Volume 2 — New Jersey Law Reports

<p>ON CERTIORARI.</p> <p>This certiorari was brought on a judgment obtained by the defendant in this court, who was plaintiff below, before David D. Crane, Esquire, of Essex county, against the plaintiffs in this court, who were sued below, as late overseers of the poor, of the township of Caldwell, for medicine furnished, and attendance given, [2] by the plaintiffs below, to three children of Mary Wright, paupers on the said township of Caldwell. The account filed with the justice, charged this to have been done by the direction of Joseph Tomkins, one of the defendants below.</p>

Ejectment for lands in the county of Burlington. Submitted without argument, on. the following state of the case : William Smith, about the first of November, one thousand seven hundred and ninety-three, died intestate, without issue, seized in fee of the premises hereinafter mentioned.

<p>Instruments of manumissions must be executed conformably to the act of 14th March, 1798. — Eev. 369.</p>

This was an action brought by the plaintiff, assignee of a bond, against the defendant, the assignor. The [*] bond was given by Daniel Vandel to Simon Van Ness, the defendant, and by him assigned to Henry Garretsie, the plaintiff.

This case was tried at the Middlesex June Circuit, in 1805, before the Chief Justice, and a verdict for the defendant. The Chief Justice reported to this court in substance as follows: That the lessors of the plaintiff, made out a title to the premises in the question, by descent from Isaac Snedeker, their grandfather, who it was admitted died seized.

<p>ON CERTIORARI.</p> <p>Costs of ca. sa., denied on writ of restitution, in certiorari2</p> <p>On motion, on the part of the defendant, to set aside a ca. sa. in this cause, the case was this: Eandolph and others, brought an action against Bayles, the defendant, before Justice Kelly, of Somerset; upon the trial, judgment was rendered for Bayles, the defendant. The plaintiffs, therefore, brought their certiorari, and the judgment of Justice Kelly was reversed in this court. Upon this reversal, the plaintiffs, Eandolph and others, sued out a ca. sa., to recover back the costs, which had been adjudged to the defendant by the justice ; and, also, to recover the costs of suing out the ca. sa., which is set down upon the execution, to be $7.65. The motion before the court was to set aside this ca. sa.</p>

OH OERTIORABI. Reversals, for demand exceeding one hundred dollars.1 There were several reasons assigned for the reversal of this-judgment. Those stated by the judges are sufficient to show the ground on which the judgment was reversed.

<p>CERTIORARI.</p> <p>Covenant lies not, on unsealed writing. Constable may not let prisoner to bail.1</p> <p>The state of this case will sufficiently appear1, from the observations of the judges.</p>

ON CEBTIOBABI. Defective service of summons, pleadable in abatement. Service must be five lull days before return. Form of return. Adjournment Thirteen reasons were assigned for the reversal of the judgment in this case. The first and fifth only, are taken notice of by the judges — and are as follows: 1st. The summons in this cause, was not served by the constable at least five days before the time of appearance mentioned therein.

<p>OK CERTIORARI.</p> <p>Judgment reversed, for being entered in. figures.</p> <p>The judgment in this case had been entered in figures, and not in words at length.</p>

OS CERTIORARI. Return of serving summons, by constable, to show legal service. A trial in this cause, had been had in the absence of the defendant, by default. Tlie return of the constable, [*] as appears by the record, was “ served the thirtieth day of January.”

<p>OH CEETIOBABI.</p> <p>Ex parte affidavit, without notice, illegally admitted in evidence. Action lies not against father of bastard, for its support, and boarding and nursing the mother, without order of affiliation.</p> <p>The state of demand, in this case, was as follows:</p> <p>Thomas Layton,</p> <p> </p> <p>In November, 1805,. Abigail Cooper made an affidavit before James Frost, Esquire, a justice of the peace, that on the 16th day of November, 1803, she was delivered of a bastard child; and that Thomas Layton is the father of the said child. This affidavit was admitted to be read in evidence at the trial below, to prove that the defendant below was the father of the child, in order to make out the second item in the state of demand. It did not appear that the defendant below was present at the taking of the affidavit, or had any notice of it.</p>

OH CERTIORARI. State of demand on a note, omitting the date, good. Six reasons were assigned for the reversal of this judgment. [*] The only one the court considered of any importance, was the 4th. Because the state of the plaintiff’s demand doth not contain sufficient certainty. The state of the demand, was as follows: Cornelius Vandervere, Dr. To William Ogburn, Jun. Feb. 6. 1805. To a note which I hold against him, $53 50 Feb. 6 Cr. By 20 bushels of corn, 20 00 $33 50

<p>ON CERTIORARI.</p> <p>Judgment confessed by prisoner, must be in presence of an attorney. '</p>

OÍT OEBTIOBAKI. Payment to be pleaded, to let in a set-off.2 The only reason assigned for the reversal of this judgment that had any weight with the court, was the 4th. Because the justice allowed the defendant to prove matters of set-off’ without the plea of payment, as the act requires.

<p>ON CEETIORAEI.</p> <p>That party said “his witness knew nothing,” no evidence. Tavern keeper may charge his creditor, over $2.</p>

ON CERTIORARI. Defect in summons, demand, and venire, fatal. The summons had no seal; the action below was an action of trespass, and the justice entered it in his docket, on the case.

<p>CERTIORARI.</p> <p>The following transcript was returned :</p> <p> </p>

<p>ON OBBTIOBABI.</p> <p>Judgment in figures, error.1 On sai. fa. to award execution only.2</p>

<p>03? CERTIORARI.</p> <p>Partners must sue in their Christian names,1</p>

ON CERTIORARI'. Suit for township money expended for poor, must be in its corporate name, not in name of overseers of poor.1 This action was brought by the defendants below, for twenty-five dollars, so much money laid out, expended, and paid by the plaintiffs to the use of the defendant, and at his special instance and request; and founded on an implied promise to refund to the plaintiffs, as overseers of the poor, a sum of money which they contended, that they had laid out…

ON CERTIORARI. Judgment against constable for neglect on execution, reversed, if the original judgment be reversed 1 The action below, was against Waldron, the plaintiff here, for neglect of duty as constable, on an execution being put into his hands in favor of the plaintiff below, who is the defendant in this court. After judgment was obtained against the constable, the judgment on which the execution was issued was reversed.

OH CERTIORARI Insufficient state of demand Judgment in figures. This was an action on the case brought by the plaintiff' below against the plaintiff in certiorari. [*] The state of the demand is as follows: The plaintiff below recovered $32.85 with costs; this was entered in figures. °

<p>OH CERTIORARI.</p> <p>Action in justices court, on implied contract for money, to be debt.</p> <p>This was an action on the case, brought by the plaintiff below, against the defendant below, for money overpaid him for executions in his hands, the defendant below having been a constable. The ground relied on for the reversal of this judgment was, that it ought to have been an action of debt, under the additional supplement of March, 1804, to the act constituting courts for the trial of small causes.</p>

OS' OERTIOEAEI. Administrators of deceased partner, not to be sued with survivors. Return on summons “served on defendant,” error2 In debt. This iras a proceeding, in the absence of the defendants below, one of whom was dead, and his administrator sued jointly with himself. Judgment for ninety-five dollars debt with costs. The constable returned the summons “ served on the defendant.”

<p>ON CERTIORARI.</p> <p>Judgment in figures, reversed,</p>

OS CERTIORARI. Suit, for trespass, by sons of defendant, illegal. This was an action on the case. The state of the demand, filed with the justice below, is as follows : Cost entered in figures.

CERTIORARI. Vague demand, and no evidence. This was an action for debt; the state of demand as follows : [[Image here]] Annexed to the above state of demand, was a note given by Jonathan Doan to John Snyder, Esquire, and by John Snyder indorsed in blank, no subscribing witness to the note, nor does it appear that any witness was sworn or examined at the trial; judgment for tire plaintiff below, (the defendants in certiorari), for $4.87, with cost of suit.

OST CERTIORARI. Action in case, and demand for detinue, sustained. This was an action on the case. The state of demand as follows:

<p>ON OEBTIOKAEI.</p> <p>The record sent up by the justice, is in the following words and figures:</p> <p>Gloucester County, ss :</p> <p> </p> <p>Execution was issued January 5th, 1806, against the defendant, $40, amount of note and interest.</p> <p>Francis Hover applied for the execution,</p>

<p>ON OEBTIOBABI.</p> <p>The record sent up by the justice, is as follows:</p> <p> </p>

<p>ON OEBTIOBABI.</p> <p>Reversal of judgment on judgment note, without confession or proof.</p> <p>The record sent up by the justice is as follows:</p> <p> </p>

<p>ON CERTIORARI.</p> <p>Return .on summons “ lawfully served,” is insufficient.</p>

<p>ON OEBTIOBABI.</p> <p>Action lies not for bringing, and failing in a suit.</p> <p>This was an action on the case, brought by the plaintiff below, against the plaintiff in certiorari. The state of the demand as follows:</p> <p> </p>

OH CERTIORARI. Re-delivery of a note by assignee to assignor. This case is sufficiently stated in the opinion delivered by the chief justice.

<p>OS CERTIORARI.</p> <p>Error in venire, cured by verdict and judgment</p> <p>Ten reasons were assigned for the reversal of this judgment. The controversy turned upon the sixth, which is as follows:</p> <p>Because the venire does not command the constable to summon “ twelve men, being citizens of the State, above the age of twenty-one, and under the age of sixty-five,” as required by the act of Assembly.</p>

<p>ON CERTIORARI.</p> <p>Reversal, no state of demand filed.</p>

<p>03T CEBTIOEAEI.</p> <p>Reversal, suit on parol promise to pay another's debt.</p> <p>This case is sufficiently stated in the opinion of the chief justice.</p>

<p>ON CERTIORARI.</p> <p>Judgment in figures, reversed.</p>

<p>ON CEETIOEABI.</p> <p>Affirmance, state of demand sufficient.</p> <p>The controversy turned upon the sufficiency of the state of demand, delivered by the plaintiff below, to the justice, which, though not plainly written, was as follows:</p> <p> </p>

OH CERTIORARI. Reversal, a charge of merchandise per bill, insufficient. The error relied on for the reversal of this judgment, was a defect in the copy of account rendered to the justice; which instead of giving the account at large, particularly setting out the items, was abridged in the following manner: [[Image here]]

<p>OEBTIOBABI.</p> <p>Reversal, on entry of judgment upon report of referees, without record or proof of reference.</p> <p>The matters in controversy between the parties, had been submitted to reference on an agreement, that the agreement to submit, should be made rule of any court of record having cognizance of the sum reported. The referees reported: First, that the defendant have peaceable and quiet possession of the wood and timber, on a certain piece of land. Second, they reported in favor of the defendant the sum of $32.28. This report of referees was taken to the justice, who, without any [*] proof of the agreement to submit, made the following entry in his docket: — February the 27th, 1806, after examining the above report, I gave judgment in favor of the defendant, for thirty-two dollars and twenty-eight cents debt, and twelve dollars and ninety-three cents costs.</p> <p>It was contended by Mr. I. II. Williamson, on the part of Burroughs, the plaintiff in this court: 1st, that a submission to arbitration and reference, out of court, [76] could not be made a rule of a court for the trial of small causes; and 2d, that in case the court should be of opinion that it could, yet that the statute had not been complied with, in proving by affidavit, the agreement to make the submission a rule of court.</p>

OK CERTIORARI. Reversal, for rejecting proof of set-off. It appeared by the transcript of the justice, that the defendant below, who is the plaintiff in this court, filed his plea of payment with a demand to be set-off, and this in due time; but that when he came to give evidence in support of his plea on the trial, which was on the return day of the summons, the justice refused to permit him to do it, oil the ground that the plea filed, was a plea that had been used on a…

OH CERTIORARI. Reversal, judgment in defendant’s absence, without proof. Judgment was obtained below, for $51.83 and costs of suit, in the absence of the defendant, by default.

OH CERTIORARI. Reversal, judgment in defendant’s absence, without proof.

OH CERTIORARI. Reversal in forcible entry. Complaint not setting out the “ estate ” of plaintiff1 Costs in figures. On a judgment in a forcible entry and detainer. Several reasons were assigned for the reversal of this judgment ; the following were principally relied on: [79J 2d. That the estate of the plaintiff, in the land on which the entry was said to be made, was not specified in the complaint on which the action was founded.

OH CERTIORARI. Costs denied in Supreme Court, on judgment on $50 in action on the ease, brought by habeas corpus for loss of service by assault and battery.

ON CERTIORARI. Decree of Orphans’ Court, in favor of an executor against his co-executor, in a controversy between the heirs and executors, is no ground for an action on it as a judgment, in a suit between executors.

<p>OX CERTIORARI.</p> <p>Eecital of corporate name in the writ and bond, must agree in language, or by averment and proof.</p> <p>This action was brought by the plaintiffs, inhabitants as abovesaid, against Forrest, a constable,^and his sureties on a bond given by them to the town. The defendants prayed oyer of the bond and condition, and demurred; the points in controversy will fully appear in the opinion of the judges.</p>

<p>Constable’s bond must conform to the statute.</p> <p>The plaintiffs declared against the defendants, in debt on bond, in the usual form; the defendants prayed oyer of the bond and condition; by which it appeared that, John Giles, one of the defendants, ivas duly elected at the annual town meeting, a constable. The condition was to this effect: if, therefore, the said John Giles shall in all things touching his said office, conduct himself well and faithfully, as a constable ought by the laws of this State, and the United States, to do, and pay forward all moneys according to law, that may come into his hands by virtue of his said office, and all other moneys that he may be accountable for, as constable, and that without fraud and other delay, then, &c. The defendants then aver that they went before the township committee to give the security required by the act of Assembly: that the bond and condition aforesaid were required and taken by the said township committee, by eolor and under pretense of the act of Assembly, and plead this special matter in bar, and allege the bond is void; to which the plaintiffs demur, joinder in demurrer and issue.</p>

OX CEBTIOEAEI. Insufficient demand. Joint action lies not, for injury to one. The state of demand exhibited to the justice below, was as follows: Joseph Denman demands of Isaac Winans forty dollars, damages for converting to the use of said Isaac, a bond of him the said Joseph. After a trial by jury, and verdict, a judgment was rendered for the plaintiff below, for $25.

<p>ON CEBTIOBABI.</p> <p>This certiorari removed an order from sessions, affirming an order of two justices of the county of Monmouth, removing Robert Plowell and Mary his wife, from Stafford to Northampton. The state of the case brought up the following facts, in substance: That Robert Howell, the pauper, was aged seventy-six years, was born on the east end of Long Island, and about three years before the end of the last French war, he went to the township of Great Eggharbor, in Gloucester county, and remained there one year; and then went to Little Eggharbor, in Burlington and remained there about two years; from thence he went to Speedwell, in the town of Northampton, in said Burlington county, in [*] which township of Northampton he remained, residing at different places in the same, until after the American revolutionary war; during which time he paid a poor tax assessed on him for one year; from Northampton he removed to Cook’s mill, from thence to Cedar Bridge, and from thence to Stafford township, from whence he was removed. That while he resided in New Jersey;he never executed any town office, never purchased or held any freehold estate, nor at the time of his coming into the county of Burlington, did he give any notice in writing, to any overseer of the poor of any city, town corporate, township or precinct, of the house or place where he did live or abide, or of the number of his family, or any notice whatsoever, to any overseer of the poor, concerning his coming into the said county, within ten days after his coming in, or within any other term of time.</p> <p>The controversy turned upon the question of notice. Mr. Griffith, on the part of Northampton, contended, that the pauper could not obtain a settlement in Northampton, by paying a poor tax, unless he had given notice to the overseers of the poor, agreeably to the provision of the act of Assembly of 1758.</p> <p>Mr. Hunter, for Stafford, on the contrary contended, first, that notice was not necessary; second, that if notice was necessary, that a payment of a poor tax was notice; third, that the court would presume notice, and that the former adjudications of this court, had been in conformity to the doctrine he had contended for. This cause was argued in September Term; when the court took time to consider it; and in this term, Pennington, Justice, delivered the following [93] opinion, in which the Ch.ief Justice, and RosSELL, Justice, concurred.</p>

OH CERTIORARI. Notice to Overseers of Poor, necessary for a settlement in a township. An order was made by Luther Opdycke and William Potts, Esquires, two of the justices of the peace for the county of Hunterdon, removing Ruth White and George her son, from the township of Kingwood, to the township of Hopewell. Hopewell appealed to the sessions, who affirmed the order, subject to the opinion of this court, on a case stated.

<p>This was a dower cause, tried at the Salem Circuit, before Rossell, Justice. There were two issues tried, to wit, marriage and seisin. The jury found a verdict for the defendant, but neglected to assess damages.</p>

OH CEBTIORABI. Justice cannot issue venire until appearance of defendant. The reason assigned for reversing the judgment below, was that the justice, on the motion of the plaintiff, issued a venire for a jury, before the defendant appeared, and this fact being supported by the record:—

OX CERTIORARI. Justice cannot adjourn beyond fifteen days from the return of summons. The reason relied on for reversing the judgment below, was, that the justice adjourned the cause beyond fifteen days from the return of the summons, on the motion of the plaintiff below, the defendant in this court.

<p>OH CERTIORARI.</p> <p>Overseers of the poor cannot maintain action in their own names, for township moneys.</p> <p>It appeared by the transcript of the justice, that this was an action brought by the overseers of the poor, to recover the value of necessaries which they had furnished a negro man, who had become chargeable to the township, who, they contended, belonged to the plaintiff in this court, who was the defendant. The necessaries had been furnished, by the order of two justices. Various objections were taken to the proceedings of the justice.</p>

<p>OH CEBTIOBABI.</p> <p> </p> <p>May 17, 1806.</p>

<p>OH CEBTIOBABI.</p> <p>Action on simple contract, for the payment of money, to be debt.</p> <p>This action below was an action on the case. The state of demand was for a simple contract, to wit: board, nursing, clothing, &c., of the child of the defendant below. The act of Assembly, directing that actions arising on simple contract, shall be brought as action of debt and not otherwise, was relied on for the reversal of the judgment below.</p>

OK CERTIORARI. Reversal. Demand uncertain. Damages for not paying debt punctually, not allowed. It was contended, on the part of the plaintiff in this court, who was the defendant below, that the state of demand was uncertain, illegal, and wanted substance. 'The state of demand, is as follows:

<p>OS CERTIORARI.</p> <p>Demand filed, but not sent up, rule must be taken on justice to send it up.</p> <p>In this case, the justice, although he had stated, that the plaintiff had put in his plea and demand, yet he had not sent it up with the proceedings; an idea had been entertained, that the court would reverse the judgment of the justice for this default.</p>

<p>ON CERTIORARI.</p> <p>Reversal, no demand filed.</p>

<p>ON CERTIORARI.</p> <p>Reversal, written plea requisite, with set-off only. No style of action.</p>

<p>ON CERTIORARI.</p> <p>Report of two referees on reference to three, error. The referees must appear by papers, to have been sworn.</p> <p>From the record of the justice, it appeared that the parties agreed to submit the matters in dispute between them, to three men, without the usual clause, that the report of any two of them should be binding, &c. Two of these referees only, signed the report; nor did it appear [f] that the third was present at the hearing; upon this report, judgment was entered.</p>

<p>ON CERTIORARI.</p> <p>Covenant to deliver boards, not assignable.</p> <p>It appears from the return of the justice in this cause, that the defendant, James Bell, had entered into a covenant under seal, to deliver a certain quantity of boards to one John R. Reading; that this covenant was afterwards assigned by Reading to the plaintiff, and that upon this covenant, the plaintiff instituted this action, which is an action of debt in his own name.</p>

<p>OX OEBTIOBABI.</p>

OH CERTIORARI. Affidavit for bail, must state cause of action, and be filed before writ issue. The defendant, a citizen of New York, was arrested on a napias ad respondendum, in June last, in the county of Middlesex, and in virtue of our act of Assembly, Pat. 348, held to bail on the following affidavit: A supplemental affidavit was made the 31st October, and also counter affidavits.

<p>A motion had obtained the sanction of this court, in May Term, 1805, that the sheriff of Cumberland, bring into this court, money alleged to be levied by him on an execution in this cause, in his hands against James Meeks. A motion was now made, that [*] the sheriff' pay the money over to the plaintiff. The case was this: On a fieri faeias issued in</p> <p>this cause, against James Meeks, the sheriff returned, that he had levied on the lands and goods of the defendant, on which a venditioni exponas issued, to which the sheriff returned, that he had sold the lands and goods, and paid over the money therefrom, to Abraham Sayre, the plaintiff in another execution issued against Meeks, which execution had been issued out of the Court of Common Pleas, in the county of Cumberland, and which was prior to [112] the execution in this cause. It appeared that the judgment in the Cumberland Pleas, on which the befoi’e mentioned execution had issued, was confessed before a judge at his chambers, in vacation, that is, on the 18th of August, 1803, as of the Term of June preceding. The judgment in this cause was not obtained till May Term, 1804, nearly a year after. It appeared, however, that the judgment in Cumberland, was intended to be entered up, under the act of the Legislature, passed the 20th of February, 1794, Pat. 454, which authorizes the appearance of the defendant, in open court, and on motion of the plaintiff or his attorney, confessing a judgment. This being done in vacation, it was contended, by Mr. White, on the part of the plaintiff in this court, that the statute not having been strictly pursued, the judgment was void, and so to be considered by this court. It was also contended, on the same side, that the judgment was fraudulently obtained, and therefore, void for that cause, and affidavits read in support of the fact.</p>

March 13, 1806. John Scott, Dr. to Abigail Eldridge, twenty dollars, for which sum, she agreed to assign away her right in a certain piece of cedar swamp, bought by said Scott.

<p>CEBTIOBAEI.</p> <p>Elias Champion, overseer of the road.</p>

<p>OH CERTIORARI.</p> <p>Party craving a venire, not to procure its service.</p> <p>In the progress of the cause below, the defendant had requested a jury; a venire had been issued, and the cause adjourned. On the next meeting, the cause was tried by the justice without a jury; the justice assigning as a reason, the defendant’s not having the venire served.</p>

on CERTIORARI. In set-off, items to be set out. This eeHiorari was brought by the plaintiff below. One of the reasons assigned for the reversal of the judgment of the justice was, because the justice permitted the defendants below to go into evidence of matter of fact, notwithstanding they had neglected to file a plea of payment and off-set.

<p>OF CERTIORARI.</p> <p>Reversal, demand not to be found.</p> <p>The only reasons assigned for the reversal of this judgment, that had any weight in the decision of the court, were,</p> <p>1. Because no copy of account, or state of demand, was . delivered to or filed with the justice.</p> <p>2. Because the copy of account, or state of demand, if any such there was, is entirely incompetent, illegal and insufficient.</p> <p>The justice, in the transcript of his docket, sent up on the return of the certiorari, had stated that the plaintiff below had filed the state of his demand, but it was not sent up; a rule had been made on the justice to send it up. To this rule the justice returned, that [*] there was no state of demand in his possession; and that, according to the best of his recollection and belief, a certain paper filed with him by the plaintiff below, as a state of demand, the contents of which he did not recollect, was delivered to the jury who tried the cause, and was not again returned to him.</p>

ON’ CERTIORARI. “ To amount of accounts unsettled, $100,” insufficient state of demand. The state of demand, filed before the justice, was as follows : It was objected against this state of demand, that it was too uncertain.

<p>ON CERTIORARI.</p> <p>Reversing original judgment, affects all those founded thereon.</p>

<p>03ST CERTIORARI.</p> <p>Verdict must be rendered by voice in open court.</p>

On plea admitting a sum due plaintiff, without a tender, judgment must be for plaintiff. The plaintiff in this court, was also plaintiff before the justice.

<p>ON CERTIORARI</p> <p>In qui tam actions, the demand must show who are entitled to the penalty.1</p> <p>This was an action brought by the defendant in this court, ■against the plaintiff, to recover a penalty of forty dollars for beating or driving on South river, in the county of Middle-sex, in order to molest or disturb [*] the natural run of shad or fish in said river, under the act of Assembly of the 22d February, 1804, entitled “An act to regulate the shad fishery in South river, in the county of Middlesex.”</p> <p>The reason assigned for the reversal of the judgment of the justice, was, that the action was brought and prosecuted in the name of the plaintiff only, whereas it ought to have been a qui tam action, as well for the informer as for the overseer of the poor of the township where the offense was committed, to whom, half the penalty was given for the use of the poor. It was contended on the part of the defendant in error, that as the act authorized the penalty to be sued for and recovered in the name of any person that should make complaint thereof, the qui tarn part was unnecessary; at least that the omission of it was not a fatal error, aiid that the judgment ought to be affirmed.</p>

The defendant in error, the Rev. David Barkley, brought an action for words in the Common Pleas of Somerset, against the plaintiff in error, Doctor Ambrose [*] Cook.

Execution against land must be recorded, before delivery to sheriff'. This was an action of debt, brought against the defendant in the Cumberland Common Pleas, and removed from thence, into this court by habeas corpus. The action was commenced for the recovery of certain moneys contended by the plaintiff to have been [*] levied and made by the defendant, as sheriff of Cumberland, on an execution delivered to him at the suit of the plaintiff, against John Mulford, Esquire.

This was an ejectment for a house and lot of land in the county of Burlington, tried before the Chief Justice, at the Burlington circuit, in May, 1806, when a verdict was found for the plaintiff. A rule had been obtained on the part of the defendant, for the plaintiff to show cause why the verdict should not be set aside, and a new trial had.

OH CERTIORARI. Credits to reduce the plaintiff’s account to one hundred dollars, must be specifically set out.

<p>ON OEBTIOBABI.</p> <p>Entering judgment by a justice on judgment note, without process and proof, illegal.2</p> <p>The following being a transcript of the justice’s docket, was returned with the certiorari:</p> <p> </p> <p>This was the whole of the record in the cause below.</p>

<p>ON CERTIORABI.</p> <p>Filing a promissory note, is not filing a state of demand.</p> <p>The plaintiff below, the defendant in error, filed before the justice, a note of hand, as the state of his demand, and fliis was assigned for error.</p>

Conger, the defendant in certiorari, was an overseer of the road, and had brought an action against Broadwell, the plaintiff in this court, for a penalty under the road act- for not working on the highway, and had judgment. Broad-well appealed to the common pleas, who confirmed the judgment of the justice, and now he removes the cause from the common pleas into this court.

This cause came on to trial at the Salem circuit, in June, 1806, before Rossell, Justice, when the jury found a special verdict, in substance, as follows: That on the 19th of April, 1758, Joseph Wright, called Joseph the first, was seized in fee of the premises in question, being a messuage, tenement and one acre of land; that on the same day, he made his last will and testament, and devised and bequeathed his estate in the following manner: — To Joseph Wright, his son, he…

The cause had been submitted to reference out of court, on an agreement that the submission be made a rule of this court. The referees reported a sum in favor of the plaintiff, but had said nothing as to costs. The question was, whether the plaintiff was entitled to costs.

<p>This was an action of dower, and issue taken on the death of the husband. The trial of this issue being by witnesses examined by the court, without the intervention of a jury, was of course at bar. On the trial it appeared that the husband of the demandant, Peter Wambaugh, left the country about seven years ago, last June or July, and there was no satisfactory evidence of his being alive since: but a vague report of the death of a man of his name, in the parts of Pennsylvania, where it was thought he went, had been circulated. The demandant, on this evidence, relied on the presumption raised by the act of Assembly, Pat. ®JpL, of death, in cases of persons absenting themselves from the State seven years, unless proof be made that they were alive within the time.</p>

This was a writ of error from the Common Pleas of Sussex. The plaintiff in error, who was the plaintiff below, declared agáinst the defendant below, on two bonds given by the defendant’s testator, to which the defendant had pleaded non est factwn, and gave notice to the plaintiff’s attorney to produce on the trial of the cause, the probate of the will of the plaintiff’s testator. [169] On the trial of [*] the cause, the execution of the bonds was admitted, when the defendant…

<p>The defendant in erroi’, brought an action against the plaintiff in error, in the Common Pleas, for words. The three first counts charged, that the plaintiff below, was examined as a witness, on a trial in a court for tire trial of small causes, in a cause wherein the defendant was a party; and that after the plaintiff had testified to a fact, the defendant maliciously intending &c., spoke, published, and proclaimed, &c., the following false and defamatory words, of and concerning the plaintiff, that is a lie, and I can prove it; varying the counts so as to meet the evidence. On the trial of this cause, before the Common Pleas, the plaintiff below, offered to give in evidence, that while she was under examination, as á witness in a court for the trial of small causes, held before Justice Abraham Woolley, (the [170] record of his proceedings having already been given in evidence,) and immediately after she had testified to a fact, the defendant declared' that what she had testified was a lie, and that he could prove it; on which the counsel for the defendant below, insisted that the evidence was illegal and inadmissible, and ought not to be given to the jury. The court overruled the objection, and admitted the evidence. The defendant excepted to'this opinion. The witness being sworn, proved, that the plaintiff below was produced, sworn, and examined as a witness on the part and behalf of the defendant; and, that in the course of her evidence, she testified to a particular fact; and that immediately on her testifying to that fact, and while she was under examination, the defendant said, “ that is a lie, and I can prove it; ” and a little while after, added — “ and I think I have proved it.”</p> <p>The fourth count, charged certain 'other slanderous words, no way connected with those charged in the three first counts. The plaintiff, as to this count, only proved, [*] that the defendant said, that he was told so by another person, naming him, the brother of the plaintiff. On this the- defendant moved the court to overrule the testimony, on the ground of variance between the words charged and those proved, but the Court of Common Pleas refused to overrule the testimony, on the ground, that although the words were not sufficient to support the fourth count, yet that they were proper to be given in evidence, by way of aggravation of damages, and to show malice under the three first counts in the declaration. To this opinion, the defendant also excepted, the whole appearing on the record.</p>

ON CERTIORARI. On a release of errors, made by one of the plaintiffs, judgment was, that the releasor be barred, and the other plaintiff prosecute alone.1 The defendant, Ellison, obtained a judgment on a forcible entry and detainer, against the plaintiff; to get rid of this judgment, the plaintiffs bring this certiorari.

<p>ON CERTIORARI.</p> <p>Three varying transcripts being returned, the first taken as true.</p>

OÍT CERTIORARI. A demand for trespass in action on the case, error.1 This was an action on the case, brought by the defendant in certiorari, against the defendant below, who is the plaintiff in this court.

OE CERTIORARI. In action for deceit, the fraud should be specified. Affidavits not legal evidence, without consent. This was an action for trespass on the ease, brought by the defendant in this court, against John Lummis, the plaintiff’ in certiorari. The following state of demand was filed with the justice: This was tried by a jury, who found for the plaintiff below, $60 damage, on which judgment was rendered.

ON OEKTIOBAKI. Action trespass, and verdict and judgment for debt, not error. Demand not filed on return day of summons, in consequence of the justice’s absence, and his own adjournment, and defendant afterwards adjourning the cause, no error.

<p>ON CERTIORARI.</p> <p>On suit on the swine act, the case must be proved within the act. The appraisement is only the evidence of damages, not the foundation of the suit.</p> <p>This was an action of debt, brought under the Swine act, Pat. 324, &r double damages, done by the swine of the plaintiff, in this court, who was the defendant below. The state of demand, was as follows:</p> <p>John Lindsley demands of Solomon Boyle, sixteen dollars for this, to wit: that whereas, Jedidiah Sturgis and Jesse Sexton, freeholders in the county of Morris, by their appraisement made in writing, and dated the fifth day of September, A. D. eighteen hundred and six, in the township of Morris, and within the jurisdiction of this court, appraised and assessed the damages which John Lindsley had sustained by the trespass of the swine or hogs of the said Solomon Boyle, to eight dollars, which said appraisement, is signed by the said Jedidiah Sturgis and Jesse Sexton, and to the court now here shown ; by virtue of which said appraisement, and also by force of the statute, in such cases made and provided, an action has accrued to the said John Lindsley, to have and demand of the said Solomon Boyle, the sum of $16 dollars, whereof he brings suit.</p> <p>The defendant pleaded, 1st. That he owed the plaintiff nothing. 2d. That he denied the existence of any appraisement.</p> <p>On the trial the defendant, by his counsel, objected [*] to the admission of the appraisement in evidence; and also moved for a nonsuit — both which the justice overruled. There was a verdict and judgment for the plaintiff, $16.</p>

OH CERTIORARI. The adjournment not to exceed fifteen days from the return of summons, without consent. The opinion of the Chief Justice so fully states the case that it supersedes the necessity of any observations of the reporter.

<p>ON CERTIORARI.</p> <p>In justices’ court, suit for use and occupation, must be in debt.</p>

<p>ON CERTIORARI.</p> <p>Set-off without pleading payment, illegal.</p>

<p>ON CERTIORARI.</p> <p>State of demand on the apprentice act, sufficient. Certiorari lies in such case.</p> <p>The action below, was founded on the following state of demand, and was brought on the 6th section of the act respecting apprentices and servants, Pat. 306, giving a penalty of thirty dollars against any person [188] who shall counsel, persuade, entice, aid or assist any clerk, apprentice or servant to run away, or absent himself or herself from the service of his or her master or mistress.</p> <p> </p> <p>On this there was a trial and verdict — and judgment for the plaintiff below. This writ was brought to reverse the judgment of the justice, on two grounds: 1st. The uncertainty of the state of demand. 2d. That [*] Phebe named in it, was a slave, and not a servant — and therefore, could not come within the act. There was, however, nothing in the record of the justice, to show that Phebe was a slave.</p>

<p>COT CEETIOEARI.</p> <p>Set-off in a different right, legalized by consent.</p>

<p>ON CEBTIOEABI TO CÜMBEBLAND PLEAS.</p> <p>Courts of common pleas, are to rehear a cause on appeal, not to sit as a court of error. A judgment of a justice and that of the pleas, on the appeal, being both irregular, were both reversed.</p> <p>The plaintiff in this court, brought a suit before a justice against the defendant, for a book account, against which the defendant had a set-off. This was tried by the justice, and thé plaintiff recovered $30.93, with costs. The defendant appealed to the common pleas of Cumberland. After some rules had been taken on the justice, to perfect his return, the common pleas gave the following judgment: “ The</p> <p>court having heard the counsel of the parties on this appeal, order that the judgment of the justice be reversed for irregularity, with costs,” &c. The plaintiff before the justice, who is the plaintiff in this court, brings a certiorari, by which the whole of the proceedings are brought up. Several reasons were assigned for the reversal of the common pleas. The third gave rise to the opinion of the court, and was as follows: The court reversed the judgment of the justice for irregularity, with costs, which they had not authority to do.</p>

<p>OIT CEETIOBABI.</p> <p>Adjournment over fifteen days without consent, error. Consent not inferred from appearance</p>

<p>ON CERTIORARI.</p> <p>Objection to venire without seal, too late after verdict.</p>

<p>ON CERTIORARI.</p> <p>State of demand need not be dated, Bigned, or marked “ filed.”</p>

This was a cause brought before the justice by the defendant in certiorari, against the plaintiff in certiorari. On the appearance of the parties, at the defendant’s request, the cause was adjourned for fourteen days; on this adjournment the parties again met, and agreed to submit the matter in controversy to reference; the referees to report at any time not exceeding fourteen days.

<p>ON CERTIORARI.</p> <p>Party’s confession as to possession, legal evidence in trespass.</p> <p>This was an action of trespass, brought by the defendant in this court, against the plaintiff here, for breaking and entering a certain room in the quiet and peaceable possession of her, the said Mary, and committing various acts of violence and injury therein, particularly set out in the state of demand. The defendant pleaded not guilty. On the trial of this cause, the defendant [196] below, offered to prove by a witness that the plaintiff below, had said that she was not in possession of [*] the property, but that the defendant was in possession. ' This testimony the justice rejected, and this was assigned for error. The plaintiff had a verdict and judgment thereon.</p>

ON CERTIORARI. On suit by overseers of the poor, the addition overseers, &c., may be rejected as surplusage. But the proof being for them as overseers, illegally admitted.

<p>OH OBETIOEABI.</p> <p>In suit on covenant made by a guardian, he must be named as a party.</p> <p>The state of the case, so far as it respects the point in controversy, is fully stated in the opinions of the judges.</p>

OH CERTIOEABr. 1st. That the action was an action of trespass, vi et armis, and the justice had entered in his docket trespass on the case. It appeared that both the summons and declaration, was trespass vi et armis.

<p>This cause had been noticed for trial at the last Middlesex circuit, held by the Chief Justice, and on its being called on in the paper, the defendant put off the cause [*] on the common affidavit, of the absence of a material witness.</p> <p>Mr. Leake, on the part of the plaintiff, now moved the court, that the defendant stand trial, at the Middlesex circuit, to be held in December next; or, in default, thereof, that in the Term of February following, his plea of not guilty be overruled, and judgment of default be rendered in favor of the plaintiff. In support of this motion, he endeavored to show that great and unreasonable delay had been caused by the defendant, that his conduct was vexatious, and that in this instance he had imposed on the court, and then commenced an argument to show the origin and progress of the practice of putting off trials on the ground of the absence of a witness.</p>

A widow rémaining on the homestead of her late husband, with their children, is entitled to the crops .until dower is legally assigned ; accountable to the children for their portion; and a sale of part of the crop, for a child’s debt, does not divest the widow of her right therein. This was an action of trover, brought by the plaintiff against the defendant for converting a crop of wheat and rye to his own use.

<p>ON CERTIORARI TO HUNTERDON SESSIONS.</p> <p>The birthplace of a legitimate child is prima facie his place of settlement, and so remains till another is found. A pauper to gain a new settlement, must give notice to the overseers.i</p> <p>Two justices had made an order for the removal of Thomas Aumock, his wife and children, from the township of Tewksbury, to the township of Readington, both in the county of Hunterdon. This order had been appealed from to the sessions of Hunterdon, and the order affirmed by the sessions. On this, the cause was removed by certiorari to this court, and a state of [210] the case came up from the sessions, stating in substance the following facts: That the pauper, Thomas Aumock, was born in Reading-ton, in the year 1753, and lived there with his father until he was two years of age, when ho removed with his father into Tewksbury, where he lived until he listed in the American army in 1776; that he served in the army until the peace in 1783, when he returned to his father, and lived with him a short time, but soon after married, and had gained no settlement for himself anywhere; that while living with his father, before he was of age, he served one Sandy, six months at a time, in two different years, at the milling business; that there was an article of agreement signed by the pauper, his father, and Sandy, but no seal to-it, and the pauper denied, on his examination, that he was ever bound an apprentice; that Sandy lived in Readington, but the pauper went on Sunday afternoons to his father’s in Tewksbury, and returned Monday mornings; that the pauper’s father, after his removal to Tewksbury, and while residing there, for several years rented a tenement of the yearly value of £15.</p>

This action was brought to recover the eighth part of a lot of land containing thirty-one acres, in the township of Kingwood, in the possession of the defendant. The cause was tried before his honor the Chief Justice, at the October Hunterdon Circuit, 1806.

<p>OS CERTIORARI.</p> <p>Lands purchased for the Brotherton Indians in this State, exempted from taxes, by the act authorizing the purchase, and afterwards sold by them, are subject to taxation.</p> <p>This writ was brought in order to quash an assessment of county and State taxes, made by the defendant, on certain lands, upwards of 3000 acres, lately held by certain commissioners or trustees, under a law of the late colony, for the use of a number of Indians, commonly called Brother-ton Indians. This land 'was purchased by the late colony, with' money belonging to the said Indians, due them from the colony, on a general purchase in 1758, of their claim to several tracts of land in different parts of the colony. The act of the colonial government in 1758, authorizing the purchase, placed the land under certain regulations, restrictions and exemptions. The seventh section of which, has the following clause: “ That the lands to be purchased for the Indians as aforesaid, shall not hereafter be subject to aivy tax, any law, usage or custom, to the contrary thereof, in anywise notwithstanding.” The land remained in the possession of this tribe of Indians until the year 1801, when they having an invitation to move into the State of New York, and j oin a tribe of Indians there, applied to the Legislature for [|] leave to sell the land; on which application, the Legislature passed a law, appointing commissioners to sell the land, and apply the ptirchase money to the use of the Indians. This being done, and the land being purchased by twenty-two different persons in divided parts, the assessor of the township, considering that by this sale, the exemption in the act of 1758, was done away, accordingly assessed for county and State charges, the land, the same as any other land of equal value, under the general law for raising money by tax; on which, the purchasers brought a certiorari, and removed the assessment to this court; when the court in September Term, 1804, three justices out of four then on the bench agreeing, quashed the assessment. In December, 1804, the Legislature passed a law, repealing the seventh section of the colonial act of 1758; after vdiich, the assessor of the township again assessed the proprietors of the land — on which the present writ was brought in the name of the State, by the proprietors of the land as prosecutors; and on the return thereof, they file the following reasons for quashing the assessment.</p> <p>1st. Because they allege that the said lands are derived to and held by the said prosecutors respectively, under an act or charter of the colony of Hew Jersey, [219] made by the Legislature thereof, on the 12th day of August, 1758, to which act or charter, and the evidence now here ready before the court, showing their right and title, derived as aforesaid, they do refer, prout the same; by all which it will appear, that the said lands so held by the said prosecutors respectively, were not liable to be assessed for taxes, &c., under the constitution and laws of the State of Hew Jersey.</p> <p>2d. Because the said assessor claims right to assess the taxes aforesaid, by force of the supposed repeal of the seventh section of the said act or charter of 1758, by an act or statute of the Legislature of the State of Hew Jersey, made the 1st day of December, 1804, entitled “An act respecting lands purchased for the Indians,” (prout the said act,) from thence inferring, that [*] the easement or exemption from taxes stipulated with the said Indians, and their successors, was rescinded and done away; whereas the said proprietors do allege, and plead, that the said act of December 1st, 1804, is ex post facto, and impairs the obligation of contract between the colony of New Jersey and the said Indians, and their alienees, the prosecutors deriving under them, as aforesaid; and the prosecutors do hereby question the validity of the said repealing act of December first, 1804, as repugnant to the constitution of the United States of America, and pray that the court here may adjudge the said act in law void, in respect to the lands of the prosecutors, by reason of the constitution and laws of the United States of America; and that the assessment may be quashed, the act of the State of New Jersey, last mentioned, notwithstanding. This cause was argued in September last.</p>

OjST CERTIORARI. Order of removal of pauper directed to overseer, instead of constable, amendable. Justices residing in a township whence pauper is removed, may order his removal. The order need not insert the pauper’s refusal to give security against becoming chargeable.

<p>ON OBRTIOHAIir.</p> <p>Proceedings void. Yerbal report of referees, no judgment.</p> <p>The following transcript of his docket was sent up by [*] the justice on the return of the writ, and constitutes the whole of the record below:—</p> <p> </p>

ON CEETIOBAEI. Proceedings void, execution without judgment, costs uncertain. It appeared by the return made to the writ by the justice, that no state of demand or copy of account, had been delivered to the justice; but that the parties instituted, [*] as the justice states it, an amicable suit in trover, and then referred the cause generally.

<p>OH CERTIOBABI.</p> <p>Judgment in defendant's absence, must be on evidence.</p> <p>This cause before the justice, had been adjourned to a particular day. On the day to which the cause had been adjourned, the justice made the following entry: Plaintiff appeared: judgment on default, for ninety-one dollars and sixty-eight cents debt, and seventy-three cents costs of suit-It did not appear by the record, that any witness had been examined. The reason assigned for reversing this judgment was, because the justice did not proceed in the absence of the defendant, to hear the cause; but rendered judgment for the plaintiff, to the amount of sum demanded, without any evidence whatever being proved or offered by the plaintiff,, in support of the same.</p>

OH CEBTIOBARI. A justice'is not bound to convey his return on a certiorari, to the court.

OH CERTIORARI. In case of unlawful detainer. Affirmance. — The facts to be tried are whether parties were landlord 'and tenants to each other, and whether the tenants held over after the lease expired. The estate of plaintiff must be set out, but his title not to be tried. This action was commenced by Nicholson, the plaintiff below, against the two Barnes, the plaintiffs in certiorari, tinder the 5th section of the act, concerning forcible entries and detainers.

<p>OH OBETIOEAEI.</p> <p>Action on parol award, must be in debt, under the statute.</p> <p>Jacobus brought the action on the case, before Justice Martin, against Riker, on the following state of demand:</p> <p>Isaac J. Biker to Ralph Jacobus — In damages.</p> <p>To damages done in his meadow, in the year 1804, and by agreement of both parties, Aaron Keirsted and Henry Van Ness, were to apprize the damages; and accordingly did award to Ralph Jacobus the sum of $25, for which suit is brought.</p> <p>This was tried by a jury, and verdict and judgment for the plaintiffj Jacobus. Several reasons were assigned for the reversal of the judgment of the justice.</p>

<p>ON CERTIOBABI.</p> <p>Defect in return of summons cured by defendant's appearance, and in return of venire, cured by verdict.</p> <p>The action below was brought by the defendant in certiorari, grounded on a book account. It was tried by a jury, and verdict and judgment for the plaintiff below.</p> <p>Mr. Halsey assigned for error—</p> <p>1st. That more costs were allowed by the justice than the law allowed.</p> <p>2d. Because the constable’s return to the summons was not made in conformity to law.</p> <p>3d. That the venire was defectively returned.</p> <p>4th. That the justice’s record was incomplete, and not in conformity to law.</p>

OJST OEKTIOBAKI. Davis was the defendant below, against whom a verdict and judgment was had for $60, on the following state of demand: Samuel C. Davis, to Robert Stewart, accountable for damages sustained in the following manner, viz.: Some time in the year 1803, the aforesaid Samuel C. Davis was charged by Elizabeth Hurst with being the father of a bastard child, which the said Elizabeth was then pregnant with ; and the said Samuel C. Davis, in [*] order to get clear of the…

<p>ON CERTIORARI.</p>

ON CERTIORARI. Damages resulting from plaintiff’s negligence, not cause of action.

<p>OH CERTIORARI.</p> <p>No coats allowed on discharge of apprentice by justice of the peace. Execution for costs of suit, set aside.</p>

ON CERTIORARI. Special certiorari not to issue without leave of court. Attorney may not issue suhpcena for witnesses in certiorari cases. A certiorari had issued in the ordinary course of certiorari to the justice of the peace or Quarter Sessions, to the Secretary of State, to send up the proceeding, had in laying out and return of the road, laid out under the act, to incorporate the Newark and Pompton Turnpike Company.

<p>OK CERTIORARI.</p> <p>In forcible entry, &c„ — “ I give judgment accordingly,” error.i Notice to quit necessary only when tenants hold over. Treble costs are thrice the amount of single costs.2</p> <p>Dod and his wife brought an action of forcible entry and detainer against Crane, before Justice Harrison, and obtained a verdict, on which the justice made the following entry: I give judgment accordingly. There was no previous notice to deliver possession given; the justice issued execution, and in which literally trebled the costs.</p>

<p>OÍT OEBTIOBABI.</p> <p>Defective return on summons cured by appearance and plea.1 Judgment for damage, in action of debt, no cause for reversal.2</p> <p>The first error complained of in the proceedings below was, that the return of the constable to the summons was defective. The fact appeared to .be so; but the defendant appeared on the return day of the summons, and^filed a plea. It was not contended, but that the appearance and plea would have cured the defect in the return; but it also appeared, that after the appearance and filing the plea, the defendant below moved the justice to nonsuit Jthe plaintiff for the ■defect in the return; and that the justice refused to nonsuit on that ground.</p>

ON CERTIORARI. For penalty under the swine act, the demand must state the facts as well as the appraisement.1 If defendant attend the trial, evidence will be presumed.i 2 This was an action brought for damages under the swine act, on the following state of demand: Amos Sharp, the plaintiff, comes into court and demands of John Jessop, the defendant, the sum of $2.28, and craves judgment for the same.

<p>ON CERTIORARI.</p> <p>Justice of the peace may try trespass guare clausum fregit, hut not on a. plea of title.3</p> <p>This cause came up on certiorari from a justice’s court. The only question for the decision of the court was, whether justices’ courts have jurisdiction of the action of trespass quare cla,usum fregit.</p>

The action in the Common Pleas was brought by Losey, as a late overseer of a district of road, against the inhabitants of the township, for work and labor, care and diligence of himself and servants, with their oxen, carts and carriages, done and performed in opening, clearing out, making, working, mending, repairing and keeping in good order a certain division of the highways in the said township, of which he was overseer.

<p>Sheriff’s sureties for one year, not liable for money by him raised in that year on execution of another year. Application for assessment on •sheriff’s bonds, limited to six years, against sureties. Per 0. J.</p>

OH CEBTIOEAEI. Affidavit that plaintiff owes defendant above $100, not to stay a suit before a justice. Demand, “to services of my son in your store,” good. Set-off must be filed before proved.

ON OBBTIOBABI. Set off must be with plea of payment, filed in due time. Judgment must be for the costs of the gaining party only, and not of both.

ON CERTIORARI. Demand for trespass in action on the case, error.2 This was an action on the case, brought by the- defendant in this court, against the plaintiff in certiorari.

<p>ON CERTIORARI.</p> <p>Suit for maintaining child lies not against his father’s administrators or executors.</p>

<p>OH CERTIORARI.</p> <p>Defective state of demand, not cured by trial tbereon. Its requisites.</p>

OS OERTIOEAEI. On plea of infancy, in suit on promissory note, court will not presume that proof was given below, that it was taken for necessaries. This action was brought by the defendant in this court, against the plaintiff in certiorari.

<p>ON CEBTIOBABI.</p> <p>Judgment for more than demand, error. In such case, interest not to be allowed. The original judgment being reversed, this judgment founded thereon, reversed also.1</p>

<p>OK CERTIORARI.</p> <p>In action of covenant, judgment for -debt, is valid. Omission of one of plaintiff’s name in venire should be objected to at the trial.</p>

ON CERTIORARI. Judgment on award of arbitrators upon submission out of court, and agreement that justice enter judgment thereon, reversed. The act regulating references, Rev. 158, not applicable to small cause courts. The parties out of court, no action depending, agreed in writing, to submit the matters in difference between them to referees, and that their report should be made a judgment of Eichard Johnson’s docket.

<p>OK CERTIORARI.</p> <p>Record should state days and years of issuing process. In trespass, for striking a horse, the special damage must be stated.</p> <p>This was an action of trespass, brought by the defendant in this court, against the plaintiff in certiorari. The state of demand charged the defendant below, that he unlawfully, forcibly, and with great violence, with a large stick, struck the horse of the plaintiff, on the public highway, which said horse was then before a carriage, in which the plaintiff was riding, on the said public highway, to the damage of the plaintiff, fifty dollars. This cause was tried by a jury, and verdict and judgment for the plaintiff, $15 damages. The justice had not entered in his docket the year that the summons was issued, but begins in this way: “March 21.” This omission was assigned for error; and also, among other matter, the following: — Because the suit was brought before the said justice to recover damages [276] for an assault and battery, when, by law, such an action cannot be supported before a justice of the peace.</p>

ON CERTIORARI. Attorney may not sue in her own name. The action below, was brought by the defendant in error, against the plaintiff, in her own name, styling herself the attorney of Edmund Hollinshead, executor to [*] the estate of James Hollinshead, deceased; [277] and the state of demand charged the defendant below, as indebted to the estate of James Hollinshead for the rent of land.

ON OERTIOHABI. A constable may not pay an, execution in his hands and sue defendant for it, unless on his request or promise to repay. This action was brought before the justice by Disbrey, a constable, to recover the balance due on an execution in his hands, against Woolley, which balance, the constable alleged, that he himself had paid to the person in whose favor it was.

ON CERTIOEAEI. When parties have all the same sir-names, it is needless to repeat them with the Christian names. Not filing demand in time, granting venire after requiring into merits, and adjourning more than fifteen days, cured by reference. Report of referees need not be copied into the docket. The Chambers’s were the plaintiffs below.

<p>OÍT CERTIORARI.</p> <p>The state of demand in this case, charges Despreaux, the defendant below, that on the 10th of Sept., 1806, he being indebted to the plaintiff in the sum of $28, in consideration thereof, undertook, and faithfully promised the plaintiff' to pay him the same sum of money when requested. The justice, after hearing evidence, gave judgment against the defendant for the $28. On the trial, a receipt from the defendant to one Murry, a constable, was offered in evidence by the plaintiff. The defendant objected to this receipt, but the justice admitted it. The plaintiff below, also offered in evidence, as the justice states it, “ a transcript of reversal of judgment, Daniel and John Hendrickson, survivors of Charles Dubois v. Jesse Potter, from the Supreme Court.” This was also objected to by the defendant; but admitted by the justice. It was now objected — first, that the state of demand was deficient in not stating the nature of the debt ; and second, that unlawful testimony was admitted by the justice.</p>

ON CERTIORARI. This was an action of debt, brought before the justice by Myres, against Seely, on the following state of demand: [*] The above note and money, I let the said Samuel G. Seely have in the spring of 1802. It was now contended that the state of demand does not contain sufficient legal certainty, and that an action of debt will not lie for a note of hand.

This was a motion to set aside the inquisition of the jury of inquiry, which had been had in the cause. There was some evidence that this suit was prosecuted at the instance of the board of chosen freeholders of the county of Hunterdon ; the board had actually paid money towards carrying on the suit. One objection raised against the inquisition, was, that the sheriff admitted Andrew' Reader, one of the members of the board, as a witness before the jury of inquiry.

Action lies not for taking oysters claimed by plaintiff, as planted by him in a common navigable stream, in which other oysters were found. An action of trover and conversion was brought by Leverson against Shepard and Layton, before Justice Tiebout, for taking and converting to their use, one thousand oysters, the property of Leverson, the plaintiff before the justice. In this action the justice rendered judgment in favor of Leverson, for three dollars.

This was an action of debt, brought on a judgment obtained by the plaintiff against the defendants, in the court of common pleas in and for the county of Philadelphia, in the state of Pennsylvania. The defendants pleaded nil debet; to which the plaintiff demurred, and the defendants joined in demurrer.

This was an action of covenant. The defendant, on the 1st of'February, 1797, conveyed to the plaintiff by deed, in fee siriiple, a tract of land in Middlesex county. In the deed of conveyance he covenanted, that he was the sole owner of the premises, and that he had in himself full right and absolute power and authority to grant, bargain and sell the same. The plaintiff in his declaration, assigned the breach in the words of the covenant.

The defendant returned that he was entitled to the services of negro Dick, as his slave, during life. On which return issue was joined; and under our act of Assembly, this issue was tried at this court.

Thomas Van Orden, on the trial of this cause, was examined as a witness for the State. [*e] The .counsel for the defendant, asked the witness if he had not been convicted of petit larceny and punished.

The lessor of the plaintiff, Aaron Clark, claimed the premises in question, under the will of his grandfather, Thomas Clark, dated in September, 1765.

The title was admitted to be in the father of the lessors of the plaintiff. The lessor derived title from his father. It appeared in evidence, that the father about fifteen years ago, put the defendant, who was his brother, into possession.