Volume 21 — New Jersey Law Reports

J. John Cuttrell, the plaintiff below, brought an action on the case against De La Eayette Schenck, and others, owners of steamer, for negligence in the use of their vessel, whereby a storehouse, the property of the plaintiff, had been set on fire and consumed. The declaration contained three counts. In one count the plaintiff alleged that he was seised of the lot of land, wharf, storehouse and premises in his demesne as of fee, and possessed of divers personal property.

A rule to shew cause had been granted at the previous term, which now came on to be heard, before Whitehead, Carpenter and Randolph, J. J. The Company, incorporated 3d of March, 1806, was authorized to make a turnpike road from the town of Paterson to Hamburg in the County of Sussex.

On demurrer, &c. Argued at the last term before the Chief Justice, and Carpenter and Randolph, J. J. These were several actions of assumpsit against the same defendant. The declaration in each case contained several counts: one special, setting forth new promises by the defendant, subsequent to his discharge as a bankrupt. The defendant in each case pleaded : 1. Non assumpsit. 2. The statute of limitations. 3.

This was an action of debt, instituted in the court beiow, in April 1843, by John Colt against Platt Rogers, upon the following agreement under seal, via : “ For and in consideration of the sum of six hundred and twenty-five dollars to me in hand paid, or secured to be paid by Platt Rogers, I do hereby sell, assign, and transfer to him or his assigns, my one-fourth interest in the house and lot called the Dr. Warren property, now standing in the name of C. M. Godwin, on…

On Certiorari in Mercer Sessions, argued January Term, 1847, before Carpenter, J. sitting alone in the Branch Court. This Certiorari brought up the order of the Court below on appeal, reversing an order of two justices to remove William Lloyd, a pauper, from the township of Nottingham in the county of Mercer, to the township of Amwell in the county of Hunter-don.

On rule to show cause why award should not be set aside. Certified from the Circuit Court of the county of Sussex under the statute. The parlies by arbitration bonds, submitted their differences to the determination of Robert Hamilton, John T>. Everett and Joseph Linn, Esquires, and it was agreed that the submission be made a rule of the Circuit Court of the county of Sussex. Two of the arbitrators, Hamilton and Linn, united in awarding to Bell the sum of $341.93.

This was an action of trespass originally commenced in the court for the trial of small causes. The plaintiff complained of a trespass upon his close, situate in the township of Lawrence, without naming the close, or setting out its abuttals. The defendant pleaded title and entered into bond pursuant to the statute. The plaintiff thereupon commenced his action in the Supreme Court, and declared as below. The defendant pleaded the common bar as before.

This was an action of replevin brought to recover a large amount of goods and merchandize seised and taken by the defendant, who was the Sheriff of the county of Middlesex. The declaration is in the usual form.

<p>In Replevin. On rale to show cause why a verdict for the plaintiffs should not be set aside, and a new trial granted.</p>

The material facts presented on the trial of this cause are these —The demandant claimed dower in a farm of 225 acres situate in the county of Warren, and the defendant pleaded that her husband was never seized of the premises during the coverture. James Thompson the father of the demandant’s husband was the owner of the lands, and on the 17th of February 1817 mortgaged them to one Thomas Shields to secure the payment of $3217.

On Certiorari to Hunterdon Orphans’ Court. The accounts of James Stevenson and Simeon W. Phillips, executors, &c. of John Dehart, deceased, were filed for settlement in the Orphans’ Court of the county of Hunterdon, but prior to their being arranged and allowed, Stevenson died, and the account was passed in the name of Phillips as surviving executor, at the term of August .1843.

In covenant. The plaintiff» were sureties upon the official bond of II. H. Elwell formerly Post Master at Salem in this State.

On Error to Somerset Common Pleas. This action was instituted upon an insolvent bond given by the defendants below to the plaintiffs below, bearing date on the 5th day of October A. D. 1841. The bond recites that Jacob Voorhees, one of the obligors, had been surrendered in discharge of his bail, into the custody of the Sheriff* of Somerset, upon a writ of capias ad respondendum at the suit of the present plaintiffs.

On motion to strike out pleas. Campfield having sued Johnson in an action of trespass quare clausum fregit in the court for the trial of small causes, the defendant pleaded title to the locus in quo and gave bond pursuant to the statute in such case made and provided. Thereupon the plaintiff commenced his action in this court for the same trespass.

1. The present road act does not require surveyors to be appointed from the townships through which the road is to be laid or vacated, or from the nearest townships. In matter of Road. On Certiorari to Bergen Common Pleas. This Certiorari was brought to remove into this court the appointment of surveyors of the highways, made by the Bergen Pleas for the purpose of laying out a public highway, together with the proceedings thereon.

<p>1. Where, on appointment of surveyors of Highways, the Court of Common Pleas determine that due proof of advertising the application was made, this court have no power on Certiorari to inquire into sufficiency of proof.</p> <p>2. Where one of the points called for in the application is a stake “in the middle of said road,” and in the road laid by surveyors, that stake is within the width of the road but not in the middle, the variance is not material.</p> <p>3. A barn or dwelling-house is not such an improvement as is required to be laid down in tlie map annexed to the return of surveyors.</p> <p>4. If the road laid out corresponds with road in written application of petitioners, proof will not be received that a different route from the one taken by surveyors was intended by, or mentioned to petitioners.</p>

This was an action of assumpsit. The declaration contained only the common money counts. To this declaration there was a general demurrer and joinder in demurrer. The cause had not been placed upon the calendar for argument.

Judgment in this cause having been entered by leave of the court, upon a bond with a warrant of attorney to confess judgment more than ten years after the date of the warrant. Application was made to the court for the taxation of a bill of costs amounting to $20.28.

On Demurrer to Pleas, &c. This was an action of debt on bond to Morris Canal & Banking Co. (penalty $10,000), against defendant as administratrix of John Van Vorst, deceased, who was one of the sureties of A. B., a clerk and cashier of the company.

General John A. Schuyler who died intestate in the year 1817, owned in his lifetime the mansion-house and premises at the time of the trial, and for some time previous, owned and occupied by the plaintiff. He resided upon the said premises until his death, and was at the same time the owner of the adjoining premises, called the Cottage, now owned and occupied by the defendant.

<p>1. The title to this country which vested in the British nation was that of discovery, and was held by the king in trust for the public, such matters as were part of the sovereignty or regalia, subjeót to the restrictions then imposed by the laws of England on their alienation.</p> <p>2. The crown could not grant a several fishery in navigable rivers or arms of the sea; and a fortiori could not grant the soil under water, a grant which would involve the destruction of the fishery.</p> <p>3. The right to navigable rivers and arms of the sea, was included in the surrender of the proprietors to Queen Anne, as part of the sovereignty; and at the Revolution vested in the State.</p> <p>4. The shore of navigable rivers and arms of the sea where the tide ebbs and flows, which includes all between high and low water mark, is part of the sovereignty and belongs to the Suite, and not to the Riparian owners.</p> <p>o. A Riparian owner by filling up in front of his premises does not acquire tille to lands so filled up.</p> <p>6. A boundary to, upon, or along a navigable river, bay, &c. in a question of property, as a grant of land, extends to high water mark only, in a question of jurisdiction, as of the common law courts, it extends to low water mark.</p> <p>7. The grant by Carteret’s charter to the town of Bergen, extends only to the shore, i. e. to high water mark.</p> <p>8. The K. J. Proprietors cannot grant lands below high water mark.</p> <p>9. The lands under water in navigable rivers, bays, and arms of the sea, are part of the public domain. The Legislature have a right to grant and alien them.</p> <p>10. If a man grant land by deed with warranty, and afterward acquire title this after-acquired title enures to the benefit of his grantee</p>

<p>1. Facts necessarily involved in those stated in the declaration, and which of necessity must have been proved on the trial, implied after verdict.</p> <p>2. What entry of judgment sufficient, in suit on bond with special condition, under the statute Bev. Laws, 305 \ 5.</p> <p>3. The entry of the judgment — the ideo consideralnm esl — being substantially correct, held, that it was not vitiated because unnecessarily preceded by copies of the rules from the minutes.</p> <p>4. Semble. That the statute 23 Hen. 6 C. 9 (Act of 1796, Lev. Laws 239 $ 13), in regard to hail bonds, only extends to obligations given to the Sheriff, and does not affect such as are delivered to the plaintiff) unless taken colorably in order to elude the statute.</p> <p>5. Semhle. It is the duty of the attorney, when the clerk is incompetent from want of the requisite skill, to see that a judgment obtained for his client is properly enrolled.</p>

This was an ejectment by Samuel Cairns, Jacob Cairns, and John Moore, to recover possession of a lot of land in the city of Newark in the possession of James B. Hay.

Debt on bond; demurrer to pleas. This action was brought against the surety on a limit bond, dated March 1, 1841, given to the Sheriff of Passaic, and by him assigned to the plaintiffs. The bond was conditioned, that one DeWitt, who had been surrendered by his bail, and was then in custody of said Sheriff, should keep within the prison limits of the said county, and not walk out of, or depart the same, until discharged by due course of law.

This cause came before the Court upon the argument of a rule to shew cause why the verdict should not be set aside and a new trial granted.

This case came before the court on a Certiorari issued out of ‘ this court, directed to the clerk of the county of Morris, to remove the appointment and proceedings of commissioners appointed on the application of the defendants in Certiorari, to assess the value of the lands of the plaintiff in Certiorari, taken by them for the construction of their road by virtue of their original act of incorporation, passed January 29, 1835, Pam.

The Clerk being about to call the panel of jurors returned for the trial of the prisoner, the Presiding Judge (Hoeakeowee, C. J.,) said that in view of difficulties and delays that had occurred ou former occasions, in consequence of a departure from the law of challenges to jurors, he felt it his duty to state that on the present occasion, so far as he was concerned, the court would be governed by the law of challenges, as it is found in books of acknowledged and…

<p>The plaintiff sued out of Hudson county Circuit Court a writ of attachment, returnable to the term of September, 1842, against the defendant as a non-resident debtor, in a plea of trespass on the ease, and under it the defendant’s property, both real and personal, was attached. At the return of the writ the usual rules were taken, and auditors were appointed who adjusted the accounts of several creditors who had duly applied for that purpose. In June Term, 1843, and before final judgment, the defendant appeared to the suit of the plaintiff and of the other applying creditors, and having filed his bond, with proper security, as directed by the statute, the court set aside the attachment and the proceedings thereon. The plaintiff thereupon (as did the other creditors), filed his declaration, to which the defendant pleaded that on the 29th day of November, 1842, (being after suit brought) he petitioned the District Court of the United States, for the District of New Jersey, for the.benefit of the bankrupt law, on the 20th of December following was declared a bankrupt, and on the 18th day of April, 1843, obtained his discharge by decree of that court, which discharge he pleaded in bar, averring that plaintiff’s demand accrued before the petition was filed, and was provable under the proceedings thereon. The plaintiff in his replication admitted the proceedings and discharge under the bankrupt act, as set forth in the plea, but in answer, alleged that prior to the filing of the petition, viz: on the 24th of June, 1842, the writ of attachment was served, and certain property and estate of the defendant was by virtue thereof attached, which thereby became subject to the lien thereof for the plaintiff’s demand, and was not freed from said lien by the discharge in bankruptcy, and prays judgment for his damages, to be levied of the estate so attached, and not of any other property of the defendant, nor upon his person.</p> <p>To this replication the defendant filed a demurrer, and assigned under it several special causes of demurrer; to this demurrer there was a joinder by the plaintiff.</p> <p>The special causes of demurrer set forth are 1st, That the matters alleged in the replication are immaterial, as the'’plaintiff’s demand and defendant’s liability were discharged by the decree in bankruptcy. 2d. That the replicatian is a departure from the declaration. 3d. It shows no lien within the proviso of the bankrupt act; and 4th. That the decree divested the defendant of the property, and vested it in the assignee.</p> <p>After hearing the argument upon this demurrer, the Judge (Hoenblowee, C. J.) that held the Hudson Circuit Court, al though of opinion that the demurrer ought to be overruled, yel considering it a case of doubt and difficulty (on account of conferent decisions in other courts), directed a case to be stated, and certified it to this court for their opinion.</p>

<p> In Debt by Attachment. Demurrer to Replication. </p>

<p>This was an action of assumpsit by endorsee against endorser, on a promissory note drawn by one Potts in favor of T. J. Lawrence, or bearer: transferred by delivery to Johnston, and by him endorsed to Martinis. The note was for $175, dated 24th October, 1822, and payable at eighteen months, with interest. The cause was originally brought in the Hunterdon Pleas. The judgment obtained by the plaintiff in that court was reversed on error in the Supreme Court, and a venire de novo awarded. 4 Halst. R. 144. The cause was afterwards brought down for 1 rial on the venire de novo at the Hunterdon Circuit, October 1827. Having been moved, and a jury empanelled, the parties at the suggestion, and on the advice of a friend conferred in relation to the matters in dispute, and then came into court and declared that the cause was settled. The court therefore dismissed the jury, and no further proceedings were then had for the trial. No further proceedings were had in the cause after the said arrangement, until the year 1840, when the cause was noticed by Mr. Hamilton, the counsel of the plaintiff, in the name of Mr. Saxton, his attorney, for trial at the April Circuit in that year. The action had been brought by Mr. Saxton, and his name still remains on the record. The notice was served on Mr. Clark as attorney of the defendant, but who had been appointed, and was then the clerk of the county. The cause was not moved at that term, but was again noticed in the same way for the Hunterdon Circuit in August of the same year. It was then moved, when the defendant objected, and insisted that the notice was irregular and unlawful, and that the cause had been settled at a former circuit. The judge ordered on the trial, but reserved the objections. The jury rendered a verdict for the plaintiff, for principal and interest of note.</p> <p>The defendant took a rule to shew cause why a discontinuance should not be entered, and also a rule to shew cause why the verdict should not be set aside and a new trial granted.</p> <p>Affidavits were taken under the first rule to shew the character of the-alleged settlement made in 1827. The facts in the case, and the reasons which were relied upon in support of each rule, will further sufficiently appear in the opinion delivered.</p>

Matter of costs in ejectment. The lessor of the plaintiff had refused to join in the consent rule and was consequently non-prossed. ' Mr. Halsted for the tenant moved for a rule on the lessor to pay costs. In an anonymous case, 3 Halst. 268 such rule was refused; but he said there was no agreement, and the defendant seems to be entitled to costs under the statute.

<p>In debt on constable’s bond, defendant after Oyer, set out condition of bond which recited that J. C. was elected constable — held, that they were es-stopped from denying that J. C. was lawfully elected constable.</p>

This was an action of trespass, in which the plaintiffs in their declaration complained “ that the defendant, on the 17th day of December, 1835, at New York, to wit, at Newark, in the county of Essex, with force and arms, &o., did blow up by gunpowder, burn and destroy divers goods, wares and merchandizes of the said plaintiffs, to wit: 800 cases prints ; 70,000 pieces prints ; 50 cases drillings; 1000 pieces drillings, and a large quantity of prints, drillings, and other…

<p>This was an action of replevin, brought for goods and merchandize, seized and taken by th.e defendant, who was the Sheriff of the county of Middlesex. The defendant having obtained permission to amend (See Ante p. 46), filed the following amended pleas:</p> <p>And the said Asher Bissett, by J. "V". D. his attorney, comes, and defends the wrong and injury when, &c. and as the Sheriff of the county of M. in the state of N. J., well avows the taking of the goods and chattels in the said declaration mentioned at the said place in which, &c. and justly, &e. because he says that at the time when, &c. and for a long time before, to wit, one year, he was the Sheriff of said county of M., and that before the commencement of this suit, to wit, on the 22d August, 1845, one D. M., not being then a resident in the state of New -Jersey, but being at that time' indebted to C. A. B., B. G., and R. H., partners trading under the name and firm of “Bulklej’, Graham & Co.,” in the sum of nine hundred and thirty dollars, the said C. A. B. one of the members of the said firm of “Bulkley, Graham & Co.,” on the said 22d day of August aforesaid, before M. B., Esq., then being one of the Justices of the Peace of the said county of M., made oath in writing, among other things, that the said D. M., against whose estate an attachment was about to be issued, was not, to the knowledge or belief of the said C. A. B., at that time resident in the state of New Jersey, and that the said D. M. then owed to the said B. G. & Co. (partners as aforesaid), the said sum of $930, as nearly as the said C. A. B. could then specify, and that the said oath duly made as aforesaid was on, &c. delivered to the clerk of the Circuit Court of the said county of M., and was on, &c. by the said clerk duly filed in his office of clerk aforesaid, and that after filing of the said oath as aforesaid, and on, &c. a writ of attachment duly sealed by the said clerk, was duly and lawfully, and in due form of law issued by the said clerk out of and under the seal of the said court, at the suit of said B. G. & Co. against the said X). M., which said writ of attachment was addressed and directed to the Sheriff of the said county of M'., and was on, &c. delivered to the said defendant as the Sheriff of the said county, in which said writ of attachment the said defendant as Sheriff as aforesaid was commanded, among other things, to attach the rights and credits, monies and effects, goods and chattels, lands and tenements, of the said D. M. wheresoever they might be found in the said county, so that the said D. M. should be and appear before the said Circuit Court to be liolden at N. B., in and for said county, on, &c. then next ensuing, in the term of August of the said court, to answer unto the said, &c. of a plea of trespass on the case to their damage of §2,000 ; upon the sealing and issuing of which writ of attachment the said clerk forthwith entered in a book by him provided and kept for that purpose, the names of tho plaintiffs and defendants in the said writ of attachment, the sum or amount therein specified, and the time of sealing the same.</p> <p>And the said defendant in fact says, that afterwards, and on the said 22d Aug. 1845, he the said defendant, by virtue of the said writ of attachment, directed and delivered to him as aforesaid, and in obedience to its directions, in the presence of S. G., a credible person at the place aforesaid, did attach and take the said goods and chattels in the said declaration mentioned as the goods and chattels of the said D. M., and that the said defendant, at the time and place last aforesaid, by virtue of the writ aforesaid with the assistance of S. G., a discreet and impartial freeholder, did make a just and true inventory and appraisement of the said goods and chattels in the said declaration mentioned, and by him attached as aforesaid, as the property of the said D. M., which said inventory and appraisement were dated on, &c. and signed by the said defendant, and the said freeholder, and were annexed to, and returned with the said writ, which writ was returned to the said Circuit Court by the said defendant on, &c. aforesaid, according to the command of the said writ, the true time of executing the same being first endorsed thereon, and signed by the said defendant. And the said defendant further says that the said goods and chattels at the time of attaching and taking the same as aforesaid, were in truth and in fact the goods and chattels of the said T>. M. in connection with H. S. M. and D. M., who were then and there joint owners thereof with him the said D. M. and not the goods and chattels of the said plaintiffs, as by the said declaration is above supposed, and that the said goods and chattels were in the possession of the said defendant as Sheriff as aforesaid by virtue of the said attachment at the time of the commencement of this suit, and at the time of replevying the said goods and chattels, to wit, at the place aforesaid, and within the jurisdiction of this court, and this the defendant is ready to verify— Wherefore he prays judgment and a return of the said goods and chattels, together with his damages and costs, according to the form of the statute in such case made and provided, to be adjudged to him, &c.</p> <p>1’n the second and third pleas, the defendant in the same form avowed the taking of the same goods under two other writs of attachment at the suit of other persons, and out of the same court, which it is unnecessary to recite at large.</p> <p>In the fourth plea, the defendant in the usual form pleaded property in a third person.; the plaintiffs reaffirmed the property in themselves, and issue was thereupon joined.</p> <p>To each of the first three pleas (or avowries) the plaintiffs pleaded with the necessary variation, in regard to names, the following pleas:</p> <p>1. “ And the said plaintiffs as to the avowry, &c. say that the said defendant, by reason of anything in that avowry above alleged ought not to avow the taking of the said goods and chattels in which, &c. and justly, &c. because, they say, that no writ of attachment at the suit of (naming plaintiffs in attachment), against D. M., was duly and lawfully and in due form of law, issued out of, and under the seal of the said Circuit Court of the county of M., as the defendant hath in his said (first, &c.) avowry alleged, and this they the said plaintiffs pray may be inquired of by the country,” &c.</p> <p>2. With the usual commencement, “ That the said clerk in the said avowry mentioned, did not forthwith enter in a book by him provided and kept for that purpose, the names of the plaintiffs and defendants in the said writ of attachment, the sum or amount therein specified, and the time of sealing the same in manner and form as the said defendant,” &e.</p> <p>3. “ That the said defendant did not attach and take the said goods and chattels in the said declaration mentioned, by virtue of the said writ of attachment in said (first, &c.) avowry mentioned, in manner and form,” &c.</p> <p>4. “ That the said defendant by virtue, &c., in the said (first) avowry mentioned, did not with the assistance of S. G., a discreet and impartial freeholder, make a just and true inventory and appraisement of the said goods and chattels in the said -declaration mentioned, in manner and form,” &c.</p> <p>5. “ That the said defendant did not return, with the said attachment in the said avowry mentioned, a just and true inventory and appraisement of the said goods and chattels, &c. in manner and form as the said defendant in his said (first) avowry above alleged,” &c.</p> <p>6. “ That the said goods and chattels at the time when, &c. were not the property of the said D. M., H. S. M., and D. J. M., as in the said avowry set forth, but of them the said plaintiffs in manner and form as they have above in their declaration alleged, and this they pray may be inquired of by the country,” &c.</p> <p>The defendant demurred specially to these several pleas of the plaintiffs. Among the causes of demurrer severally specified, are that the plaintiffs to the said first three pleas of the defendant, filed pleas instead of replications. That the said pleas are severally too large in their traverse; put in issue matters of law and matters altogether immaterial; that they contain negatives pregnant, and are uncertain and ambiguous.</p>

This was an action of ejectment brought in this court, and tried before Justice Randolph at the Hunterdon Circuit in August Term, 1845.

<p>1. -The shipper being owner of goods sent by a general ship, is liable for the freight at all events, independent of the hill of lading; and it is immaterial whether the ownership appears on bill of lading or not.</p> <p>2. If goods shipped by a general ship by bill of lading to be delivered to a specified consignee, “he paying the freight,” are delivered by the captain to. the consignee without freight being paid, the owner who shipped the goods is not thereby discharged from his liability to pay freight.</p> <p>3. If goods consigned to be delivered on the payment of freight by the consignee, are delivered without payment, and the captain takes in payment of freight a bill on the owner for balance of freight drawn by consignee which is refused payment, the owner is not thereby discharged from his original liability.</p>

Assumpsit by George Shepherd, late a lunatic, but whose commission of lunacy had been superseded, against John M. Newkirk, surviving guardian of said lunatic. Shepherd the plaintiff having died, the action had been revived in the name of Catharine Shepherd, the executrix. The declaration contained three counts : one, the usual money count for money had and received; the second, for interest; and the third on an account stated.

<p>This is an action of debt brought for the recovery of a reward offered by the defendant, and one Abraham Castner since deceased, for the apprehension and conviction of certain persons implicated in the murder of four individuals at Changewater in the county of Warren, on the first of May, A. D. 1843.</p> <p>The declaration is as follows :</p> <p>“ Eor that whereas the said David Parke, and one Abraham Castner in his lifetime, now deceased, and whom the said David Parke hath survived, heretofore, to wit, on the second day of May, in the year of our Lord one thousand eight hundred and forty-three, at Mansfield in the said county of Warren, and within the jurisdiction of this court, offered a reward of one thousand dollars, to be paid for the apprehension and conviction of such person or persons as may have been implicated in the murder of John II. Parke, John Castner, Maria Castner and child, on Monday night, the first of May (then) instant, at Changewater, Warren county, state of New Jersey, and the said Moore Furman avers that afterwards, to wit, on the twenty-second day of May, in the year aforesaid, one Joseph Carter, Jr., was arrested upon the complaint of the said Moore Furman, made under oath before George Creveling, Esq. then being one of the Justices of the Peace in and for the said county of Warren, for the murder of the persons above mentioned, and that afterwards, to wit, at a Court of Oyer and Terminer and General Jail Delivery, holden at Belvidere, in and for the county of \Varren aforesaid, in the Term of June, in the year aforesaid, several bills of indictment were found against the said Joseph Carter, Jr. by the Grand Jury of the said county of Warren, for the murder of the said several persons above mentioned respectively, and that thereupon such proceedings were had, that afterwards, to wit, at a Circuit Court holden at Belvidere, in and for the said county of Warren, in the Term of June, in the year of our Lord one thousand eight hundred and forty-four, the said Joseph Carter, Jr. was tried and found guilty of the murder of the said John B. Parke, and thereupon was afterwards sentenced to be hung for the murder aforesaid, and in pursuance of the said sentence, he the said Joseph Carter, Jr. was executed, whereby an action hath accrued to the said Moore Furman, to demand and have of, and from the said David Parke the sum of one thousand dollars above demanded.” To this declaration there was a general demurrer and joinder, upon which issue the argument was had.</p>

A rule has been obtained by Henry Miller and others the relators, that Isaac English and others, respondents, shew cause why information in the nature of a quo warranto should not issue against them the respondents to remove them from the office of ■“ Trustees of the Anti-pedo Baptist Society, meeting in the town of Salem in the state of New Jersey.” On the third of July 1786, the Baptist Society in the town of Salem became incorporated under the act of March 16, 1786, by…

<p>1. The right to a pew granted by a church corporation to a man and his heirs, is real property, an incorporeal easement, or usufructuary right in land of another.</p> <p>2. A suit in which the right to such pew comes in question is within the provision of the first section of the small cause act as to title of real estate, and not cognizable before a justice.</p> <p>3. In such suit plain I iff'in Circuit entitled to full costs, though verdict for less than 100 dollars.</p>

<p>On application for Mandamus to Burlington Common Pleas to reinstate an Appeal.</p>

<p>This was an action of waste. The plaintiffs are infants residing out of the state. At the present term of the court, a guardian ad litem, residing in this state was admitted on the petition of the plaintiffs to prosecute the suit in their behalf.</p>

This was an action of ejectment in the Circuit Court of the county of Bergen, tried in that court at February Term, 1846. A verdict was ta^en for the plaintiff under the direction of the court, with leave for the defendant to move to set verdict aside and to enter nonsuit. At the same time, the ordinary rule for judgment nisi was entered, and also a rule upon the plaintiff to shew cause why the verdict should not be set aside, and judgment of nonsuit entered.

<p>1. Proof of a sufficient excuse for not performing a contract, will not sustain an averment in the declaration, that it was’performed.</p> <p>2. On a promise to pay an agent who effected a sale, a sum for his services if vendee fulfilled his agreement; agent is entitled to recover of vendee, if vendee was ready to fulfil, but did not, by default of vendor.</p>

<p>1. The present road act does not require the surveyors to be taken from the nearest townships, to be appointed to view a road.</p> <p>2. It is not imperative to appoint the surveyors of the .townships in which the , road is.</p> <p>3. Eeciting in the order that regard was had to the appointment of the surveyors of the township is sufficient, without assigning reasons for omitting them.</p> <p>4. That the town clerk did not keep a copy of his oath of office, or that it does not appear on the oath of office where it was taken, or that the officer was a justice, provided these appear aliunde, does not disqualify a surveyor.</p> <p>5. It is no objection to the return that the surveyors were entertained by tbe applicants. But it is improper to pay them more than one dollar per day. If this would make void their return. Quere?</p> <p>6. Where the object of the application is to alter an old road by vacating part of it, and laying out another instead of the part vacated, there should be but one application and return.</p>

<p>1. The court are not limited in their inquiry as to the moral character of an applicant for an attorney’s license to the certificate, but will, and are bound, in cases attended with suspicious circumstances, to look behind it.</p> <p>2. An indictment found, and pending, or quashed for formal defects, if .it charges any matter involving moral turpitude, is such a charge as the court from their personal knowledge will notice, and require the applicant by oath or otherwise to purge himself therefrom, before they will admit him to examination.</p>

On traverse of inquisition. An alias writ of escheat was directed to Jacob C. Terhune, Sheriff of the county of Bergen, to inquire whether John G. Leake did not die seised of other lands than those described in the inquisition taken before Garret Van Dien, late Sheriff, &c. and whether he did not die without heirsr or devising the same.

<p>This was an action of assumpsit brought in the Circuit Court of the County of Middlesex, on the following special agreement made by the defendant’s testator, with intestate of plaintiffs.</p> <p>“ This is to certify that I engage to my son Isaac the farm which he now lives,’ and should Providence determine otherwise he is to receive of my estate, one thousand dollars — five hundred for the improvements made on the farm on which my son Joseph lives, and five hundred for money to be paid to Sarah Rue, widow of my deceased son. September twenty-seventh, 1822.</p> <p>(Signed) JOHN RUE.”</p> <p>The declaration contained in addition to the common counts, several special counts setting forth the agreement. In the first special count, after an inducement setting forth the consideration, &e., the contract is described as an agreement by which John Rue undertook and promised that he would, by Ms last will and testament leave and devise unto Isaac the farm in Lower Freehold, or in ease Isaac died before him, that he would pay to him the said Isaac, his executors or administrators, the sum of $1000; and the breach alleged is that Isaac’died before his father John Rue, and therefore his administrators are entitled to receive the one thousand dollars.</p> <p>In the third count it is described as an agreement by which John Rue undertook and promised that he would by his last will and testament give and devise unto Isaac the farm in Lower Freehold, or if in the course of Providence, it should happen otherwise, that then Isaac was to be paid after the death of John Rue by his executors, out of his estate, the sum of 1000 dollars; and the breach alleged is that John Rue did not by his last will and testament give and devise the said farm to Isaac, but that he did give and devise it to his son Joseph Rue.</p> <p>In the sixth count it is described as an agreement by which John Rue undertook and promised to give unto Isaac the farm in Lower Freehold, and should Providence determine otherwise, that he the said Isaac should receive of his (the said John Rue’s) estate one thousand dollars; and the breach alleged is that John Rue did not by his last will and testament give the said farm to Isaac, but that he gave and-devised it to Joseph Rue.</p> <p>In the seventh count the agreement is described as in the sixth, and the breach alleged is that John Rue did not give the said farm to Isaac, but that he gave and devised it to Joseph Rue.</p> <p>The cause was tried in the Circuit Court and a verdict rendered for the plaintiffs, subject to the opinion of the Court upon a case stated. As the cause was argued upon the validity of the agreement, and its admissibility in evidence under the pleadings filed, it is unnecessary to state the evidence farther than incorporated in the opinions of the Judges.</p>

This matter was brought before this court by a Certiorari directed to Justice Vau Winkle of the county of Hudson, the justice who had issued the usual tax warrant for the township of Harrison in the county of Hudson, against the delinquents returned by the township collector; among whom the collector had returned “ The Proprietors of the Bridge over the rivers Passaic and Hackensack,” the prosecutors of the Certiorari, whose toll bridges over those rivers, both partly in the…

<p>This was an action on the case tried at the Essex Circuit, at August Term, 1845, before the late Chief Justice; a verdict was rendered, under the direction of the Circuit Judge, in favor of the plaintiff for the whole amount claimed, with leave for defendants to move for nonsuit at bar on a special ease stated.</p> <p>The plaintiff’s claim was founded on two promissory notes given to him by the defendants, which were not disputed. The defence was rested on an alleged agreement for composition, founded on the following facts. A deed of composition dated July 14, 1840, was executed between the defendants and their (other) creditors, by which the latter in consideration of an assignment to be made for their benefit, covenanted to release the defendants from their debts, and the deed, if assignment require4 by that agreement was duly made, dated October 17, 1840. The plaintiff, although applied to several times for that purpose, did not sign the composition deed, alleging that it might injure a claim he had against A. M. EL, one of the defendants, for which he had issued an attachment in Charleston, S. C. on property there; but said if that debt was settled, he would sign the deed. Paul Spofford, who last applied to plaintiff, said that he would guaranty to him that signing the composition deed would not injure his claim or security in Charleston, and plaintiff said that then he would sign the composition, but the deed not being there, it was not then signed. After this, the plaintiff’s attorney in Charleston compromised his claim there for 90 per cent., and then the plaintiff refused to sign the composition deed, because he had not received the whole of the separate debt of A. M. Hatch. The assignee under the assignment deed had closed his trust, and had retained in bis hands the ratable share of the plaintiff on his debt which he was ready to pay plaintiff, but which had never been paid or tendered to him.</p>

This was an ejectment brought in the Circuit Court of the County of Salem, to recover possession of forty-three acres of land in the township of Pittsgrove, in that county, in the tenure of the defendant.

<p>(T. The restriction in the 16th Section of the Charter of the'Camden and A.m-boy Railroad and Transportation Company, limiting their charge for the transportation of property to the rate of eight cents per ton per mile, extends and applies to the whole line of communication which they were authorised and incorporated to perfect — that is from the city of New York to the city of Philadelphia. It was not intended to be applied only to the Sail Soad, and to leave the Company to charge at discretion on their conveyance by water.</p> <p>2. The Railroad constructed by the United Companies, by virtue of the act of March 15th, 1837, from New Brunswick through Trenton to Bordentown, is subject to the same restrictions as to the rales of transportation thereon, as were imposed by the original charter of the C. & A. R. R. & T. Co.</p>

This was an action brought in this court in debt on replevin bond for penalty, The only plea was non est factum. The plaintiff suggested breaches on the record. This cause was tried before-Justice Carpenter and a struck jury at the Atlantic Circuit, December Term 1845, upon the pleadings and suggestions of breaches. The counsel for the plaintiff proved the execution of the bond, and offered the bond in evidence.

In forcible entry and detainer on Certiorari to Justice Doremus.

<p>Scire facias to revive a judgment after a year and a day. The defendant pleaded nul tiel record,.</p>

<p>On rule to shew cause why mandamus should not issue to Common Pleas of Sussex to reinstate an appeal.</p>

<p>On foreign attachment.</p>

<p>1. An order for particulars may be obtained in ejectment when necessary, as in other actions.</p> <p>2. When the declaration is general, and the defendant is in doubt for what the plaintiff means to proceed, the latter may be compelled by rule to specify the premises sought to be recovered.</p>

The defendant below was a student in Princeton College, and as alleged, a minor. The plaintiff made oath that the defendant was indebted to him on boob account for boots and shoes sold and delivered to the amount of $62, and that he was about to remove with his property out of the State, with the intent to defraud the plaintiff. The justice on making the affidavit, of which the substance is stated above, issued his warrant and the defendant was arrested.

This case was on Certiorari to remove into this court the proceedings and appointment of the Chief Justice, appointing commissioners to assess the value of the lands of the plaintiff, required and taken by the defendants in Certiorari, for their road. By section 6th of the act incorporating defendants, approved Feb. 26, 1847, (Pam.

In attachment. This was a writ of attachment sued out against the estate of the defendant as a non-resident debtor; upon the return of the writ a rule was entered, requiring the plaintiff to shew canse why the attachment should not be quashed. At July Term, the cause came on to be argued upon the rule nisi before the Chief Justice and Randolph, J.

<p>1. Twenty years adverse possession, and maintaining what would otherwise be a nuisance, will give a right to maintain it; but until twenty years have established the right, every continuance of it is actionable, and damages may be recovered for any injuries done by it within six years before the commencement of the suit, although the cause of injury was erected for more than six years before.</p> <p>2. In such eases, the damage is the cause of action, and the statute begins to run from the time of the injury, and not from the doing the act which occasioned the injury, which gave no cause of action until damage ensued.</p>

Judgment in this case had been rendered in the Court of Common Pleas of Somerset County, in favor of the defendant below, tor §34.48 costs on appeal. Execution was thereupon issued, and the money made. The cause having been removed into this court by Certiorari, judgment was rendered in favor of the defendant below for §10.35 costs, and reversed as to the residue — pursuant to the provisions of the statute Rev. Stat. 248 § 72. •

<p>1. If an attachment has been discontinued by plaintiff by motion only made in open court, without fraud, before any other creditor had applied to the court or auditors, the discontinuance will not bo set aside on application of another creditor made to the court on the same day, even if he had given nolice to the plaintiff's attorney before the discontinuance, that he would apply under the attachment.</p> <p>2. If the discontinuance be entered by fraud, or in bad faith, it will be set aside.</p> <p>3. One attachment issued and served, is no bar to the issuing and service of another in the same county against the defendant by another creditor. The dictum in Cummins v. Blair, 3 Harr. 152 contra overruled.</p>

This was an action of waste upon the statute of New Jersey. (Rev. Laws 209, Rev. Stat. 122.) The defendants demurred to the count of the plaintiffs which is as follows : County of Middlesex, ss.

On Certiorari to the Sessions of Middlesex. This Certiorari brought up an order of filiation by two Justices of Middlesex, affirmed on appeal in the court below made against the plaintiff, for the support of the illegitimate child of Susan Harned, of which she had been delivered on the 18th day of March, 1844.

This case came up on a motion to set aside a judgment as to costs, on this state of facts. A writ of attachment was issued out of this court against Charles Smith, as an absconding debtor, at the suit of one Hogan, James Hanness came in as a creditor. Afterwards the defendant entered into bond, pursuant to the statute, and appeared to the suits of the plaintiff in attachment, and also of Hanness, and some of the other creditors, and as to them the attachment was. dissolved.

This was an ejectment for an undivided moiety of a saw mill and 28 acres of land in Salem county — tried at Salem Circuit, February, 1847. A verdict was taken for the plaintiff, with leave for defendants to move to set it aside and enter a nonsuit, if the court should be of opinion that the plaintiff was not entitled to recover.

This was a case sent from the Court of Chancery to this court for their opinion on a question of law, arising in a cause therein pending, between Charles M. Armstrong, William D. Salter and wife, and George T. Elliott, complainants, and Andrew C. Armstrong, William Kent, James G. JNutmau, John Kean, Hamilton Eisli and wife, and Christine Kean, defendants.

This was an action of ejectment brought in this court, on the several demises of Maria Louisa Hopper, and five other children of Maria, the deceased wife of Lewis Hopper, of Lewis-Hopper, of John Bush, and of Peter Worfcendyke, and Eachel his wife. It was tried before the Chief Justice, at the Bergen Circuit, in February, 1847.

This was an action by Maria Hopper, widow' of John J. Hopper, to recover dower of lands in the county of Bergen. The demandant’s count was in the usual form. The defendant, as to part of the lands in which dower was demanded (after full defence) pleaded tout temps prist; and as to residue, he pleaded non-tenure; the plea concluding to the action.

<p>The Writ of Error, in this case, brought up the judgment of the Supreme Court, rendered upon a Certiorari in the name of the State, against Charles Gardner, assessor, (The President and Directors of the Paterson & Hudson River Rail Road Company,, prosecutors,) to which Certiorari the said assessor made the following return, viz:</p> <p>On Real Estate in Jersey City, on Wayne, Mercer, and Hudson streets, as follows:</p> <p>For State Tax, $1 80</p> <p>For County Tax, 6 30</p> <p>For City Tax, 54 75</p> <p>$62 85</p> <p>In and by the eighteenth section of the act entitled “An act to incorporate the Paterson and Hudson River Rail Road Company,” passed the 21st January, 1831, it was _enacted, that the said company, after the expiration of five years, should pay to the Treasurer of this State, yearly and every year, a tax of one-quarter of one per cent, upon their capital stock paid in, and yearly and every year, after the expiration of ten years, a tax of one-half of one per cent, upon the capital stock so paid in as aforesaid, and that no further or other tax or impost should be levied or assessed upon said company. The Supreme Court set aside the assessment, and therefore this writ of error was sued out by the authorities of Jersey City, in the name of the assessor, to review this decision.</p> <p>Upon moving this cause the question was raised as to which of the Justices of the Supreme Court were entitled to sit on the argument in this court on error. The case was decided in the Supreme Court without argument, in consequence of the point raised having been settled in that court by an opinion delivered in a previous cause. It was held by the court that those judges who sat upon the bench, and concurred in the judgment of the court below, were now excluded under the constitution from sitting upon th,e review, although no formal opinion had been delivered below. An affirmance or other judgment is a judicial opinion. No Justice of the Supreme Court, who has given a judicial opinion in the cause in favor of, or against an error complained of, (i. e. assigned for error,) can sit on error in this court on the hearing, and vote for its affirmance or reversal. He may, however, sit on the argument of preliminary motions, as the striking out an assignment of error, &c.</p>

On Error to the Supreme Court. This was an action of assumpsit. The declaration contained three counts: the 1st, for goods sold and delivered ; the 2d, for money lent, paid for, and had received by, the defendant; and the 3d, upon an account stated.

This cause was argued before the Supreme Court, at the Term of February, A. D. 1842, upon the following state of the case : This action is brought by the plaintiff below, Christiana Jones, a grand daughter of Jacob Creveling, deceased, to recover $800 with interest, being a legacy given to her in and by the eighth clause of the last will and testament of deceased, which clause is as follows : “ 8th.

This cause was an ejectment brought by the plaintiff in error, in the Bergen County Circuit Court, for lands in that county. The cause was tried upon the general issue, and verdict and judgment for the plaintiff. At the trial a bill of exceptions was sealed, and on error to the Supreme Court the judgment of the Circuit Court was reversed.

John Phelps brought an action of trespass in the Circuit Court for the county of Essex against .Samuel Oliver, for taking and carrying away the goods and chattels of the said Phelps. The defendant pleaded the general issue. At the trial in October term, 1842, before the Chief Justice, the said Phelps proved the taking by the defendant of certain goods and chattels, of the plaintiff, on the 11th of October, 1841, and their value, and rested.

On Error to the Supreme Court. • The Orphans’ Court of the County of Bergen refused to restate the final account of John Engle, late administrator of Leake, on application of W. Crombie, administrator, according to the directions of the Supreme Court, (see case reported 4 liar. 83,) and the proceedings of the said Orphans’ Court were thereupon again removed into the Supreme Court by Certiorari.

This was an action of replevin brought by Chambers against Hunt to recover a sloop, &c. The defendant below pleaded that the sloop was the property of the defendant, and not of the plaintiff, and prayed a return. Replication that the sloop, &e. at &c. was not the property of the defendant but of the plaintiff, and issue to the country.

On the 2d day of April, 1842, two justices of the peace of the county of Essex, for the relief of the city of Newark, made an order for the maintenance of a bastard child by the plaintiff, whom they adjudged to be the putative father. This order was affirmed by the court of General Quarter Sessions of Essex; and the proceedings having been subsequently removed into the Supreme Court by Certiorari, were there affirmed, the Chief Justice dissenting.

The declaration was in the usual form. The defendants, with the exception of Morford, pleaded specially, that the action ought not to be maintained against them, because Morford signed the bond as principal, and that the sum mentioned in the said bond and the condition thereof, was received by and appropriated to the sole and only use and benefit of the said Morford, and that the said bond was given for his own proper debt.

This was an action of trespass for mesne profits, brought by Edward Price deceased, the plaintiff’s testator, tried before the Chief Justice at the Essex Circuit, October, 1843. The testator recovered in an action of ejectment the premises in question, of David Sanderson, the defendant. The premises were mortgaged by one John II. Smith, a former owner, to the said Edward Price, on the 1st March, 1836, to secure a debt of $16,000.

Elias W. Conover, the plaintiff below, brought ejectment against Aaron Tindall for lands in the county of Mercer.

This action was instituted in the Circuit Court of the County of Essex, by the defendants in error, against A. Peck and his sureties, on a bond executed by them conditioned for the faithful performance by Peck of the office of County Collector for the year specified in said bond. The declaration set forth the breaches of the condition, to which the defendants pleaded the general issue and several special pleas.

■ This was an action brought in the Supreme Court by Condit & Bowles in their own names, against the Perth Amboy Manufacturing Company, for goods sold to the Company by a firm organized as a limited partnership, in which they were the general partners.

This suit was brought in the Supreme Court on a note given by James P. Allaire to Joseph H. Pettis, or order, for $1500, at 90 days, dated May 22, 1839, and indorsed by Pettis to Hartshorne. A demand being made for a bill of particulars, a copy of the note was furnished by the plaintiff’ below, indorsed by Pettis, and with the additional indorsements of T. Hegeman and of Bennett & Hartshorne.

The writ of error in this case was brought upon the judgment of the Supreme Court, affirming the judgment and proceedings upon a complaint of unlawful detainer, before Rodney Wilbur, Esq. a justice of the peace in the county of Essex. The complaint filed was in the following form : State of New Jersey, Essex County, ss.

The action below was brought by the executor oí William Disborough, deceased, against the heirs at law of George Bidleman, deceased, on the bond of their ancestor, and was commenced by process to the September Term, 1834, of the Supreme Court.

An application was made to the Supreme Court tó allow a Certiorari in the matter of the election for the location of a court house in the county of Camden. Thfe Supreme Court refused to allow the Certiorari.

This action was instituted in the Circuit Court of the county of Essex, by the defendants in error, as endorsees of the bills of exchange, against (John Kean) the plaintiff in error, as the drawer of said bills. The bills are alike in teuor and amount, and are each drawn as follows: $500.00. Elizabethtown, Sept. 1841.

A judgment for $100 of debt was obtained by the plaintiffs below against the defendants in a court for the trial of small causes in the county of Essex. The defendants were alleged to have been, at the time when the indebtedness occurred, doing business as partners in the county of Sussex under the name of Pinkney & Crane. Process issued 20th June, 1844, was served on Crane only, the other defendant being returned, not found within the county.

To a writ of habeas corpus allowed at the bar of the Supreme Court, commanding Post, the defendant, to bring up the bodies of a colored man named William and of a colored woman named Flora, whom ho illegally detained. Post returned that he held them as Slaves by virtue of the laws of New Jersey, under a bill of sale.

The case fully stated and the decision of the court below will be found in Spencer’s Reports p. 299. W. L. Dayton, moved to dismiss the writ on the ground that this was not a case in which a writ of error would lie. The return made shews that there was no judgment in the court below.

<p>1. The construction and effect of written instruments is matter of law to be determined by the court and not by the jury.</p> <p>"2. Parol evidence cannot be received to alter, add to, or explain a written instrument not ambiguous on its face. The contract must be construed according to the intention of the parties. But that intent must be collected from the instrument only.</p> <p>3. Fraud, or failure in the consideration of a sealed instrument cannot be inquired into in a court of law — the only inquiry there as to fraud is in the execution of the instrument.</p> <p>4. A sealed instrument reciting “I do hereby transfer to R. or his assigns my one-fourth interest in the house and lot,” &c. is an executed contract, and conveys the interest of the grantee in the premises; it being an equitable interest, and the grantor the cestui que trust.</p> <p>5. No abandonment of a contract under seal can he inferred from any lapse of . time merely, short of the 16 years which the statute makes a bar.</p> <p>6. An error in the charge of the court below in favor of plaintiff in error cannot be taken advantage of by him to reverse the judgment.</p>

These were actions of trespass brought by the plaintiffs in error against the defendant in error in the Supreme Court. The declaration in each ease charges that the defendant on the 17th day of December, 1835, at New York, to wit, at Newark, in the County of Essex, with force and arm, did blow up by gunpowder, burn and destroy, a large quantity of goods, wares and merchandise of the plaintiff, whereby the same was totally lost.

<p>[The following opinion of,Justice Randolph should have been printed with the report of the case in which it was given. (Ante p. 332.) At the time that case was printed it had not been received by the Reporter, nor was he aware that any written opinion had been prepared by Justice Randolph. It is deemed advisable to insert it here at length, although out of its place, and detached from that of Justice Whitehead, as the decision in this case seems to overrule Montgomery v. Reynolds, 2 Green 2S3.]</p>