Volume 23 — New Jersey Law Reports

This was an action of trespass, brought in .this court, against the defendant for destroying the goods of the plaintiff, by blowing up the same with gunpowder.

Stephen Applegate, of the county of Middlesex, brought an action of trespass on the case in the Inferior Court of Common Pleas of that county, in the .term of December, 1848, against Noah Furman, for debauching and carnally knowing (to wit, on the 24th of February, 1848,) Catharine Applegate, the daughter, and then the servant of the said Stephen Applegate, and getting her with child, &c.: per quod he was deprived of her services, and was likewise obliged to expend moneys in…

This was an indictment found at the Morris county Oyer and Terminer, and was removed, by the defendants, into this court by certiorari. The indictment contained ten counts.

This was an indictment for perjury, found against the defendant, Ilarvey Dayton, cashier of the State Bank at Morris, at t!ie Morris county Oyer and Terminer, at November term, 1849, and 'removed into this court by certiorari. A motion was made, on part of the defendant, to quash the indictment, both for defects upon its face and because the grand jury found the indictment without any legal or competent evidence-» of the fact of taking the oath.

<p>1. Dower is a right in real property, which cannot be released or conveyed by parol by force of the statute of frauds.</p> <p>2. A plea is dower, that demandant had, by a parol agreement, accepted and received a sum of money in satisfaction of her dower, is bad.</p>

This was an action on the case, by the plaintiff, for negligence in the management of the ferry of the defendants, by means whereof the plaintiff was injured and lost one of her limbs. The defendants applied for a change of venue, on the ground that a fair trial could not be had in the county of Hudson, where the venue was laid.

<p>This is a proceeding founded on the provisions of the seventh sectiou of the act to prevent fraudulent elections by incorporated companies. The case comes before the court, upon the application of Hugh Downing, to set aside the election of directors of the New Jersey Magnetic Telegraph Company, held on the 11th of October, 1850.</p> <p>There was little or no controversy in relation to the facts of the case, so far as they are deemed material to a full understanding of the questions in controversy. They are as follows :</p> <p>The company was incorporated by an act of the legislature of this state, passed on the 19th of March, 1815. Its original capital was $50,000, divided into 2000 shares, of $25 each, with liberty to the directors to increase the capital to $100,000. The entire stock of $50,000 was taken by the persons interested in procuring the charter, 1915 shares being subscribed by one individual, and the remaining 55 shares being divided among 11 other persons, for the mere purpose of effecting an organization. Nothing was paid upon the stock at the time of subscription, the whole being in fact held for the benefit of the associates. No organization of the company was effected until August, 1847, when the entire stock, or, in the language of the witness, the charter (the stock being deemed of no value, nothing having been paid upon it,) was sold to Hugh Downing for $300. To effect the transfer, 1940 shares of the stock were transferred to Downing; the remaining 60 shares remained standing in the names of the original subscribers, in order to keep up the organization of the company. The whole stock thus became vested in Downing, as fully as it had previously been in the original proprietors.</p> <p>Previous to the purchase of the stock, Downing had purchased the right to the exclusive use of House’s electro-magnetic letter printing telegraph, upon a’line of telegraph to be constructed between New York and Philadelphia. By tire terms of the purchase, he was bound to commence the construction of the line on the first day of July, and to complete it on or before the first day of December, 1847. As a consideration for the purchase, he was bound to pay the patentees one-fourth of the capital of any company which might be incorporated to construct the line. At the time of the purchase of the stock of the telegraph company by Downing, he was actually engaged in the construction of the line, and the purchase of the stock was made to enable him more readily and effectually to accomplish that object.</p> <p>On the 20th of August, 1847, directors having been elected in pursuance of the charter, the company was organized, and Downing elected president. On the 2d of September, 1847, a resolution of the directors was adopted to increase the capital stock to $100,000, and, by another resolution of the same date, the president was authorized to receive subscriptions for new stock. Three subscription lists were opened : one for the city of Trenton, bearing date on the 20th of August; one for the city of Philadelphia, bearing date on the 30th of August; and a third for the city of New York, which has not been produced, and the date of which has not been manifested. In each .of the subscription papers produced, Downing is stated to be the owner of one-half of the entire capital stock of $100,000; and each contains certain guaranties, on the part of Downing, to the other subscribers, in regard to the line of telegraph. Prior to the adoption of the resolution, on the 2d of September, 1847, to increase the capital stock of the company, no certificate of stock had been issued to any one. The first certificates of stock were issued on the 26th of October, 1847, and between that day and the 19th of September, 1848, certificates were issued for 4000 shares, comprising the whole capital of the company. Of this stoek there were issued certificates to Hugh Downing for 1990 shares, to the patentees, in pursuance of Downing’s contract on the purchase of the patent, 1000 shares, being one-fourth of the entire capital of the company, and to all other stockholders 1010 shares. On the 20th of September, 1848, a second election of directors was held, and Downing was again elected president. On the 15th of November, he reported to the board that the last issue of certificates had been made to the patentees. On the 12th of October, 1849, the third election of directors was held. In the mean time difficulties had arisen, between Downing and other members of the board, in regard to the due execution of his contract in erecting and completing the line of telegraph. On the 12th of October, though elected a director, he was removed from the office of president, and, on the same day, a resolution was adopted by the board of directors, ia his absence, that no stock standing on the books in*his name should be transferred, without a resolution of the board- authorizing it. On the 12th of November, 1849, the following preamble and resolutions were adopted by the directors in Downing’s absence, and without notice to him :</p> <p>“ Whereas the board of directors, on the 2d of September, 1847, by resolution directed that the capital stock of the company bo increased $50,000, divided into shares of $25, and the president of the company (Mr. Hugh Downing) was authorized to receive subscriptions for the said additional stock; and whereas no report was ever made by Mr. Downing to the board that any subscriptions under said resolution had ever been obtained by him, and no authority has heretofore been given to issue any certificates therefor or for any part thereof, and no money had been paid either to the company or to its treasurer upon said stock; and whereas the said stock now stands in the books of the company in the name of Hugh Downing, who has issued to himself certificates therefor without having rendered any compensation to the company for the same, therefore—</p> <p>.Resolved, That the said certificates, so issued by Hugh Downing, late president of this company, to himself, are hereby declared to be null and void, and that said stock has never been lawfully issued, but remains the property of this company.</p> <p>Resolved, That the president be directed to take such steps as may be necessary to warrant a reissue of the said stock, or so much thereof as may be necessary to meet the emergencies of the company.”</p> <p>On the same day the following resolutions were also adopted by the directors:</p> <p>“ Resolved, That the exigencies of the company require that the sum of $14,000 should be raised, as early as practicable, to put the line in good working order, and to secure the right of way for the same.</p> <p>Resolved, That the president prepare a circular to the stockholders, offering to them the stock of the company, in proportion to the stock they severally hold, at such price as will raise the above required sum, and that if any decline to take upon those terms, the deficiency will be made up by dividing the stock thus offered to them amongst those stockholders who are willing to take it on the terms proposed.”</p> <p>Iu pursuance of the authority contained in these resolutions, new certificates were issued for 849 shares, in lieu of part of those declared to be forfeited, and 1151 shares, the balance of the 2000 shares of new stock, was, by an entry in the stock ledger, made within ten days of the election now in question, transferred from Downing to the name of the company.</p> <p>The 1151 shares, thus transferred to the company, were not voted upon at the election now in controversy. Of the 849 shares which were reissued, 799 shares were voted against the complainant. On the 2000 shares which had been declared forfeited by the board of directors, Downing was not permitted to vote. He had, in fact, certificates for only 1990 shares, but in the stock ledger he was credited with 56 other shares (the certificates for which were issued to Jane Downing and Charles P. Daly), thus making the whole stock, with what he was credited, 2046 shares. The resolution of the board having, as was supposed, deprived him of all right to 2000 shares, he was permitted to vote on the remaining 46 shares, although the certificates for that stock were issued to others.</p> <p>A list of the stockholders entitled to vote was not made out ten days before the election, nor did the list produced on the day of election contain the names of Charles P. Daly and Jane Downing, two of the stockholders entitled to vote. Two tickets were voted for at the election, which was held for the election of nine directors. Of these, two names were upon both tickets. Of the remaining seven, those upon the ticket voted for by the complainant received 46 votes. Those upon the opposing ticket received 2392 votes, and were declared to be elected. At October, 1849, notice having been given of an application to set aside the election, a rule was entered, by consent to show cause, on the first day of the next term, why the election of the directors whose names were upon the successful ticket should not be set aside, and those whose names were upon the unsuccessful ticket declared to be duly elected.</p>

W. Kingsland, clerk of the township of Van Vorst, in the county of Hudson, argued before Justices Nevius and Carpenter. This writ was issued to bring up the proceedings of the annual town meeting of 1849, touching the raising and appropriation of certain taxes for the support of schools.

<p>Certiorari to S. Quaife, collector of the township of Van Vorst, in the county of Hudson.</p> <p>This certiorari was issued to bring up the assessment of tax in that township against Van Vorst, the prosecutor of the writ, for the year 1849. The return contains a schedule of the taxes upon his property, the county tax, school tax, &c., being separately assessed. Affidavits were taken, on behalf of the prosecutor, to support the reasons assigned for setting aside the assessment. Argued before Justices Nevius and Carpenter.</p>

Argued before Justices Carpenter and Randolph. This was an action of debt on award, originally brought in a justice’s court by the plaintiff in certiorari. The plaintiff recovered before the justice the sum of $77.88, the amount of the award with interest, which on the appeal was reduced to the sum of $64.58.

<p>1. "When a subject comprehends multiplicity of matter, in order to avoid prolixity of pleading, the law allows of general pleading: as in a cashier’s bond conditioned for his faithful service, &c., it is sufficient to assign as a breach that the cashier had 'received divers sums of money and valuable securities for money for which he iiad not accounted, without specifying the securities or stating from whom they were received.</p> <p>2. Greater certainty is- not required in assigning breaches upon such bond against the administratrix of the surety than if the suit had been brought against the surety himself.</p> <p>3. It is not necessary in such assignment of breaches specially to aver that notice of the default had been given to the surety.</p> <p>4. The inducement to a special traverse must set out material facts repugnant to the allegation traversed, so that the traverse may be an inference from the inducement.</p> <p>5. A traverse may be taken upon matter which, though not expressly alleged, is necessarily implied.</p> <p>6. To a plea, in an action on a cashier’s bond, that the cashier had made and executed his promissory note, payable, &c., in full satisfaction and dischargeof all moneys, &c., unaccounted for, which said note the company had accepted in full satisfaction, &c., held that a replication which, after a special inducement, traversed the making and executing the said note in satisfaction, and not the aceeptanoo, was good.</p>

On certiorari to Justice Boyd, of Warren, to remove a judgment in forcible entry and detainer. The complainant obtained judgment below, whereupon the defendant sued out this writ. It was objected on the trial below, and urged here as a ground of reversal, that the return to the summons was insufficient.

<p>If the jurat to tlie official oath of the commissioners in a commission to take the depositions of foreign witnesses be signed “A. B., Juslico of the Supreme Court of Nova Scotia,” the court will intend that he liad power to administer an oath, though it be no where averred in the proceeding.</p>

This argument comes up upon demurrer by the plaintiffs to the plea of defendants.

<p>1. In construing a deed, it is to be taken most strongly against the grantor.</p> <p>2. Where the description of the thing granted in a deed is ambiguous, the intent of the parties may be arrived at by proof of the situation and use of the subject matter at the time of the grant.</p> <p>3. A grant of the wagon way between the two dwellings, in a deed where that way had been described as extending to the whole depth of the lot, will not be confined to that part of the way which lies between the houses: the words “ between the houses’" will be considered as designating what way was intended.</p>

The defendant below was indicted for a nuisance in obstructing a public highway in the town of Paterson by a building, the front walls of which, as alleged, were erected upon the street. Held: and sold only to that corner. It is obvious, moreover, that the whole plot will be deranged by shifting that corner to the point where the defendant now seeks to fix it.

This was an indictment for assault aud battery, found in the Burlington Oyer and Terminer, and was removed into this court by a certiorari, allowed upon application of the defendant. To this indictment the defendant pleaded that an indictment had before been found against him in the Burlington Oyer and Terminer for the same offence, and that he was, by order of the court, discharged because the indictment was not brought to trial at the term when found, or at the next term.

This cause came into the court by writ of' error to the Camden county Circuit Court. Charles IT. Shinn had sued out of the’Camden county Circuit Court a writ of attachment against Philip H. Ploenes, by virtue of which the sheriff had returned that he had “attached the said Philip H. Hoenes by a certain judgment debt in the hands of Geotleb Zimmerman,” the defendant.

<p>1. In trespass, if to a plea of title or liberum tenementum, the plaintiff replies iaets -which show that he was in possession in fact at the time of the trespass, and that the rii/ht of possession was out of the defendant, or those under whom they entered, though the title set up is not legally vested in the plaintiff, the replication is good.</p> <p>2. Ii) on a special issue joined in trespass, the jury find a general verdict of guilty, as such verdict is only consistent with the finding the special issue for the plaintiff, the court will mould the verdict to suit the issue; and as this amendment is in the form of the verdict only, and not in its substance, it may be made by the court in banc without the postea being amended by the circuit judge.</p>

This action is brought on a bond, given by the defendants to Henry D. Farrand, sheriff of Morris, upon an attachment brought by Patrick O’Hagan against Charles Smith, one of the defendants, dated April 6, 1847, with condition for the return of the goods and chattels, &c., taken under the attachment.

<p>This cause came up on writ of error to the Hunterdon circuit. The action in that court was brought by Alpaugh against Lutes and his sureties, upon a boud given by them to Alpaugh upon a claim of property put in by Lutes to a wagon, which had been taken by the sheriff on a writ of replevin, sued out by Alpaugh against Lutes. Upon this claim and bond the wagon was delivered by the sheriff to Lutes. Alpaugh, the plaintiff, proceeded in the replevin suit, and obtained judgment by default for six cents damages and costs.</p> <p>On the trial in this suit brought upon the bond, the judgment in replevin was offered in evidence by the plaintiff. It was objected to by the defendant, because it was illegally entered, it being for costs by default, without it appearing by the record that any demand had been made for the goods before issuing the replevin. The court admitted the evidence, to which decision the defendant excepted. The court charged that the costs in the replevin suit should be included iu the assessment of damages upon this bond, to which the defendant excepted.</p>

Two cases between tbe same parties, on two different orders, were removed by certiorari to Mercer sessions. An order of removal, in each case, was made by tbe justices below, by which the paupers were removed from Princeton, in the county of Mercer, to South Brunswick, in the county of Middlesex. On the appeal, the court was moved to quash both orders, among other reasons, because — 1.

<p>1. An order of filiation for the maintenance of a bastard may be made at any time after the bastard is born, and before he is twenty-one years of age, " but it cannot be made before the birth of the bastard.</p> <p>2. The provisions of the second and third sections of the bastardy act are only for the security of the township and for the detention of the putative father before the birth, until the bastard is born and an order of filiation made. In this proceeding no order of filiation can be made, either by the justice or upon the appeal. That order must be made by two justices, by virtue of the first section of the act.</p> <p>3. The discharge, authorized by the fourth section of the bastardy act, of any person committed “ by virtue of that act” only applies to persons committed for detention until an order of filiation can be made, and not to persons committed for disobeying the order of filiation, although the language of the section is broad enough to include such order made by virtue of the first section of “ that act.”</p> <p>4. Where, in the revision of statutes, by incorporating several former statutes into one, the construction of the words would give a meaning clearly at variance with the intention of the law, the true construction may be arrived at by giving such words the meaning in which they were used in the old statute.</p> <p>5. The intention of the draftsman of a statute, or of the legislature who passed it, not expressed in the statute itself, affords no legitimate ground to control or influence the judicial construction of it.</p>

This cause came into this court on certiorari removing an assessment made by the defendants on property within the limits of their association, which the prosecutors contended was illegal. By an act, passed on the 27th of February, 1837, (Pamph.

<p>1. A salt cannot be maintained in this state npon a judgment by an alderman or justice of the peace of another state, without proof of the jurisdiction of such court, by showing the statute by which created. The jurisdiction of such court cannot be presumed, but must be proved.</p> <p>2. Quere, whether justice’s courts, when courts of record, come within the meaning of the act of congress, and whether their judgments can be authenticated under the act, so as to be competent evidence in connection with proof of their character and jurisdiction?</p>

<p>On an agreement to pay a certain sum with interest at the end of a stipulated time, e. g. three years, the interest is not payable annually, unless so expressed, but only when the principal is payable at the end of the term.</p>

<p>Certiorari to Sussex pleas.</p>

This was an action brought for injury to plaintiff’s mill by back-water, caused by the defendant’s mill below. Three actions, arising from the same cause of complaint, had been tried in Burlington county, and in each a verdict had been rendered for the plaintiff.

<p>1. The regulation of ferries, and other means of internal communication between the states, is not vested by the constitution of the United States in Congress ; the power remains with the states.</p> <p>2. The power of fixing the rates to be taken at the ferries within their counties, given to the board of freeholders by the “ Act concerning ferries,” passed February 6, 1799, authorizes them to fix the rates to be taken at a ferry where one terminus is within their county, even although the other terminus is out of the state.</p> <p>3. The board of chosen freeholders of the county of Hudson have power to regulate the rates of ferriage to be taken at the ferry from Jersey City to the city of New York. _</p>

This was an application, in the name of the state, by William O. Price and others for a mandamus to the board of chosen freeholders of the county of Essex, to compel them to erect and rebuild a bridge in one of tlio public streeLs of the borough of Elizabeth, in the same place where it had formerly stood; it being alleged that they had caused or permitted the old bridge to betaken down from the place in the street or highway where it had stood for many years, and caused a…

<p>This was an action on the case, brought by Seward against the Morris Canal and Banking Company, for a nuisance in overflowing his lands, by raising the waters of lake Hopatcong, which they had selected and used as a reservoir for waters to supply their canal. When the company erected their dam at the lake, by which the waters were raised, their engineer had made a description of the lands of the plaintiff, which the lake would overflow, as raised by the dam of the company : the value .of these lands was assessed according to their charter, and paid for by the company. The plaintiff contended that the dam of the company caused the lake to overflow and injure other lands adjoining those assessed and paid for, and on this founded his action.</p> <p>The cause was tried before Justice Ogden, at the Morris circuit, in a very protracted trial. A great many witnesses were sworn and examined on both sides, as to the questions of fact, whether the dam had been altered or raised, and whether more land of the plaintiff was overflowed than the amount assessed and paid. A verdict was given for the plaintiff' for one hundred dollars damages..</p> <p>A rule was granted to show cause why a new trial should not be granted.</p>

Certiorari, directed to the clerk of the county of Hudson, to remove into this court the award and assessment of damages made by commissioners, appointed under the sixth section of the act incorporating the New Jersey Railroad and Transportation Company (Harr. 379), to determine the compensation' and damages to which the plaintiffs are entitled, by reason of the occupancy of certain of their land by the railroad company, for the use of their road.

<p>This was an action of debt upon a judgment recovered by the plaintiff against the defendants in the Middlesex Common Pleas, on the tenth day of December, 1839. The declaration was in the usual form against both defendants.</p> <p>Styer did not appear to the suit or plead. Brittin, one of the defendants, on whom process was served, pleaded — first, nul tiel record, and secondly, the following plea :</p> <p>And for a further plea in this behalf, by leave of the court here for this purpose first had and obtained, according to the form of the statute in such case made and provided, the said Abraham Brittin comes and says, that the said Joseph Cast-net* ought not to have and maintain his aforesaid action against him, the said Abraham Brittin, impleaded as aforesaid, because, he says, that in the Inferior Court of Common Pleas in and for the county of Middlesex, there is now remaining the record of a supposed recovery against the said Abraham Brittin and David Styer by the said Joseph Castner, which said supposed record is as follows :</p> <p>Joseph Castner v. David Styer and Abraham Brittin. — Pleas before the judges of the Inferior Court of Common Pleas in and for the county of Middlesex, in the state of New Jersey, of the term of September, in the year of our Lord one thousand eight hundred and thirty-nine. Witness Peter P. Runyon, esq., judge of the said court.</p> <p>Booraem, Cleric.</p> <p>Middlesex county, ss. — Joseph Castner puts in his place John Van Dyke, his attorney, against David Styer and Abraham Brittin, garnishees in attachment of a plea of debt on scire facias, Middlesex county, to wit: The state of New Jersey sent to the sheriff of the county of Middlesex a writ close in these words, that is to say : Middlesex county, ss. — The state of New Jersey to our sheriff of our county of Middlesex, greeting: Whereas heretofore, to wit, of the term of June, in the year of our Lord eighteen hundred and thirty-eight, Joseph Castner did sue out of an Inferior Court of Common Pleas of the eounty of Middlesex a certain writ of attachment to our sheriff of our county of Middlesex directed, whereby the said sheriff was commanded to attach the rights and credits, moneys and effects, goods and chattels, lands and tenements, of David Smith, in said county, so that the said David Smith might be and appear before the judges of the said Inferior Court of Common Pleas of the said county of Middlesex, at New Brunswick, on the second Tuesday of September, then next, to answer the said Joseph Castner, in the sutn of one hundred and fifteen dollars, of a plea of trespass on the case. And whereas the said sheriff of the said county of Middlesex did, on the said second Tuesday of September aforesaid, make return to the judges of our said court, that, by virtue of the said writ to him directed, he had attached a certain debt due to the said David Smith, in the hands of David Styer and Abraham Brittin, appraised at five hundred dollars, as by the said writ of attachment, and return therewith made, duly affiled in the office of the clerk of our said court, may more fully and at large appear. And whereas, on the said second Tuesday of September, in the year aforesaid, agreeably to the statute in such case made and provided, auditors were appointed by the said court to audit and adjust the demands of the said Joseph Castner and others of the creditors of the said David Smith as might apply for that purpose. And whereas the said auditors, by their report, bearing date on the twenty-first day of March, eighteen hundred and thirty-nine, and made to the said court in the term of March, in the same year, did certify and report to the said court that, on the day of the date of the said report, there was due to the said Joseph Castner the sum of sixty-seven dollars and seventy-six cents; and to John T. Hoagland eight dollars and seventy-five cents; to Samuel Coleman twenty-four dollars and eighty-nine cents; to John Crokie twenty-one dollars twenty-five cents ; and to John D. Martin one dollar and fifty cents, and that no other creditor had applied to them to audit and adjust his demand, as by the said report, duly affiled, may more fully appear. And whereas such proceedings were had upon the said writ of attachment that judgment upon the said report hath in due form of law been entered of the term of March of the said court, of the year eighteen hundred and thirty-nine, against the said David Smith by default, with costs, as appears to us of record : and now, on behalf of the said Joseph Castner, we have been informed, that although judgment be therefor given, yet execution thereof still remains to be made, and he has humbly besought us to provide a proper remedy in this behalf, we, being willing that what is right and just should be done on this occasion, do command you, that you cause to be made known to the said David Styer and Abraham Brittin that they be and appear before the judges of the Inferior Court of Common Pleas at New Brunswick, in said county of Middlesex, on the first Tuesday in June next, to show cause, if any they have, why the said Joseph Castner should not have execution of the money aforesaid, due from the said David Styer and Abraham Brittin to the said David Smith, in their hands, according to the statute in such case made and provided, if they should bo free so to do; and further to do and receive what our said court shall then and there consider concerning them in this behalf: and have then and there this writ. Witness Peter P. Runyon, esquire, judge of our said court of New Brunswick aforesaid, the second Tuesday of March, in the year of our Lord eighteen hundred and thirty-nine.</p>

<p>Error to the Passaic circuit, argued at November term, 1851, before the Chief Justice and Justices Nevius and Ogden. .The facts of the case and the errors relied on sufficiently appear in the opinion of the court.</p>

This was an action upon a covenant, contained in a deed of bargain and sale of certain real estate in the county of Essex. The action was brought, by a subsequent purchaser of the land, against the executors of the covenantor. The declaration was as follows: New Jersey Supreme Court, of the term of January, in the year 1850.

<p>1. In declaring upon a judgment, it is necessary to set out the place where the court was held in which the judgment was rendered.</p> <p>2. When it is deemed necessary or expedient to state where the cause of action actually arose, and the place thus stated is out of the county in which the venue is laid, it is necessary to lay the venue under a videlicet. In all other cases, the introduction of the videlicet in stating the venue is neither necessary nor useful.</p>

This action was brought by the plaintiffs, as receivers of the President and Directors of the People’s Bank of Paterson, appointed by the chancellor, under the act to prevent frauds by incorporated companies, on a draft or bill of exchange for five hundred dollars, accepted by the defendants, payable to the order of the Machine Company, and by them endorsed to the People’s Bank of Paterson, bearing date the thirtieth day of July, in the year of our Lord one thousand eight…

This was an action of assumpsit- for .breach of promise of marriage. The declaration contained four counts. The promise was laid, in the first count, on the first of January, 1851 ; in the second count, on the first of March ; and in the third count, on the first of February, in the same year.

Action upon a covenant, made by the defendant with James Shotwell and Jonathan Shotwell. The covenantees being dead, the administrators of both joined in the action for a breach of the covenant. Special demurrer to the declaration,

The prisoner was brought before the Chief Justice, at chambers, on the fifth day of April, 1852, by virtue of a writ of habeas corpus, directed to the keeper of the common jail of the county of Mercer.

This was an action on the case, brought in the Burlington county Circuit Court, by the defendants in error against the plaintiffs in error, to recover the subscriptions made by Irick to the stock of the plaintiffs, according to their calls.

This ease came up on a rule to show cause why the verdict rendered for the plaintiff in ejectment at the circuit should not be set aside, and a new trial granted, upon the following state of the case: The action is brought for an undivided share of a small tract of land, containing 5.70 acres, with a small house and barn, and known by the name of Oak island, situate in the county of Gloucester.

This was a certiorari, directed to the common council of Newark, to return into this court an assessment made by commissioners appointed by the common council to assess the expenses of grading and putting in proper order a street which had been opened across their own lands by the prosecutors of the certiorari.

This was a certiorari to remove the judgment and proceedings in an unlawful detainer, brought before Peter P. Runyon, esquire, one of the justices of the county of Middlesex, by the defendants in certiorari against the plaintiff in certiorari, in which judgment was given against the latter. The facts of the case and the errors alleged appear in the opinion of the court.

This was an action of trespass, originally brought in the Circuit Court of the county of Cape May by Joseph S. Higbee, the defendant in error, against Jacob Hopple, jun., and Aaron Hand. The declaration contained two counts: 1. For trespass quare clausum fregil et de bonis asportatis. 2. For trespass de bonis asportatis. The following is an abstract of the bill of exceptions sealed by the judge upon the trial.

This was an action on the case, hrought before the Mercer county Circuit Court, and tried in the term of March, 1850. The suit was founded on a promissory note, drawn by defendants (in the suit below) to the plaintiff. The declaration contains a count on the note and the usual common counts. The plea is the general issue. On the trial, the plaintiff produced and proved the note, and rested his cause.

The indictment in this case was found in the Morris Oyer and Terminer. The defendants having been convicted and sentenced, the record was removed into this court by writ of error. The indictment, which is the only part of the record material to an understanding of the case, is as follows : Morris Oyer and Terminer and General Jail Delivery, August term, 1850.

This cause came up by writ of error from the Sussex county Circuit Court. Bevans, the defendant in error, had recovered below three hundred dollars, as a penalty for taking more than legal interest, which had been taken by Phillips from Bevans, jointly with two others, upon a loan of three hundred dollars, which they had obtained of Phillips.

A judgment having been obtained by Allen, in Salem Circuit Court, against Hunt, upon a bail bond for the sum of two hundred and sixteen dollars, the penalty thereof, the same was affirmed in the Supreme Court and in the Court of Errors.

This was a certiorari to remove the proceedings of surveyors of the highways of Mercer county, laying out a road in the township of West Windsor. The certiorari was prosecuted by R. M. Smith and B. Marlat, relators. The facts and reasons for reversal sufficiently appear in the opinion of the court.

<p>On certiorari in matter of laying out a public road in the county of Monmouth.</p> <p>The facts and reasons relied on for reversal distinctly appear in the opinion of Justice Ogden.</p>

This was a certiorari to remove the return of surveyors of the highways of the county of Somerset, laying out a public highway in the township of Bridgewater, in that county, and the assessment of damages to the land owners returned with it.

<p>1. The assessment of the damages sustained by the land 'owners is a necessary part of the duty and return of the surveyors of the highways in laying out a road ; and if it is omitted, or if the assessment is illegal and void, the return of the road itself is illegal, and must be set aside : it is all one proceeding, which cannot be good in part and bad in part. ,</p> <p>2. Where a road is laid out in two townships, if surveyors omit to adjudge what part of the damages awarded is to be paid by each township, the laying out the road is illegal, and must be set aside.</p> <p>3. Every owner of land taken, not an applicant, must have some damages awarded him. Per Ogden, J., Nevius, J., dubitat.</p>

This cause was brought into this court upon certiorari to Bergen Common Pleas removing the record and proceedings of that court, on an appeal from the court for the trial of small causes. Howard, the defendant in certiorari, sued Doremus before the justice, in debt, for the price of a crop of grass, bargained and sold, by him to Doremus while growing, for the price of twenty-five dollars. Howard obtained a verdict before the justice for twenty-five dollars.

<p>Tlie order of removal in this case was made by two justices of Sussex county, on the application of the overseers of the poor of the township of Byram, in that county, to remove Elizabeth Brooks and her four children — John, aged six years, Henry, aged four years, Mary, aged three years, and Edo, aged one year, to the township of Paterson. The order stated the application of the overseers, that the paupers had no settlement in Byram, and that they “are now become chargeable to said township of Byram,” and then adjudicated in these words: “ We, the said justices, upon due proof thereof made to us, as well upon the examination of the said Elizabeth Brooks upon oath, as otherwise relative to her place of residence for six months preceding her application for relief to the said overseer of the poor of the township of Byram aforesaid, and likewise upon due consideration had of the premises, do adjudge the same to be true: and we do likewise adjudge that said Elizabeth Brooks and her said children resided in the township of Paterson, in the county of Passaic, in the state of New Jersey, for six months preceding her said application for relief, and that the legal settlement of her, the said Elizabeth Brooks and her children, John Garrison, Henry, Edo, and Mary Ann, is in the said township of Paterson, in the county of Passaic, aforesaid.” The order was dated September 1, 1849.</p> <p>It appeared, by the evidence, that Elizabeth Brooks was born in the township of Acquackanonck, in the county of Passaic, in 1819; that she was married, in 1841, to Jonathan Brooks, whose legal settlement did not appear; that since her marriage they have lived at Paterson for about six years, and had not lived in any other township for six months at one time; they had lived for five months in Byram, and her husband had left her.</p> <p>On appeal to Sussex sessions, the order was affirmed.</p>

This cause came up on a demurrer to the plaintiff’s declaration, the declaration alleging, by way of introduction, that the plaintiffs exercised and carried on the business of insuring lives, and also property against loss or damage by fire; and that their property, affairs, and concerns were conducted and managed by directors and officers, among whom vyere a president, vice president, and secretary, and that they were in high and deserved repute, estimation, and credit with…

<p>The question in this case came up on demurrer to the first count of the declaration, which was as follows:</p> <p>Mercer county-, to wit: The board of chosen freeholders of .the county of Mercer, by their attorney, complain of the board of chosen freeholders of the county of Warren, being summoned, &c., of a plea of trespass on the case, &c., for that whereas, heretofore, to wit, on the 19th day of June, 1848, to wit, at Trenton, in the county of Mercer, one Eliza Brooks, being a person in indigent oireumstanees, but not a pauper, and becoming insane, application was made in her behalf to C. B., who was then one of the judges of the Inferior Court of Common Pleas of the said county of M., the same being the county where the said Eliza Brooks then resided ; and the said judge did thereupon call a respectable physician and other credible witnesses, and fully investigate the facts of the case, and, without the verdict of a jury, decided that the said E. B. was both insane and indigent, and did make a certificate that satisfactory proof had been adduced showing her, the said E. B., to be insane, and her estate insufficient to support her under the visitation of insanity; on which certificate, authenticated by the clerk of the said county of M., under the seal of the said Inferior Court of Common Pleas, she, the said E. B., was after-wards, to wit, on, &c., admitted into the State Eunatic Asylum of this state, at the expense of the said county of M.; and the said judge afterwards, to wit, on, &e., filed a certificate of the said physician, taken under -oath, and other papers relating thereto, with a report of his said proceedings and decision, with the clerk of the said county of M., and reported the fact to the said plaintiffs.</p> <p>And the said plaintiffs say, that the said E. B. has for a long time past, to wit, from the time aforesaid of her being admitted into the State Eunatic Asylum to the commencement of this suit, been kept and maintained there at the expense of the said county of M., and that the said plaintiffs have during the said period, from time to time, been obliged to raise and pay to the treasurer of the State Lunatic Asylum, for the maintenance and support therein of the said E. B., divers sums of money, to wit, amounting in the aggregate to a large sum of money, to wit, to the sum of one thousand dollars. And the said plaintiffs further say, that at the time aforesaid, when the said application was made to the said judge, and .the said E. B. was admitted as aforesaid into the said State Lunatic Asylum, the township of Mansfield, in the county of Warren, in this state, was the place of the legal residence of the said E. B., whereby and by means of the premises and by force of the statute, &c., the said defendants became liable to reimburse to the plaintiffs the said sum of money so by them laid out as aforesaid for the support and maintenance of the said E. B. while at, during the time aforesaid, the State Lunatic Asylum ; and being so liable, they, the said defendants, in consideration thereof, afterwards, to wit, on the 2d day of June, 1851, to wit, at, &c., undertook, and then and there faithfully promised the said plaintiffs to pay them the said sums of money, when thereto after-wards requested.</p>

State of case agreed upon by counsel. The declaration filed in this case is upon a bond given by the defendant, as agent of a foreign insurance company, under date 23d October, 1847, for $1000, conditioned to comply with the several requisitions of the act entitled, “ Au act relative to insurance companies,” approved April 15, 1846. “It is agreed, between (he attorneys of the above parties, that the sole question for the decision of the court in the above case is, whether…

This cause was tried at the Middlesex Circuit, in the term of December, 1850, before Justice Ogden. The plaintiff gave in evidence certain deeds, under which it is admitted that Daniel Snowhill, the testator, herein after named, was, at the time of making his will, and also at his death, seized in fee simple of the premises in question.

This cause came into this court by writ of error to Middlesex Circuit Court. The action below was assumpsit upon a promissory note, given by Inslee, the defendant below, to Isaac Prall, the testator. The plaintiff there, having proved and given in evidence the note upon which the action was brought, rested.

This was an ejectment for lands in Somerset, and the cause coming on for trial before the Hon. James S. Nevius, it was agreed, by and between the parties, that the following statement of facts should be submitted to the Supreme Court, for its judgment thereupon : In the month of November, 1835, Richard Wooden, being seized in fee simple of a tract of land in said township of Warren, about fifteen acres, he caused a survey to be made, and the said tract laid out into…

This was an action of ejectment, brought in Morris county Circuit Court, and removed into this court by writ of error. Upon the trial, the plaintiff proved title to the premises in Rachel Batson, who was a single woman, and died leaving two illegitimate children, Jonathan Elle, the lessor of the plaintiff, and Hannah, the wife of Joseph Sanders.

The summons in this case was made returnable July 27th, last. The declaration was filed on the 20th of July, and on the 21st, a notice was served on one of the defendants to plead in thirty days, in conformity with the first section of the supplement to the practice act, approved March 17th, 1852. The declaration had annexed thereto a schedule and affidavit', pursuant to the third section of said supplement, which affidavit was made July 17th.

This was a certiorari, prosecuted by Benjamin Eish, in the name of the state, directed to William C. Branin, collector of the first ward in the ciiy of Trenton, to bring up the aswcrmumt oil taxes made in that ward against the prosecutor in 1851. The questions arising iu the cause wore argued upon the following state of the case, agreed upon by the counsel.

This was a certiorari sued out by the Camden and Amboy Railroad and Transportation Company, as prosecutors, to the commissioners of appeal of the township of Mansfield, in the county of Burlington. It returned the assessment of taxes upon the property of the. company in that township for the year 1851.

This was an assessment made by the assessor of the township of Princeton upon James Potter, the prosecutor, in the year 1851, for taxes, and removed into this court by certiorari. James Potter owned and cultivated a rice plantation in Georgia, which he considered his place of residence or permanent domicil; he voted, performed jury duty, and exercised the other rights of a citizen in Georgia, and did not in New Jersey.

This was on certiorari, directed tó the collector of the township of Chatham, in the county of Morris, bringing up an assessment, made in 1851, upon the lands upon which the road of the prosecutors was constructed in said township. The only question was, whether these lands were exempt by the charter of the company.

This was a certiorari, sued out by Stephen Vail, the prosecutor, to review the assessment of taxes made by the assessor of the township of Morris, in the year 1851.

This was a certiorari, directed to the collector of Belvidere township, in the county of Warren, to bring up the tax assessment in 1851, against the Belvidere Bank, located in that township. The assessment was upon the bank, for the value of its banking house and the amount of its surplus, being the supposed value of its assets above the amount of capital.

This was a certiorari to remove the assessment of taxes upon the property of the prosecutor, by the assessor, of the township of Freehold, in the county of Monmouth. The facts and reasons relied on sufficiently appear in the opinion of the court.

The writ of error in this ease was directed to the Supreme Court, to bring up an order made in that court at the term of July, 1849, in a certain suit in that court pending between the defendants in error, as plaintiffs, and Lewis E. P. Gregory, ordering the sheriff of Sussex to pay over to said Chapin, Bennett, and Monroe certain moneys in his hands, raised by the sale of the property of Gregory by virtue of a fieri facias, issued in said suit, and by virtue of another…

<p>A writ of error will not lie to review the decision of an inferior court refusing to allow a certiorari, such allowance not being a matter of right, but resting in the discretion of the court.</p>

The writ of error in this case removed into this court an order of the Supreme Court, made to settle the priority between execution creditors of Lewis F. R. Gregory, against whom a judgment had been obtained in the Supreme Court by the defendants in error, Chapin, Bennett, and Munroe.

This case was brought up from the Supreme Court by writ of error. The pleadings and state of the case are given in the report of the case in the Supreme Court. (Ante, vol. 2, p. 372.)

This action was instituted by the lessor of the plaintiffs against Van Valkenbergh and Osborn, defendants below, in Essex Circuit Court, to recover possession of a paper mill and lands in the county of Essex. The declaration in ejectment was returned to the term of May, 1849, and the cause tried before said Circuit Court in the term of August, 1850.

These cases were brought up from the Supreme Court upon judgments on the demurrers filed by the plaintiffs (who were plaintiffs below) to the replications of the defendant. The pleadings in both suits, and the points arising upon them, were precisely the same. The pleadings are set forth at length in the report of the same cases in the Supreme Court (ante, p. 9,) where judgment was for the defendant.

This was an action originally brought in Salem county Circuit Court by William A. Allen, the defendant in error, against J. W. Hiles, G. B. Kaighn, W. S. Kaighn, and Jacob Hunt, the defendants in error, on a bail bond which W. S. Kaighn and Hunt had executed as sureties for Hiles and G. B. Kaighn, arrested on a capias at the suit of Allen.

This was an action of trespass, brought in the Supreme Court by Edward Gough (a tenant of John B. Coles and others) against Mary Bell, for a trespass in breaking the close of the plaintiff, and cutting and carrying away the grass, &c., there growing. The plea of the defendant was liberum tenementum, and the only question was the title to the loe,us in quo.

The writ of error in this cause removed into this court the judgment of the Supreme Court, rendered at the term of July, 1851,* against the plaintiff in error, which judgment was in affirmance of a judgment in the Passaic Oyer and Terminer against Joseph Smith, upon an indictment for nuisance in obstructing part of a public street in the town of Paterson, by erecting a building, projecting in said street fifty feet in length, and five feet in breadth.

This was an action of trespass by Passage against McVeigh, to which the defendant had pleaded title, and this was the only question. The cause was tried at the Mercer circuit, before Justice Randolph. The loous in quo was along the line between the parties, who owned adjoining tracts; each claimed it as part of his tract. The plaintiff claimed by deed, dated May 1, 1844, from S., who then owned both tracts.

This cause was removed from the Supreme Court by writ of error. The cause was tried at the Atlantic Circuit, before Justice Carpenter, and bills of exceptions were taken by the plaintiffs in error, who were the defendants below, to the ruling of the judge at circuit. The evidence excepted to, the objections, and the charge of the circuit judge, are given in the report of the case on a motion for a new trial in the Supreme Court, 1 Zab. 411.