Volume 22 — New Jersey Law Reports

This cause was removed into this court, from the Middlesex Oyer and Terminer, by writ of error.

<p>This cause was brought into this court by certiorari, removing from the Morris County Common Pleas the judgment of that court, on an appeal from the court for the trial of small causes. On the appeal, the Court of Common Pleas had given judgment in favor of Moses Applegate, the plaintiff below, against the inhabitants of the township of Washington, in the county of Morris, for the value of certain sheep destroyed within the said township by dogs, which sheep belonged to Applegate, who was not an inhabitant of said township.</p>

This cause was tried on appeal before the Court of Common Pleas of Somerset, and a verdict rendered in favor of the plaintiff. That court refused to render judgment on the verdict, but, on motion of the defendant, set it aside, and ordered a new trial.

<p>1. In a suit on a bond given to the ordinary by a guardian or administrator, it is not error to insert the name of the person who is ordinary as plaintiff, before the words “The ordinary,” &c.: the name is mere surplusage, if correctly given, but it may in some cases embarrass the suit.</p> <p>2. The most correct and safe mode, however, is to bring the suit in such case in the name of office alone, i. e., “ The ordinary of the state of New Jersey.”</p>

This case was upon an indictment; found in the Oyer and Terminer of Morris county. On a motion to quash the indictment, that court had reserved the question of the sufficiency of the indictment for the advisory opinion of this court, and the argument was had upon a case stated and certified to this court. The offences charged in the indictment appear in the opinion of the court.

<p>1. A receipt is never conclusive, but can always be explained by parol, and fraud or mistake shown and corrected.</p> <p>2. It is not assignable for error, that the court omitted or neglected to charge on a particular point of law in question in the cause, if no charge was requested on that point.</p> <p>3. A jury may infer fraud from the circumstances attending a transaction, without any direct or positive proof; and when a jury infer fraud against the weight of evidence, or from insufficient evidence, the remedy is by motion for new trial, and not by writ of error.</p>

Rule to show fcause. This was an action of ejectment tried before Mr. Justice Whitehead, at the Passaic circuit, in March, 1847, when a verdict was found for the plaintiff. The land sought to be recovered was a strip in dispute between the owners of two adjoining lots, in the township of Paterson, in said county : the lessor of the plaintiff claimed that his lot went to a liue ten feet east of that claimed and occupied by the defendant.

These were actions in trespass, brought in this court. The defendant in each of these causes, having pleaded specially in justification of the alleged trespass, the plaintiff demurred to the plea. The demurrer was overruled by this court, and judgmeut rendered for the defendant, (a) The cause having been removed into the Court of Errors and Appeals, the judgment below was there reversed, at October term, 1848, (b) and the record remitted to this court.

At the term of April, 1847, thirty-three actions of trespass were instituted in this court, at the suit of different plaintiffs, against Cornelius W. Lawrence. The writs were all issued by the same attorney. The ground of complaint, in each case, was the destruction of the plaintiff’s goods, by gunpowder, at the great fire in the city of New York, on the 17th December, 1835. The declaration, in each case, was in the usual form.

<p>1. If a will devise lands to W. and his heirs and assigns for ever, and if W. should die without lawful issue and without leaving a will, or if he should by will, or in any other way, after the date of said devise, give any thing to T., or any of his descendants, then over: this devise vests an estate in fee in the first taker, and the limitation over being upon a definite failure of issue, is not void asan executory" devise on account of remoteness. If this condition should be held void, as being contrary to policy or good morals, as it is a condition subsequent, it would only defeat the limitation over, and not the estate devised to W.</p> <p>2. Every testator is presumed to be of sound mind, until the contrary is proved. The burthen of proof is upon the party alleging insanity.</p> <p>3. A will cannot be set aside on account, of any moral obliquity or prejudice of the testator exhibited in the devises in it, or because the disposition of property in it is unnatural or unjust.</p> <p>4. Strong, violent, and unjust prejudices, if not founded on delusion, do not show mental incapacity.</p> <p>5. Influence acquired over a testator by kind offices or persuasion, unconnected with fraud, is not such undue influence as would invalidate a will induced by it.</p>

On application for a mandamus to the Morris circuit coart. This cause was at issue, and noticed for trial in the Morris circuit, and a special jury had been struck aud summoned for the occasion, when, by a written agreement, entered into between Randolph Ferris, the plaintiff, and Dr. Munn, in behalf of his son, John Munn, the defendant, the cause was referred to three referees.

<p>1. In an action on a covenant to deliver a number of trees at a certain time and place, if plaintiff proves that lie offered the trees at such time and place, and left them there, it is no defence, that no one was there, on part of the defendant, to examine, count, and receive the trees. A party cannot-evade a contract by absentinghimself from the time and place of performance.</p> <p>2. In an action on a covenant to deliver a number of morns multicaulis trees of not less than one foot high, it is competent for the defendant to show that, by the universal custom and usage of all dealers in that article, the length was measured only to the top of the ripe wood, rejecting the green immature top; and this, although the trade had existed only for a lew years. It is not necessary that such usage be immemorial. Usage can be proved to explain a doubtful contract, not to contradict an explicit one.</p>

On rule to show cause why verdict should not be set aside. This was an action for overflowing land, and obstructing the operation of a mill, by raising the water of a pond below, on the same- stream, beyond the proper level. The plaintiff recovered a verdict, and the defendants obtained a rule to show cause why that verdict should not be set aside, on the ground of misconduct on the part of the jurors, alleged to have been at the instance of the plaintiff.

This was an action bf trespass, brought, before a justice of the peace of the county of Burlington, against the plaintiff in ceitiorari (who was defendant below), an engineer in the employ of the Camden and Amboy Railroad Company. The action was brought against him for killing the cow of the plaintiff below, by running against her with a locomotive, then in charge of the defendant.

<p>1. It is a good defence to a promissory note in the hands of the payee or endorsee, with notice of the fact, that it was given for a consideration which has totally failed.</p> <p>2. It is no ground for a new trial, that one, of two counsel of the plaintiff engaged in the trial, was called away during the trial, if the other counsel proceeded and tried the cause in his absence, without requesting an adjournment.</p> <p>3. If a letter from defendant to plaintiff, produced by defendant, is proved to have been mailed to plaintiff at the proper post office, and has the proper post mark upon it, and the possession of it by the defendant is accounted for in a way that shows a presumption that he received it from plaintiff) it is sufficient proof to permit the whole evidence to go to a jury, to determine therefrom, if the letter had been received by plaintiff.</p> <p>4. What circumstances are sufficient evidence to warrant a jury in finding that the endorsee of a promissory note had notice of the failure of consideration.</p> <p>5. If plaintiff agrees to deliver to defendant at P., an engine for defendant's road at M., defendant takes the engine to M., and tries it there, and finds it does not answer the object for which it was bought, and which it was warranted to answer, it is a sufficient rescinding the contract to give notice thereof to plaintiff at P., without bringing hack and tendering the engine there.</p> <p>6. If an engine, or other article, be sold warranted to answer two purposes, the purchaser is not bound to rescind the contract as soon as he finds the warranty fails for one purpose, but may continue the trial of it until he finds that it fails in both, and then may return it of rescind the contract on account of the failure of the warranty lastly tested.</p>

This is an action of covenant, and the plaintiff declared as follows: “ For that whereas heretofore, to wit, on (the 19th January, 1839,) at M. H., in the county of B., and within the jurisdiction of this court, by certain articles of agreement, &c., making profert, it was agreed, by and between the said parties, that the defendant, for four thousand morus multicaulis trees, on the day and year last aforesaid, sold to him by the plaintiff, and by him to be delivered upon the…

This case came before the court from the Passaic Oyer, for an advisory opinion. The defendant was indicted for, and convicted of receiving a large number of bank bills, amounting in value to §>4000, “ of the property, goods, and chattels ” of Drew, Robinson & Kelly, the defendant well knowing said bank bills were taken by robbery, &c., contrary to the statute, &c.

<p>If, after judgment against him, a defendant is discharged from his debts under the bankrupt law, it is irregular to issue execution on such judgments without an order for that purpose on notice : the debt is prima fade satisfied by the discharge.</p>

This cause came up by writ of error to the Burlington Oyer and Terminer, removing therefrom into this court the record of the conviction of Joseph E. West, the plaintiff in error, on an indictment for forgery. With the record carne up a bill of exceptions, signed by virtue of the act of March 9, 1848, (.Pamph. Laws 272) which was passed after the trial iu this cause, at the November term of the Burlington Oyer in 1817.

This was an action on the case, originally commenced in the Mercer circuit, by Lee against the Canal Company, at June term, 1848. The declaration stated was for a misdemeanor in obstructing the flow of the water in a watercourse which flowed through the plaintiff’s close, and thereby throwing back the water on the plaintiff’s close, and injuring it. The defendants pleaded the general issue and the statute of limitations.

The premises in dispute in this case were two lots of land in the township of Nottingham, in the county of Mercer. The cause was tried before Justice Randolph, at the Mercer circuit, in September term, 1847. The premises in dispute were part of the estate of which James Mathis the elder died seized many years since. After his death, being intestate, his children divided his real estate among them by parol, and have since hold according to that partition.

Demurrer. Argued before Justices Neyius, Carpenter, and Ogden.

The declaration contains three counts; the first and second are substantially the same.

<p>1. The father of a legitimate child is entitled to its custody and possession, in preference to the mother, when the father and mother are living separate.</p> <p>2. When children of sufficient age to have a discretion to choose are brought up on habeas corpus to be removed from the custody of one parent to that of th.e other, the court or judge will ordinarily make no order for their delivery, but will see that the children are allowed to go with such parent, as they may choose.</p> <p>3. When a child of tender years, having no discretion to choose, is in the custody of the father, it will not be taken from his custody, and given to the mother, (semble) however gross the father’s conduct or character might be.</p> <p>4. When a child of very tender years is in the custody of the mother, it is in the discretion of the court or judge to deliver it to the father, or permit the mother to retain it, as from their character and circumstances may seem most for the advantage of the child.</p> <p>5. In a case where no other facts appeared, than that the father and mother were living separate, with mutual recriminations, on a habeas corpus prosecuted by the father to remove their infant children from the custody of the mother, who was living with her father, the court ordered that the eldest boy, of five years old, be delivered to the father, and that the others, a girl of one year and boy of three and a half years old, remain with the mother.</p>

<p>The map annexed to the return of surveyors of the highways laying out a road may be made and annexed by the practical surveyors, by their direction. It is not necessary that they should sign it or that they should see it.</p>

Id matter of highway. On motion to set aside the proceedings of surveyors. Six surveyors of the highways of the counties of Bergen and Hudson, appointed by this court, at April term, 1848, on application of Albert R. Terhune and others to lay out a public highway in the counties of Bergen and Hudson, made a return, laying out a highway as applied for.

This was an action of covenant, brought by the plaintiff against the defendant, and. was tried, at the May term of the Essex Circuit Court, before the Chief Justice.

Debt on attachment bond. The declaration was as follows : Eor that whereas heretofore, to wit, on March 11, 1847, one Patrick O’Hagan sued and prosecuted, out of the Supreme Court of Judicature of the state of New Jersey, against the said Charles Smith, a certain writ of attachment, directed to the sheriff of the county of Morris, whereby the said sheriff of, &c., was commanded to attach the said C. S., by all his goods and chattels, rights and credits, moneys and effects,…

This was an action of assumpsit, brought against the defendant below, who was an overseer of the poor of the township of Washington, in the county of Morris. It was brought against him to recover compensation for medical attendance, &c., rendered by the plaintiff below, who is a physician, to a pauper who was a charge upon that township.

Rule to show cause. This was an action of trespass quare elausum fregit. To the declaration, in the usual form, the defendant pleaded several pleas, but it is only necessary to state shortly the fifth and sixth, upon which the defence rested.

<p>1. It is no ground of error that, on the trial, the court permits a leading question to be put to a witness, by the' party calling him.</p> <p>2. Every person who undertakes to carry, for compensation, the goods of all persons, indifferently, is a common carrier.</p> <p>3. A judgment will not be reversed because the court improperly refused to nonsuit, if the evidence subsequently adduced in the course of the trial is sufficient to sustain the plaintiff’s ease.</p> <p>4. Persons giving out themselves as partners, will be held liable as such, although they really are not.</p> <p>5. The non-joinder of defendants can be taken advantage of only by plea in abatement.</p> <p>6. Common carriers, where there is no special contract, are in the nature of insurers, and liable for the safe delivery of the goods taken by them, unless prevented by the act of God or the public enemy. It is no excuse ihat they were guilty of no negligence.</p>

<p>1. Shares of stock in a hank, or other incorporated company, are not hound by the delivery of a fi. fa. against their owner to the sheriff, but may be transferred before an actual levy.</p> <p>2. It. is not a sufficient levy on stock to make an inventory of it, and return it with the fi.fa. but to bind it, the sheriff'must go to some proper officer of the company (and it would seem to the defendant also) and give notice of the levy ; nor would the delivery of a fi.fa., or making a levy by inven-' tory bind bank notes. Of such property the officer must take actual or constructive possession.</p>

This case was certified from the Circuit Court of the county of Camden, and arises upon a saive faeias upon a lien filed in the office of the clerk of General Quarter Sessions of the city of Camden, under the Camden lien law, by the plaintiffs, against two three story frame dwelling houses, situate on the north side of Cooper street, between Fifth and Sixth streets, in the city of Camden, for lumber found and provided by said plaintiffs to Middleton and Brick, the builders…

Demurrer to plea. This was an action of debt, brought by the executors of Henry Reeves, deceased, against the administrators of Isaac Townsend, jun., deceased, upon the bond of the intestate. The defendants, after oyer of the conditions of the said bond, (which was conditioned for the payment of $1100 and interest in two years from the date) pleaded — 1st, payment; 2d, actio non, The defendants demurred specially to the second plea.

This was an action of debt against one of two obligors of a sealed bill, dated July 12, 1831, by which they became jointly and severally bound to pay to one Abram Coursen, or his assigns, $750 in one year, with interest.

Rulo to show cause. This was au action of assumpsit against the executors of Thomas English, deceased, brought to recover compensation for services alleged to have been rendered by the wife to the decedent, who was her father, before her marriage. The declaration contained two counts only.

This was an action of debt, brought to recover assessments made under the plaintiff’s charter, upon lands belonging to the defendaius within the tract authorized to be improved by'the charier. Upon the trial before Justice Nevius, at the, Monmouth circuit, in October, 18-13, the plaintiffs offered in evidence their book of minutes and the book of assessments of the managers.

This was an action of waste. The title of the demandants, as set out in their count, will be found substantially stated in the report of the case, when previously before this court. (1 Zab. 480.) The demandants claimed to have a vested remainder in the premises in question, under the will of Elizabeth Wilmurt.

In trespass quare clausum fregit. The declaration of the plaintiff described the close, situate in the township of Van Vorst, in the county of Hudson, as “ a close abutting on the north, lands of John B. Coles, Isaac U. Coles, and William F. Coles (the devisees of John B. Coles, deceased); on the east by the Hudson river and other lands of the said devisees; on the south by the road, street, or avenue, commonly called Pavonia avenue, and by the dock or wharf, commonly called…

On rule to show cause why verdict assessing value of land taken by the company, and damages done thereby, should not be set aside.

This matter came up on a rule to show cause why the verdict rendered for the plaintiff should not be set aside, and a new trial granted.

This ivas an action of waste, tried at the last Middlesex Circuit, upon the general issue nul waste. The verdict, as returned on the postea, was, “ that the said defendant, I).

This case was argued, by Hansom and G. II. Brovin, for plaintiffs in error, and Vroom, for defendant in error, before the Chief Justice and Justices Neyius and Ogden. The facts of the case distinctly appear in the opinion of the court, delivered by Justice Neyius, in which the Chief Justice and Justice Ogden concurred.

<p>1 The officer who makes the order to hold a debtor to bail on the ground of fraud, is the exclusive judge of the weight of the evidence, and this court will not review or set aside his order upon the weight of evidence ; but when there was no evidence before him of any legal fraud they will review it.</p> <p>2. Fraudulent conduct in a debtor, in inducing his creditors to accept, a worthless security from him for a former debt, is such fraud in contracting this last debt as will authorize an order that he be held to bail.</p>

<p>1. In debí on bail bond it is not necessary that the declaration should avej that the writ on which the defendant was arrested was issued on an affidavit of debt, and endorsed with the sum sworn to.</p> <p>2. The affidavit is pari of the process to bring the defendant into court, any irregularity in regard to which must be taken advantage of in the first instance; it is, therefore, not a good plea in an action on the bail bond, that no affidavit of the cause of action had been made and filed before issuing the capias in the original suit.</p> <p>8. The assignee of the sheriff may bring suit on the bail bond in his own name: it is not necessary that he should be styled assignee in the writ.</p> <p>4. Judgment in this action must be entered for the penalty of the bond, but the court gave time to permit such clerical error, in making up the record, to be amended.</p>

This was a motion to quash an indictment, found in the Passaic Oyer and Terminer, against the defendants, for not keeping in repair a bridge over their canal, where crossed by a public highway, in the township of Wayne, in the county of Passaic. The indictment was removed into this court by certiorari, and the motion to quash was argued before Justices Randolph and Ogden.

<p>On an application for leave to issue execution against a certificated bankrupt on a judgment obtained before liis discharge, on allegation of fraudulent preference of creditors, the court can and will, in a proper case, order au issue to try the facts.</p>

This was an action of dower, brought in the court below by Fancy ■ Thompson, widow of Robert Thompson, deceased, against James Boyd. Held: at and prior to the time of the purchase, a second mortgage, which had been given by James Thompson to Shields, upon another farm, as additional arid collateral security. Upon consummating the sale by a conveyance, Boyd declined to deliver up and cancel his first mortgage, but declared his intention to hold it as a muniment of title.

This cause came up from the Supreme Court by writ of error. The plaintiff had brought an action of replevin in the Supreme Court to recover a sloop, with her apparel. To a declaration in the usual form, defendant pleaded, that the sloop was the property of the defendant, and not the property of the plaintiff. Replication, that the sloop was not the property of the defendant, but of the plaintiff, and issue thereon to the.country.

This was on writ of error to the Supreme Court, removing an order affirming the appointment of surveyors of the highways by the Court of Common Pleas of Monmouth county, for the purpose of laying out a public highway. By the papers, it appeared that a proper and regular affidavit of putting up notices of the application, as required by the statute, had been made and exhibited to the Court of Common Pleas at the time of their appointment.

This was an action of debt for an escape, brought by Flanagin against Browning, to recover the debt, interest, and costs endorsed upon a capias ad satisfaciendum alleged to have been issued and delivered to the defendant below for execution, while sheriff of the county of Gloucester.

The parties in this cause had submitted the matters iti difference between them to the determination of three arbitrators, Robert Hamilton, Joseph Linn, and John I). Everett.

This was a writ of error, brought to remove the judgment of the Supreme Court affirming an assessment of taxes made by the assessor of the township of Harrison, in the county of Hudson, on the bridges of the plaintiffs over the Passaie and Hackensack. The assessment had been removed into the Supreme Court by eeriiomri, and was sustained by the decision of the Supreme Court. 1 Zabr. 384. The state of the case will be found in the report of that decision ubi sup.

This was an action of ejectment brought in the Supreme Court by John Den, on the demise of Maria Louisa Hopper, Eliza Ann Hopper, Charity Euphemia Hopper, Henry Lewis Hopper, Catharine Jane Hopper, Emily Hopper, Lewis Hopper, John Bush, and Peter P. Wortendike and Baohael his wife, against Garret J. Demarest, Daniel D. Blauvelt, James Holdrum, and Henry A. Terhune, in trespass and ejectment for lands in Bergen county.

Peter Briggs commenced an action before Eli Morris, one of tiie justices of the peace in and for the county of Mercer, against the Camden and Amboy Railroad and Transportation Company for a penalty, and recovered a judgment for the amount of penalty and costs.

This was a writ of error, brought by the state to remove the judgment of the Supreme Court reversing the judgment of the Middlesex Oyer and Terminer. The case is stated in full, and the arguments of counsel given in the report of the cause in the Supreme Court. Ante.

<p>1. On error, the court will not inquire as to the weight of the evidence.</p> <p>2. A sheriff’s deed is admissible in evidence without proof of the sheriff’s authority to make the deed when the object is merely to show some collateral fact.</p> <p>3. The grantor of a deed, in an action for the purchase money, is not estopped by the usual acknowledgment in the deed, that the money has been paid. Where the intention in regard to the estate is not disputed, nor the operation of the conveyance, as such, sought to be changed, this clause is ' regarded as formal merely, and open for explanation by parol.</p> <p>4. Upon a sale of land by deed, which acknowledged the receipt of the purchase money, and which also contained full covenants of title and against encumbrances, the deed was given upon an agreement by the grantee that he would discharge a mortgage of §1000 upon the premises, and indemnify the grantor therefrom, the grantee retaining so much of the consideration money for that purpose. The grantor, having been compelled to pay the debt, held that, in an action against the grantee upon his undertaking, the plaintiff was not estopped by his deed from proving the encumbrance and the agreement to discharge it. The agreement was considered to be collateral to the deed.</p> <p>5. The damnification of the plaintiff under such an agreement, when the payment by him was the giving a new security, is to the whole extent of the failure by the defendant to appropriate to the discharge of the mortgage the consideration money left in his hands for that purpose.</p>

This was an action on the case, brought by William Ward, the defendant in error, against John Ward, the plaintiff in error, in the Bergen county Circuit Court, and removed from thence to this court by writ of error. The declaration below contained three counts.

<p>The map which is required by the road act to be annexed to the return of surveyors of the highways laying out a road, may, by tlxeir direction, be both made and annexed by the practical surveyor, after they have signed tlieir return and separated.</p>

Upon writ of dower unde nihil habet. The record brought up by the writ of error in this case was as follows, with proper plaeita and warrants of attorney : New Jersey Supreme Court, April Term, 1846, Bergen county, ss. — Maria Hopper, who was the wife of John J. Hopper, deceased, by A. O. Z., her attorney, demands against Jacob J. Hopper, the third part in two messuages, two barns, two gardens, four orchards, two hundred acres of arable land, two hundred acres of pasture…