Volume 20 — New Jersey Law Reports

<p>1. The application of an executor or administrator to the Orphans’ Court, representing that the real and personal estate of the decedent are insufficient to pay his debts, will only prevent the subsequent issuing of execution in those cases that are pending when, or commenced after, the application is made.</p> <p>2. A judgment against an executor or administrator whether by default or on demurrer; or upon any plea except plene administravit, or assets to a certain amount, and riens ultra, is conclusive upon him that he has assets to satisfy such judgment.</p> <p>3. Whether under the statutes of this state regulating the administration of estates, the plea of plene administravit is good. Quaere ?</p> <p>4. It is not necessary to plead the application to the Orphans’ Court, in order to bar execution; by the terms of the statute the plaintiff is entitled to proceed to judgment; and it is only where, in cases coming within its provisions, an attempt is made to issue execution, that its protection is to be invoked.</p> <p>&. The application to the Orphans’ Court will not bar a scire facias issued to revive a judgment entered before the application was made, it not being such an action as the statute contemplates; nor will it prevent the issuing of execution upon such judgment when- revived.</p>

This was an action of ejectment brought to recover the possession of a tract of land in the county of Monmouth. At the Circuit Court of that county held in April, 1840, the cause was tried and a verdict rendered for ■ the plaintiff, with liberty to the defendant to move this court to set it aside.

This was an action of Ejectment brought in the Circuit Court of the county of Bergen, and removed into this court by writ of error, after being tried in September, 1840, and a verdict and judgment rendered for the plaintiff. On the second day of June, 1827, John G. Leake died intestate, seized and possessed of the premises in question, and without leaving heirs capable of inheriting the same.

<p>1. The teBtator devised his real estate subject to the payment of his debts, and authorized his executor to sell the same for that purpose : he afterwards purchased other lands and died without republishing his will: Whether the executor had authority to sell the subsequently purchased lands: Quaere ?</p> <p>2. The Orphans’ Court had no right to make an order for the sale of the subsequently purchased lands for the payment of debts, until the executor had exhausted the funds charged by the testator with such payments.</p> <p>3. Before the Orphans’ Court can make an order for the sale of lands, they must ascertain and decide that so much of the personal estate as has come to the hands of the executor, has been applied to the payment of debts. 4 líala. 338.</p> <p>4. Th’e Court should also ascertain as near as may be the extent of the deficiency and fix and express in the order for sale, the sum necessary to be raised. 4 ITals. 338.</p> <p>5. A plaintiff in a Certiorari to the Orphans’ Court, although successful in the suit, is not entitled to costs.</p>

This was a Certiorari directed to the court of Common Pleas of the county of Middlesex. The material facts exhibited by the state of the case and relied upon by the parties, will be found in the opinion of the Court, delivered by the Chief Justice.

This action was brought to recover part of a tract of eight hundred and eighty four acres of land situate in the county of Sussex. It was tried at the Circuit Court for that county, held in August 1841, when a verdict was found for the plaintiff. On the return of the postea, the defendant obtained a rule to show cause, why the verdict should not be set aside and a new trial granted.

<p>1. Upon the second trial of a cause it is sufficient to prove the substance of what wa3 sworn to by a witness, since deceased, upon the former trial of the same cause.</p> <p>2. A witness is competent to prove the evidence given by a witness, since deceased, on a former trial of a cause, if he testifies that he has a distinct recollection, independent of his notes, of the deceased having been sworn as a witness, of what he was produced to prove and of the substance of what he then stated, although for the language used by him, he must rely upon his notes taken at the time and which he believes to be correct.</p> <p>3. A state of the case used upon the argument of a rule to show cause why a new trial should not be granted and agl-eed upon by the respective parties for that purpose, is not competent evidence to prove the testimony given by witnesses, since deceased, upon the former trial of the same cause.</p>

This was an action upon a bond for the payment of money given by the defendant to John E. Caldwell, by him assigned to Henry Allen, and by the latter assigned to the plaintiff.

Isaac Barnes, administrator of John R. Smith deceased, having represented the estate of his intestate to be insolvent, obtained on the 31st of January 1840, from the Orphans’ Court of the county of Mercer, the usual order on the creditors to exhibit their claims within six months. Elm. Dig. 169, see. 3.

Judgment by default having been entered in this court against the defendant, in an action brought upon a replevin bond executed by his intestate, a writ of inquiry was issued to the sheriff of the county of Hunterdon to assess the damages sustained by the plaintiff.

In the term of January 1840, the defendant presented to the Judges of the court of Common Pleas of the county of Bergen,. his petition for the benefit of the Insolvent laws. The plaintiffs, who were creditors, opposed his discharge, but at a special term held upon the 19th day of March succeeding, he was discharged as an insolvent debtor by the order and judgment of the court.

This was an action of ejectment tried at the Circuit Court of the county of Bergen, in September 1838. By the direction of the court, a verdict was rendered for the plaintiff, and liberty given to the defendant to move this court to set it aside and enter a nonsuit. In 1804, Anthony Dey purchased as a site for a city, a tract of land, known as Powles Hook.

By virtue of a writ of replevin sued out of this court, a sloop or vessel with her tackle, apparel and furniture was replevied out of the hands of the defendant and delivered to the plaintiff, by the sheriff. By the return to the writ, it appears that the property replevied was appraised at six hundred and fifty dollars. The plaintiff filed his count or declaration ; to which the defendant pleaded property in himself and not in the plaintiff and issue was thereupon joined.

<p>1. In taxing costs, the only services rendered in a cause, for which charges cant be taxed and allowed, are those specifically provided for in the fee bill.</p> <p>2. Services are frequently rendered for which no specific provision is made and for which there ought to be a reasonable compensation; but costs are given by statute and the court and taxing officers cannot extend the provisions of the statute to meet such cases.</p>

<p>1. Accord and satisfaction cannot be pleaded to an action on a judgment.</p> <p>2. Bul tiel record and payment cannot be pleaded to an action on a judgment ; the defendant may plead either, but cannot plead both.</p>

This was an action on a bond given to the sheriff of the county of Hudson, pursuant to the provisions of the second section of the supplement to the act for the better regulation of actions of replevin, passed the 19th day of February 1839, and by the sheriff assigned to the plaintiff. The declaration sets out the bond and condition and assigns as a breach, that the defendants “did not deliver the goods and chattels &c.” in the words of the condition.

This was an action of trespass de bonis asportatis brought by the defendants in Certiorari against the plaintiffs, in a court for the trial of small causes. In that court as well as in the court of Common Pleas of the county of Burlington to which an appeal was taken, the plaintiff below recovered judgment for damages and costs. The judgment and proceedings were thereupon removed into this court, by Certiorari.

This was a Certiorari directed to the Orphans’ Court of the county of Middlesex; the history and facts of the case are stated in the opinion of the 'Court.

This was an action against the defendant as indorser of a promissory note, made by Peter M. Ryerson and payable at the People’s Bank at Paterson. On the trial the plaintiffs proved the execution of the note and the defendant’s indorsement.

Craig Moffet moved for a mandamus, commanding the township committee of the township of Northampton to accept the bond and oath of office tendered to them by Japhet G. Priekett; who claimed to have been duly elected, at the previous annual .town meeting of that township, one of the constables of the county of Burlington.

A judgment by default was regularly entered in this cause and an execution issued and placed in the hands of the sheriff. In September term 1841, upon an affidavit of a just and legal defence, a rule was granted to open the judgment, so far as to allow the defendants to plead to the merits and have the benefit of a trial, and to stay further proceedings upon the execution, until the further order of the court.

The first' count of the declaration in this case alleged, that John S. Hart had been the tenant of the plaintiff, and on a day therein named, was indebted to her in the sum of one thousand dollars, for rent then due and payable; that on the same day, the defendants, by virtue and under pretence of a writ of execution in their favor against Hart, “ then and there caused, required, procured and commanded the sheriff of the county of Mercer, to take the goods and chattels of…

When this case was called for trial at the Hunterdon Circuit, the following facts were settled and agreed upon by the parties, and-the questions of law involved submitted to the decision of the court at bar.

An action of trespass quare claus. freg. was brought in a court for the trial of small causes. The plaintiff complained of a trespass upon his close, stating the township in which it was situated, but without naming the close or setting out its abuttals. The defendant pleaded title and entered into bond pursuant to the statute, Elm. Dig. 282, art. 33.

Thomas Wilson by his will, duly executed and bearing date in February 1813, devised the premises in question, after the death of his wife, to his son Thomas Wilson, his heirs and assigns forever ; “ subject to the payment of four hundred dollars within one year after his mother’s death ” to the testator’s daughters : this clause was then added, “ provided nevertheless that in ease my said son Thomas shall die without lawful issue, it is my will and I hereby devise all the…

<p>The seventh, thirteenth and fourteenth sections of the Supplement to “ the Act to regulate fisheries in the river Delaware,” passed the 28th day of November, 1822, were not repealed by the further supplement to the same act, passed the 15th day of February, 1833.</p>

This was action on a bond with a special condition, that the Cashier of the Morris Canal and Banking Company, should faithfully discharge his duties. The plaintiffs in the first instance filed a declaration, setting out the condition of the bond and assigning breaches.

The declaration in this case was returned to February Term, 1843. Upon reading and filing the usual affidavit, a rule was entered, admitting Green and Brearley to defend as landlords.

<p>This was a Certiorari directed to the court of Common Pleas of the county of Passaic. The reasons assigned for the reversal of the judgment and the facts relied upon by the parties, will be found in the opinion of the Court, delivered by the Chief Justice.</p>

This was an action of trespass for breaking and entering the close of Mrs. Harrison and seducing her daughter. The declaration contained three counts, all charging the trespass to have been committed before the intermarriage of the plaintiffs. The two first claimed damages for loss of service by the mother before the intermarriage ; the last for loss of service sustained and expenses incurred by the husband for the lying in after that event.

<p>This was an action of trespass de bonis asportatis, brought in the Circuit Court of the county of Essex.</p> <p>The declaration was in the usual form and the plea was the general issue. At the trial the verdict was rendered and the judgment entered for the plaintiff. The defendant then removed the cause into this court by writ of error.</p> <p>The grounds relied upon for a reversal, and the circumstances of tho case, fully appear in the opinion of the court pronounced by the Chief Justice.</p>

This was an action against the administratrix of one of the sureties in a bond, with a special condition, that R. G. retained in the service and employment of the Morris Canal and Banking Company, should well and faithfully serve the said company &c. By a rule of this court made in May Term, 1843, it was ordered, that in all actions on such bonds, in which the plaintiff shall declare generally, without assigning any breach or breaches, the defendant, when he demands oyer of…

<p>1. A surely upon a bond cannot by any act in pais, compel the obligee to sue the principal.</p> <p>2. In an action brought against a surety on a bond, after the principal has become insolvent, it is no defence, that the plaintiff, although requested by tile surety after the bond fell due, neglected and refused to prosecute the principal while the latter was solvent and the amount due on the bond could have been recovered from him.</p> <p>3. Where a creditor gives time to the principal, a surety cannot avail himself of that defence, unless it appear upon the face of the instrument, that he is surety; and even in that case his relief is in equity and not at law.</p>

This was an action on the case for a libel. Upon the return of the postea, a rule to show causé was granted, why the verdict, which had been rendered for the plaintiff, should not be set aside. The questions raised, and the facts relied upon by the parties, will bo found in the opinion of the court delivered by the Chief Justice.

<p>This was an action of ejectment tried at the Mercer Circuit.</p> <p>Upon the trial of the cause, it appeared that the defendant entered upon the premises as tenant under a lease which expired in April, 1843; and was in possession at the time of the service of the declaration and for many years previous.</p> <p>The plaintiff produced in evidence a written agreement between the parties, by which he covenanted to deliver to the defendant, a good and sufficient deed with covenants of warranty, for the premises in question, and by which the defendant covenanted to pay him thirty-five dollars per acre for the land, in five equal annual installments with interest. He also proved a tender of performance on his part, and a demand of possession; and then rested his cause without further evidence of title.</p> <p>Upon this the defendant moved for a non-suit, because the agreement was no evidence of title. The motion was refused. He then offered to prove that, at the date of the agreement and at the time when the deed was tendered, the plaintiff had no title to the lands. This evidence was overruled by the court, upon the ground that the defendant was estopped by his agreement from denying the plaintiff’s title.</p> <p>A verdict was rendered for the plaintiff, and on the return of the postea, a rule was granted to show cause why the verdict should not be set aside.</p>

This was an indictment for assault and battery, removed into this court by certiorari from the Court of General Sessions of the peace of the borough of Elizabeth. Upon the return of the certiorari, a motion was made to quash the indictment, upon the grounds detailed in the opinion of the court, delivered by the Chief Justice.

<p>This cause came before the court for its opinion, upon a case made and certified, by direction of the chancellor.</p> <p>Samuel Wills, at the time of making his will and at his death, had three sons, six daughters and one grand daughter, Rebecca, the child of a deceased daughter. By his will, he devised in fee to each of his sons and daughters a specific tract of land; and to his grand daughter he gave a legacy of two hundred pounds. The clause then succeeds, upon which the questions involved in this case arise; “ Item, I will that if either of my sons, Thomas or Samuel, should die without lawful issue, the land heretofore devised to them shall be equally divided between my surviving son and daughters before mentioned. Item, if either of my daughters before mentioned should die without issue, it is my will that the lands devised to such daughter as shall die without lawful issue, shall be equally divided among my surviving sons and daughters as aforesaid.”</p> <p>The testator died on the 27th of April, 1798.</p> <p>His son James died on the 6th of May, 1803, leaving issue a daughter, who married and afterwards died, leaving several children.</p> <p>Thomas, another son, died the 8th of April, 1814, leaving issue.</p> <p>Eunice, one of the daughters, died on the 22d of March, 1827, without issue.</p> <p>Samuel, another son, died on the 11th of September, 1828, leaving issue.</p> <p>Elizabeth, another daughter, died on the 6th of May, 1833, without issue.</p> <p>Beulah died on the 12th of October, 1836, leaving issue.</p> <p>Three other daughters of the testator, and Rebecca, the grand daughter, named in the will, are still living.</p> <p>The questions submitted by the Chancellor for the opinion of this court were:</p> <p>First, Whether the testator’s grand daughter Rebecca, and the children of the testator’s sons, James and Thomas, who survived him and died in the lifetime of Eunice, are entitled to any share or interest, and if so to what share or interest in the lands devised to Eunice ?-</p> <p>Secondly, Whether the grand daughter Rebecca, and the children of James, Samuel and Thomas, who survived the testator and died in the lifetime of Elizabeth, are entitled to any share or interest, and if so, to what share or interest in the lands devised to Elizabeth ?</p>

This was a Certiorari to the clerk of Middlesex county, to bring up the report and proceedings of the commissioners appointed under the seventh section of the act to incorporate the Elizabethtown and Somerville rail road company, passed the 9th of February, 1831.

<p>1. The sixteenth section of that act incorporating the Delaware and Raritan canal company, Har. Com. 275, does not require the company to provide bridges over their canal, for the use and accommodation of the owner of land intersected by it, where such owner has sold to the company a part of the lands divided for the express purpose of constructing the canal.</p> <p>The obligation of the company in this respect can only arise in case a covenant or agreement to that effect has been entered into between the parties.</p> <p>2. So long as the expressed intention of the parties is carried out, and land is applied to the purposes for which it was conveyed, the grantee, in the absence of a covenant or agreement on his part, is not liable in damages for any inconvenience the grantor may sustain, necessarily resulting from, the performance of the act contemplated by the parties.</p>

This cause came before the court upon a writ of error to the Circuit Court of the county of Bergen. It was an action of trespass brought by the defendant in error to recover damages for the seduction of his daughter. The general issue was pleaded. A verdict of $>1,900 was rendered in favor of the plaintiff and judgment entered thereon.

<p>This was an action of ejectment tried at the Monmouth Circuit. The plaintiff obtained a verdict, and upon the return of the postea the defendant obtained a rale to show cause why it should not be set aside.</p> <p>Samuel Applegate, the lessor of the plaintiff, claimed one-fourth of a tract of land in the county of Monmouth, as one of the devisees under the will of his father dated the 22d of February, 1835, and a codicil of the same date. By the will, the testator, after ordering his debts and funeral expenses to be paid, continues : “I direct my executors hereinafter named to sell all my real estate in such manner as they may think proper.” lie next gives to his wife all his personal property and two thousand dollars, to be paid to her out of the proceeds of the sales of his real estate, in lieu of dower. To his five daughters, he gives three hundred dollars each ; to his daughter Mary three hundred and fifty dollars; and to his grandson Daniel one hundred dollars to be paid, on his coming of age. The testator then continues, “ the residue of my estate, "I give to Reuben, John, Samuel and Jacob in equal portions, first reserving out of said residue, one hundred dollars for my son William, to remain in the hands of Tabor Chadwick as trustee, to pay it out at his own discretion.” Then occurs the following clause: “ provided either of my children shall die before me, the legacy, meant for such child, to go to the children if any, or otherwise to be divided among such of the brothers and sisters as may survive; but nothing to be paid to my sous-in-law, Poinsett and Clayton, if their wives die without leaving children.” „</p> <p>By his codicil, the testator directs the legacies to bo paid by his executors, when they may find it convenient; and adds, that they may pay such first as they shall think proper ; and shall in no ea.-.o be chargeable with interest, except such as they may receive on moneys due on the sale of property ; and if any of his children set up claims against his estate their legacies were to abate.</p>

This cause was tried at the Mercer circuit in December, 1841, and a verdict rendered for the plaintiff, and now came before the court on a motion on the part of the defendants for a new trial.

<p>This case came before the court, upon a rule to show cause why a nonsuit, which had been entered at the Circuit, should not be set aside.</p> <p>The first count of the declaration set out “ that 27. Burrows, on the 22d of April, 1840, made and delivered to the plaintiffs, his promissory note of that date, for two hundred and twenty-four dollars and fifty cents, payable to the order of the plaintiffs ; that afterwards, on the day of the date of the note, the defendant, by his writing under his hand indorsed upon the note, then and there promised the plaintiffs and bound himself and guaranteed to them the payment of the contents, in consideration that the plaintiffs would and did cancel a certain other promissory note of the said 27. Burrows, payable to the defendant or order and by him indorsed to the plaintiffs, for a certain amount therein specified, but not then due,” and also in consideration of a certain indebtedness of the said Burrows to the plaintiffs, for goods by them before that time delivered to the said Burrows ; and also of rent then due from the said Burrows to the plaintiffs for the use and occupation of certain premises, for the purpose of manufacturing mustard, in which the said Burrows was then engaged, “ with whom the defendant then and there had a subsisting connection.”</p> <p>Upon the trial at the Circuit, the plaintiffs produced and proved a promissory note made by Burrows, payable to their order, for the sum of two hundred and twenty-four dollars and fifty cents, with the signature of the defendant upon the back of it; and then sought to prove by parol, a number of facts and circumstances, from which the jury might infer such a contract, as was set out in the declaration.</p> <p>Having failed to produce and prove any written agreement and no evidence being offered under the common counts, the plaintiffs were called.</p> <p>To set aside this nonsuit, the present rule to show cause was obtained.</p>

Tii is was an action brought to recover a sum of money, bet by Moore upon a horse race and deposited with Trippe as stakeholder. After the race was lost by Moore, he gave notice to the stakeholder not to pay over the money, deposited by him, to the winner. A suit was then brought by him to recover it, and judgment was rendered in bis favor.

This action was brought before a justice, on a promissory note for one hundred dollars, payable two months after date, without naming interest, and was commenced a few days after the maturity of the note. The demand was for one hundred dollars, and judgment was rendered for that sum by the justice.

This was a motion for a writ of restitution. In May term, 1839, the judgment in this cause, which had been removed into this court by a writ of Certiorari, was affirmed with costs.

This was a Certiorari to a justice of the peace. Its object was to bring into review before this court the award of an execution upon the judgment below against the body of the defendant, on the ground that it had been made without any such proof of fraud, or fraudulent concealment of property, as is required by the act abolishing imprisonment for debt.

This was an action of debt brought in this court upon a joint and several bond, against the defendants, as heirs of one of the obligors who was deceased. Jacob R. Hardenbergh and George Bidleman executed and delivered to William H. Disborough, their joint and several bond, bearing date the 10th day of December, 1812, conditioned for the payment of |>2895.iVb- with interest, on the 1st day of April, 1814.

This was an action of ejectment brought by the assignee of a mortgagee to recover possession of the mortgaged premises. On the trial, at -the Essex Circuit, the plaintiff produced a mortgage, bearing date the 6th of May, 1836, given by Wade, the defendant, to one Goble, and by him assigned to the lessor of the plaintiff.

This was a Certiorari, directed to the court of Commou Pleas of the county of Middlesex. The action was brought to recover the penalty of fifty dollars, given by the 61st section of the act constituting courts for the trial of small causes, against any justice of the peace, who shall appear and prosecute or defend in any action before a justice of the peace, where the justice so appearing is not a party on record in the cause.

The declaration in ejectment in this case was returned to September, term 1824. At that term, an attorney of this court entered an appearance in the clerk’s book, generally “ for the defendant-;” and made a memorandum that rules were to be exchanged with the plaintiff’s attorney. From that time until February term, 1843, a period of eighteen years and a half, nothing further was done in the cause.

Tins was a Certiorari to the court of common pleas of Essex county. The action was originally brought before a justice of the peace by the defendant in Certiorari, to recover an account for board and lodging furnished by her, for certain persons in the employ of the plaintiff.

This was a Certiorari directed to Bedford M. Bonham, Esq., a justice of the peace.

This was an action on the case, brought by Corwin, who was plaintiff below against Thorpe the plaintiff in error, for the diversion of a water course. At the trial a verdict was rendered and judgment entered for the plaintiff. The defendant then removed the cause into this court by writ of error. The grounds relied upon for a reversal, and the facts and circumstances of the case fully appear in the opinion of the court, delivered by the Chief Justice.

<p>1. Where a grantor, under whom both parties claim title to the premises in question, has conveyed the whole of a tract of land by metes and bounds, specifying its contents; and then except'ed out of it a certain number of acres, without giving a particular description of them; it is competent for the defendant to show by reference to other deeds and surveys, that the premises in question were part and parcel of the number of acres excepted out of the grant, and that in fact they belonged to the grantee at the time of his taking the conveyance.</p>

This was a Certiorari to the court of common pleas of the county of Essex. The action was originally brought in a court for the trial of small causes, to recover damages for an injury sustained by the plaintiff, in consequence of alleged neglect on the part of the defendants, to keep in repair a bridge upon their road, in the mode prescribed by their charter.

<p>1. The elerk of this court may permit the attorney to make out a transcript of the pleadings in a cause, and to affix the signature of the elerk and the seal of this court to the certificate required by law, when in fact, such pleadings are on file.</p> <p>2. But the clerk can delegate no authority to the attorney to certify that which is not true. Nor will the court give judgment on a postea after a trial, when it appears, that in truth and fact no pleas have ever been filed in the cause, unless it is with the consent of the party against whom the verdict may be.</p>

'á. writ of attachment, for twenty thousand dollars, was sued out of this court, against the defendant, and returned to February term, 1844. Held: when it was unanimously resolved by the directors then present, of whom the plaintiff was one, that the company should lease their establishment to D. K. Allen and J. W. Shippey for the term of five years, and should sell to them all their personal property; which was accordingly done by a bill of sale, purporting to be for the…

' This was a case certified and sent from the Circuit Court of the county of Middlesex, for the advisory opinion of this court. The action was brought to recover from the defendant, the amount alleged to be due from him, on a special promise, to pay the debt of a third person.

This was a Certiorari to the common pleas of Hudson county to remove certain proceedings, had in that court, under the “ act to secure to creditors an equal and just division of the estates of debtors, who convey to assignees for the benefit of creditors.”

This was an action of assumpsit,^brought upon a decree of the Orphan’s Court of the county of Hudson.

On rule to show cause, why the verdict, rendered at the Burlington circuit, should not be set aside and a new trial granted. This cause first came before this court in November term 1836, 1 Harr. R. 273, on a writ of error, to the court of common pleas of Burlington county. John Earle, the intestate of the present plaintiffs on the record, was then, plaintiff in error.

A judgment was signed on the 15th of March, 1844, in the Court of Common Pleas of the County of Warren, on a bond with warrant of attorney to confess judgment, at the suit of John H. Browning and John P. Hull against George Wire the plaintiff in Certiorari.

Two writs of habeas corpus were sued out and returned to the May Term of this court; the one directed to John A. Post, the other to Edward Van Beuren. The object of these writs was to present for adjudication the questions, whether the constitution, adopted in 1844, abolished slavery in New Jersey, as well as the involuntary servitude of the children of slaves under the “ Act for the gradual abolition of slavery,” passed in 1804, and re-enacted in 1820.

In Certiorari to the Court of Common Pleas of Middlesex county. Blauvelt, for the plaintiff in Certiorari, moved to set aside a return of surveyors of the highways for several reasons. First. The notice of application for appointment of surveyors was insufficient. It was not proved before the common pleas to have been signed in the handwriting of the applicant. Elm. Dig. 472, 473, Elm. Forms, 365. Secondly. Two of the surveyors were not authorized to act.

On Certiorari to the court of Common Pleas of the county of Warren, to remove the discharge of an insolvent debtor Peter Kocker, the defendant in this Certiorari, was arrested by virtue of a capias ad respondendum issued against him out of the court of Common Pleas of the county of Warren, at the suit of James Hulshizer and others; the writ being returnable to the June term, 1842, of that court. At the same term the defendant gave special bail.

On rule to show cause why the verdict which had been rendered for the plaintiff, should not be set aside. This cause came on to be tried before the Chief Justice at the Middlesex Circuit, in June term, 1838. The declaration contains twelve counts.

The plaintiff in error and defendant below was indicted under the 73d section of the act respecting crimes, for having in his possession a blank and unfinished note, with intent to complete the same, in order to utter and publish it. The indictment contains two counts.

The indietment, on which the defendant — the plaintiff in error —was convicted in the court below, contains three counts.

This was an ejectment brought to recover lands in the county of Mercer. Upon the trial, a verdict was rendered for the defendant. Both parties claimed under the will of Joseph Brittain deceased; which will is dated the 16th of January, 1755.

In Enitoit, to the Circuit Court of the county of Essex. An action of trespass on the case upon promises was commenced by the plaintiffs below, the defendants in error, against the plaintiff in error, as the drawer of two bills of exchange.

Oír Rule to show cause why the verdict, which had been rendered for the plaintiffs, should not be set aside. This was an action of assumpsit on a special agreement, for the sale of certain real estate, situate in the county of Burlington. The contract of sale was made by the defendant with the plaintiffs, who had sold, as commissioners, by virtue of an order of the Orphans’ Court of the county of Burlington.

This was an action of debt, originally brought in the Circuit court of the county of Essex, by the Board of Chosen Freeholders of that county, against Aaron Peck and his sureties, on the official bond given by him as county collector. The cause was tried before the Chief Justice in October, 1841; and a verdict and judgment having been rendered for the plaintiffs below, the judgment was removed into this court by writ of error.

In this case, which was an action founded on contract, a writ of capias ad respondendum was issued out of the Supreme court, directed to the sheriff of Mercer, and returnable to the July Term, 1845.

This was an action of debt against the defendant, as surviving executor of Samuel Price, deceased, on the bond of the testator; and was brought in the Circuit court of the county of Sussex. The defendant pleaded two pleas. 1st, Non est factum, 2nd, Plene administravit. The plaintiff joined issue on the first plea : and demurred specially to the second.

This was an action of ejectment brought to recover a tract of land, in the county of Sussex. The cause was tried at the Circuit, and a verdict rendered for the plaintiff. On the return of the postea, the defendants obtained a rule to show cause, why the verdict should not be set aside and a new trial granted. In support of the rule it was insisted, that the verdict was against the weight of evidence; and that the judge ■erred in his charge to the jury.

This was the case of a bill of privilege, filed against an attorney of this court. The regularity of its service was questioned, and a motion made to set it aside as insufficient.

<p>When a defendant acknowledges service of process, it is still necessary that common bail should be filed, to perfect his appearance; but, being matter of form only, the court will permit it to be filed at any stage of the cause. _</p>

<p>It being intended to bring writs of error to this Court from the Court of Errors and Appeals, the direction of the court was sought as to the practice to be pursued. Doubts were expressed by the counsel, as to the correct practice, since the “ Act to regulate the proceedings of the Court of Errors and Appeals, passed April 5th, 1845.” The 9th section of that act directs that, “ The writs and process shall be signed by the clerk, and tested in the name of the President.” Previous to the passage of that act, the practice had been to issue writs of error returnable to the Court of Errors and Appeals, out of the Court of Chancery; in cases requiring a special allowance, application being made to the chancellor for that purpose.</p>

This was an action of covenant brought by the defendant in error, plaintiff below, against Deborah Pintard, upon the following article of agreement. “ Know all men by these presents that I, Deborah Pintard, of, Ac., have this 14th day of February, 1838, demised and to farm let, for the term of three years from the first of April next, all that house and farm, Ac., unto William C. Irwin; to have and to hold, to use, occupy and enjoy the same for the term of three years, with…

This was an action, in which the plaintiff sought to recover a penalty, for the non-performance by the defendant of a covenant entered into between the parties on the 6th of April 1842, whereby the plaintiff covenanted and agreed to deliver to the defendant, on the first day of April then next, a good and sufficient deed, with covenants of warranty for a certain farm, then occupied by the defendant; which farm was to be surveyed in the mean time and its contents to be…

The defendant was convicted at the Essex Oyer and Terminer, under the 72d section of the act for the punishment of crimes, Elm,. Dig. 115, for having in his possession certain counterfeit promissory notes, with intent to pass the same, with intention to defraud the Commercial Bank of Baltimore.

Oír Rule to show cause why the verdict rendered for the plaintiff should not be set aside. This was an action of assumpsit, on two several promissory notes, by the holder against the defendant as first endorser. The notes were drawn by John Lester, payable to Daggett, the defendant, by Daggett endorsed to Samuel A. Baker, and by Baker to Woodruff, the plaintiff. The first nóte was dated the 18th of January, 1838, for $405, and payable at ninety days.

<p>1. “Where the declaration alleges various injuries, some of which are actionable, and others not, it should be demurred to, or advantage taken of the error by motion in arrest of judgment, or by writ of error. A judge, at the circuit, cannot exclude the evidence of the injury not actionable, if the parties have taken issue upon it.</p> <p>2. In case of such misjoinder of injuries, a general verdict will be deemed erroneous, and the judgment will be arrested, or reversed on writ of error.</p> <p>3. The only exceptions to this rule are, where such erroneous matter is merely expository and laid under a videlicit, or by way of innuendo; or is clearly insensible or impossible. In such case the judge, at the trial, may reject evidence offered to sustain such matters; and a general verdict will not be vitiated thereby.</p> <p>4. A declaration, in an action of trespass on the case by a reversioner, stating that the defendant, by damming up a stream, and flowing back the water over his land, “had rotted, spoiled, and damaged the grass and herbage of the plaintiff.there growing; and had made the land boggy, miry, and rotten, whereby the'plaintiff was injured in his reversion,” is a good declaration, and contains no misjoinder of injuries or causes of action.</p> <p>5. "Whether the damage, alleged to have been done to the grass and herbage, was an injury to the reversion or merely to the possession of the tenant, is a question of evidence upon the trial. But in oases of such equivocal injury, the plaintiff' must expressly aver in his declaration that he was injured in his reversion.</p> <p>6. In an action brought for an injury to the reversion, the declaration should always show such an inj ury as must necessarily have affected the reversion ; or it must show one, that may possibly have done so, and connect it with an averment that the reversion was actually injured thereby.</p>

<p>This was an action of covenant, brought to recover damages for the breach of an agreement for the sale of real estate, entered into between the parties.</p> <p>The declaration sets out an agreement dated the 6th of May, 1835, by which the defendant, in considaration of $6,000, to be paid to the plaintiff as therein mentioned, covenants ,to sell and convey to the plaintiff, on the first day of April, 1836, a certain tract of land and premises, water power and appurtenances, in the county of Warren, then in possession of the defendant; and to deliver to the-plaintiff the peaceable and full possession of the premises, in as good repair as they then were, natural and reasonable wear and tear always excepted. The declaration farther sets out a subsequent agreement between the parties, dated the 2d of April, 1836, endorsed upon or annexed to the first, by which it was mutually agreed between the parties, that the time of payment and of the delivery of the deed mentioned in the agreement first staled, should be extended to the first day of April then next. That each party should furnish $1,000, as a common stock, to carry on the business of sawing in partnership, for the then ensuing year; that each should do half the labor, and, at the termination of the time, should divide the proceeds equally; and that the plaintiff should pay to the defendant, as rent for the premises, the interest of one half of the purchase money. The declaration charges, that before and at the time the plaintiff agreed to purchase the premises, there was a saw-mill erected thereon, and that after the making of the last mentioned agreement, to wit, on the 18th' day of March, 1837, sixty feet of the dam, which had been erected to supply the saw-mill with _water, was carried away by a freshet; that although the plaintiff had always been ready, <&c.; and although he paid, &c.; and although the defendant did make and deliver to the plaintiff a good and sufficient deed, and did deliver possession of the premises, yet the defendant did not, nor would he, on the said first day of April or at any time since, deliver up to the plaintiff the said premises in as good repair as they were at the time of the making of the said first mentioned agreement, natural and reasonable wear and tear excepted. But on the contrary thereof, at the time, &c., sixty feet of the dam was destroyed; and in such repair, order and condition as last aforesaid, the premises were delivered to the plaintiff. To this declaration the plaintiff filed a general demurrer.</p>

The facts of this case, and the points raised and decided, are sufficiently disclosed in the opinion of the court, which was pronounced by the Chief Justice.

This was a case certified by the Circuit Court of the county of Hudson. The defendant married 'the widow and relict of Charles Chebsy deceased, the former owner of the premises in question.

<p>This was a Certiorari to the sessions of Somerset, to bring up an order of removal by two justices; and which order had been affirmed on appeal. The pauper — a black girl, called Sarah Brocaw — was born on the 25th of February, 1819, at the house of John A. Autun, now deceased, in the township of Bridgewater, in the county of Somerset, and was the child of a female slave of Autun. She remained the servant of Autun, in Bridgewater, until the 29th of July, 1823, when a certain writing under seal, purporting to be an indenture of apprenticeship of the child, was executed by and between Autun her master, and one Margaret McCain, also of Bridgewater. The pauper served Margaret McCain, in Bridgewater, from that time until the 12th of June, 1839, when Mrs. McCain sold her time of service under the supposed indenture of apprenticeship, until twenty-one years of age, to one Bergen Brocaw, of the said township of Franklin, in the same county, for $65. The pauper then went to live with Bro-caw, in Franklin, and there served him till she became twenty one years of age.</p> <p>There was an admitted mistake as to her age. She was one year older than was mentioned in the supposed indenture of apprenticeship. The mother remained and died the slave of Autun.</p> <p>An order of removal of the pauper was made, charging the township of Franklin, which order was affirmed by the Court of General Quarter Sessions of the Peace of Somerset.</p>

On Certiorari to the Sessions of Somerset county. An order of removal of a pauper colored woman, from Franklin to Bridgewater, was made by two justices. Lavinia King, the pauper, who had become sick and chargeable to Franklin, was the child of a female slave, and was born since the 4th of July, 1804.

On special demurrer to pleas. The plaintiff recovered judgment in this court in January Term, 1833, against Aaron P. Wright and William Potts, administrators of Edward W. Potts, deceased. A scire facias was subsequently issued, and an award of execution obtained. The present action is in debt upon the judgment, after award of execution. The declaration contains two counts.

On special demurrer to the declaration. The action was in debt on a bond, given by the defendant Andrew J. Beaumont, to one Daniel Ball, by him assigned by endorsement to one Samuel Sutton, and by Sutton assigned to Joseph Richardson, the plaintiff.

This was au action of assumpsit, in the usual form upon two promissory notes, given by the defendant to the plaintiffs, payable without defalcation or discount, and purporting to be for value received.

This was an action of debt upon a constable’s bond, brought in the circuit court of the county of Gloucester, by the inhabitants of the township of Camden against Hugg, a constable, and the other defendants his sureties, to recover money alleged to have been collected upon a tax warrant delivered to him by a justice of the peace. The bond was dated the 14th day of March 1839; the tax warrant was delivered to the constable on the 27th day of December 1839.

This was a Certiorari to the Orphans’ Court of the county of Gloucester, to remove the decree of that court settling the aecounts of the defendant as executor of the last will of Joseph Rogers, deceased. The decree complained of was made at the June term, 1843, of that court, on ' exceptions filed to certain items of the executor’s account by the plaintiffs in Certiorari.

Osr Certiorari to a justice of the peace, to remove the judgment and proceedings before him, in an action for an unlawful detainer.

This was an action of debt originally brought by Lackey in a justice’s court; where, on the 26th of August, 1840, he recovered a judgment for $100 debt, and $1.74 costs of suit. This judgment was affirmed on appeal, by the Essex Common Pleas; and again on Certiorari by the Essex Circuit; and finally came before this court by writ of error to the Circuit Court.

This was a case certified from the Middlesex Circuit Court. An action of trespass and ejectment'was brought upon the demise of Theodore F. King, against William B. Manning and Jonathan R. Dunham, for a farm in the county of Middlesex, in the possession of the defendant Manning. At the trial, the defendants confessed lease, entry, ouster, and that the possession of the premises in dispute was in Manning.

This was a case certified from the Circuit Court of the county of Morris. The following opinion, which was delivered by the Chief Justice at the circuit as Judge of that court, was subsequently approved of and adopted by this court at bar. An attachment had been sued out against Chegaray for a sum exceeding 50 dollars, and returned served by attaching certain real estate.

Is error to the Circuit Court of the county of Passaic. The action below was upon a check, dated October the 16th, 1841, drawn by Allen, the defendant below, for $265, payable to E. B. D. Ogden, Esq., or order, and by him endorsed to the defendants in error. On the trial of the cause, the defendant Allen provea by Mr. Ogden that the check was given to secure the first payment of twenty per cent, on a sale made by him as a master of the Court of Chancery.

This was a case certified from the Circuit Court of the county of Morris. The action was originally commenced by attachment, but the attachment was dissolved, saving all liens., by the defendant; who gave bond pursuant to the statute, appeared, accepted a declaration at the suit of the plaintiff, and pleaded ¡«hereto.

On certiorari to the court of Common Pleas of Salem county. This Certiorari was brought to set aside the certificate or return of freeholders, appointed to review the proceedings and return of surveyors, before appointed to lay out a private road in lower Penn’s Neck, in the county of Salem.

This was an action of replevin which was tried at the Essex Circuit and a verdict found for the defendant. Upon the coming in of the postea, a rule was granted to show cause why the verdict should not be set aside and a new trial had, upon the ground that the jury -had been misdirected by the charge of the court, and because the verdict was against evidence.

<p>1. By the Act respecting Common Schools, the townships are required to raise by tax or otherwise, in addition to the amount apportioned to their use for common schools out of the general school fund, such further sum or sums of money for the support of schools, as shall, at least, be equal to the amount so apportioned; and they are authorized and empowered to raise by tax or otherwise, if they shall deem proper, a sum not exceeding double the amount of such apportionment.</p> <p>2. But if a township vote to raise by tax, or by tax and the appropriation of' other moneys at its disposal, a sum equal to double the amount of its apportionment out of the general school fund, it cannot superadd to that amount as a further appropriation for school purposes, any moneys in its treasury, belonging to the township, from whatever source derived.</p>

On habeas corpus to the Sheriff of the county of Essex. The prisoner, John Clark, was brought before the court, by virtue of a writ of habeas corpus, allowed at chambers, pursuant to the act passed the 27th of February 1844, supplementary to the act, usually called the Habeas Corpus act. The facts and circumstances of the case, which was argued before the Chief Justice sitting alone in the branch court, are disclosed in the opinion delivered.

On Habeas Corpus to the sheriff of Sussex county. David Case, on the 21st day of July, 1846, exhibited his petition to this court, setting forth that he was a prisoner detained in the custody of the sheriff of the county of Sussex, on a ca. sa. issued against him at the suit of Peter Martin and William Martin, on a judgment obtained against him in the circuit court of said county, in an action of assumpsit for goods sold and delivered to him.

<p>1. The act, constituting courts for the trial of small causes, prescribes the form. of the executions to be issued out of those courts; and a justice of the peace has no right to depart from it and use another form, unless authorized and directed so to do, by some subsequent act.</p> <p>2. Witnesses who are examined to establish the fraud necessary to justify the issuing of an execution against the body of a defendant, should take care to swear only to facts, and not to conclusions of law.</p> <p>3. Affidavits, to authorize the issuing of execution against the body, will not be sufficient, if the facts they disclose would not have been, standing alone, evidence to be left to a jury, on an issue whether the defendant was guilty of the particular fraud alleged.</p>

W. Hoisted moved for a mandamus against the Trenton Water Power Company, directing them to erect a bridge over Delaware street in the city of Trenton, where their main sluice or canal crosses that street.

Osr Certiorari. A writ of attachment was issued out of the Circuit Court of the county of Middlesex, and levied upon the property of the plaintiffs in Certiorari ; who thereupon removed into this court, by a writ of Certiorari, the proceedings in attachment. The points argued and determined are disclosed in the opinion of the court, as delivered by the Chief Justice.

On' Certiorari. The property of the plaintiffs in Certiorari having been seized, by virtue of an attachment issued out of the circuit court of the county of Middlesex, the proceedings in attachment were removed into this court by writ of 'Certiorari. The Chief Justice delivered the opinion of the court, which sufficiently discloses the facts necessary for a proper understanding of the case.

<p>A sheriff may execute a writ of attachment, against an absconding or non rf sident debtor, by a special deputy.</p>

This was an action on the ease brought by the plaintiff, who had shipped goods on board a vessel, to recover damages from the captain, for having sold the goods at a port, which he had entered in distress, short of his port of destination.

On Certiorari to the Orphans’ Court of Mercer county. Edward Jenkins and wife presented their petition to the Orphans’ court of the county of Mercer, for the partition of certain real estate in the city of Trenton. The commissioners reported, that a division of the premises could not be made without prejudice to the estate, and the court thereupon ordered a sale. The proceedings were thereupon removed into this court by Certiorari.

This was an action of debt brought on a refunding bond given by Jane W. Bilderback, who afterwards intermarried with the defendant, Rowe.

On motion to strike out pleas. An action of trespass quare clausum, fregit had been brought before a justice of the peace of the county of Essex. The defendants having pleaded title in one Catherine Miller, under whom they entered; and having given bond pursuant to the statute, the suit before the justice was dismissed and this action commenced in this court.

Iu the term of July 1845 this court, upon application of the relator, William S. Clawson, granted leave to file an information in the nature of a quo warranto against the defendant, Richard P. Thompson. The information filed sets forth, among other things, that the defendant for two months then last past had unlawfully held and executed, and still continued unlawfully to hold and execute the office and franchises of Prosecuter of the Pleas of the county of Salem.

On Certiorari in matter of partition. This was a Certiorari directed to the clerk of this court, to send up the appointment, report and proceedings in partition, with all matters touching or concerning the same, done or had as well by the justice of this court, by whom the commissioners were appointed, as by the commissioners themselves, and the applicant for said appointment; and all things done by them or any of them in relation to, or concerning said division, as fully as…