Volume 19 — New Jersey Law Reports

This was an action of debt on a bond, and was brought into this court, by a writ of error to the court of Common Pleas of the county of Somerset, returnable here sometime previous to the term of February, 1836. At that term it came on to be argued, and in the May term following, the judgment of the Common Pleas was reversed by the unanimous opinion of this court. 3 Green’s R. 289, 301.

<p>In Case. Matter of Practice.</p> <p>1. After argument of a general demurrer to several special pleas in bar and judgment for the plaintiff on that demurrer, overruling the special pleas, the plaintiff was permitted to amend his declaration by adding a new count, stating another injury done him by means of the same wrongful act complained of-in the declaration.</p> <p>2. Amendments are now entirely in the sound discretion of the court, and will be allowed wherever the advancement of justice requires it.</p> <p>3. Each case must depend upon its own particular circumstances.</p>

<p>In Debt on Bond with a special condition. Matter of Practice.</p> <p>The plaintiff Laving declared, setting out the special condition of a bond, and assigning a breach thereon, and the defendant having pleaded several pleas in bar; the plaintiff, on payment of costs, was permitted to amend by striking out the recital of the condition and the assigment of a breach, so as to make the declaration general, as on a money bond.</p> <p>The amendment allowed without prejudice to the question, if any, whether such declaration will be sufficient.</p>

<p>In Assumpsit. Eule to show cause why the verdict which had been rendered for the plaintiff, should not be set aside &c.</p> <p>1. If a plaintiff lias, at the defendant’s request, discharged a sum of money or debt due from the defendant to any other person, by applying his own money, goods, chattels, securities or lands to such discharge, he may recover the amount so paid or satisfied, in an action of general indebitatus assumpsit, for money paid &c.</p> <p>2. But the plaintiff cannot upon such a count, recover more money than he actually paid, whether the payment was made in money or in any thing else.</p> <p>3. If a plaintiff has expended money for the defendant, under a special agreement, in a particular way or for a specific object, to be repaid at a given day, he may after he has performed his part of the contract and after the expiration of the time, recover the money so expended, in an action for money paid: but he cannot, m such action, recover any advance or premium on his outlays, or any compensation for his risk or trouble, although by the terms of the special agreement, the defendant was to make him such allowances. If the plaintiff goes for such additional compensation, he must declare upon and prove his special agreement. If the plaintiff at the defendant’s request, has taken up and paid off, certain outstanding written evidence of debts due from the defendant to other persons, not of a negotiable nature, the mere production in court at the trial, of such writings, is not sufficient evidence that he has paid off and satisfied such debts, nor that he had done so before the action was brought.</p> <p>4. The mere production of such writings, will not support an action for money paid &c. _</p>

<p>In Case for Seduction. On Rule to show cause.</p> <p>In cases of tort, the court will not set aside a verdict because it is against the weight of evidence, unless it manifests partiality, prejudice or intemperance in the minds of the jury. Bor will a verdict be set aside because the jury have formed a judgment upon the evidence, different from the court.</p>

<p>In Case. Certiorari to Common Pleas of Esses. Matter of Apprenticeship.</p> <p>1 In an action founded on a statute, giving a new remedy, where none existed at the common law, the declaration ought to show whence the plaintiff derives his cause of action.</p> <p>2. In such action, the declaration ought to set forth specially the facts and circumstances, the existence of which are necessary to entitle the plaintiff to the action given by the statute; unless the statute itself prescribes the form of a declaration, or deela2'es what shall be deemed a sufficient one.</p> <p>8. 'Whether such particularity, in a state of demand, in such an action in the court for the trial of small causes, is necessary: Quere?</p> <p>4, Whether in an action on the ninth section of the act respecting apprentices &c. Elm. Dig. 13, an averment, “ that the defendant had been bound an apprentice to the plaintiff, according to the provisions of the statute,” would not be sufficient: Quere ?</p> <p>5. An indenture binding an apprentice to two or more masters, is void, as against the apprentice.</p>

This was au action of trespass on the case for an Escape. After issue joined, and the cause had been noticed for trial, the defendant died. '

<p>Certiorari to Orphans’ Court of Somerset county.</p> <p>By the tenth section of the act to ascertain the power and authority of the Ordinary &e. Elm Dig. 361, the Orphans’ Court, cannot authorize one Executor or Administrator to sue another for refusing or neglecting to account: but only for refusing or neglecting to give security, when ordered so to do pursuant to the provisions of that act.</p>

<p>In Debt on Rond. Question of Costs.</p> <p>If Executors plead the general issue and also plene administravit and plene ad» ministravit preter &c. the plaintiff will be entitled to costs, upon a judgmen' of assets quando acciderint, if the general issue is found in his favor.</p>

<p>In Error to the Circuit Court of Passaic.</p> <p>1. Bent cannot be apportioned between the personal representative and the heir.</p> <p>2. If the lessor dies, the accruing rent, which becomes payable, at a day subsequent to his death, must be sued for by the heir or devisee; and not by the administrator.</p> <p>3. A state of demand, in an action of covenant upon a lease, by the administrator of the lessor, setting forth, that the defendant became assignee of the lease, on the 19lh May, 1827, and occupied from that day until the lessor died, on the 23d February, 1835 : and that there was due the intestate, at the time of his death the sum of forty dollars for rent; without slating when it became due and payable; or for what year or quarter the rent was due, is too uncertain.</p>

State of the Case. Van Houten sued Allen in a court for the trial of small causes, in covenant: and set forth in his state of demand, that E. V. H. his deceased ancestor, on the 1st March, 1824, executed a lease of certain premises, for twenty years, to one I. W. C. for the yearly rent of twenty dollars.

State of the Case. On the trial of this cause at the Middlesex Circuit, a verdict was taken for the plaintiff, with leave to move to set it aside aud enter a nonsuit; upon the following state of the case, which was certified into this court, for its opinion. In the month of July, 1837, the ship Phebe, arrived at Perth Amboy, having on board between two hundred and three hundred passengers.

<p>In Case.</p> <p>1. The indorsee of a promissory note, payable on demand, must use due diligence : that is, he must demand payment of the maker, in a reasonable time, and in case of non payment, give notice as in other cases to the indorser.</p> <p>2. Whether parol evidence of a consent or agreement between the parties to such a note, that payment should not be demanded in a reasonable time, but that it should bo treated as a note payable in one or more years, would bo admissible: Quere ?</p> <p>3. A note payable on demand, with interest, indorsed by the defendant, for the accommodation of the maker, and by tlie maker, with the consent of the indorser, given to the plaintiff as security for money borrowed, must nevertheless be treated as other negotiable paper.</p> <p>4. Aliter, where the indorser takes an assignment of all the estate of the maker, or lias received effects into his hands, to satisfy the debt; in such case, no demand or notice is necessary.</p>

<p> Certiorari. </p> <p>1. The statute, Elm. Dig. 283, sec. 37, and the supplement thereto passed 23d November, 1821, Elm. Dig. 291, mean no more than, that on the trial of the appeal, the parties shall be confined to the same evidence: in the general sense of the term “ evidence: ” that is, they shall not be at liberty to make a new issue; or to introduce any deed,-note or instrument of writing; nor any witness or witnesses, except such as had been examined or offered, on the trial below; unless on the ground of its being newly discovered evidence.</p> <p>2. If a competent witness has been examined, or has been offered, and improperly rejected in the court below; his deposition duly taken under the statute, may be read in evidence on the trial of the appeal, if he has died, or removed out of the state, or is infirm and unable to attend in person.</p> <p>3. So, if the deposition of an absent or sick witness, has been duly received in evidence, or offered, and improperly rejected in the court below, the witness may be examined in person, on the trial of the appeal.</p> <p>4. Whether what a witness testified on the trial below, may be proved on the trial of the appeal, in case of the death of the witness : Quere ?</p> <p>•5. It is not necessary, that the justice should “ enter’’ or record on his docket, the written or documentary evidence, offered or admitted on the trial before him: and if on the trial of the appeal any question arises, whether such papers had been admitted or offered in evidence below, it may be determined by the certificate of the justice, or the oath of witnesses: and that whether such witnesses had been sworn or offered on the trial below or not.</p> <p>■6. The Court of Common Pleas, may receive evidence under commissions, and by depositions taken de bene esse, under the statute, as well in matters of appeal, as in causes originating in that court.</p>

<p>Certiorari to Common Pleas of Mercer.</p> <p>1. If in an action of debt, the court below render judgment for the plaintiff, for a sum certain, without saying whether it is for debt or damages, it will be intended to be a judgment in debt.</p> <p>2. If the court of Common Pleas, on an appeal give judgment for the plaintiff, for a sum certain, of debt or damages, “ with costs to be taxed: ” or for costs, leaving a blank space to be filled up with the amount: it will be a good judgment for the debt or damages, and the plaintiff can have execution for that only. The whole judgment will not be reversed on that account. Sed quere ?</p> <p>3. If the court below, overrule the whole of the testimony of a witness, when a part of that testimony was competent, the judgment will be reversed.</p>

<p>On argument of rule to show cause why verdict should not be set aside &c.</p> <p>1. The court will set aside a verdict, in a doubtful or contested case, if it appears that the prevailing party by himself, his retainers or agents, has been in private communication or held any conversation with one or more of the jurors, on the subject of the trial, during its progress.</p> <p>2. The court will not stop to inquire, whether a juror was influenced or not, by what was said to him. It is an inquiry of too delicate and difflcult a character to be made the base of judicial action in such a matter. It is enough that the party was in private intercourse with the juror on the subject of the trial.</p> <p>3. An affidavit made by one who had been a witness in the cause, swearing to further important facts, not stated by him on the trial, because his recollection did not then serve him, is only cumulative evidence, and not sufficient ground for granting a new trial.</p> <p>4. Upon a question of boundary, the acts and declarations of one under whom the party claims, is competent evidence, if such acts were done or declarations made while he was in possession as owner.</p> <p>5. Courts of law have concurrent jurisdiction with courts of equity in cases of fraud: and will not permit a plaintiff to recover in any case, where upon the same evidence of actual or constructive fraud, a court of equity would decree against him. 6. If he who has the legal title, by his acts and conversations, induces another to purchase the promises under another title, and stands by and sees him take a deed and pay his money for it, it is a fraud per se.</p>

<p>Certiorari to Orphans’ Court of Bergen county.</p> <p>1. After a decree for sale has been executed, the Orphans’ Court have no power set aside the decree.</p> <p>2. An application to the Orphans’ Court to open an account, upon the ground of fraud or mistake, is not an application to the general and unlimited discretion of the court: and if supported by legal and sufficient evidence, is ex debit© justitise.</p> <p>3. The provision of the statute, that the account when settled and allowed by the Orphans’ Court, shall be final and conclusive, “ except when fraud or mistake can be shown t© the satisfaction of the court,” does not refer the matter to the mere discretion of the court; but is equivalent to a positive enactment, that the account shall not bo conclusive, if fraud or mistake can be shown, by legal and sufficient evidence.</p> <p>4. If the court discharges the rule to show cause why the account should not be opened and re-stated on the ground of fraud or mistake, and order the applicant to pay the costs, notwithstanding the fraud or mistake is apparent on the face of the account or is proved by legal evidence, it is error, and a Certiorari will lie.</p> <p>5. The court will not intend, that the Orphans’ Court refused to be satisfied with legal and sufficient evidence, but that they erred in considering the evidence not legal: or in deciding the matter not to be fraudulent or a mistake, which was so,</p> <p>S. The words, “to the satisfaction of the court,” used in the statute, mean the judicial satisfaction; and amount to no more than that it shall be legally proved, that there is fraud or mistake.</p> <p>7. A former administrator or his representatives may be called upon by a new administrator, by a notice, or upon a rule; to show cause why his account should not be opened for fraud or mistake.</p>

<p>In Case. Argument on a rule to show cause why the verdict should not he set aside &c.</p> <p>1. A verdict will be set aside, as a verdict against the weight of evidence, where only one witness swears to his belief of the hand writing of the defendant ; and nine witnesses, (one of whom was called by the plaintiff himself,) all of them as familiar with the defendants signature, and as well, or better qualified, from their course and habits of business, to judge, than that one witness was, swear to their disbelief of its being the defendant’s hand writing: unless there are circumstances in the case tending to sustain and corroborate the plaintiff’s witness, and the genuineness of the signature.</p> <p>2. If a defendant, being informed by the plaintiff, that he is the holder of certain promissory notes indorsed by the defendant, without having the notes shown to him ; at the request of the plaintiff, signs an agreement, reciting that he is such endorser and consenting that the plaintiff may give further time to the maker, upon receiving collateral security, without prejudice to the plaintiff’s rights against the defendant, as indorser; and that the defendant will still hold himself “ liable to pay the same, in the same manner, and to the same extent as he was then liablethe defendant will not be precluded from setting up on the trial o.f the cause, that the indorsements were forgeries.</p> <p>3. Notwithstanding such agreement, the verdict ought to be for the defendant, if the jury believe the name of the defendant has been forged: unless it appears that the defendant signed the agreement in bad faith, knowing of theforgery : or signed itnegligentlv; and has thereby misled the plaintiif and deprived him of an opportunity of otherwise securing himself.</p> <p>And whether even in such case the plaintiff can recover on the forged, indorsements, or must seek his remedy in an action on the case, for a deceit, or upon a special agreement. Quere?</p>

This cause was submitted to the court upon the record and the errors assigned, accompanied with a statement of the evidence below, in the nature of a bill of exceptions, without argument. The principal question is, the amount of interest with which the defendant should be charged upon the legacy given to the plaintiff’s intestate, by her father the defendant’s testator.

<p>On rule to show cause why certain moneys levied upon the execution in this case should not be returned to defendant.</p> <p>1. The rule of law is settled, that extending to the principal further time of payment, will discharge the surety, unless there be evidence of assent by the surety to such extension.</p> <p>2. The surety is not discharged if there be evidence of tacit assent on his part; But it is matter of defence, and generally speaking, can only avail the surety when set up as a bar to a recovery against him. Cases founded upon bail and replevin bonds and recognizances of bail, from their peculiar character, form an exception to the general rule.</p> <p>3. Courts will not interfere in a summary way and relieve the surety after judgment and execution against him, by ordering moneys collected under execution to be returned to him, on the ground, that the plaintiff has extended time of payment of execution against the principal.</p>

<p>On Certiorari to Mercer Pleas.</p> <p>1. In the action for trover &c. the plaintiff must prove property in himself, a right of possession at the time of the conversion ; a conversion by the defendant and the value of the chattel; and if these are set forth and averred intelligibly in his state of demand, it is sufficient.</p> <p>2. A sufficient state of demand in trover.</p>

<p>In debt for a legacy.</p> <p>1. Where the sum given is repeated in the same writing, the legatee can take only one of the sums bequeathed ; the latter sum is to be beld a substitution ; and they are not to be taken cumulatively, unless there be some evident intention, that they should be so considered. But the same sums payable at different times and upon different contingencies, are taken as accumulative or additional; so also where one sum is payable on a contingency, the other not.</p> <p>2. A bequest in the following words: “ I do give and bequeath unto my two grand daughters, Christina Jones and Deborah Jones, each four hundred dollars, to be paid to them by my Executors. If they are not of age at my decease, I order my executors to pay each of them, yearly and every year, the interest of four hundred dollars, until they arrive of age. I further order my executors to pay out of my estate to Christina Jones four hundred dollars, one year after my decease; and to pay Deborah Jones four hundred dollars, two years after my decease, in full of their legacies bequeathed to them.” Held that each legatee is entitled to eight hundred dollars.</p>

<p>In Debt, on Demurrer.</p> <p>1. In an action upon a bond, taken under the 10th sec. of the act constituting Courts for the trial of small causes, it is not necessary for the plaintiff to allege in the declaration, that he filed his complaint before the Justice, or that he appeared before the Justice to prosecute his complaint, at the time mentioned in the bond.</p> <p>2. It is sufficient to assign the breach, in words containing the sense and sub- ' stance of the contract..</p>

<p>In Trespass and Ejectment for lands in Salem.</p> <p>1. In determining the character and legal effect of an instrument, courts will ascertain, if they can, the intention of the parties, and give effect to that intention.</p> <p>2. Whether an instrument shall operate as a grant or deed of partition will depend upon the intention of the parties, apparent upon the face of the instrument.</p> <p>3. A party is not estopped by the recitals in a deed not executed by himself; nor, if executed by himself, is he estopped where the whole truth of the case appears in the recitals.</p>

This case came before the court on a writ of error to the Court of Common Pleas of the county of Monmouth.

<p>In Replevin.</p> <p>1. A general or special property in goods, with the actual or constructive possession, is sufficient to maintain either trespass or replevin.</p> <p>2. It is not necessary there should be a manual seizing of the property to constitute a tortious taking. An unlawful intermeddling with, or an exercise or claim of dominion over it, without authority or right, will render the party liable to trespass or replevin.</p> <p>3. Whether the action of replevin may be sustained for a wrongful detention, when the taking was not tortious: Quaere ?</p>

This case, involving the question of priority among certain executions, came before the court upon a certificate of the Circuit Court of the county of Cumberland.

<p>Certiorari to Quarter Sessions of Middlesex.</p> <p>1. A slave, who has not been manumitted according to law, cannot be considered a pauper subject to be removed by an order, so long as his master is able to provide for him.</p> <p>2. In an investigation to determine who is bound to support a pauper that has been a slave, a former owner is not a competent witness to prove that he had made to another an absolute sale of the negro, as a slave for life.</p> <p>3. A deed of manumission executed in favor of a negro who has since become a pauper, is not sufficient evidence to make a city or township liable for his support; proof must also be made that when the deed was executed he was the slave of the grantor, and the residence of the latter in the city or township sought to be charged.</p> <p>4. A deed of manumission although acknowledged and recorded is not valid unless executed in the presence of at least two witnesses.</p> <p>5. The overseers of the poor of a township, in whose favor an order is made, are bound to maintain it, and if it be once voluntarily and expressly abandoned, it cannot be afterwards enforced.</p>

This case came before this court for its advisory opinion, upon a certificate from the Circuit Court of Somerset county. The plaintiff with the testator of the defendants and two others, were co-securities for one Nevius, and as such, had executed with him a single bill to Gr. Wood, for four hundred dollars. Upon that bill, an action had been brought which proceeded to judgment and execution against them all.

This was a motion to quash or dismiss several bills of exceptions in this case, as having been improvidently sealed. The facts of the case, as disclosed by the affidavits read, appear in the opinion of this court, delivered by the Chief Justice.