Volume 24 — New Jersey Law Reports

The argument and decision in this matter was upon demurrers to three distinct indictments, which had been found against Stimson, the plaintiff in certiorari, in the Passaic Oyer and Terminer, and… Held: on an indictment for larceny, that “a bank note at the value of ten dollars of the goods and chattels of N. B.” was a sufficient description in a statutory offence. III.

This cause 'came up upon a writ'of error to the Passaic Oyer and. Terminer removing the proceedings, conviction, and judgment upon an indictment found against the plaintiff in error for an assault, battery, and false imprisonment of John S. Darcy. Upon this indictment a verdict had been found of guilty, as to the assault and false imprisonment, and not guilty, £is to the battery. The facts appear in the opinion of the court.

This cause was on certiorari to the Common Pleas of Cumberland, removing their judgment on an appeal from the court for the trial of small causes. The facts of the case and reasons relied on for reversal sufficiently appear in the opinion of the court, delivered by Justice Elmer,

This cause came into this court by a certiorari to the Com-,mon Pleas of Warren county, reversing the proceedings, verdict, and judgment in that court, upon the application of Dehart, the defendant in certiorari, to be discharged from imprisonment as an insolvent debtor. The plaintiffs in certiorari were creditors, who had opposed his discharge, and who had entered into the usual undertaking at the hearing.

This was a motion for a judgment of nonsuit for not bringing on the trial of a cause at issue, in which the plaintiff had been ruled at a previous term to bring on the trial of the cause. It was argued, in the branch court, before Justices Ogden and Potts. The facts and grounds of the motion sufficiently appear in the opinion of the court.

<p>On certiorari to the Common Pleas of Hunterdon.</p>

This was a motion for judgment in favor of the appellants, Beebe and others, against the city of Newark, for the amount of damages assessed by the jury upon an appeal taken by the appellants from the award of commissioners appointed to assess the value of the lands of the appellants, taken by the city for a city park.

This was a motion made to set aside a judgment entered by confession at chambers upon a bond and warrant of attorney to confess judgment. The facts sufficiently appear in the opinion of the court.

applicants for a road recently laid out in the township of Bridgewater, in the county of Somerset, moved for a mandamus, to be directed to the township committee of that township, directing them to cause the amount assessed by the surveyors of the highways, as the damages of the land owners, to be assessed, collected, and paid, the township committee having neglected and refused to do it.

This was a certiorari directed to the collector of Rahway township, in the county of Essex, to bring up a tax assessment upon the property of the prosecutors, James B. Laing and Isaac M. Denman. The error complained of was, that they were taxed for goods and chattels which were uot steamboats or vessels, belonging to them but situate without the state.

<p>1. Tlie interest in a suit to exclude a witness must be a present, certain, and vested interest, not an interest uncertain, remote, or contingent: and the true test of such interest is, that he will either gain or lose by the direct legal operation and effect of the judgment, or that the record can be legal evidence for or against him in some other action. 1</p> <p>2.- The justice’s court or Court of Common Pleas, on an appeal, cannot nonsuit the plaintiff after he has rested because he has failed to make out his cause of action.</p> <p>3. There is no remedy on ceriiordri for wrong conclusions as to facts, where there was some evidence as to those facts before the court below.</p>

The indictment in this case was found in the Passaic county Oyer and Terminer against the Morris Canal and Banking Company, and was removed into this court by certiorari.

This was an action brought in this court against the defendant, as endorser of two promissory notes, drawn by George Wood, treas., to defendant’s order, and endorsed by him.

This was an action of trespass submitted upon the following stale of the case. The declaration is in the usual form, charging that the defendant, on the 27th November, 1849, broke and entered the close of the plaintiff, situate in the township of Galloway, in the county of Atlantic, and took and carried away 10,000 bushels of oysters of the plaintiff. Plea not guilty.

This was an action of trover for a crop of oats. The declaration was in the usual form, laying the conversion July 1, 1851.

This was an action brought by the plaintiffs to recover back the price of a quantity of corn, which had been sold by the plaintiffs, as factors of the defendant, the price of which they had paid to hirh before they had received it from the purchaser : the purchaser failed after the remittance, and the com never was paid for.

This was; a eertioimri, prosecuted by John R. Coles and others, devisees of John E. Coles* deceased* to review and correct the assessment of taxes made by the assessors of Jersey City, in the year 1851, upon the lands of the prosecutors. Upon the return of the certiorari, a rule was taken by the prosecutors to take affidavits.

<p>moved to quash the capias ad respondendum issued in this case, or to discharge the defend • ant on common bail.</p>

<p>to be directed to the clerk of the township of Middletown, in the county of Monmouth, to bring up the orders made by the town meeting, in March, 1853, to raise money by tax. He cited The State v. Albright, Spencer 644.</p>

This was a certiorari, directed to the collector of the township of Shrewsbury, in the countv of Mo.nmouth, to render into this court the assessment of taxes upon the prosecutor.

<p>On certiorari to the clerk of the county of Mercer.</p>

This was a certiorari, sued out by Gideon Ender, James B. Laing, and John D. Marsh, directed to the Essex county Court of Common Pleas, to bring up the appointment of surveyors to lay out roads, and their proceedings thereupon.

<p>In debt, on motion to strike out plea.</p>

The Court of Common Pleas of Somerset dismissed the appeal in this case, on the ground that the justice failed to certify at the foot of the transcript that the same was under his hand and seal. The certificate was as follows: “ I certify that the foregoing is a true transcript from my docket of the proceedings had in the above case. I. A. G., justice of the peace, (s.)” Air.

<p>1. A complaint for the violation of an ordinance of the city of Trenton is not in the nature of an information by a common informer, and the same strictness is not required.</p> <p>2. A complaint for the violation of an ordinance should refer to tie ordinance and the section upon which the complaint is founded.</p> <p>3. The notice to answer such complaiut should refer to the ordinance and section upon which it is founded, and should substantially set out the provisions Whose vio. lation is complained of, and a reference to a wrong ordinance will vitiate the proceedings.</p> <p>4. The record of a conviction under a special power delegated to a magistrate should show on its face that every thing necessary to the validity of the conviction has been complied with; it should set out the offence, show what ordinance Was violated, that legal notice was given, and What notice; whether the defendant was present or absent; whether the complaint was read to him, what was his answer, the names of the witnesses, the substance of their testimony, and the offence of which the defendant is convicted.</p> <p>5. On an appeal to the common council of Trenton from the conviction of violating a city ordinance, there is not a new trial of the cause upon testimony.</p>

<p>On certiorari to Mercer pleas.</p>

This cause was brought into this court by certiorari to the Court of Common Pleas of the county of Cape May removing the order and proceedings of that court between the plaintiffs in certiorari and the defendants therein, who were all execution creditors of one Mackey Williams, settling the priority of their executions.

W. Aspinwall, of Philadelphia, made, on the 9th August, XS5X, in Pennsylvania, a general assignment to the plaintiff for the benefit of his creditors. On the 16th of August, 1851, the Camden and Philadelphia Ferry Company issued a writ of attachment out of the Circuit Court of the county of Camden against Aspinwall, as a nonresident debtor, under which the steamboat “ B,” lying at the company’s wharf in' the city of Camden, was attached.

This was a suit brought by the plaintiff against the defendants, who were a mutual insurance company, for a loss by fire, and was founded upon a policy, effected with the defendants by one William J.… Held: the transfer -was authorized. It is said that Cantelo’s note was left. But did he agree to it ? Was it not void ? and could the company have recovered against Durar in case of loss?

<p>This case was tried upon an issue out of this court before Justice Elmer, at the April term of the Camden circuit, 1852. It was brought to recover of the defendant a penalty of #20, for forcibly passing one of the toll-gates of the company without paying toll, and for tolls due and owing from the defendant by passing through without paying tolls. (Pro ut the pleadings.)</p> <p>Upon the trial the plaintiffs gave in evidence the charter of their company, approved February 28, 1845. Parnph. L. 194, § 14 and 17.</p> <p>And also proved, by Moses King, that the road had been constructed previously to March, 1851, and that, from that period up to the time of the trial, he had been the keeper of the easterly gate upon the road between Ellisburgh and Marl-ton, which gate was called No. 2. That previously to the 17th of May, 1851, the defendant had been in the habit of passing without paying toll; that on that day he came to the gate in a heavy farm wagon drawn by two mules. X demanded toll; he refused to pay; said he was going to his farm, which was about two hundred yards easterly beyond the gale. Í. told him that my orders were to prevent him from passing, unless he paid the toll. He claimed a right to go free of toll, and said X was liable to a penalty of #20 for stopping him. I still refused, and he then fastened his horses at the side of the /oad, and went off. After an absence of two or three hours, lie returned in company with a man in a coal wagon, and as the coal wagon passed through the defendant followed inamediateljy after with his wagon, without my permission and without paying his toll. The gate being opened for the eoal wagon,. gave defendant an opportunity of passing immediately after, before X could close the gate. He went to. his farm, and after remaining some time he returned without paying toll; I did not then stop him. X stopped him on his way to his farm to collect his toll; the company had ordered me to.- do so, and to apprise him of that; I sent him word the evening before of my orders, which word he told me he had received. Previously to that time, I would ask; him for his. toll in passing; he would give me some short answer, that he was going to his upper place, and pass on without paying. Under the directions of the company, X noted the number of times of his passing between the 25,th March, 1851, and the 17th of May following; his toll amounted to one dollar. Subsequently to 17th of May, he has paid toll and taken receipt; before that he passed in the way X have stated without paying toll; and on that day, after I had stopped him, it became necessary fo.r me to. open the gate fox the coal wagon, and then defendant fell in immediately behind and went through. The defendant resides upon another farm, abo.u,t one- and three-quarter miles westerly of the gate. Samuel Sharp lived on his, defendant’s,, upper place ; hut I do, nut know what portion he farmed, nox how many acres in farm. The farms are not connected; several farms between owned by other persons.</p> <p>The plaintiffs here rested.</p> <p>The counsel of the defendant opened, that the defendant- denied having forcibly, passed the gate, and that owning two farms, one above and the other below the gate, he claimed a right to pass free, in going from one farm to another, under the proviso in the 14th section of-the company’s charter.</p> <p>The defendant called., as a witness, Samuel Sharp, who, testified that he knew both, of the defendant’s farms; th,at the one on which the defendant resided was about one and three-quarter miles below the gate, an.d he had owned it some twenty-five or thirty years; that the other farm was about one hundred and fifty or two hundred yards above the gate, and he had owned it some six or seven years. In that time he, the defendant, had cleared and improved a considerable portion of the upper place; that he, the witness, rented and occupied the house o.n this farm, but the defendant cultivated the land; that during the past year he had hauled from it, to. the lower place, the corn and fire wood, and had hauled hay from the lower place to the upper one.</p> <p>And upon cross-examination the witness said, that the house in which he lives was built for a tavern, and he kept it as a place of entertainment. The hay which defendant hauled up was put in the stables for the stage-horses, which are kept there. The produce of the upper place is principally fed to defendant’s stock on itthe potatoes are takers to market by me for defendant; Joseph Evans owns the farra where the gate stands.</p> <p>The defendant here, rested.</p> <p>The court, without th.c case being summed up to. the jury,, charged them, that, by the proviso of the 14th section of tho plaintiff’s charter, the defendant was exempted from paying toll in passing from one farm to the other, and that the verdict should be for defendant; and the jury, under the direction of the court, found their verdict for defendant without leaving the box.</p> <p>Upon coming in of postea, a rule to show cause was allowed, upon, which rule the argument now comes up.</p> <p>contended that the provision in the statute for exemption from tolls was a privilege j it relieved the farmer from an imposition that was right, and for which he received, an equivalent in the use of the road. It should not, therefore, be extended beyond the words of the exemption. The words were “in passing to and from his common business on Ms farm.” He cited 3 Pick. 341, Nichols v. Barton ; 2 Caines’ C. 97, Columbia Tarn-pike Co. v. Woodward; 6 N. Hamp. 499, The Proprietors v, Taylor; 7 Johns. JR. 184, Uearsey v. Boyd; 9 Johns. JR. 356, Staltoii v. Herrick ; 2 Pick. 538, Medford Turnpike v. Torrey; 4 Pick. 388, Kent v. Newburyport Turnpike; 2 Vermont 512, Green Mountain Tu7'7ipike Co. v. Hemingway; 6 T. JR. 706, Harrison v. Brough ; 2 Barn, fy Rid. 49, lb. 206.</p> <p>contended that the exemption freed the farmer from toll whenever he was engaged in his farming business, whether upon the farm on which he resided or not, or whether on more farms than one. Any other construction would make the exemption nearly worthless, as no toll could be charged to any one for less than half a mile. In support of this construction, he cited 10 Jolms. 468; 17 Johns. 33, Cohecton Turnpike Co. v. Belknap; 8 Johns. 150, Chestney v. C0071.</p>

<p>1. A certiorari brought by a township committee to review the proceedings and appointment of commissioners to review the damages assessed by surveyors of the highways in laying out a road, is properly entitled in the name of the township a& plaintiffs in certiorari; they only are interested, and the name of the state should, 7t\oi he used and if it w error,, it may be ampndedo</p> <p>2. A certiorari to bring up the proceedings for reviewing the assessment of damages made by surveyors in laying out a road does not involve the proceedings in laying out the road itself, that is a distinct matter; and these proceedings ought not to be returned with such certiorari.</p> <p>3. A judge is not incompetent to appoint commissioners to review the damages ■ on laying out a road because he has ouce been a member of the town committee, nor because he was once employed as surveyor by the opponents of the road, nor because he has expressed an opinion that the road was unnecessary: these are matters unconnected with the question of the damages sustained.</p> <p>4. It is no objection, of itself, to the appointment of a person as a freeholder to review damages by laying out a road, that he had opposed the laying out of the road.</p> <p>5. A person ought not to be appointed to review damages in laying out a road who has formed or expressed an opinion upon the subject with a knowledge of the facts, and the assessment made under such appointment will be set aside on certiorari : no person, however, who knew of such objection at the time of the appointment, and did not make it then, will be allowed to take advantage of it upon certiorari.</p> <p>6. The expense of making fence aud the inconvenience of being cut off from water are proper matters to be allowed for in the assessment of damages by the laying out of a road.</p> <p>7. In assessing the damages by laying out a road, the surveyors or freeholders have no right to swear or examine witnesses: they should view the premises and hear the parties or their counsel; it is in their discretion what statements they will hear and what documents they will examine.</p> <p>8. It is noterror, upon several distinct applications for the appointment of freeholders to review the damages by laying out a road, to appoint the same freeholders in each case.</p> <p>9. Where the appointment of freeholders and their proceedings are set aside for reasons that are not the laches or limit of the party applying for them, such party may apply for the appointment of new freeholders in twenty days after the judgment setting aside the first appointment.</p>

<p>It is a material variance to describe a note drawn payable “without defalcation” only as drawn payable “ without defalcation or discount,” and a note is rightly rejected when offered under a state of demand in a justice’s court with such variance.</p>

<p>1. The affidavit upon which a rulo to show cause is had. should be hlod upoLi entering the rule; if not filed or lost by tho fault of the party or his attorney, its contents cannot be shown, and the rulo will be discharged as improvidently granted.</p> <p>2. Tile ex parte affidavit of the party himself may be the foundation of a rule to show cause, but it is not competent for the purpose of proving facts necessary to sustain the rule. In all cases where the testimony of tho party can be received for such purpose, it must be by depositions and upon notice.</p> <p>3. If a defendant suffers a term to elapse after a judgment regularly obtained against him, tho court will not interfere summarily to set aside the judgment, unless such delay is very satisfactorily accounted for.</p> <p>4. After judgment, execution, and money paid over to the plaintiff thereon, the court will hardly interfere to set aside the judgment. Query. Could the defendant have any remedy for the return of his money, if the court did not. set aside the jndgment in such case ?</p>

<p>1. The record of a judgment in another state, when certified according to the act of Congress, has the same force and effect as it would have in the state where it was rendered; but this is only in case where the defendant against whom it was offered was brought into court, either by service of process within its jurisdiction or by an appearance to the action.</p> <p>*>. A corporation chartered by a state which confines its business within such state cannot bo sued in a state where it has not established any office ol‘ transacted any business by serving process on its president or other officer when accidentally present in such state. Such officer'does not represent the corporation or carry with him his official character into the state where the corporation had done no business nor established any office $ but when they send their officers and agents into another state, and establish business there, corporations are liable to be brought in the courts of such state by serving of process upon their officers in such state.</p> <p>3. In a suit on a judgment obtained in another state, it is not a good plea by a domestic corporation to allege that process was not served on any one authorized to act for them in the suit, for they may have had an office and transacted business in such foreign state, and made the contract there, and the process may have been served on tlieir president or other officer while in such state.</p>

<p>On motion to set aside judgment.</p>

<p>On certiorari to commissioners of appeal of the township of Hamilton, Mercer county.</p>

<p>Surveyors of the highways are bound, in laying out a road, to assess the damages, of all landholders whose lands are taken that are not applicants; if they do not their return is void, and it is no sufficient reason for the omission that the land owner made no claim.</p>

This cause was brought up by a writ of error to the Morris county Circuit Court. In that court, Beninger sued Corwin on a promissory note given by Corwin to one Kearny.

This cause was tried at the Somerset circuit, before Justice Nevius, and a verdict was rendered for the plaintiff for two thousand dollars damages. The action was for injuries received by the plaintiff, who was a stage driver, by being run over by the cars of the defendants while driving his stage upon a public turnpike, where the same was crossed by the road of the defendants. The facts sufficiently appear in the opinion of the court.

This was a demurrer to a declaration in replevin, which complained of the taking of “ a barn, shingle mill, office, and shed.” The question raised was, whether these were personal property, for whieh replevin would lie. Defendant may demur to part of the declaration and plead to part. 1 Chit. PL 576-7; 7 Halst. 76; 1 Man. Gr. 201; 5 Black. 293 ; 5 B. 4' Nld. 712 ; 11 Johns. 16-22, Thomson ht. Hartwell. By common law, replevin lies only for goods and chattels.

This was an action brought in this court, by the plaintiff against the defendant, in case, for breach of promise of marriage. The declaration was filed December 20th, 1852, and contains three counts. Held: that upon the question of damages the charge was unexceptionable; that the damages rest in the sound discretion of the jury under the circumstances of each particular case. The same view was taken by C. J. Kinsey, in his charge to the jury in Coryell v. Colbaugh.

Case certified from Camden Circuit Court. This was an action of assumpsit, brought by the plaintiffs, partners, against Davis and Hatch, of the city of Camden, for damages for the non performance of a contract for the sale of a lot of spirits of turpentine, stored in the warehouse of Heron j & Martin, in the city of Philadelphia.

This was an action on a promissory note, given by the defendants, Brink, Durbin, & Tyson, by their partnership name, Brink & Durbin. The declaration was in the usual form. Brink, alone, was summoned, the other defendants were not found.

This cause came up by a writ of error to the Mercer county Common Pleas. The errors were assigned upon four bills of exceptions. The facts upon which the questions arose are sufficiently stated in the opinion of the court. The Chief Justice. This was an action of trespass, brought by Skillman against the plaintiffs in error, for taking, carrying away, and converting his goods to their use. The plaintiff carried on the business of hack driving.

A judgment was entered in the Hunterdon Common Pleas, in favor of John G. Reading against Sidney Reading, by confession on bond and warrant of attorney. The defendant afterwards applied to the court below to set aside the judgment for defects in the affidavit. The affidavit did not state that the debt was justly due and owing, but only that it was justly due.

This was an action on a penal bond. The defendant craved oyer, and set out the condition of the bond, which was (by mistake), that if--should pay to the obligor $1000, &c., the bond should be void; and, after setting out the condition, demurred to the declaration. This demurrer opens the entire record. Arch. C. PI. 313. This condition is absolutely void. 2 Raym. 68; 1 Bac. Abr., Cond. L. 647-8-9; 3 Com. Big. 195, Coñd. E.; 2 Salk. 463, Wells v. Ferguson.

This was a certiorari, sued out in the name of the state, by the Society for Establishing Useful Manufactures, located at Paterson, to Wright Flavell and Cornelius Fredericks, assessors of the township of Paterson, to review the assessments for taxes made upon the property of the society in the year 1849. The questions raised were brought before the court by the following state of the case, agreed upon by the attorneys of the respective parties. 1.

This was a case certified to this court from the Passaic county circuit, for the opinion of this court as to the judgment to be given upon a special verdict found in an action of assumpsit brought by the plaintiffs in that court.

This was a case certified to this court from the Passaic county circuit, for the opinion of this court as to the judgment to be given upon a special verdict found in an action of assumpsit brought by the plaintiffs in that court.

This was a certiorari to remove the assessment made on the property of the prosecutor in the south ward of the city of Paterson. The property of the prosecutor assessed in that ward consisted chiefly of the stock of the Society for the Establishment of Useful Manufactures.

This was a certiorari from this court, sued out by the Society for the Establishment of Useful Manufactures, as prosecutors, against John Blundell, collector of the west ward of the city of Paterson. The cause was argued at the same time with the two cases next preceding, before the same judge and by the same counsel. The facts upon which the questions arose, and the manner in which they came up, sufficiently appear in the opinion of the court.

This was another certiorari sued out of this court by the Society for Establishing Useful Manufactures, as prosecutors, against James Powers, collector of the south ward of the city of Paterson, to remove an assessment of taxes upon the property of the prosecutors. It was argued at the same time, before the same court, and by the same counsel, as the next three preceding cases.

This was a certiorari sued out by the prosecutor to remove the assessment against him for taxes in the south ward of the city of Paterson. Most of the questions raised were the same as were argued and decided in the four cases next preceding.

This was a certiorari, sued out by S. Perkins, prosecutor, directed to George W. Perkins, collector of the borough of Beverly, to remove a tax assessment made in that borough, under its charter, against the prosecutor.

This was a certiorari, directed to the Court of Common Pleas of the county of Salem, to remove the proceedings of that court in the matter of a public road. The road in question was laid out upon the application of the defendants in certiorari. The prosecutor, Clement A. Borden, filed a caveat against recording the return, and, upon his application to the Court of Common Pleas, freeholders were appointed to review the same.

<p>if a cause in a justice’s court be adjourned without fixing a day, but to such day as counsel shall agree upon, and the defendant’s counsel refuse to agree to a day, the justice cannot fix a day, and give notice thereof to the defendant. The cause is out of court, and must bo commenced anew.</p>

This was a judgment in the Sussex county Common Pleas, rendered in an appeal from the court for the trial of small causes, and it was removed into this court by the plaintiff in certiorari, who was also plaintiff in the courts below.

<p>1. An action for tearing down and overturning a batli house on a public beach must be in trespass vi et armis, and not in trespass on the case. And if such count is joined with a count properly drawn in trespass on the case, a demurrer to the first count is good: it is not necessary to demur to tho whole declaration for the misjoinder.</p> <p>% A defendant may demur to a part of a count, and plead to the residue.</p> <p>3. No action lies in this state for obstructing a view, unless founded upon express covenant.</p>

This was an action on a promissory note for $424, dated April 1, 1842, payable in one year, with interest. There were several pleas to the declaration, but it is only necessary to notice the 4th, which was a discharge under the bankrupt act of 1841. To this plea the plaintiff replied — 1. A new promise by defendant, after the discharge, to wit, September 15th, 1846. 2.

<p>This case came before the court on a motion for judgment, for the plaintiff, upon a special verdict found at the Bergen circuit. The facts upon which the question depends, are found stated in the opinion of the court.</p>

This was a case certified from the MorrT^Sunty Oyer and Terminer, for the advisory opinion of this court; the defendant, Overton, had been convicted of an assault and battery on Theodore A. Canfield, in forcibly ejecting him from the cars, on a train on the Morris and Essex Railroad, of which he, Overton, was the conductor. A motion was made in the court below for a new trial, on account of a misdirection of the court.

<p>Goods upon demised premises, of which the tenant is owner jointly with a stranger, may he distrained for rent, hut as on an execution or attachment, only the interest of the tenant can he distrained and sold.</p>

This was an action on a policy of insurance tried at the Monmouth Circuit before Justice Potts. A verdict was rendered for tbe plaintiff. A rule was granted to show cause why the verdict should not be set aside and a new trial granted. The facts upon which the questions arose were stated in the opinion of the court, delivered by Justice Potts.

The exceptions insisted on will appear in the opinion of the court, as delivered by the Chief Justice. I. The indictment is defective. 1. It does not show that a legal oath was administered. The indictment simply states that he was called as a witness, and duly sworn as such witness. It must be alleged that the defendant was sworn to depose the truth. 2 Russell on Cr. 603 : 1 Hawk. P. C. c. 69, § 5; Bac. Mr. tit. Perjury? (A). 2.

This was an action of ejectment tried before the Chief Justice, at the Esses Circuit. A verdict was rendered for the defendants, by the direction of the circuit judge, subject to the opinion of this court, upon a statement of the' facts.

<p>1. If a cashier or director, or officer of an incorporated bank, knowingly overdraw his account with the bank of which ho is such officer, for his own benefit, although done without intent to defraud, and without defrauding the bank, he is guilty of a misdemeanor under the statute. (12. N. 125.) The ovil intended to be remedied by the statute, was such officer knowingly overdrawing his account, without regard to his intention in so doing.</p> <p>5. An iiidictment which states that tho defendant was the cashier of an incorporated bank; that he kept an account of his dealings with the bank; that at a certain day there was no money due him from the bank, and that knowing the premises, he knowingly drew from tho bank a certain sum of money for his own benefit, and thereby overdrew his account, sufficiently describes tbe offence against the statute; it is not necessary to state the manner, or by whose checks, or in how many checks he overdrew his account; nor is it necessary to stale in what funds the overdraft was made.</p>

This was an action on the case founded on the negioct of the defendants to build proper wagon ways and a bridge over their road, which intersected and divided the plaintiff’s farm.

<p>1. An omission of the justice to certify that he granted the appeal, provided a sufficient bond be tendered to him, and be accepted upon the demand of an appeal, is not sufficient ground for the dismissal of an appeal: if a sufficient bond be tendered upon a demand of an appeal, the justice has no discretion about granting it.</p> <p>2. It is competent to ask a witness if there is not a charge against witness in the plaintiff's book offered in evidence, for an article which the witness paid for at its purchase, to show the book to be incorrect. But as a single error of this kind would not destroy or impeach the book, it is no ground of reversal that the court overruled the evidence. On writ of error, a judgment will not he reversed for an erroneous ruling on a question of law, when such ruling could not have changed the result.</p> <p>3. The judgment of the Court of Common Pleas upon an appeal, will not he reversed for errors by the justice in the trial before him. On an appeal, the cause is tried anew upon its merits.</p>

This was a writ of error to the Mercer Circuit. The action below was debt for rent. The defence was, that Hanson, the plaintiff below, subsequently to the demise, and before the rent sued for accrued, had conveyed the reversion of the premises.

<p>1. The dwelling houses erected by the college of New Jersey for the accommodation of the professors and steward, are exempted from taxation, by the exemption in the act of 1851, exempting all colleges, academies, or seminaries of learning, and the lands whereupon the same are erected.</p> <p>2. An academy or seminary kept by an individual on his owA account, and at his own risk, not being a common public school, or incorporated, is not an academy •¿or seminary, within the meaning of the exemption in the tax act of 1851.</p>

This was a certiorari sued out by the College of New Jersey, to reverse an assessment made upon their property in the borough of Princeton, under an ordinance of the common ■council,, by the authority given to them in the borough charter, which did not exempt the property of colleges. The only question raised, was whether the property of the ■college was not exempt from borough taxes by virtue of the exemption in the tax act of 1851, in force at the assessment of this tax.

<p>An execution against lands, must be actually recorded before it is delivered to the sheriff, or it is of no validity. A mere entry of the title and date of entry in the book of executions, is not a recording within the meaning and object, of the statute. The provision of the statute upon this matter is imperative, and not directory only.</p>

This cause was a certiorari directed to Justice Budd, of Camden county, to remove the proceedings had before him under the act of March 4, 1847, to remove the plaintiff in certiorari, from premises hired by him of the defendant.

<p>It belongs to the court rendering the judgment, to determine whether an execution shall issue notwithstanding, the allowance of a writ of error; and the court out of which the writ of error has issued, will not ordinarily interfere.</p>

<p>1. A clprk .of Common Pleas has no authority to certify copies of the oaths of surveyors filed in Ms office. Such certificate is not evidence.</p> <p>2. The return of surveyors must designate the township or towasMps in which the róad laid out is located.</p> <p>3. Eor some purposes, the recitals in a return may be considered as part of the return.</p> <p>4 Though the return does not say expressly in which of two townships the road begins and in which it ends, yet where these points are fixed with such precision of description that nobody can possibly be mistaken as to where they are, it is sufficient.</p> <p>5. It is not necessary that the return or map should show where the road laid out crosses the township line.</p> <p>6. The plaintiff in certiorari cannot take advantage of the fact that damages wore not awarded to one who does not complain.</p>

<p>This was a motion to dismiss a certiorari directed to the Commissioners of Appeal, to remove the assessment of taxes, and their adjudication thereon.</p>

<p>1. A state of demand for work and labor, must show by whom the services wore performed.</p> <p>2. In a hiring for a year, the service is a condition precedent to the right to ro•cover the compensation agreed on, unless the party hired can show a justifiable «cause for abandoning the contract.</p> <p>3. Where ill usage is set up by way of justification, its sufficiency is u question, for the jury, under proper instructions from the court.</p>

<p>1. In trespass for cutting a tree in the highway, tried before a justice, a deed may be admitted in eyidence, to show the boundary line of the adjoining farm.)</p> <p>2. Evidence is admissable to show that the overseer, in cutting the tree, acted from improper motives — did the act in bad faith.</p> <p>3. The presumption of law is, if nothing appears to the contrary, that a conveyance of land bounded on a highway, carries with it the fee to the contro of the road.</p> <p>4. The trees in a highway belong to the owners of the fee.</p> <p>5. The public have the right of free passage, and the overseer mry'remove obstructions, but beyond this the rights of the owner of the soil remain to him.</p> <p>6. If an overseer cuts down a tree which does not obstruct or interfere with the public use of the road, ho is a trespasser.</p> <p>7. If he does so maliciously, he is liable to exemplary damages.</p> <p>8. Whether a tree cut down by the overseer did obstruct the public in the use of the road, or was cut maliciously, are questions for the jury.</p>

<p>This was a motion to set aside the information in itw? case.</p>

<p>1. Court of Common Pleas on the trial of an appeal, has no authority to seal bills of exception.</p> <p>2. On certiorari the facts must be brought up by rule on the oourt to certify them; and if the court cannot certify them, a rule to take affidavit should be entered.</p>

<p>This case was brought into this court by certiorari to Jug. tice L., to render a bastardy warrant.</p>

<p>1. A rule to take affidavits to contradict tke return of a justice is irregular. Üffie return is conclusive.</p> <p>2. Where a justice certifies that certain facts were proved on the trial, and as to others, though he can't recapitulate the evidence, yet enough was proved to warrant the judgment, this court cannot, on certiorari, say there was no evidence to ■warrant such judgment.</p> <p>8. In a clear case of surprise and affidavit of merits, this court will reverse u .judgment in a justices court, and direct a new trial-</p>

<p>1. It is not sufficient cause to set aside a verdict, that a per3on“m the^employ of the successful party, conversed during the trial on one occasion with two of the jurors, took refreshments in the same box with them at an oyster saloon, and without their knowledge paid for them, if it does not appear that the successful party was implicated in the transaction, or that they talked about the questioAin the cause, or that the jurors were at all influenced by the occurrence.</p> <p>2. The sanctity of the jury-box is to be carefully preserved, but this rule is not to be so applied as to do injustice to innocent parties.</p>

<p>3. It is not sufficient in a notice to a sheriff of a motion to amerce, to assign as the ground, that it is “for not executing the writ of execution,” The notice must assign neglect or refusal to execute it, as the ground.</p> <p>2. A sheriff will not be amerced if the plaintiff has, by his own interference, prevented him from discharging his duties.</p>

This was a motion to enter judgment against the casual ejector as to two of throe alleged tenants served with a declaration in ejectment, who did not enter into the consent rule.

<p>1. Where persons act under a special statutory authority, it must appear that they have the qualifications required by the statute.</p> <p>2. And so, too, upon the face of their proceedings everything necessary to the jurisdiction must appear.</p>

This was a certiorari to Somerset Common Pleas to reverse the proceedings of that eonrt and of surveyors of the highways, in the matter of laying out a public road.

This was an action brought in the life time of the plaintiff on the record. His executors now move for leave to suggest His death, and that the action proceed in their names. The motion was opposed upon the ground that there was no issue joined at the death of the plaintiff, and that, therefore, the suit abated.

This was a certiorari directed to the collector of Jersey City, to bring up a tax assessed upon the piers and basin of the Morris Canal Company, at Jersey City. The questions raised were two — first, was the extension of the canal from Newark to Jersey City exempt from taxation ? and, secondly, whether that exemption extended to piers and basins which were kept at the terminus of the route, for the accommodation of the boats and cargoes navigating the canal ?

<p>This was an action of trespass quare clausum fregit, originally commenced before a justice, where the defendants pleaded title. The state of demand and declaration being general, without specifying any particular close, and the defendants having in this court pleaded liberum tenementurn, tiie plaintiff new assigned, setting out his close by metes and bounds. To this new assignment the defendants pleaded not guilty, and five special pleas claiming title under a right of way, in one claimed to be a public highway, in the others a private way, differently stated. To these pleas the plaintiff replied, joining issue on the plea of not guilty, and denying the several rights of way and newly assigned trespasses to a greater degree and extent than was necessary for using the rights of way, and also for other and different purposes and in other and different parts of the said close, out of the said ways in those pleas mentioned. Defendants joined issue on the replications to the special pleas, and as to the said trespasses newly assigned, and alleged to be other and different from those mentioned and justified, except such of them as were alleged to have been done in other and different parts of the said close, out of the said ways, they pleaded not guilty; and as to the residue of said trespasses newly assigned, they confessed the action of plaintiff, and that they were guilty thereof and relinquished and abandoned so much of their first plea as traversed the same.</p> <p>Upon the trial at the Mercer circuit, the jury found upon the first issue as restricted by the plea to the new assignment, that the defendants were not guilty j as to the issues upon the other pleas (except the second,) as to the private way therein claimed, they found for the defendants ; and as to the issue on the second plea as to the public way therein claimed, they found for the plaintiff: and they assessed the damages for the injury by the said defendants confessed, at forty dollars.</p> <p>now claimed full costs. He referred to Rev. Slat, 241, 450, 951; 1 Harr, 263; Wool-wick on Ways, 238, and the cases therein referred to.</p> <p>insisted that plaintiff is not entitled to any costs, but that defendants are entitled to costs; if not full costs, at all events costs of the trial. He cited 1 Chit. PI., 676; 13 East., 191; Thornton v. Williamson.</p>

This was an action of ejectment commenced in this court. At the trial of the cause, in the Hudson Circuit, before Justice Haines, at December term, 1853, a verdict was entered for the plaintiff by the direction of the court, reserving , to the defendants leave to move to set the same aside, and to have a verdict entered for them, if the court at bar should be of opinion, upon a case stated, that they were entitled to the verdict.

<p>1. Where the declaration averred that the statements in regard to the health of the insured, annexed to a policy of life insurance wore true, and the defendants pleaded specially that the said insured had been affocted with certain diseases, and upon the trial the plaintiff proved that the particulars of the statement were true, it is not error for the judge to charge that under the pleadings and proofs the burthen of proof is on the defendants to show that their plea is true.</p> <p>2. It is not necessary for the plaintiff in an action on a policy of insurance on the life of another, to show that he had an interest in such life.</p> <p>3. Wagers on indifferent questions are not prohibited by tho laws of this state.</p>

This was an action of ejectment against The Morris Canal and Banking Company, to recover a part of the land occupied by their canal, upon the ground that no agreement had been made by the company with the proprietor, and no legal assessment and payment or tender of the damages. The judge charged the jury that the defendants were entitled to their verdict, which was rendered accordingly, and a bill of exceptions taken to bis charge by the plaintiff.

<p>1. The act incorporating the Camden and Atlantic Railroad Company gives no power to lay the said road across a public highway, without first making compensation to the owner of the soil.</p> <p>2. The constitution of hTew Jersey prohibits the legislature from granting such power. — Haines,«/.</p>

This was a certiorari directed to the court of common, pleas of the county of Morris, removing into this court their proceedings in the matter of the application of the plaintiff in certiorari, for a discharge from imprisonment for debt as an insolvent debtor. The applicant was imprisoned on an execution issued in an action brought for a breach of promise of marriage, and for no other cause.

<p>This Was an action brought in this court, and tried before the'Ohief Justice at the Hudson Circuit. At the trial the plaintiff showed primary title in one William R. Taylor, in 1837-8; that Taylor, in November, 1838, was discharged from imprisonment for debt by the court of common pleas for the county of Hunterdon, and then made an assignment of all his estate to one William H. Sloan, who was appointed assignee by the court. That Sloan having died, the court of common pleas of Hunterdon county in 1852 appointed James Thomson assignee in his place, and that James Thomson, as such assignee, at private sale, without auction or any advertising, conveyed the lands in question, which were situate at Jersey City, to the lessor of the plaintiff.</p> <p>When the plaintiff rested his cause, the defendant moved for a non-suit on two grounds:</p> <p>First. Because a private sale by the assignee of an insolvent, was void. That snch sale must he by public auction, and upon advertising as directed by statute.</p> <p>Secondly. Because the court of common pleas had no power in these proceedings to appoint a new assignee. The act of 1T95, under which the discharge was had, and the act of 1820, authorizing the appointment of an assignee in the place of the one appointed under that act, were both repealed in 1846. (R. S.. 677, pi. 28, and 684, pi. 174.) And the seventh section of the insolvent act of 1846, now in force; (R. S. .327) only authorizes the appointment of One in place of an: assignee appointed under the sixth section, of that ,act.</p> <p>The. Chief Justice, upon these grounds, granted the non-suit. ,</p> <p>Upon the coming in of the postea, a rule was obtained to show cause why the non-suit should not be set aside.</p> <p>The non-snit was not right on cither ground.</p> <p>I. The power of appointing a new assignee in case of death, is provided for by the present act of April 16, 1846. (Rev. Stat. 327, § 7.) It is contended that this only authorizes an appointment in tire place of an assignee under the sixth section of that act. But the act of 1820 authorized a similar substitution for an assignee, under act of 1795. El. Dig. 256, pi. 25, Sect. 1.</p> <p>And although the act of 1820 was repealed in 1846, yet •the second section of the repealing act (R. S. 709) shows the operation of it in this case.</p> <p>II. The original act of 1795, or its supplements, require no advertising by the assignee. The act of 1846 (R. S. 669) requires it of certain officers, but the insolvent’s assignee is not included; but that act applies only to such officers as are mere agents. The assignee in this case has the title. It is vested in him, and he can transfer a vested title without following the directions of the act.</p> <p>Under the act for the sale of infants’ estate, (R. S. 330, Sec. 11,) the chancellor authorizes sale without auction or advertising. Rules of Ch. Pr. p. 61.</p> <p>The non-suit was rightly ordered on both grounds.</p> <p>I. The court had no power to appoint a new assignee in the place of the one who had died. The act of 1795 gave no such power. It was given by the act of 1820, which gave power to appoint an assignee in place of the assignee appointed by the seventh section of act of 1795. Both these acts were repealed in 1846; and the present act only gives power to appoint one in place of an assignee originally appointed under the sixth section of that act, who has died. This will not give the power. 10 Wend. 446; Jackson v. Irwin.</p> <p>The. saving clause of the repealing act (R. S. 709, § 2,) does not aid this case. It applies not to proceedings under act of 1820, but under act of 1795. All proceedings were had under that act; nothing had been done under the act of 1820; no right had accrued under it — the assignee did not die until after its repeal.</p> <p>It is not included either in the letter or the spirit of the saving clause.</p> <p>There was no “ act done,” or “ right accrued.” The “ acts, rights, and proceedings,” had or done under any repealed act were confirmed; but it does not direct that the future remedy for any right accrued shall be prosecuted as before. No proceeding or prosecution had been commenced under the act of 1820.</p> <p>This saving section of the general repealing act is substantially the same as that in the New York Revised Statutes ; (3 JV. F. Rev. Stat. 172, § 5,) and of course, the constructions which had been given to it in that state before 1846, may be considered as adopted with it. 4 Wend. 210, People v. Herkimer6 Wend. 526, People v. Livingston; 1 Hill 324, Buller v. Palmer. See also 7 Barr. 173, Fmelon's Petition ; Yeaton v. U. 8., 5 Cranch, 281.</p> <p>II. As to the direction to sell at public sale, the act is imperative ; no construction or elucidation can make it clearer. The assignee is an officer or trustee appointed by the court for the benefit of the creditors. He is both within the words and intent of the act. 15 Wend. 449 ; 3 N. Hamp. R. 340 • 20 Wend. 241.</p>

This was an action of -ejectment brought for the recovery of lands in Hunterdon county. Jacob Fox died in 1795, seized of the lands in question. By his last will he devised these lands to his wife Eve, duringher widowhood-, and until his son Isaac should attain twenty-one, and then to his son in fee ; and by a codicil directed that if his son Isaac should die without lawful issue all his lands should go to his wife Eve, her heirs and assigns forever.

<p>This was a motion on behalf of execution creditors, for the payment to them of money raised from the estate of a testator by a prior execution on a judgment against the executor.</p>

The certiorari in this case was brought to set aside a tax warrant issued against David Ryerson, by a justice of the peace, for a balance of road tax alleged to be due from him. The warrant was issued under the provisions of the tenth, eleventh, twelfth, thirteenth, and eighteenth sections of the u act concerning taxes,” Rev. Stat., 1003, which provisions appear to have been complied with.

<p>This was a motion to strike out a plea because it had no affidavit denying the debt in the schedule to the declaration.</p>

This was a motion to amerce Jacob M. Merseles, late sheriff of Hudson, in the amount of the debt and costs in an execution that had been placed in his hands.

<p>1. A.capitm ad respondendum returnable in vacation is void, and tho defendant is not estopped from moving to set it aside at the next term, because through abundant caution he gave bail to the sheriff, filed bail to the action, and pleaded to the declaration.</p>

<p>Where the adverse party is ealled as a witness, his own counsel have the right fully to cross-examine him.</p> <p>Reporter's Note. — In the caso of Gf inn ell y. Lester et ai., tried ill tho Hudson Circuit, November Term, 1850,.it was ruled by the Chief Justice thin, if a party call his adversary as a witness, he is made a competent witness in the suit for all purposes, and not merely for cross-examination.</p>

<p>1. If the court of common pleas in giving judgment in an app'eal from tho judgment of a justice, erroneously give judgment for the cost3 below, such error is amendable in certiorari and the whnlo judgment will not be therefor rove) sed.</p> <p>2. If on an appeal a verdict is rendered for a less sum than before the justice, the common please should reverse the judgment below, but if this is omitted! tho error will be amended in certiorari.</p> <p>3. In an action founded on the right to return of a horse, where an exchange was made with the agreement that either party, if dissatisfied, might re-exchange upon returning the horse received by him in three days, the state oi demand must, show distinctly an offer to return in three days.</p>

This was on a habeas corpus issued to bring up tbe prisoner, Lewis M. Troutman, who had been arrested on the twenty-first of August by the sheriff of Monmouth, on a regular capias ad respondendum, and was demanded as a fugitive from justice under a warrant of the governor, issued upon a requisition from the governor of Pennsylvania, dated August twenty-second.

This was an application for a new trial upon a verdict rendered at the Warren circuit. The faets upon which the application was founded appear in the opinion of the court-

<p>1, The award of arbitrators, or the report of a referee cannot he set asido by the court, except for the misbehavior of the arbitrators or referee, or because the award was procured by corruption. But when the report of the arbitrator, or reasons, or other papers accompanying it, shows that the arbitrator-has mistaken the law or the facts, or the arbitrator admits that he has made a mistake, H is such. misconduct as will set aside the award.</p> <p>2. It is not error to exclude parol evidence that a written assignment of goods, in a store was intended to include the store books.</p> <p>3. Whether a writ of error will lie to reverse the decision of an inferior court refusing.to set aside an-award on a rule to show cause. Qxtere*</p>

This was .an action of ejectment brought to recover the possession of a church at Paterson. There was no dispute as to the title of the church — that it belonged to a corporation bearing the name of the lessors of the plaintiff. The only question to be decided was whether the persons who brought the action as such corporation, or the defendants, were the legal trustees over the corporation.

This was a certiorari removing the proceedings of tbe mayor and common council of Jersey City in filling up Bright street, a public street in that city, to the established grade, and assessing the expenses of the improvements upon, the lands benefited by it. The facts upon which the objections to the proceedings were founded, are stated in the opinion of Justice Elmeb, before whom the cause was argued upon the reasons assigned for setting aside the proceedings.

This was a motion on behalf of Ann Coffin, whp claimed to be the landlord of the defendant, to be paid the rent due and in arrear to her for the premises upon which the goods sold under the execution in this case were seized.

<p>If a, defendant after conviction on an indictment and sentence to be imprisoned' nntil the fine and costs are paid, be suffered to eseape by the sheriff, a fieri facias tinder the statute may still issue to make the fine and costs.</p>

<p>1. A motion for time to plead is a special motion reqairing two days5 notice*</p> <p>2. When special circumstances are required to be shown to entitle a party to a rule, they ought to be verified by affidavit.</p>

<p>1. In a proceeding by scire facias against a garnishee in attachment, if there Ifoe the judgment of a court of competent jurisdiction against the defendant, tho .garnishee cannot bring in question the regularity or legality of the proceedings.</p> <p>2. It is cot necessary that a scire facias against a garnishee in attachment •should he returned to the next term; that part of the statute is directory, not imperative.</p> <p>3. A prayer in a declaration upon a scire facias against garnishee, that execution may issue “ according to the form and effect of said recovery,” is not fatal upon error. It may be rejected as surplusage, or the declaration may be amended after error brought.</p> <p>4. Ia a trial on a scire facias against a garnishee in attachment in whoso hands moneys of the defendant in attachment had been attached, it is sufficient prima facie proof to show that the garnishee, as constable, had sold property of the defendant in attachment which had beau levied upon by him to an amount exceeding the executions in his hands. The law presumes that the amount of sales was maid to the constable and remains in his hands.</p> <p>5. A judgment cannot be proved by parol for any purpose.</p> <p>6. A constable will not be allowed to prove that property levied upon and sold by him did not belong to the defendant in execution, or that they had been seized •under a prior attachment.</p> <p>!T. On a scire facias against a garnishee under a general attachment, it is not error that a verdict is against the garnishee for an amount greater than the plaintiff's claim; the recovery is for the benefit of all applying creditors.</p>

This was a suit brought in Hudson circuit court, by James J. Brinkerhoff and Ann Eliza, his wife, (late Ann Eliza Merselis,) for the benefit of said Ann Eliza, against the executors of Garret Merselis, deceased, to recover a legacy bequeathed to her by the will of the testator.

<p>Richard Holcomb departed this life in January, 1784, having first made and published his last wiil and testament, in Which, among other things, he devised and bequeathed as follows:</p> <p>“ Item. — I give and bequeath unto my son John Holcomb, (being my only son,) my two homestead plantations — tbat is¡ that on which I dwell, and that on which Abraham Pittenger liveth — with the premises and appurtenances thereunto belonging or in any wise appertaining, as they are butted and described, and contains, as by the respective deeds, bequeathed me by my father, as by his last will, dated the 1-7th day of the 6th month, A. D., 1743, to him, the said John Holcomb, and his heirs, (that is, the issue of his body lawfully begotten, being either male or female,) forever, to have possession of the above mentioned premises when he arrives at the mature age of twenty-one years; also my clock and writing-desk, and a two year old Snap-colt, and the sum of sixty pounds current money of the state aforesaid, to be paid to him at the age of twenty-one years aforesaid. And in case my said son John Holcomb die before he comes and arrives at the said age of twenty-one years, or without issue heirs of body lawfully begotten, that then my will is, that the said two plantations, the said sum of sixty pounds, clock, writing-desk, and two year old colt, being the legacy of my said son, be equally divided amongst my surviving children, in manner and form my executors shall judge most proper and advantageous.”</p> <p>The testator left, at the time of his decease, three children — his son John Holcomb, then about sixteen years of age, and two daughters, Sarah Leach, and Mary Holcomb, both of whom were married, and had issue, at the time the .testator made his will.</p> <p>Sarah Leach died in 1826 ; Mary Holcomb died in 1835 ; both leaving children and grandchildren. John Holcomb died in 1851. He was never married, and of course had no lawful issue; but in his,life time he made á will,devising the premises in question to his illegitimate children, &e.</p> <p>The lessee of the plaintiff is one of the children of Mary Holcomb, who was one of the daughters of Richard, the testator.</p> <p>The tenant in possession claims under the devisees of John Holcomb, deceased.</p> <p>And by the state of the case it is submitted, that if the •court shall .be of opinion that the lessors of the plaintiff is entitled to recover, then .judgment is.to.be entered for the ¡plaintiff; if otherwise, then' judgment is to be entered for the defendant, either party to be at liberty to turn this case ■into a special verdict, and bring a writ of error.</p>

This was a cause in the supreme court, which had been tried at the Somerset circuit, and was removed into this court by writ of error. The errors assigned were founded upon the exceptions taken at circuit to the charge of the judge at the circuit. The errors relied on, and the facts upon which the assignment was founded, appear distinctly in the opinions of the judges.

<p>This was a writ of error to the Supreme Court to remove the proceedings and judgment of that court upon a resolution or ordinance of the board of chosen freeholders of the county of Hudson. This ordinance fixed the rates of ferriage over the ferry from Jersey City to New York, known as the Jersey City ferry. The Supreme Court, by their decision, (3 Zab. 206,) affirmed the proceedings of the freeholders.</p>

A writ of error was brought in this ease to review the decision of the Supreme Court (reported 3 Zab. 227) refusing to set aside the proceedings of commissioners appointed on the application of the defendants to assess the value of lands which had been taken and occupied by them for fifteen years previous thereto for their railroad, to which they had not acquired title, nor settled for the damages done to it.

This was a writ of error to the Supreme Court, in matter of a public road, laid out by surveyors in the township of Franklin, in the county of Somerset. The court of Common Pleas ordered the return to be recorded; upon which, the proceedings were brought up to the Supreme Court by certiorari, and the said court affirmed the order below.

<p>1. In proceedings under the road act the word “ highway ” will be taken to mean a lawful public road.</p> <p>2. In every proceeding affecting the property of individuals, the owners of the property affected are entitled to notice of the proceeding, although not directed by the statute under which the proceedings are had. And on an application by the overseer of a road district to justices and surveyors, to ascertain which of the adjoining land owners have encroached on the highway, such owners are entitled to reasonable notice of the lime and place of their meeting, and a notice to appear at the place aforesaid, referring to the whole line of road to be viewed is too indefinite.</p> <p>3. The determination of justice an,d surveyors under the thirty-second section of the road act, as to encroachments on the highway, must describe the encroachments to be removed with certainty, and by reference to proper monuments.</p>

This was a writ of error to the Supreme Court, and the errors assigned were founded upon a bill of exceptions to the ruling and charge of Justice Potts, before whom the cause was tried at the Gloucester circuit, in May term, 1852. The cause was argued upon the errors assigned by Mr. William Hoisted for plaintiff in error, and by Mr. Browning for defendant in error.

<p>The writ of error in this case was to remove the record and proceedings in a suit in the Supreme Court. The judgment in that court was for the plaintiff upon a verdict and postea. The errors assigned were founded mainly upon a bill of exceptions taken at the Somerset circuit, where the cause was tried, to the admission of evidence. The facts and grounds for reversal relied upon, distinctly appear in the opinion of the court.</p>

The proceedings removed by the writ of error in this case, was the record of a judgment in the Supreme Court, obtained by the defendants in error against the plaintiff, their former city treasurer. The cause was tried before the 'late Justice Randolph, at the Mercer Circuit, in March term, 1851. The errors assigned were founded upon a bill of exceptions to the rulings of the circuit judge at the trial.

<p>This canse was tried in the Morris County Circuit Court, and upon the trial the circuit court ordered the plaintiff to be non-suited. To this ruling a bill of exceptions was taken, and the cause removed by writ of error to the Supreme Court. That court upon hearing the case upon the merits, affirmed the judgment of the circuit court. 3 Zab. 478. To review this decision of the Supreme Court a writ of error was brought removing the proceedings before this court.</p> <p>The question in the cause was raised upon the construction of the sixth clause in the will of Rachel Batson under which the lessor of the plaintiff, who was the natural son of the testatrix and one of the devisees in the same, claimed title. That clause and the partition or division made of the lands by the executors of the will between the two children or devisees, are set forth in the report of the case in the Supreme Court. 3 Zab. 478.</p>

The writ of error in this case was to the Supreme Court, and was brought to reverse the judgment in that court. The state of the ease is given at length in the report of the decision in the Supreme Court, 3 Zab. 466.

<p>The errors in this case were assigned upon two bills of exceptions, taken at the trial, to the ruling and charge of Justice jSTevius, before whom the cause was tried, at the Somerset circuit, in January term, 1851. The facts of the case, and the ruling and charge of the Circuit Judge, appear in the opinions of Judges Elmer and Potts.</p>

This was an action of assumpsit against the administrators of Apgar, founded upon promises made by the intestate in his life time. The administrators pleaded the general issue and payment. The jury found for the plaintiff, the form of the verdict, as entered upon the record, being that the defendants did undertake and promise. The judgment was de bonis propriis, and not de bonis intestatoris.

<p>This was a writ of error to the Supreme Court to remove the judgment obtained in that court by the defendant in error against the plaintiffs. The suit below was an action of assumpsit. Upon trial before Justice Potts, in the Huuterdon circuit in December, 1852. The plaintiff below proved that he, with Jacob Apgar, the intestate of the defendants below, and one Peter E. Fisher, signed a note to Tunis Melick, or order, lor seven hundred dollars. Fisher signed the note first, and Apgar and Hiler after him, and opposite their names the word “ securities” was written by Apgar. It was proven by Henry J olmson that Apgar solicited, and procured Hiler to sign the note as surety, and that in such solicitation he said, “ if you will sign it, it will bo a great accommodation io us, and you shall never pay one red cent.” Apgar and Fisher were partners in business. A suit was brought and a judgment obtained upon the note against all these promissors, and the debt and costs made out of Hiler, the plaintiff below.</p> <p>The court, among other things, charged the jury as follows :</p> <p>“ Two things appear to be certain — 1st, that Apgar prevailed on Hiler to sign the note as security; and second, that he promised, if he would do so, lie should be saved harmless ; that is, should not have to pay one red cent. If you believe that this assurance was the consideration of the execution of the note by Hiler, it is equivalent to a promise that lie would stand between him and loss, and binds Apgar for any money Hiler had to pay on it; for if Apgar, by his sole agency and solicitation, and as a matter of favor to himself, and with an assurance that no loss shall be sustained, procured Hiler to become additional security with himself, he puts himself, as to Hiler, in the situation of a principal; that is, the second security stands in relation to the first security on the same footing as a second endorser, who, if lie lias to pay the money, may collect it of the first endorser. It therefore follows that, if you believe Johnson’s testimony, Apgar’s estate is bound to pay the whole of this claim.”</p> <p>To this charge of the court the defendants excepted, and prayed a bill of exceptions.</p> <p>The verdict was for the plaintiff below, for the whole amount of debt and costs paid by him, with the interest.</p>

This cause was brought up by writ of error from the Supreme Court. The errors assigned were founded upon bills of exceptions to the ruling and charge of Justice Potts, before whom the cause was tried at the Somerset circuit, in December, 1854.

<p>L A plaintiff suing for an injury, caused by the negligence of the defendant, will not be entitled to recover, if his own negligence contributed to the injury in such way that if he had been guilty of no negligence, he would have received no injury by that of the defendant.</p> <p>2. The law does not in such case require of the plaintiff the greatest possible caution. The caution required is the ordinary care which a prudent person would take under such circumstances; and what would constitute ordinary care, varies with the circumstances. More vigilance and care are required in crossing a railroad track traveled by trains of a high, uncontrolable rate of speed, than in crossing an ordinary highway.</p> <p>3. The negligence of the plaintiff to prevent his recovery, must directly tend to produce the injury, or must be the proximate cause of it.</p> <p>4. Where the facts are clear and undisputed, and show a want of ordinary care on the part of the plaintiff, the question is for the court to decide ; but if the evidence is doubtful and contradictory, and the inference to be drawn from it questioned, it is for the jury to determine.</p> <p>5. Where the evidence of the plaintiff shows, without contradiction, a want of ordinary care on his part, it is the duty of the court when requested, to order him to be non-suit, and if the court refuse so to do, the defendant is entitled to his bill of exceptions, and the judgment will be'reversed. But when the court wrongfully orders the plaintiff to be non-suit, and he submits, it is doubtful whether he can have his bill of exceptions, or bring a writ of error. — -Elmer, J.</p>

The writ of error in this cause, removed into this court the judgment and proceedings of the Supreme Court, in a cause brought up to that court by certiorari from the court for ¿he trial of small causes. The points raised and attempted to be raised in this court, are clearly set forth in the opinion of the court, delivered by

The writ of error in this case removed an indictment against the plaintiff, found and tried in the Middlesex Oyer and Terminer. The indictment contained two counts; the first for a rape, the second for assault and battery, with intent to commit a rape.

This cause was removed from the Supreme Court by writ of error. The errors assigned were founded upon a bill of exceptions, to the charge of Justice Haines, before whom the cause was tried, at the Passaic circuit. The lessors of the plaintiff, showed title to a farm at Acquackanonck, called the Van Wagoner farm, by devise and descent, for near two hundred years, tracing the same to an old patent, under the proprietary government.