the justice adjourned the cause for his own convenience, beyond thirty days. Judgment as to costs, reversed, because it was entered in figures.</p>

In dower. STATE OF THE CASE. This cause came before the Court, on a special case made at the Circuit, presenting the following facts. One Aaron Hulse, being seized in fee, and in possession of the premises in question, on the 4th September, 1824, executed a mortgage of them in fee, to Samuel Vaughn, to secure to him, a certain debt.

This is an action brought by the plaintiff against the defendant for not erecting and keeping in repair, a lock in a Mill-Dam, across the Raritan river, in pursuance of an act, passed the 12th February 1818, to authorize Aaron Hassert and others to erect a dam across said river, near the Landing Bridge. The cause was tried before the Chief Justice, at the Somerset October Circuit, 1836, and a verdict rendered for the plaintiff.

The Reporter has-not been furnished with the state of the case, but believes it sufficiently set forth in the following arguments of counsel and in the opinion delivered by the Chief Justice.

On Certiorari to Hunterdon Common Pleas, on matter of assignment for benefit of creditors. STATE OF THE CASE. John Carhart and James L. Britton who had been partners in trade, on the second February 1835 made an assignment, under the act to secure to creditors an equal and just division of the estate of debtors who convey to assignees for the benefit of creditors, passed the twenty-third February 1820.

<p>On Indictment for unlawfully selling liquor.</p>

On motion for assessment and execution. STATE OF THE CASE. The above stated action, was in debt on a bond given by Hamilton and the other defendants, as his sureties, for his faithful performance of the duties of sheriff of the county of Sussex. J udgment was entered in that action, in this court in the term of May, 1828.

On motion to quash writ of attachment. The affidavit of Hoy, the plaintiff in this case, is, that Brown, the defendant, “is indebted to him in the sum of two thousand dollars upon covenant, it being the penalty fixed therein upon breach.” The writ is “ to answer unto James Hoy, that he render unto him two thousand dollars, which to him he owes upon covenant ”

This was an action on a promissory note, and for money paid, &c. The defendants pleaded — 1st., Non assumpsit — and 2ndly., Non assumpsit within eight years, &c.

<p>On motion to set aside verdict</p>

In ejectment for lands in Burlington STATE OF THE CASE. The postea in this cause returned by Judge Ford, from the November Circuit, 1836, contains the state of the case agreed upon by the parties, and is as follows, viz. “Afterwards to wit on the first day of November, in the year of our Lord, one thousand, eight hundred and thirty six, at a Circuit Court held at Mount Holly, in and for the county of Burlington, before his Honor, Gabriel H. Ford, Esq. one of the Justices of…

<p>On Certiorari to Court of small causes.</p> <p>STATE OF THE CASE.</p> <p>Cook was sued by warrant aud arrested. McElway, the other plaintiff in . Certiorari, entered into recognizance with him, as his security, before the Justice, pursuant to, and in the form prescribed in the tenth and twelfth section of the statute, {Rev. Laws 630 — 632.) The defendant Cook, did not appear on the day named in the recognizance, for that purpose; whereupon the Justice proceeded to hear the cause, and gave judgment against both the principal and his security.</p>

On Certiorari to Common Pleas. STATE OF THE CASE. The Common Pleas dismissed the appeal, because the affidavit was made by John Tomlin jun. and the suit below was against John Tomlin — And 2dly. because the affidavit in other respects, was not conformable to the one required 'by the statute.

<p>G. S. devises by will dated 17 May, 1785, as follows, “I will unto my son J. S. and to Ills heirs by his present wife A, all the farm &c. reserving the full use and benefit of the above lands, unto my wife during her widowhood, for and at her death, the lands to cede to my said son J. his heirs and assigns, to all intents and purposes.” , Held, that J. S. the son, took by the devise, an estate in fee tail, and not a mere trust estate for the widow, in this case, the term cede is synonymous with to be yielded, up, and the words “ to all intents and purposes,” must be construed to mean, the purposes before expressed. •</p> <p>The first great leading rule, from which. Courts of justice never depart, is, to put such a construction on apparently conflicting parts, that both of them, if possible, may stand, and the whole will be carried into effect. The rule of law is imperious, that every clause in a will, shall be made to operate if possible.</p>

In case on Demurrer. The cause was submitted to the Court, at the last term, upon the following STATE OF THE CASE.

On Certiorari, in suit for unlawful detainer. This was a Certiorari brought to remove the proceedings under our statute, on a complaint for an unlawful detainer, in which, judgment was rendered for the plaintiff.

<p>On Certiorari to Common Pleas in matter of appeal.</p>

In case on demurrer. The ease is set forth in the following abstract of the pleadings. The declaration in this cause is in the usual form, on a promissory note dated New York, April 26,1831 for the sum of three hundred and forty-eight dollars and fifteen cents, drawn by the defendant, payable to the plaintiffs, with the Common Counts.

In Dower. This case came before the Court on demurrers to the pleas filed by the tenant.

<p>The return to a Certiorari, certifying that the state of demand and plea cannot be found, is sufficient cause for reversing the judgment.</p>

<p>On Certiorari to Common Pleas.</p>

<p>On Certiorari to a Justice of the Peace.</p>

<p>On Certiorari.</p>

Indictment for not repairing road. State of New Jersey, Hunterdon county ss. Hunterdon ss. Hunterdon Court of General Quarter Sessions of the Peace, of the Term of-February, A. D. 1837.

On Certiorari to Common Pleas, on appeal. STATE OF THE CASE. Montfort sued Randolph, before a Justice of the peace, for a trespass on lands. From the judgment of the Justice an appeal was taken. And on the trial of the appeal, Randolph attempted a justification^ by a right of way, over the loous m quo.

<p>In an action for a legacy, the costs and expenses of auditing and stating the executor’s accounts, upon a plea of want of assets, as well as the costs of suit generally, will be awarded against the defendant de bonis propriis if he lias been faulty in not paying the legacy, or any part of it.</p> <p>Whether faulty or not, is a question for the Court, upon the facts of the case, as reported by the auditors; and the Court are not concluded by their opinion on that point.</p> <p>The aet of 1797, to prevent suits under a certain sum, being brought in the Supreme Court, does not repeal or modify the act of 1774, for the more speedy recovery of legacies, on the subject of costs.</p> <p>The case of Woodruff v. Woodruff, Penn. R. 552, as to the jurisdiction of justices, for legacies to the amount of on® hundred dollars, questioned.</p>

<p>Certiorari to a Justice of the Peace.</p>

<p>A return on the summons “served this summons, June 2, 1837, on G. F. the other defendant out of the comity ; no copy demanded," is defective — as not showing' how served on G. F. It should be by reading it to him. The other defendant although out of the county, might have an abode therein, hut if not, the return should state that “ he could not be found in the county so as to be served with process.”</p>

<p>An affidavit to obtain an appeal, being indorsed on the appeal bond, is good, but it vitiates the bond. _</p>

On Certiorari to the Hunterdon Common Pleas, in matter of appeal. STATE OF THE CASE. The plaintiff below — Who is also the plaintiff in this Court, sued the defendants,'for services rendered to their testator. It was objected in the Common Pleas, that the account, or statement of demand of the plaintiff contained no cause of action. The Common Pleas, being of that opinion, nonsuited the plaintiff. This Certiorari is brought to set aside the nonsuit.

<p>On Certiorari to the Common Council.</p> <p>STATE OF THE CASE.</p> <p>In April 1835. The Corporation of the City of New Brunswick, made an ordinance, to prevent, within their bounds, shows and exhibitions such as are prohibited by the 12th section of the “Act for suppressing vice and immorality.” II. L. 382, with the addition of “ Circus riding.” To the transgression of this ordinance, they added a penalty to be recovered in an action of debt, in the name of the City Treasurer, for the use of the Corporation by any one who would sue for the same. And they made that action cognizable by the Mayor, Recorder, or any one of the Aldermen. The ordinance — then further proceeds to direct the Mayor, Recorder, or either of the Aldermen, on information given, Ac, to cause the offender to be brought before him, and on proof, to convict, “as in the ordinance directed.”</p> <p>Weeks, was charged with a breach of this ordinance. A v,-arrant against him in debt — on information given, was issued by one of the Aldermen, for the forfeiture of thirty dollars. He was convicted — or rather, judgment of debt was rendered against him, from which he appealed as by the city charter directed, to the Mayor, Recorder, and Common Council, who affirmed the judgment. All these proceedings have been brought into this Court, for the purpose of testing the validity of the above ordinance; as well as the regularity and legality of the proceedings under it. It was objected, among other things:</p> <p>That the ordinance was not warranted by the city charter, Rev. L. 505, 614. The Corporation having no power, thus to confer judicial power on its officers, and create the subject matter of its exercise.</p> <p>That the ordinance is not within the proper limits of a by-law, which cannot extend to the suppression of vice, or protection of public morals.</p> <p>That it is repugnant to the public law of the state, for the suppression of vice and immorality, above referred to, in creating an additional and greater penalty, for offences within the provisions of that law.</p> <p>(Transcript op James C. Zabriskie.)</p> <p>City of New Brunswick ss. Wm. P Forman City Treasurer pl’ff. vs. Edward C. Weeks defendant.</p> <p>Court for the trial of causes pertaining to the Corporation. James C. Zabriskie Alderman.</p> <p>In debt. 21 April 1835. I issued a warrant in the above cause, demand thirty dollars; same day the Marshal returned the warrant with the defendant in custody, who entered into a reconizance with Walter M. Richmond as surety for his appearance on Wednesday the 29th day of April at two o'clock in the afternoon. April 29 parties appeared by their respective counsel J. S. Blauvelt esq. for the plaintiff and Wm. H. JDisborough esq. for the defendant, and proceeded to trial. The plaintiff filed his state of demand. On behalf of the plaintiff, George P. Molleson and John S. Hoaglaud were sworn; on the part of the defendant, Peter Conover and Joseph E. Marsh. The defendant’s counsel offered in evidence, a part of the record of Common Council, touching the proceedings of that body in relation to the passage of the ordinance authorizing the above proceedings— the admission of the paper, was objected to by the opposite counsel ; the objection was overruled. After the examination of the witnesses, the cause w7as rested and fully argued. I then gave judgment for the plaintiff, for thirty dollars debt, and two dollars and ten cents costs, executiou was immediately issued. The defendant demanded an appeal, which was granted upon a bond being filed.</p> <p>I certify the within to be a true transcript from my docket. Witness my hand and seal, this 29th June 1835.</p> <p>James C. Zabriskie Aldermen.</p> <p>(Copy of Information)</p> <p>City of New Brunswick ss. Personally appeared before me James C. Zabriskie one of the Aldermen of said City, John S. Hoagland who being duly sworn, upon his oath deposeth and saith, that on the afternoon of Tuesday the 21 April inst. he witnessed an exhibition of feats of uncommon dexterity and agility of body and of Circus riding, within the bounds of said City, under the superintendence and control of Weeks who represented himself as one of the firm of Buckley, Weeks & Co. proprietors of the establishment, whose advertisements have publicly appeared in said City.</p> <p>Sworn to before me this 21 day of April 1835.</p> <p>James C. Zabriskie Aldermen.</p> <p>John S. Hoagland</p> <p>(Copy of state of Demand.)</p> <p>City of New Brunswick, in a Court holden before James C. Zabriskie esq. one of the Aldermen of said City.</p> <p>William P. Forman Treasurer of the City of New Brunswick plaintiff, against Edward C. Weeks defendant.</p> <p>In debt.</p> <p>The plaintiff demands of the defendant, the sum of thirty dollars for this, that the Mayor, Recorder, Aldermen and Common Council of the City of New Brunswick, heretofore to wit on the 18 day of April 1835, at the said City of New Brunswick, did make, pass, seal with the common seal of said City, and publish a certain by-law and ordinance to the purport and effect following that is to say; “An ordinance to prevent useless immoral and injurious public shows or exhibitions in the city of New Brunswick,” “Section 1. Be it ordained by the Mayor, Recorder, Aldermen and Common Council of the City of New Brunswick, and it is hereby ordained by the authority of the same, that from and after the 18 day of April 1835, it shall not be lawful for any person or persons whatsoever for any price, gain or reward, to shew forth, exhibit, act, represent or perform, or cause to be shewn- forth, exhibited, acted, represented or performed, on any public stage, or in any public house or other place whatsoever, any interludes farces or plays of any kind, or any games, tricks, juggling sleights of hand, or feats of uncommon dexterity and agility of body, or any bear-baiting, or bull-baiting, or any Circus riding, or any such like shews, or exhibitions whatsoever, within the limits of the said City of New Brunswick. Section 2. Provided and be it further ordained that if in the opinion of the Mayor, Recorder, and one of the Aldermen, or if in the opinion of any three of the Aldermen of this City, it shall be deemed that such interlude, farce or play; public shew, or exhibition may probably and to answer any reasonable or useful end, it shall be lawful for the said Mayor, Recorder and Aider-men, or for the said three Aldermen at their discretion, on application for that purpose, to give license in writing for such interlude, farce or play, public show or exhibition, to be performed, exhibited or represented. Section 3. And be it further ordained, that if any person or persons transgress the provisions of this ordinance, he or they shall forfeit and pay, on conviction thereof, the sum of thirty dollars for the use of the Corporation of this City, to be recovered in an action of debt, by any one who shall prosecute for the same, in the name of the City Treasurer, before the Mayor, Recorder or one of the Aldermen of this City, with costs of suit. Section 4. And be it further ordained that the Mayor, Recorder, or any of the Aldermen of this City, shall immediately on information given upon oath or affirmation of the marshal or any one of the police officers of this City, or of any other person whatsoever, cause the offender and offenders against, this ordinance, to appear before him, and upon such information being proved, shall convict such offender and offenders in such manner as is in this ordinance prescribed.” And the said plaintiff in fact saith, and avers, that after the passing of said ordinance, as is above stated and set forth, to wit, on the 21 day of April 1835, at the City of New Brunswick aforesaid, the said defendant did for price, gain and reward, shew forth, exhibit, act, represent, and perform, and cause to be shown forth, exhibited, acted, represented and performed, at a place within the limits of the said City of New Brunswick, Circus riding, b.e the said defendant, at the said time he so showed forth, exhibited, acted, represented, or performed, and caused to be shewn forth, exhibited, acted, represented, or performed the said Circus riding, not having obtained a license for that purpose, pursuant to the directions and requirements of the by-law and ordinance aforesaid; by means whereof and by force of the said by-law and ordinance aforesaid, the defendant has become liable to pay, and an action hath accrued to the plaintiff, to have and demand of and from the said defendant, the said sum of thirty dollars above demanded, for which amount of thirty dollars, the said plaintiff prays judgment.</p> <p>(Proceedings before Mayor, Recorder, Aldermen and Common Council) Monday evening 15 June 1835, Common Council met pursuant to adjournment. The cause presented from the Court below, was “ Forman v. Weeks.” After hearing an argument from Mr. Dishorough the attorney for the appellant, and a reply from Mr. Blauvelt the Corporation attorney, it was ordered that the parties be directed to conform to the rule adopted in the Court of Common Pleas, by filing a bond. A motion was made-to stay the proceedings in the Court below, until the appeal could be tried, but the motion was not sustained. Friday afternoon 31 July 1835, Common Council resolved itself into a Court of appeal, Wm. P. Forman, Treasurer v. Edward C. Weeks, appellant, on appeal from Alderman Zabriskie. It was ordered that this appeal now come on. A motion was made to excuse Alderman Zabriskie from participating in the trial of this cause. The motion was not sustained, Wm. II. Dishorough counsel for the appellant preferred an objection to Alderman Zabriskie taking any part in the appeal now to be tried, in consequence of his having given an opinion in the Court below. The objection was overruled. John S. Hoagland was sworn and examined on the part of the appellee, and the minutes of Common Council were read on the part of the appellant. After hearing the evidence, the Court took a recess until seven o’clock in the evening. Friday evening July 31,18o5, John S. Blauvelt counsel for the appellee, and Wm. H. Disborough counsel for the appellant appeared, and after hearing the allegations of the parties, Common Council ordered that the judgment of the Alderman in this case, be affirmed, and gave judgment in favor of the appellee, plaintiff below, against the appellant defendant below, for the sum of thirty dollars debt and two dollars and ten cents cost of suit, and also three dollars and forty two cents costs of this appeal.</p> <p>■ The above is a copy of the proceedings in the case of Wm. P. Forman, Treasurer v. Edward C. Weeks.</p> <p>Wm. Disborough.</p>

<p>On Certiorari.</p>

On Certiorari to Common Pleas. STATE OF THE CASE. A judgment had been entered before a Justice of the Peace at the suit of McCrea, against Schuyler et al. in their absence, although only one of the defendants had been summoned, and no proper return as to the other.

On motion to set aside a non-suit ordered at the Circuit, and grant a new trial. STATE OF THE CASE. The plaintiff is a minister of the Gospel; and brought this action on an indebitatus assumpsit, and quantum meruit, for salary alleged to be due to him from the defendants, in whose congregation and Church, he had laboured. It appeared that a call had been voted to him, both by the Church and congregation.

A. L. Eakin, in behalf of the plaintiff William Cook, in September T. 1836, obtained a rule on the sheriff of the county of Salem, to bring into this Court, or, with the consent of parties, to retain in his hands, so much of the moneys raised by him on two certain executions, one against Thomas B. Wood, and the other against him and Isaiah Wood, at the suit of Charles Wood, as would be sufficient to satisfy the execution of William Cook against the said Thomas B. Wood,…

In trespass quare clausum fregit. Question as to costs. This cause was tried at the Cape May Circuit, before Justice Ford, and a verdict rendered for the plaintiff, for six cents damages.

<p>Matter of practice.</p> <p>Demurrers to the declarations in these cases, were overruled at the last term.</p>

<p>Can an attaching creditor, come into Court and call in question, a judgment regularly entered against his debtor, by another plaintiff, quere ?</p>

<p>Matter of Practice.</p>

An allocatur not necessary on a writ of error. 8. 11. HamiUon moved to quash the writ of error, because no allocatur is indorsed on it. No allocahir is necessary, it is a writ of right.

John Earle, the plaintiff in error, recovered a judgment in April 1821, in the Common Pleas of Burlington county, against WUliam L. Earle, the defendant in error, for twelve thousand dollars of debt, with costs, on a bond and warrant of attorney to confess judgment thereon.

<p>The act of 1784, Pat. Bev. 53, 54, extends to, and by its operation, limited and cut down, estates tail created as well by deeds, as by will.</p> <p>When a statute is in itself ambiguous and difficult of interpretation, the preamble may be resorted to, but not to create a doubt and uncertainty, which otherwise does not exist.</p> <p>If a statute make use of a word, in one part of it susceptible of two meanings, and in another part it is used in a definite sense, it is to be understood throughout in the latter sense, unless the object to which it applies, or the connection m wiiich it stands, require it to be differently understood in the two places.</p> <p>But a statute ought upon the whole, to be so construed, that if possible, no clause, sentence or word shall be superfluous void or insignificant.</p> <p>The word “ given,” in its appropriate legal sense, is applicable to deeds an well as to wills. ‘</p> <p>The statute de donis although never enacted in this State, was always con ■ sidered operative, before the revolution, and continued to be so after that event, by virtue of tne 22d article of our Constitution, until by the act of 13 June, 1799, Pat. Rev. 435, our Legislature declared, that no act of Parliament snould have auy force in this State. Repealing or rendering inoperative for the future, an act, will not destroy an estate already vested under it.</p> <p>The object of the act of 1784, was to limit estates tail, and it was a sort of substitute for the process of common recovery.</p> <p>Where one statute is repealed by another, acts done, in the mean time, while it was in force, snail endure, stand, and be good and effectual.</p> <p>When an act of Parliament is repealed, it must be considered, except as to transactions past and dosed, as if it had never existed.</p> <p>By the repeal of a repealing statute, the original statute is revived. Yet the effect of repeaiíng a statute, varies according to its nature and object, and the circumstances of the case. As, 1. if it be in the nature of a contract, or a grant of power, a repeal will not divest interests acquired, or annul acts done under it.</p> <p>2. If the legislature ex mero mote, by statute give to an individual, property belonging to the State, and he accept it, a repeal of the statute, would not deprive him of his property.</p> <p>3. For acts done or omitted under an existing law, subject to punishment or prejudice; if that Jaw be repealed, the offender will escape the penalty.</p> <p>4. When a statute restraining a man's natural rights, or his use of his property,1 is repealed, he is restored to those rights, as before the law was</p>

<p>A charge, “ for that in consideration that the plaintiff would discharge one V. a third person, from a certain debt, the defendant promised to pay it; ”</p> <p>And “for that the said Y. being so indebted to the plaintiff, in consideration' that he would forbear to prosecute said V. the defendant promised to pay V’s said debt;"'</p> <p>And “for that Y. being indebted to the plaintiff for goods sold and delivered by the plaintiff to said Y. the defendant in consideration thereof, promised to pay for them, &c.” being all parol promises, are within the statute of frauds, and not actionable.</p>

On Scire Facias against Garnishee in attachment. This cause was submitted at November term 1837, on the following, STATE OF THE CASE. New Jersey Supreme Court. Jacob Crane vs. Abraham Freese V On Scire Facias under attachment.

Boulton as administrator de bonis non, with the will annexed, of James Bowne, sued Norcross in the Common Pleas of Burlington, in an action of trover, for goods belonging to the plaintiff, as such administrator.

On Certiorari to a Justice of the peace, on attachment. This cause was submitted to the Court, on the following, STATE OF THE CASE. The suit before the justice, was commenced by Abbott, by writ of attachment against Brown, as a non-resident debtor. The affidavit was made upon the eleventh of April A. D. 1837, and the attachment was served — on the same day, by attaching the defendant’s property.

<p>A complaint that the defendant forcibly detains the “messuage or dwelling house,” is too loose and uncertain. And judgment on such complaint, that the plaintiff have restitution of the messuage, lands, and tenements, &c. and a writ of restitution conforming to said judgment, are erroneous and cannot be supported.</p> <p>Omitting to record in the justice’s docket, the sheriff’s return to the venire, is a fatal error.</p>

On Certiorari. STATE OP THE CASE. The plaintiff below, by his state of demand, claimed sixty-one dollars and sixty cents, for principal and interest on a note of hand given to his intestate.

This case was submitted at November term, upon the following statement.

In trespass, on rule to shew cause, why verdict be not set aside, and a new trial granted. This case was submitted to the Court on the written briefs of counsel, the defendant’s attorney, from ill health, being unable to attend Court. This was an action of trespass quare elauswm ” commenced before a justice of the peace and a plea of title filed by defendant, with bond pursuant to the statute. The plaintiff then brought his suit in Supreme Court.

<p>The Court will appoint freeholders to review a road, although several terms have elapsed after caveat filed; the cause having been removed by writ of error to the Court of Errors.</p>

<p>On Certiorari on complaint of unlawful detainer.</p>

On rule to shew cause against a mandamus to Hunterdon Common Pleas to re-instate an appeal. The rule to shew cause in this case, was granted at November term — ante 269.

<p>Matter of Practice.</p>

Matter of Practice. 0. 8. Halsted, moved for leave to open the judgment in this case, upon reading the defendant’s affidavit. objected that the affidavit was taken without notice to them, and no copy of it served. Mr. Halsted, referred to the case of Condit and Crane decided at this term.

<p>REMOVED'BY HABEAS CORPUS FROM! ESSEX PLEAS.</p> <p>Matter of Practice. Motion to change the venue.</p>

<p>On attachment. Matter of Practice.</p>

<p>A constable’s return to a summons, that he left a copy at defendant’s house &c. without stating “ the defendant not found,” is defective.</p>

Matter of Practice. This case was brought into this Court from the Morris Pleas, by Habeas Corpus. But no bail being filed, nor waiver of it entered.

<p>On Certiorari to Common Pleas, on appeal, returnable to next term.</p>

<p>Matter of Practice.</p>

<p>Matter of Practice.</p>

<p>On motion for Mandamus to Salem Common Pleas, in matter of Appeal.</p>

<p>On Certiorari to a Justice of the peace.</p>

In debt on judgment by confession. On the 18th of August last, Melville entered up a judgment by confession, on a bond and special warrant of attorney, against Brown, for one thousand five hundred and seventy-two dollars and fifty-seven cents, and issued a fi. fa. thereon, returnable to September term.

In Case. This cause was submitted without argument, at the last term, upon the following State of the Case, and the briefs of P. I. Clark attorney of the plaintiff, and J. S. Green for the defendant. STATE OF THE CASE. This was an action of assumpsit, brought to recover what is alleged to be due on a legacy left under the Will of John Sehenck. The parties agree upon the following statement of facts.

<p>Execution may witnout notice to defendant, be issued by the small cause Court, on a judgment in defendant’s absence, when sued by summons; upon the Court being satisfied of the danger of losing the money, if execution be not immediately issued.</p> <p>The plaintiff’s affidavit of his belief of the danger, is not se vpso sufficient for issuing the execution: the justice must be satisfied of the fact, and must so record it.</p>

On Certiorari to the Morris Quarter Sessions, on indictment for adultery. At November term 1837, J. W. Miller, moved to quash the indictment in this case * because the facts charged therein, do not constitute the crime of adultery ; to wit the illicit connection with a single woman.

<p>Six Surveyors having decided against the application for a road, separated; and afterwards on the same day, four of them met and laid the road. Held, that their proceedings were illegal.</p> <p>Application for a road and the notice thereof should designate the beginning and terminating points.</p> <p>Surveyors sworn into office as city officers, are not thereby authorized to act as township officers also.</p> <p>An oath in blank, is no legal oatli. Each oath and the administration thereof, must be separate, and individually subscribed.</p>

<p>Matter of Practice.</p>

<p>On Certiorari to Common Pleas on Appeal.</p>

<p>Matter of Practice.</p> <p>A. declaration was filed, to which, a plea was also filed in the name of William Pennington, after he-was sworn into office as Governor. On serving on him, a notice of trial, he denied being the defendant’s attorney.</p>

<p>Error to Middlesex Common Pleas.</p>

<p>In Error to Bergen Common Pleas.</p>

In case. On rule to shew cause, why the verdict should not be set aside, and a new trial granted. This was an action on a policy of Insurance against loss by fire, to the amount of four thousand dollars on the stock in general, of the plaintiffs as shoe manufacturers, contained in their manufacturing establishment in the city of Newark in this state.

<p>Matter of Practice.</p> <p>Mr. Scott in behalf of C. L. Hardenbergh,</p>

<p>If á suit is commenced by summons, and judgment is rendered for the plaintiff, it is irregular to issue execution thereon before the expiration of the time of delay allowed to a freeholder, unless applied for instanter at the. time of rendering judgment; or, at a subsequent day, upon the proper affidavit, and notice to defendant, of the intended application.</p>

<p>A Justice of tlie Peace ought not to discharge a Jury, until every reasonable hope of their agreement in a verdict, has vanished.</p> <p>When he has in such case dismissed the Jury, he has no authority to grant a new trial.</p>

On Certiorari to Orphans’ Court of Sussex county. STATE OE THE CASE. Bassett, the Intestate died in the year 1818.

<p>In Case.</p> <p>Submitted at May Term, 1838.</p>

<p>Matter of practice.</p>

<p>In Ejectment. Amendment.</p>

<p>It is a sound rule in pleading, not to be departed from even in the Court of small causes, that special damages such as the law does not imply from the facts stated, must be specially laid in the declaration.</p> <p>Newly discovered evidence may be admitted on the trial of an appeal (the proper affidavit in such case being filed) although it is not of such a character as would entitle a party to a new trial, but is merely cumulative.</p> <p>The Court of Appeals do not grant new trials. They proceed to try the cause over again upon its merits, as a matter of course ; and the witnesses sworn on the first trial, may be examined touching any matter material to the issue, although not examined before, at all on that point.</p>

<p>In debt on bond and warrant of attorney.</p>

<p>In an action on a bank check payable to C. D. or bearer, brought by a third person, it must in the pleadings be alleged, that the check was transferred to him and that he was the owner or bearer of it.</p> <p>On such check signed by one as agent, there must be proof of his agency and authority to draw checks, in order to recover against the principal.</p>

<p>In a suit and judgment against several defendants, when only one of them appears. the others may have a Gertiorari, but should upon its return, take a rule on him who appeared, to shew cause why they may.not prosecute the writ without him.</p>

On Certiorari. Practice. The counsel for the plaintiff moved for a rule on the Justice of the Peace to whom the Certiorari in this case had been directed, to return the Certiorari to the next term, or shew cause, &c.— This motion was grounded on an allegation, that the Justice had been called on for the return, and that he had neglected to deliver it.

<p>A female debtor cannot be proceeded against by writ of attachment, because she cannot be held to bail in a civil suit; females being exempt from imprisonment or arrest for debt, by the act of 14 February, 1818, Rev. L. 652, 653.</p> <p>The proceeding by attachment is altogether a statutory remedy, and ought not to be extended by construction.</p>

<p>Action of assumpsit for money liad and received to plaintiff’s use, will not lie against a person to whom a reward claimed by him, had been paid by mistake or misrepresentation, by a third person who ought to have paid it to the plaintiff.</p> <p>There must be some privity express or implied, existing between the parties, in relation to the money sought to be recovered in this action. It is express where the defendant has received the money as agent or bailiff for the plaintiff or agrees to apply money in his hands- belonging to another, to the payment of the plaintiff, at the owner’s request. But it can be implied only where the defendant has received money of or belonging to the plaintiff, by mistake or fraud or duress, or has come into the possession of it malafides, or on a consideration which has failed, or has tortiously converted the plaintiff’s property, into money. The money sought to be recovered in this action upon an implied promise, must either be identicalhj tlie money of the plaintiff of which the defendant has improperly possessed himself; or the proceeds'of some property or fund, or emoluments belonging to the plaintiff.</p>

<p>Certiorari to Bergen Common Pleas.</p> <p>THE CASE.</p> <p>William R. Taylor, the plaintiff in Certiorari, is a justice of the peace. In April, 1835, one Solomon Kip brought an action of debt before him against George Doremus, the defendant in Certiorari, and such proceedings were therein had, that on a subsequent day, judgment was given by the said justice against the said Doremus in that action, for fifty-nine dollars and eighty-five cents debt, besides costs. On that judgment, execution was afterwards issued by the said justice, under which, certain property of Doremus was levied upon and sold by a constable. On the 15th of September, 1835, Doremus instituted an action of trespass against the said Taylor, before another justice of the peace, for taking and carrying away the property which had been so levied upon and sold by the constable. Doremus in his state of demand in this action complained, that he appeared at the time and place mentioned in the summons issued against him by the said justice Taylor, at the suit of the said Solomon Kip, but that neither the said justice nor the said Kip, appeared to attend to or proceed in the said, cause; that thereby the suit became discontinued, and ought no farther to have been proceeded in ; but that nevertheless, the said justice Taylor afterwards, on another day, without any new process against him, Doremus, or any notice to him, and without having any jurisdiction over him, or over the subject matter in controversy, combining and confederating with the said Kip, to defraud and injure him, Doremus, and willfully, maliciously, and corruptly, gave a pretended judgment against him in favor of said Kip, for fifty-nine dollars and eighty-five cents of debt, with one dollar and ninety-three cents costs of suit; and that afterwards, well knowing that he had no authority nor jurisdiction in the premises, and that the said pretended judgment was fraudulent and void, the said justice Taylor issued the execution complained of, &c.</p> <p>On the trial of the cause, Doremus recovered a verdict and judgment against Taylor, for sixty-five dollars and forty-one cents damages, besides costs. From that judgment Taylor appealed, and the Court of Common Pleas nonsuited the plaintiff on- the ground that the plaintiff’s state of demand contained no cause of action. Doremus thereupon removed the proceedings by Certiorari to this court, and in September Term, 1837, the judgment of nonsuit was set aside, and the record remitted to the Court of Common Pleas, to be proceeded in according to law. Accordingly, in January Term, 1838, the cause was tried in the Court of Common Pleas, and the jury rendered a verdict for Doremus, for seventy dollars damages, upon which judgment was given for him with costs.</p> <p>To set aside this last judgment, is the object of this Certiorari.</p>

<p>It is error in a justice of the peace to give judgment against a Garnishee, in attachment, without first summoning him by process in the nature of scire facias to appear and shew cause why the plaintiff should not, for the amount due him, have execution against him, the garnishee.</p> <p>Although the statute does not prescribe or detail the mode of proceeding against a garnishee, yet the justice ought to proceed as near as may be, in the manner directed by the statute, in the superior courts.</p> <p>Judgment must first be given against the defendant in attachment.</p>

<p>Certiorari■ to a' Justice of the Peace.</p> <p>This was an action of trespass on the case. The state of demand filed by Garland the plaintiff below, is as follows, viz: “ that on the twenty-fourth day of, &e. at, &c. the defendant received of the plaintiff, one silver watch to repair, of the value of fourteen dollars, which said silver watch, the defendant neglects and refuses to deliver to the plaintiff, although frequently requested so to do, and therefore the plaintiff brings his suit.”</p>

On motion for Mandamus to Monmouth Pleas. In February Term last, the plaintiff obtained a rule in this court, on the Inferior Court of Common Pleas of the county of Monmouth, to shew cause why a Mandamus should not issue commanding that court to proceed to execution upon the judgment there rendered in favor of the plaintiff in this cause.

Practice. Costs. The plaintiff having been improperly non-suited at the Circuit, the non-suit was set aside and a new trial granted.

Practice. Costs. The plaintiff having been improperly non-suited at the Circuit, the non-suit was set aside and a new trial granted.

In Mjeetment for land in Gloucester, and verdict for plaintiff. On rule to shew cause why verdict should not be set aside and. new trial granted. This cause was submitted at May Term last, upon the following; state of the case, and the briefs of the counsel. CASE.

<p>On Indictment for uttering a forged bank note.</p>

In Ejectment for lands in Salem. STATE OF THE CASE. This case came on to be tried before the Chief Justice at the Salem Circuit, December term, 1837, when a verdict was rendered for the plaintiff under the direction of the court, subject to the decision of the Supreme Court, upon the following state of the case, viz: The premises in question consisting of a small dwelling house and about 5 acres of land, situate near Sandy Ridge, in the county of Salem, together with other…

<p>Certiorari to Monmouth Orphans’ Court.</p>

<p>An appeal properly demanded of a Justice of the Peace, on the first day of the term of Common Pleas, next after the rendering the judgment, is in time. So also, if the bond be left at the house of the Justice, on that day, in his absence, so that he do not receive it until his, return on the next day, it is his duty to send the appeal papers to the court, on the latter day.</p> <p>If in such case the Common Pleas dismiss the appeal, or refuse to order the Justice to return the papers, a mandamus will be issued by this court.</p>

<p>Ejectment for lands in Essex.</p>

<p>In case of Certiorari to remove the order and proceedings of the court of Quarter Sessions respecting paupers, that court is to return with the writ, a statement of facts, not of the evidence before theta on the hearing.</p> <p>A service under a written agreement between the child and the master alone, and without seals, is not such an apprenticeship by indenture, as the statute requires, in order to give a settlement to the servant or apprentice.</p>

<p>Certiorari to a Justice of the Peace.</p>

<p>Certiorari to a Justice of the Peace.</p> <p>A justice of the peace ought not to impose a fine upon a non-attending juror, without first giving him, personally, or in writing, a reasonable notice to appear and shew cause if any he have, why he should not be fined. „</p> <p>An execution for collecting such fine, should not authorize the taking the body for want of goods.</p> <p>A joint conviction of two or more defaulting jurors, is illegal, and should not be made part of the record in the civil suit in which they were summoned.</p>