Volume 18 — New Jersey Law Reports

<p>In Error to Gloucester Circuit.</p>

<p>An action of trespass quare clausum fregit, being local, must be laid in the county in which the locus in quo is situated at the time the trespass is alleged to have been committed.</p> <p>The creation of a new county, including the land trespassed upon, prior to bringing the suit, but after the trespass complained of, docs not warrant the charging in the complaint, the act to have been done in the new county.</p>

On Indictment. The defendant was indicted at the Oyer and Terminer in and for the county of Essex, for selling ardent spirits, in the city of Newark, by the small measure, without license, and contrary to the statutes &c. The defendant pleaded, guilty, subject to the opinion of the court, upon the question, whether, under the provisions of the Charter of the city of Newark, and the Ordinance of the Common Council of said city, made in pursuance thereof, the defendant is…

<p>An appellant has a right to subititute a new and sufficient appeal bond, after one or more insufficient substitutes have been rejected by the eourt of Appeals, provided no delay is occasioned thereby.</p>

In debt on recognizance of Special Bail. Motion to set aside Summons against defendant, without costs. The capias in the original action was served in the county of Sussex. The defendant entered into a recognizance of bail, with condition that the defendant in the original action, if condemned therein, should pay the costs and condemnation money, or render himself to the sheriff of the said county.

<p>The Charier of an incorporated Rail Road Company, provides for the payment to the State Treasurer, of ten cents for each passenger, and fifteen cents for each ton of merchandise, transported on the road; and declares, “ that no other tax or impost shall be levied or assessed upon the company : ” Held that the company is exempt from any tax, for state, county or township purposes.</p> <p>An assessment blending together the state, county and township taxes, is illegal.</p>

<p>After verdict for the plaintiff, and postea returned, the defendant obtained a rule for the plaintiff to show causewhy a new trial should not be granted. Before an argument of the rule could be had, the defendant died. In 3uch case, judgment if in favor of the plaintiff, may be entered nunc pro tunc, as of the term of return of the postea.</p>

<p>In Debt on Bond.</p> <p>This is an action on a bond given by the defendants to the Mayor Ac. of the city of Newark, in the penal sum of two thousand dollars, upon condition, “that if Samuel Davis, shall and do faithfully execute the duties of the office of Collector of the East Ward of the city of Newark, according to the laws in such case made and provided; then this obligation to be void: otherwise Ac.” The plaintiffs declare generally on the bond. The defendants plead, first, the general issue; and secondly, after craving Oyer and setting out the condition, they plead performance. To this second plea, the plaintiffs reply, assigning breaches as follows : First, that during the time that Davis was collector, he, as such collector, had received for and on account of the plaintiffs, large sums of money, to wit: seven thousand dollars ; yet that he hath not accounted for and paid the same to the said The Mayor, Ac.; but hath therein failed and made default ; and that the said sum. of money is still unpaid to the plaintiffs, contrary to the form and effect of the said bond Ac.</p> <p>The second breach assigned is, that said Davis, while such collector and as such, received large sums, to wi-t: seven thousand dollars, which were receivable according to law, by the said Davis, for taxes assessed and levied in the East Ward of the city of Newark; yet that the said Samuel Davis, although often requested Ac. had not accounted for and paid the same to the said The Mayor Ac. and concluding as before. To this replication the defendants demur generally.</p>

<p>The service of a writ of Certiorari, after its return day, is void, and the error cannot be cured by a rule of this court. The correct practice is to apply for an extension of its return while it is in esse as valid process; when the court to which it is directed, has no term at which it might be presented, intervening between its test and return.</p> <p>A writ is void if not executed before its return day.</p>

<p>Tn Ejectment for land in Burlington county.</p>

<p>In Case. Matter of Practice respecting Costs.</p>

<p>Certiorari, in matter of a ditch or drain.</p>

<p>The rule of this court which requires a. copy of every notice of argument with the date of the issue &c. to be filed with the clerk two days before the term, was made for the convenience of the clerk, and with which the adverse counsel have nothing to do if they have due notice of argument, and the cause occupies its proper place on the paper. The case of Earl v. Burr, 7 Halst. 321, as regards this matter, is overruled.</p> <p>If a party intend to dismiss a rule to show cause, for want of a state of the case, he must move for it, before the argument is thrice noticed. Jf he do not, a rule maybe taken on tlie adverse party to furnish a state of the case in thirty days, and in default thereof that the rule to show cause will be discharged with costs.</p>

<p>Commissioners appointed by judges of a court, to divide real estate, cannot be also authorized in the same commission, to subdivide a part of such real estate among the heirs of one of the original co-tenants.</p> <p>If any objection be made to a person nominated as commissioner, it must be heard and determined judicially by the appointing power, before appointing either the person objected to, or any substitute in his place.</p>

<p>It is not necessary that auditors appointed by the Orphans’ Court to re-stale the account of an executor or administrator should find or report that interest had actually been received by the accountant; it is sufficient if they are satisfied that he used or made profit of the funds; or that he put the money out at interest; and might or ought to have received it.</p> <p>Legacies in the following words, “I order five hundred dollars to be kept in gold and silver money for each of my children, to be paid and given to my four children at lawful age or married; ” “ their money cannot be lent nor used, but must be paid to each of them as they come to lawful age as above said, and kept for that purpose,” are not■speeifia legacies, unless the sums bequeathed are in specie separated and put in parcels, and each parcel identified and described, and given to a legatee.</p> <p>To make a legacy specific, the will must mark out some identical thing given, as a horse or other individual thing, or “stock standing,” or “money in a bag or drawer; ” or the like.</p> <p>If the money or amount of legacies as above bequeathed, be put to interest, such interest is not to be charged to the executor in his accounts with the several legatees, respectively; but in his general account, as part of the general assets, and belongs to the general fund.</p> <p>When an account is presented to the Orphans’ Court and the balance of the estate is struck, the commissions ought as a general rule to he deducted before interest is charged upon that balance against the accountant.</p> <p>Upon the mere amount of executors’ commissions, in the absence of fraud or mistake in fact or law, the Orphans’ Court are the sole judges.</p> <p>The rates of commissions as established in other states and countries.</p>

<p>The tax of, or stipulation to pay thirty thousand dollars to this state annually, by this company, is not merely a tax on its franchises; and not only those franchises, but all other property of said company, is exempted by its charter from any other tax.</p> <p>Where there is no obscurity in the meaning of a statute, obscuritj is never to be created by construction.</p> <p>An impost for county and township purposes, is a state tax; it can be imposed by no other authority.</p>

<p>Upon a verdict in favor of a plaintiff for an entire farm, a judgment for only a part of it claimed by him, cannot be rendered. But this may be done upon a ease stated and agreed upon by both parties, which impliedly authorizes the court to modify the verdict.</p> <p>An erroneous decree of the Orphans’ Court, must he considered valid until it is reversed.</p> <p>The Orphans’ Court is no special jurisdiction for a particular purpose, nor is it a court of limited jurisdiction in the common acceptation of the term — • which applies to courts having special powers only for performing special duties.</p> <p>The true distinction between courts is, such as possess a general, and such as have only a special jurisdiction for a particular purpose.</p> <p>A fraudulent deed may be invalidated in a court of law, if the fraud can be sufficiently proved.</p> <p>Executors, administrators, guardians or trustees, entrusted with the sale of real estate, can never sell it to themselves, either directly and openly, or secretly and covertly through another person employed for the purpose. Every such sale must be considered absolutely void in a court of common law, because it has not the power of converting the purchaser into an accountable trustee, which a court of equity may do, by confirming the sale and compelling the purchaser to give up all the profits he has made by it.</p>

<p>Certiorari to Middlesex Pleas.</p>

<p>Ejectment for lands in Hunterdon. Motion for new trial.</p>

<p>It is not necessary in a declaration, to aver that the plaintiffs are a corporation. A rational construction is to be given to pleading when it is susceptible of it; and we are not to resort to any other, where it is equally rational and more consistent with theintent and object which the party had in view.</p> <p>A bill of privilege need not allege that the defendant is personally present in court. All practising attorneys are presumed to be present in court.</p> <p>It is not necessary to aver that which the law presumes.</p>

<p>On a case certified from the Sussex Circuit, on Certiorari.</p>

<p>Motion for Mandamus to restore an Appeal.</p>

<p>On. Demurrer to Declaration.</p>

<p>The plaintiff in ejectment, upon his writ of possession must point out to the officer, the premises to which he has established his title; and takes possession at his peril. If he takes more than belongs to him, either out of the bands of the defendant, or of a third person, this court will in a summary way restore the party to that possession of which he has been so . improperly deprived: and for like reason has the power to correct the execution of a writ of restitution.</p>

<p>A discharge as an insolvent debtor, in one county, of a person who, under- arrests, had given bond in that and also in another county, conditioned to apply for such discharge; adjudged to be a release by act of law, from the performance of the condition of the bond, in the other county.</p>

In Case. This case was submitted at September term last, without argument, upon the following statement agreed upon at the last June Circuit of Mercer county. STATE OF THE CASE.

<p>Certiorari to Burlington Pleas.</p>

<p>A suit by attachment against an absent or absconding debtor, after service of the writ by a sheriff, cannot be settled by the parties, out of court. It can be discontinued only by application in open court after return of the writ.</p> <p>The intent of the statute is to bind by a summary proceeding, rm, the debtor’s estate for the equal benefit of all his creditors. As soon as the writ is served, the property is in the custody of the law; and the service operates as a lien in behalf, not only of the plaintiff, but of every other creditor who presents his claim before there is a legal discontinuance.</p>

<p>In Debt, on Bond. On special demurrer to bill of privilege.</p>

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

In Case.* This cause came before the court on a motion to set aside the verdict, and enter judgment for the defendant, on points reserved by the Chief Justice on the trial at the Circuit; and was argued by

In Case. Assumpsit on a promissory note. This cause came before the court, upon a case certified by the Circuit Court of the county of Essex, pursuant to the 6th sect, of the act, to facilitate the administration of justice, Elm. Dig. 543: and is as follows: The plaintiff having proved the note mentioned in his declaration, and read the same in evidence to the jury, rested his cause.

<p>The Clerk is not hound to enter any rule ordered by the Court, unless the Attorney requests him to do so, and furnishes him with a draft of the rule, or a sufficient memorandum to enable him to enter it.</p> <p>But if the Clerk upon request of the party, undertakes to enter a rule, and neglects to do so, such neglect ought not to be visited on the party ; but the Court when applied to should direct the rule to be entered nunc pro tunc.</p>

<p>An application for a road, or for altering or -vacating a road, and the notices required to be put up by the statute, must designate “the points or places, from, and to which the road is to be laid out, vacated or altered.”</p> <p>“ To begin at a stake, in the middle of the road, called the River bank road, in the line of lands of S. and B.” when in fact no stake was standing any where in the middle of that road: is not such a designation, as the statute requires. It is too indefinite.</p> <p>Affidavits cannot be read on the argument of a Certiorari, to prove the utility or public necessity of the road:</p> <p>Nor to prove that individuals knew the intended points or places of beginning and ending, when the same are uncertain and indefinite in the petition and notices.</p> <p>It constitutes no objection to the court’s entertaining a Certiorari, and setting aside the return of a road for error, that the road has been opened, worked upon and used by the public, if the prosecutor has not slept over his rights.</p> <p>Whether the laying out of two or more roads; or the opening of one road, and vacating another, can be applied for in one application, or be embraced in one order appointing Surveyors; and whether, if such double applications and appointments can be made, the returns of the Surveyors ought not to be separate and distinct. Quere ?</p>

In Debt. This was an action of debt for six thousand dollars. The declaration contained several counts. The first count, is upon a decree of the Vice Chancellor of the first Circuit of the State of New York, in a cause wherein Louisa Mulock was complainant and William Mulock defendant, whereby it was ordered and adjudica! ed, that the said William Mulock should “ forthwith ” pay to the complainant or her solicitor in that cause, fifty dollars.

<p>In the absence of any rule of court requiring a party on appeal, to make bis election to have a trial by jui'y, at an earlier period, it is time enough for him to do it when the appeal is ordered on, and the adverse party is about to open the cause.</p>

<p>Certiorari to Common Pleas of Cape May. Matter of Insolvency.</p>

<p>In Case, on Demurrer to Pleas.</p>

<p>Error to Quarter Sessions of Somerset, on indictment for forcible entry and detainer.</p>

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

<p>In Error to Common Pleas of Monmouth.</p>

<p>In attachment. Certiorari to Monmouth Pleas.</p>

<p>1. In an action upon a promissory note indorsed to the plaintiff after maturity, hona fide and for a valuable consideration, it is no defence for the defendant, and therefore not competent for him to prove the simple fact, that the indorser at the time of making the indorsement, was indebted to the defendant.</p> <p>2. Promissory notes and bills of exchange, continue to be negotiable, after they have come to maturity.</p> <p>3. But an indorsee of such notes, or bills, takes them subject to all equities that exist between the original parties, and liable to every legal defence, which the defendant might have set up, in an action against him by the payee of the note or bill,, or by any holder thereof, in whose hands they were at any time after maturity. But,</p> <p>4. A mere right of set-off, under the statute to enable mutual dealers to discount, is not such an equity as attaches to the note, and follows it into the hands of an indorsee, after maturity.</p> <p>5. There must be some agreement, express or implied, between the holder of a note overdue, and the maker, that the demands of the latter shall be set-off or be considered as payment pro tanto, in order to enable the defendant to set up such demands or payments in an action against him, by the indorsee of such note. And then,</p> <p>6. It cannot be done by pleading payment to the plaintiff and giving a notice of set-off under the statute; but such payments, in whole or in part, may be given in evidence under the general issue.</p> <p>7. The relation of mutual dealers does not exist between an indorsee after maturity and the maker of a note, because there were mutual dealings between the latter and the indorser of such note; and therefore he cannot plead payment with notice of set-off in such an action.</p>

<p>1. If the plaintiff has paid a bill for stone delivered to him by the defendant, under an agreement, that if upon a subsequent measurement of the stone, the plaintiff shall be found to have overpaid, the excess shall be refunded ; the plaintiff after such re-measurement, may recover back the money overpaid, in assumpsit, for money had and received.</p> <p>2. The court of Common Pleas, on an appeal, cannot give judgment or award ' an execution for any sum over one hundred dollars, besides costs. If they give judgment for one hundred dollars debt, they cannot in addition to that, assess damages for the detention of the debt, and issue execution for both sums. _</p>

Motion to set aside judgment &c. Judgment was entered up against the defendants, Silvers and Brittin, on the 16th December, 1836, by confession on a warrant of attorney.

<p>To a declaration in trespass for breaking and entering a meeting house erected for the purpose of religious -worship, belonging to and in the possession of the plaintiffs; and breaking to pieces the doors, windows, locks, bolts and hinges of said house, &c. against the peace &a.: it is pleaded, that . defendants as members of the religious society for whose worship said house was used, peaceably entered said house for the purpose of religious worship, as they lawfully might for the cause aforesaid, doing no unnecessary damage, which are the supposed trespasses &c.: Held that such plea, inasmuch as it does not allege that the defendants were members of said society ; and does not deny the acts charged as trespasses; nor set forth any cause in justification of them; is bad on general demurrer.</p> <p>Entering the plaintiffs’ house by breaking locks, doors, windows and bolts, is not a peaceable entry, but a trespass on its face, nor can such breaking of locks,- doors and windows, be considered no unnecessary damage, unless the plea show something to excuse and render them lawful and necessary.</p> <p>If acts injurious and unlawful in themselves are to be justified, all the facts which render them justifiable, must be set out in the plea.</p>

<p>It is competent for a plaintiff to prove that a name, written under a note, or tl e left hand margin of it, where a subscribing witness usually writes his name, was not written by a subscribing witness; that it had been put Hiere there a,fun' the note was made, or by mistake, or by an unauthorised person, or that it was the name and hand writing of the maker of the note.</p>

<p>In Covenant. On general demurrer to declaration.</p>

<p>In Debt, Motion to strike out a plea.</p>

<p>Motion for Mandamus.</p>

<p>In Trespass, on demurrer to plea.</p>

<p>1. A plea which, ought to conclude to the country, but which concludes with a verification, will be stricken out on motion.</p> <p>2. In debt on Bond, a plea stating generally, as in the case of Shotwell’s Bxers. v. Dennis et al., 2 Oreen, 501, that the Bond was given upon an usurious and corrupt agreement, without setting out wherein the usury consisted, will be struck out on motion. The case in 2 Oreen 501, reviewed.</p> <p>3. A suit pending in Chancery, upon a Mortgage for a foreclosure, is no bar to an action at law on the Bond accompanying the Mortgage. Such a plea will be stricken out.</p>

<p>If an Insolvent debtor, in his petition, or upon the exhibit made by him on the hearing, puts down a creditor without naming the sum due him, but sets it down, as unknown to him, or in dispute, it is no ground for dismissing his application.</p>

<p>In Case. Demurrer.</p>

<p>1. If a plaintiff files an account, running back for more than six years, he cannot take that part of the account which is of more than six years standing, out of the operation of the statute of limitations, by giving the defendant a credit not claimed by him.</p> <p>2. A defendant by filing an account, by way of set-off or cross demand, commencing within six years, does not thereby waive the statute of limitations, as to so much of the plaintiff’s account as is of more than six years standing.</p> <p>3. Proof that there had been mutual dealings between the parties, more than six years ago, does not avoid the statute, or make it necessary for the defendant to prove a settlement or payment. The statute, until a new promise is established, stands in the place of such proof, and protects the defendant.</p>

<p>Certiorari to Common Pleas of Mercer county.</p>

<p>1. If upon the application of a caveator, freeholders have been regularly appointed to review a road; and if owing to a mistake of the Clerk in making out the order and certificates of appointment, their return has been set aside, and the appointment thus rendered abortive; the court should not order the return of the Surveyors to be recorded, but should make a new appointment of Freeholders.</p> <p>2. An application for a road, to commence “near to” a designated point, and to terminate “ at or near ” to another designated point, is sufficiently certain.</p> <p>3. If a Surveyor has taken and subscribed the oath of office before a Justice, and filed the same in due time, but the J ustice has failed to certify when it was takenj as the law requires; it is fai.al to the return, and such omission cannot be cured, by a supplemental certificate of the Justice.</p>

<p>In Case. On rule to show cause why a new trial should not be granted.</p>

<p>It is not necessary that an affidavit made as a foundation for a writ of attachment, should set forth the cause of action ; it is prima facie sufficient if it state, that the defendant is indebted to the plaintiff in a certain sum of money, and is not, to his knowledge or belief, resident in this State at the time of making the affidavit.</p> <p>If a reasonable doubt be established, whether the debt has yet become due and payable, or whether it be of a bailable nature, the plaintiff may be required to show all facts necessary to invest the court with a special jurisdiction to proceed by attachment.</p>

<p>After Surveyors have been appointed and have laid out and returned a road, the court of Common Pleas, cannot set aside the return and appointment, upon the ground, that the Court had made the appointment of Surveyors, without proof, or without suflieient proof, that the notices for the application had been subscribed by persons who were freeholders and residents in the county. The Court having done so, a Mandamus was ordered.</p>

<p>Arbitrators awarded, that defendant- should pay a eertain sum to- B. in sixty-days from the date of the award: that the defendant should also pay to B. a certain sum annually thereafter during the life of B. and should give her satisfactory security for such annuity; and that thereupon each party should release to the other all demands touching the matters submitted previous to the date of the award. Held that B. could not maintain an action on the award, without averring and proving,that she had tendered to the defendant, such a release, upon his giving the security required by the award; and his refusal to do so.</p>

<p>In an action for a forcible entry and detainer, tbe statute requires tbe Justice to enter upon his docket, his reason for rejecting evidence offered, or admitting evidence objected to ; and his omission to do so, will be fatal on Certiorari.</p>

<p>In Replevin, the Court will not rule the plaintiff to carry down the cause for trial, or be non-prossed. The reasons given.</p>

<p>1. If the Judge admits evidence of what an alleged agent did in the matter in question, before any evidence had been given that he was the agent of the party for whom he acted; yet if afterwards in the progress of the cause, it was sufficiently proved, that he was a duly constituted agent for the purpose, the court will not grant a rule to show cause why the verdict should not be set aside, merely, because the Judge committed such an error.</p> <p>2. If the Judge errs in ruling, that certain evidence is admissible, and a bill of exceptions is thereupon prayed and sealed: but no evidence is after-wards given in consequence of such decision, the bill of exceptions ought to be given up.</p> <p>3. The doings and sayings of an agent so far as they are a part of the res gesta, may be proved by third persons, notwithstanding the agent himself is a competent witness for either party.</p> <p>4. If the variance between a particular and the evidence offered under it, is such as would naturally mislead the party, the evidence ought to be rejected : otherwise the party objecting ought to satisfy the court by affidavit, that he had been misled by the particular.</p> <p>5. Notes and checks payable to order, and taken up by the drawer, are not evidences of money due to him from the person to whom they had been given, unless accompanied with proof showing on what account they had been given.</p> <p>6. The drawer’s check book with entries in the margin, is not evidence of the account or consideration for which such checks have been given.</p>

<p>In Debt. On Judgment by Confession.</p>

<p>The Court will not grant a rule to show cause why the verdict should not be set aside &o. simply, because the defendant was not in attendance with his witnesses, by reason of his attorney having told him, he would be in time if he was in court the second day of the term. Especially, if his affidavit does not disclose facts which he expected to prove by his witnesses, which if true, would have constituted a clear and absolute bar to the plaintiff’s recovery.</p>

<p>Motion for Mandamus.</p>

<p>1. In an Indictment for selling Ardent Spirits, without license, it is not necessary to aver, that the liquor sold, was not compounded and intended to be used as a medicine.</p> <p>2. Such an averment is only necessary, in an indictment on the second elanse of the fifth section of the statute of March 1, 1838, Elm. Dig. 24&, for selling a composition of which, wine, or rum, or other ardent spirits, is the chief ingredient.</p> <p>3. An Indictment under the third clause of said section, for selling “ mixed liquors ” by a less quantity than five gallons, must show, that the mixture is composed of some intoxicating liquors.</p> <p>4. The word “all” in the sixth section of the statute, must be restricted to mean, all indictments for selling wine, or some other of the simple and unmixed liquors, named in the statute.</p> <p>5. An Indictment concluding “ contrary to the statutes,” where there is but one statute on the subject, will not be bad on that account.</p>

<p>Í. In an action upon a promissory note, brought by the payee against the drawer, it is competent for the defendant to prove, by parol testimony, that at the time of giving the note, it was agreed that the drawer should pay more than legal interest.</p> <p>2. The payment and receipt of usurious interest, is prima facie evidence of an usurious contract. _</p>

<p>1. To say to a witness, whilst giving his testimony, in a Court for the trial of Small Causes, “ I believe you swear false.” “ It is false what you say,” is actionable.</p> <p>2. To say of and eoneerning a witness, whilst he is giving his testimony in like manner, “ It is false.” “ That is false.” “I believe it is false,” is actionable.</p>

<p>1. The death of the principal after forfeiture of his recognizance, cannot be pleaded to a scire facias. The remedy is by petition to the court for relief.</p> <p>2. This court may, by virtue of the incidental powers appertaining to its constitution and jurisdiction, grant relief to bail, on petition, when not restrained by public justice, where the default of the principal was occasioned by sickness or death.</p> <p>3. Whether such relief can be granted in this court by virtue of the ordinance of 1751 — quere ?</p>

<p>Certiorari to Somerset Pleas. On claims filed by a creditor under what is termed the assignment act for the benefit of creditors. 0</p>

<p>In Replevin. Rule to show cause why the verdict should not be set aside, &c.</p>

<p>1. In an action on a bond, by an assignee thereof, a plea simply averring that the obligee had made a previous assignment of the bond to another person, is bad on general demurrer. The plea should go further and show, that such previous assignee was the owner of the bond when the action was commenced.</p> <p>2. Quere? As to the utility .of such a plea; since under the general issue ; or under a plea denying the assignment set out in the declaration, the plaintiff must prove his title to the bond as stated by him.</p> <p>3. If the object of the plea was to let in the defendant to proof of payments made by him to such former assignee, the defendant should have gone on and pleaded payment to him, while the bond was in his hands, and before notice of re-assignment.</p>

<p>1. An attachment for not complying with a consent rule in Ejectment, will be ordered, notwithstanding the defendant has been discharged from imprisonment, as an insolvent debtor, since he entered into the consent rule.</p> <p>2. Whether when the defendant is brought in upon the attachment, and swears to his inability to pay the costs, he will be discharged. Quere ?</p>

<p>1. The aet to regulate fences, Elm,. Dig. 192, extends only to owners of adjoining closes.</p> <p>2. Owners of land are not bound to erect statute fences, along the highways running through their lands, to protect themselves against trespasses committed by cattle suffered to run at large, and to pasture upon the public roads.</p> <p>3. The case of Ooze v. Bobbins, 4 Halst. 384, noticed and approved.</p>

In Error. In the year 1829, a judgment was entered in the Monmouth Common Pleas, in favor of Eleanor Ware the defendant in Error, against Brewer, the plaintiff in Error, on a bond and a special warrant of attorney to confess judgment thereon.

Matter of Road. On a rule to show cause why the Certiorari should not be quashed, as improvidently allowed, &c. Reading for the defendant in Certiorari, moved to make the rule absolute.

<p>In Debt. On Demurrer to declaration.</p>

<p>In Covenant. On Special Demurrer to the Declaration.</p>

<p>1. Under the act relative to dower, Uev. Laws, 397, the widow is entitled to dower of all lands &c. whereof any person was seized, of an estate of inheritance, at any time during coverture, to the use of the husband, if in equity the husband was the real owner of the land, and had a right at any time, to have a conveyance to himself of the legal title and estate in possession.</p> <p>2. The children, born in this country, of an alien, who purchased while he was an alien enemy, before the 22d of January, 1817, and continued to hold after that period and after he became an alien friend, may inherit his estate by force of the second section of the act of that date concerning aliens: and,</p> <p>Consequently his widow may, have dower.</p>

<p>A mere parol partition, between tenants in common, followed by a several corresponding possession for five or six years only, is not binding and conclusive at law, upon the original tenants and those claiming under them.</p> <p>The statute of frauds requires a deed or writing to make a valid partition.</p>

<p>Certiorari in matter of road.</p>

Iii Ejectment on demurrer to rejoinder to replication to a plea puis darrein continuance> ! 1.

<p>1. An action on the case for overflowing the plaintiff’s land, to the permanent injury of the soil and freehold, is not cognizable before a justice of the peace.</p> <p>2. In such action, the plaintiff must necessarily show title to the land, in order to maintain the action.</p> <p>3. And, consequently, the plaintiff is entitled to full costs, though he recovers not more than five dollars damages.</p> <p>4. The rule laid down in Gregory v. Hemouse, 6 Holst. 62, and in Van Twyle v. Marsh, 2 South, 507, sustained.</p>

<p>The applicant for the benefit ®f the insolvent laws of this state, may prove by his own oath, that he has been arrested, and given the bond required by the statute in such case made.</p>

<p>Affidavit by plaintiff, in order to obtain an appeal from the judgment of a justice of the peace, upon the verdict of a jury, “ that he has a just and legal cause of action, upon the merits of the case,” is a sufficient compliance with the requisition of the statute.</p>

<p>1. A state of demand is sufficient in the following form: “That on, &c., at, &c., in consideration that the said plaintiff, at the request of the defendant, would deliver to the defendant certain goods, (describing them,) of the value of ninety-nine dollars, to be sold by the defendant for the account of said plaintiff;” and for reasonable reward, he, the defendant, undertook to “endeavor to seil the same, and render a just account of the moneys arising therefrom, and pay to the plaintiff' the proceeds when requested. That he did deliver said goods to the defendant, who did sell them on and for account of the plaintiff, for a large sum of money, to wit, one hundred and thirty-five dollars; and although the said plaintiff has requested the said defendant to pay to him the proceeds of said sale, he has refused to do so. Wherefore, &c.”</p> <p>2. In an action of debt before a justice, the entry of judgment for the plaintiff for a' specified sum, omitting the word “debt,” is valid ; or it might be amended at any time, by adding that word.</p>

<p>In Debt, on a Constable’s bond.</p>

In Covenant. Demurrer to Pleas. STATE OF THE CASE. The declaration is founded upon an award of arbitrators, and contains three counts.

<p>On rule to show cause why verdict should not be set aside, on the ground of misbehavior of jury, the affidavits of jurors, in their own exculpation, are admissible in evidence.</p>

In debt.- — Demurrer, STATE OE THE CASE. The declaration is in the usual form, upon a bond purporting to be signed by the defendant, dated October 1st, 1836, in the penal sum of $13,588, to' be paid to J. W. Condiet, J. J. Plume and J. P. Pennington, their administrators or assigns.

<p>In Case on Policy of Insurance. Rule to show cause, &c.</p>

<p>Motion for Mandamus, &c.</p>

<p>1. The land or soil, under the navigable waters of East New Jersey, passed to the Duke of York, by the charters granted to him by his brother, Charles the Second, of England, in 1664 and 1674, as one of the royalties incident to the powers of Government, and were held by him in the same manner, and for the same purposes that the navigable waters of England, and the soils under them, are held by the Crown.</p> <p>2. All the interest of the Duke of York, in East New-Jersey, including the royalties and powers of Government, were conveyed to the Proprietors of East New-Jersey, as fully and amply, and in the same condition as they were granted to him, and they had the same dominion and property in the navigable waters and soil under them, and in the rights of fishery, that had belonged to him under the original charter, and were held by them as a prerogative right, and incident to the regal authority ■ and were by the said Proprietors, in 1702, surrendered to Anne, Queen of England, and her heirs and successors.</p> <p>The surrender, according to its evident object and meaning, restored to the Crown, in the same plight and condition, whatever the Duke of York held as a royal prerogative right, with the political power to which it was incident.</p> <p>3. When the people of New-Jersey took possession of the reins of government, and took into their own hands the powers of sovereignty, the prerogatives and jura regalia, which before belonged to either the Crown or the Parliament, became immediately and rightfully vested in the state.</p> <p>4. The decision of the Supreme Court of New-Jersey in Arnold v. Mundy, 1 Halst, 1, ought to be regarded as conclusive on the question of proprietary rights to the soil under navigable waters, and the fisheries thereon.</p> <p>5. The right of fishery, as well for shell fish as floating fish, on or over the soil under the navigable waters in East New-Jersey, is in the state, as an incident of sovereignty.</p>