Volume 25 — New Jersey Law Reports

This cause was tried, before Justice Potts, in the Ocean County Circuit Court, in which the action was brought, and was removed into this court by writ of error. The action was trespass quare clausum fregit upon lands in Ocean county, and the plea was not guilty.

This was an action of trespass piare clausum fregit, brought against the defendant for forcibly breaking the gate, and entering into the burying ground in possession of the plaintiffs. The defendant justified by pleading title in-James Ten Eyck, by whose command he entered. The only question was title to the locus in quo.

This was an action of dower, brought by Mary Lloyd, the demandant, in the Monmouth Circuit, and came before this court, upon a case stated by the judge of the Monmouth County Circuit Court, for their advisory opinion. The facts of the case upon which the questions arose fully and distinctly appear in the opinion of the court, delivered by the Chief Justice.

This was a certiorari removing into this court the proceedings of the Court of Common Pleas in the county of Middlesex, appointing surveyors to lay out a road within the limits of the city óf New Brunswick, and the proceedings of surveyors laying out the road. The only question raised was the jurisdiction of the Common Pleas, for that purpose, within the city limits.

Tliis was an action of debt, brought upon a judgment obtained by the plaintiff against the defendants in the Supreme Court' of the state of New York, in Erie county, on the eighth day of May, eighteen hundred and fifty-two, for fifteen hundred and forty-six dollars debt, and nine debars costs.

This was an action of debt, brought in this court upon a judgment recovered by the plaintiff against the defendants in the Supreme Court of Massachusetts. The declaration contained two counts : first count on a judgment recovered by plaintiff against defendants in the Supreme Court of Massachusetts, November 2, 1852, for $2196.08 damages and costs ; second count substantially the same.

This was a certiorari, sued out by Hiram Gilbert, to set aside an assessment ordered by the inhabitants of East He wart school district, in the township of Harrison, in the county of Hudson, directing $2000 to be raised to buy land and erect a school house. The assessment purported to be made according to the provisions of an act entitled, “A supplement to the act entitled, an act to establish public schools,” approved March 14, 1851.

This was a suit, brought by Nicholas Frauds- against the Somerville Mutual Insurance Company for a loss by fire, and was founded on a policy effected witb tbe defendants by said plaintiff, on a certain dwelling bouse, store and furniture. After said insurance was effected, tbe plaintiff built an addition to íbé store, and adjoining tbe store house, about twelve by fourteen feet, wbicb he designed as a brewery, no notice of which was given to the company.

In this case a judgment had been obtained in this court in 1845, by Henry Hatfield against Isaac Scudder Berrien, for the seduction of Julia Hunt, upon which a oa-. sa. was issued, returnable to Juno term, 1854, endorsed as follows : “ Capias ad satifaciendum in trespass for the seduction of Julia Hunt,” and placed in the hands of William Boswell, sheriff of the county of Mercer, who returned that he had taken an insolvent bond and inventory according to law, and th ere with…

This was ah action of assumpsit, instituted by Andrew Miller against William Jackson and Thomas Jackson in the Court of Common Pleas of the county of Warren, and was tried before a jury at September term, 1854, and a verdict and judgment rendered for the plaintiff. The plaintiff offered as a witness, David W. Kleinhans, who, at request of defendant’s counsel, was sworn on his voir dire touching his interest in the cause.

This was an action of assumpsit, brought by Jacob M. Blair, the plaintiff below, against Samuel Snover, in the Court of Common Pleas for the county of Warren, to recover the amount of a book account for goods sold and delivered. The case was tried before said court at the September term, 1853.

This was an action of trespass on the ease, brought by Ralph Beavers against Benjamin Cole and George Trimmer, for injury to the plaintiff’s reversionary interest in certain mills in the possession of a tenant. The declaration contained four counts, the substance of which distinctly appears in the opinion of the court. To this declaration the defendants iiled a general demurrer, and the plaintiff a joinder.

This was an action of ejectment, brought by Robert B. Leeds against John Horner, to recover possession of a tract of land on Absecom beach, in the county of Atlantic. The case was tried before Justice Elmer, in the Atlantic Circuit, at the April term, 1854, and a verdict and judgment rendered for the plaintiff. A writ of error was brought by the defendant, removing the case into this court.

This was an action of trespass on the case for slande brought in this court by Lucius L. Johnson against Richard. Shields. The declaration contains four counts.

This case came before the court upon a writ of error to the Circuit Court of the county of Passaic. The bill of exceptions presented several questions, which were argued by the counsel; hut as no opinion was given upon most of them, it is not necessary to state them. The facts necessary to a proper understanding of the points decided are stated in the opinions delivered.

i Tliis was an action of ejectment, brought in this court by Joseph C. Wills against William Morris Cooper, Caroline II. J. his wife, and Samuel Edwards, to recover one undivided third part of a tract of land, in the county of Camden, containing twenty-one acres and seventy-two hundredths of an acre, being part of what is called the Indian orchard tract. The case was tried before Justice Elmer, at the Camden.

The defendant was arrested by the sheriff of Mercer upon writs of capias ad respondendxtm out of this court, in four actions, two in favor of each of the above plaintiffs, bail in the sum of $2000 having been ordered in each case by a judge, and the defendant applied to be discharged upon comino» bail for alleged defects in the affidavits upon which the or dér for bail was founded.

<p>1. A bill of exceptions cannot be taken upon the trial of an appeal before the Common Pleas; the court may, in its discretion, refer questions of law to the superior court by a state of the case.</p> <p>2. The fifty-third rule of the Supreme Court is applicable to the caso of a certiorari in appeal cases. This rule does not authorize depositions to be taken to show what the evidence was on particular points, but to show whether some particular fact was or was not proved, or some particular ail-mission made or decision given.</p> <p>8. Where an error is relied upon, not appearing upon the papers returned, the plaintiff must show clearly, and not merely by probable evidence, the matter out of which the error is alleged to rise.</p> <p>4. The notes of counsel of the evidence taken on the trial of a cause, sworn to be correct under a rule to take depositions, cannot be received as a state of the case or to show the facts relied on to prove errors assigned.</p> <p>5. In an action of trover by one joint owner of property, the plaintiff must show an actual destruction of the property by the defendant, or something equivalent. It is error for the court to charge, that receiving corn into a crib was tantamount to a destruction or use of it.</p>

<p>Certiorari to set aside proceedings in the matter of altering school district.</p>

<p>This was a motion, made on behalf of junior creditors, to set aside a judgment confessed by Benjamin Parldmrst to Henry G. Ely, Dewitt C. Clapp, and Edward E. Bowen.</p>

<p>Certiorari to the Court of Common Pleas of the county of Passaic, brought by William II. Van Waggoner and. others, defendants below, to reverse a judgment of said court discharging John Coe as an insolvent debtor.</p>

<p>On certiorari to set aside the proceedings and return of the chosen freeholders and surveyors of the highways of the township of Hopewell, in the county of Mercer.</p>

<p>In a suit brought on a judgment recovered in a court for the trial of small causes, if the record show that the justice had jurisdiction of the subject matter of tho suit, the judgment will he conclusive against the parties; and no matter of defence which existed anterior to the recovery of the judgment can be pleaded or given in evidence on the trial.</p>

On certiorari directed to the clerk' of the Circuit Court of the County of Bergen, to bring up an order for bail, made by a commissioner of this court, and the affidavits on which it was founded.

<p>1. A certiorari to remove into this court the proceedings of justices and surveyors ordering certain encroachments to be removed from a public road, should be entitled in the name of the prosecutor against the person who makes the application to have such encroachments removed.</p> <p>. 3. Notice of talcing affidavits must be given to the opposite party in a certiorari case, although he has not appeared.</p>

The defendant was indicted in the Bergen Oyer and Terminer, for the rescue of a party arrested by virtue of a capias ad respondendum, issued for debt. The indictment having been removed by certiorari into this court, the defendant demurred to the first and second counts, on the ground, that it did not appear that the party rescued was legally in custody, their being no averment that any order for bail was made pi’evious to the issuing of the capias.

This action was brought against William Flagg and Henry M. Price, upon several promissory notes, made by the defendants, and one James Price, since deceased, in their partnership name of Price, Flagg & Co. Henry M. Price suffered judgment by default. Flagg, the other defendant, pleaded the statute of limitations.

This was an action of debt, brought upon a judgment recovered by the plaintiffs against the defendant, in the District Court of the fourth 'judicia. district of the state of California, for $63,083.36 debt, and $621.80 costs.

.The declaration counts on a judgment rendered in' the Supreme Court ,of the state of New York, at the city of Hudson, &c., on the 26th of October, A. D. 1853. Pleas are— 1. JVul tiel record and issue. 2. Nul tiel record remaining in said county, as set out in plaintiff’s declaration, stating the fact, that the judgment declared upon had been removed by appeal to the general term of the Supreme Court of the State of New York, pursuant to the statutes of that state.

<p>1. A certiorari in matter of highway brings into review the entix-e proceedings in laying out the road; as well the proceedings of the applicants and of the surveyors as the orders of the Court of Common Pleas.</p> <p>2. Every delect in the proceedings is equally available, whether the objection was or was not made in the court below.</p> <p>3. The pi-ocoecliixgs will not be sot aside becauso of the unfitness of a surveyor appointed by the Court of Common Pleas, if the question of his unfitness is refei'red to the discretion of that court.</p>

The action was originally commenced in the Court of Common Pleas of the County of Essex, by Anthony L. Sayre, the defendant in error, against Brooks Sayre, for slander. The slanderous words set out in the declaration imjrated to the defendant the crime of 'larceny. The defendant pleaded the general issue.

The action was brought to recover damages for an injury alleged to have been occasioned by the defendants, in the erection and construction of their road to certain mill property owned by the plaintiff, while in the possession and occupancy of his tenants for a term of years.

<p>Error to Passaic Circuit Court.</p> <p>This is an action of assumpsit-, commenced in October, 1853, for the recovery of the amount of a promissory note, of which the following is a copy, to wit:</p> <p>“ Oldham Works, Paterson, N. J., July 19, 1853. $173.92.</p> <p>Two months after date, we promise to pay to the order of Messrs. Muzzy and Welles four hundred and seventy three 92-100 dollars, at the city Bank in Hew York, value received.</p> <p>(Signed) B. Brundred, Son & Co.”</p> <p>Judgment by default was taken against William J. Brun dred and Henry Hawley. Abraham Bell and James Bell pleaded the general issue. And thereupon the cause came on to he tried at the Passaic County Circuit Court, on the first Tuesday of January, 1855, at Paterson, before the Honorable Elias B. H. Ogden, one of the judges of the said court, by a jury of the said county, then and there dnly empannelled and sworn to try the said issue.</p> <p>On the trial of the said cause, it was proved, on the part of the plaintiffs, that the firm of B. Brundred, Son & Co. had been in existence from the 1st of May, 1851, up to the time of the giving of the said note in the declaration declared on, and was composed originally of Benjamin Brundred, William J. Brundred, and Henry Hawley; that Benjamin Brundred died on the 20th of April, 1853; that the business of the firm was the manufacture of machinery at Oldham works, near Paterson, in the county aforesaid, and that the note in question was signed by Henry Hawley, one of the defendants. It was further shown that during all that period, from the commencement of the said firm, the firm of A. Bell & Son, of Hew York, commission merchants, composed of the defendants, Abraham Bell and James Bell, acted as commission merchants for the said firm of B. Brundred, Son & Co. in the disposal of their manufactured stock, and the collection of their drafts and bills receivable, at a commission of two and a half per cent, on the amount of sales, and from time to time made advances of money to flic said firm of B. Brundred, Son & Co. to enable them to carry on their business. The advances thus made were to a considerable amount, exceeding the proceeds of the assets of B. Brundred, Son & Co. placed in their hands, leaving a large balance due to Abraham Bell & Son on account. The amount advanced in the course of two or three months exceeded ten thousand dollars, and thereupon the members of the firm of B. Brundred, Son & Co. gave to A. Bell & Son their bond for ten thousand dollars, bearing date the 1st of May, 1851, payable the 1st of May, 1854, with interest quarter yearly, at the rate of six per cent, per annum, which bond was secured by a mortgage given, by the said Brundred and wife, on certain real estate at Oldham aforesaid, on which the factory was located.</p> <p>The balance of advances continued to increase in favor of Abraham Bell & Son until 1st of February, 1852, when it amounted to seven thousand three hundred and ninety-one dollars and twenty-four cents, independent of the ten thousand dollars secured By the said bond and mortgage; and further to secure said advances, B. Brundred, Son & Co., on the twenty-fourth of January, in the year last aforesaid, assigned their tools, patterns, &c., used in prosecuting the business, to A. Bell & Son, as collateral security.</p> <p>In July of the same year the said Benjamin Brundred assigned to A. Bell & Son a patent right belonging to him, also as collateral to the said indebtedness.</p> <p>The firm of B. Brundred, Son & Co. had previously obtained a license, in consideration of certain payments, to use the said patent.</p> <p>On the 14th of September, 1852, the same year, another bond and mortgage for ten thousand dollars, similar to the first, and upon the same property, was given to Bell & Son, the balance of indebtedness at that time being about sixteen thousand dollars, independent of the amount covered by the first bond and mortgage, leaving about six thousand dollars duo A. Bell & Son, independent of both bonds and mortgages. This balance continued to increase until the 1st of February, 1853, when it amounted to nine thousand nine hundred and fifty-seven dollars and fifty-two cents, independent of the ameunt covered by the said two bonds and mortgages.</p> <p>On the 20th of November, 1852, B. Brundred, Son & Oo. acknowledged a formal delivery of the possession of their tools, patterns, &c., to A. Bell & Son, by an endorsement on the before mentioned assignment of the same.</p> <p>On the twentieth of December following, A. Bell Son gave to B. Brundred, Son & Oo. a receipt in the following terms, to wit:</p> <p>“New York 12 mo. 20, 1853.</p> <p>B. Brundred, Son & Co. Oldham.</p> <p>The tools in your machine shop assigned and this daj del’d to us, we hold as collateral for the large amount due us by you, and trust you may soon be in a position by lessening the amo’, to justify us in returning them to you. In llie mean time wo appoint your partner Henry Hawley our agent, to hold them for our ac’t.</p> <p>Your assured friends,</p> <p>(Signed) Abraham Bell & Son.”</p> <p>On a copy of which receipt the said Hawley endorsed and signed the following, to wit: “ Rec’d the within property from A. Boll & Son, in trust for llioir a’c. Dec. 20th, 1852.”</p> <p>On the 2d day of February, 1853, the following agreement between the firm of B. Brundred, Son & Oo. and A. Bell & Son was entered into, to wit:</p> <p>“ We, tiro undersigned being largely indebted to Abm. Bell & Sou of the city of New York, now in consideration of such indebtedness and for the better securing the same to them and such further sums as they. may advance do hereby authorize and appoint said A. Bell & Son to the_ entire management and control of all our business, from this day forward, until we can reduce our indebtedness to them, to the sum of ten thousand dollars. But until the debt is so reduced we do give them sole power to collect all monies due to us, and to pay all indebtedness now made, or that shall hereafter be made in conducting our business of making machinery &c. And we hereby deliver unto them all machinery manufactured, in whole or in part, all stocks of material, tools, and fixtures now at our works at Oldham, to be used for the payment of our indebtedness to said Abm. Bell & Son and other parties; and we do further agree not to contract any indebtedness without the written consent of A. Bell & Son, and to limit our drawings for the support of our families, not exceeding the sum of one thousand dollars each, as regards William J. Brundred & H. Hawley, for the current year, commencing from this date, subject to two hundred dollars each additional for present outstanding debts, and we do authorize A Bell & Son to engage the services of a suitable person to take charge in their behalf, and will unite with such person, doing all in our power to promote the united and best interest of the concern. The compensation of such person to be a charge on the business in the proportion of two-thirds, and one-third by A. Bell & Son. If however we find his services full benefit to the extent of his entire compensation, then we are willing it be all a charge on the business. If after the expiration of four months, we, or A. Bell & Son, are of the opinion „ that the business is not profitable, then upon either party giving the other three months notice, the whole concern shall be discontinued, and the entire stock of tools and fixtures be sold at public auction, at such time as A. Bell & Son shall direct after the expiration of</p> <p>three months aforesaid. It is further to be understood, if at any time all the indebtedness due to A. Bell & Son, over and above ten thousand dollars, be paid them by us, that they surrender and reconvey all herein conveyed to them, not otherwise disposed of for the benefit of the concern.</p> <p>(Signed) B. Brundred by his atty. W. J. Brundred, W. J. Brundred, Henry Hawley.</p> <p>In pursuance of this agreement, A. Bell & Son appointed one Albert Brett, of the city of Hew York, to take charge of the business of B. Brundred, Son & Co., in pursuance of said agreement; and the business was carried on under said agreement, without any change in the name of the firm, from that time until the loth of August, 1853, or thereabouts, when A. Bell & Son refused to accept any further drafts or pay any more bills for the firm of B. Brundred, Bon & Co.</p> <p>The course of business during this period was much the same as prior to the execution of the said agreement; all the business of the concern was done in the name of B. Brundred, Sou & Co., (the original articles of partnership having provided that the firm should, continue notwithstanding the death of either of the partners). William J. Brundred superintended the manufacturing department; Henry Hawley kept the books and made drafts, and the said Brett procured orders around the country, and generally effected such purchases as were made in Hew York, acting (as ho testified), in the transaction of all the business done by him, as the agent and in the name of the firm of B. Brundred, Son & Co., alone. The defendants did not dispute, but that A. Bell & Son knew of the manner in which the business was conducted by the said Brett. A. Bell «fe Son transacted the business of the concern in Hew York on commission, in the same or a similiar manner, and at the same rate of commission, as they had done before the . said agreement was entered into, received the notes, drafts, and bills , receivable of B; Brundred, Son & Co., for . collection, and continued. .making advances • to said firm, a¡?. they required money , for, their payments, .which was usually- effected, by drafts -upon--A. Bell & Son by the defendant, Hawley, in the name of B. Brundred, Spn Co..</p> <p>The balance of indebtedness for such advances, independent of the twenty thousand dollars secured by bond and mortgage, amounted, on the 1st of May, 1853, to the sum of twelve tlnmsand four hundred and ninety-seven dollars and twenty-nine cents, and on the 1st of August, 1853, to twenty-three thousand eight hundred and ten dollars and thirty-five cents. A. Bell & Son, however, holding at the last date contracts and consignments against a portion of said balance, from which they realized, after refusing to honor- the paper of ,B. Brundred, Son & Co., sufficient for, and applied by them to reducing the said balance, on the 1st of .November, 1853, to eight thousand nine hundred and eighty-four dollars and twenty-two cents, which yet remains mostly, unpaid.- After A. Bell & Son refused further to homm.the drafts-of B. Brundred,. Son & Co., in August, 1853,-the works, were-subsequently conducted by C. S. Yan Wagoner, on behalf of the estate- of B. Brundred, deceased, and-William J.. Brundred and Hawley, the-surviving members of the firm, the tools not having been removed or sold by A. Bell & Son.</p> <p>The note on which this suit was brought was one of three notes, of, same date, given in payment of an account for lumber, furnished by the plaintiffs'to the firm pf B. Brundred, Son -<fe Co., between the 2d of February, 1853, .and the date of the notes.</p> <p>Before any of this lumber was, furnished, the defendant Brundred ancl th,e said Brett came to -the .office of the plaintiffs, at, their lumber yard, ami .entered into conversation with the plaintiffs’ clerk about buying lumber, and in the course of such .conversation Mr. Brett said, “we are going to use considerably more lumber than has theretofore been done; if you will sell us as cheap as we can get it in Hew York, we will patronize you.” The orders for the lumber -were afterwards signed by the defendant, Hawley, in the name of B. Brundred, Son & Co., and were sent from time to time, as the lumber was wanted, and the account was charged on the books of the plaintiffs to B. Brundred, Son & Co.</p> <p>The defendant, Hawley, being examined as a witness on the part of thd plaintiffs, testified, amongst other things, that ho had never regarded the defendants, Abraham and James Bell, as partners in the firm of B. Brundred, Son & Co., or as individually liable for the debts of tliat firm; but said: “ My understanding was, that in conducting the business under the agreement of February 2, 1853, (which we considered as a kind of experiment to resuscitate the business) if there should be an ultimate deficiency, it should be borne pro rata by all the then creditors, Abraham Bell & Son included, so far as regarded their debt, outside of the twenty thousand dollars secured by bonds and mortgages. I think the understanding was that they were to advance funds to B. Brundred, Son & Co. for the purchase of materials. Mr. Brett said, business wanted driving and funds, and he had come there for both purposes. There was no understanding, however, that Bell & Son were to be liable, except upon their acceptances.”</p> <p>The said Hawley further testified, in relation to Brett’s situation in the concern, as follows: “I considered him as partly our agent, and partly the agent of Bell & Son; so far as he made purchases and procured orders, he was our agent, and so far as overseeing and watching over the interest of A. Bell & Son he was their agent.”</p> <p>The said Hawley further testified, that the agreement of February 2, 1853, he believed covered all the property of B. Brundred, Son & Co. not before mortgaged to • A. Bell & Son, except the lease of the factory and real estate from B. Brundred to the firm, at a rent of two thousand dollars, which witness considered too high, and a license to use B. Brundred’s before mentioned patent for making throstles, which they used in their manufacture, and which 'was of contingent value, according to the amount of business done.</p> <p>It further appeared, that among the debts and liabilities-of B. Brundred, Son & Co., paid during the transaction of the business under the agreement of February 2, 1853, were debts and liabilities of said firm incurred prior to that date, which were continued to be paid as they became due; no distinction being made between debts or liabilities incurred' before, and those incurred after, said date.</p> <p>The foregoing facts appearing by the evidence, the defendants applied for a nonsuit, on the ground that the defendants, Abraham Bell and James Bell, were not liable to the plaintiffs in this action, nor in connection with the other defendants; and if liable at all, were only liable -in a court of equity.</p> <p>But his'honor the judge refused to grant a nonsuit, and charged the jury that, under and by virtue of the agreement of February 2, 1853, before mentioned, Abraham Bell .and James Bell, were liable for the debts incurred while the business was transacted in pursuance of said agreement, and were ’jointly liable therefore with the other defendants; and directed the jury to find a verdict for the plaintiffs for the amount of the note upon which the suit was brought; to which ruling and charge the defendants excepted.</p> <p>Error having been assigned on this ruling of the judge, the case was argued in this court, by Bradley, for plaintiffs in error, and by S. Tuttle and'Zabriskie, for defendants.</p>

To an action of trespass guare clausum fregit, the defendant pleaded an award in bar. The plaintiff’s demurred specially to the plea. The grounds of demurrer appear in the opinion of the court.

<p>1. Underletting demised premises by the tenant, is not a violation of the covenant not to assign the term.</p> <p>2. But it seems that the converse of the proposition is not true, and that an assignment is a violation of the covenant not to underlet.</p> <p>3. A mere breach of covenant by the tenant gives the landlord no right of re-entry, unless there be a stipulation in the lease that such breach of coveíant shall work a forfeiture or determination of the tenant’s interest.</p> <p>4. Ho ejectment can be maintained by the landlord for a more breach of covenant not coupled with'a proviso for entry.</p>

Action for use and occupation to recover rent from 1851 to 1853. The defendant had previously occupied the premises as a tenant. He continued in possession during the time for which , the rent is sought to recovered. The defence was, that, prior to the spring of 1851, Chambers had entered into a contract for the sale of tifie premises.

<p>1 The city council of Perth Amboy are authorized to regulate the streets and walks of the city, and consequently to incur debts for that purpose.</p> <p>2. The right of the creditor to recover for materials furnished to the city, at the instance of the common council, cannot de,pend upon the use to which they are applied, nor upon the compliance by the city authorities with the requirements of the city charter in the mode of using them.</p> <p>3. Nor can Iris right to recover be prejudiced by the neglect of council to keep proper minutes of their proceedings.</p>

<p>1. In an action against executors for a distributive share of an estate, it is not necessary to aver in the declaration that a refunding bond had been tendered and filed. It is for the defendants, if they insist upon it, to plead the omission in abatement.</p> <p>2. A husband cannot recover a legacy or bequest to'his wife, if he has not reduced it to possession, or done any act indicative of an intention to reduce it to possession, prior to the 4th of July, 1852,- when the act for better securing the property of married women took effect.</p> <p>3. Prior to the act of 1S52, the marriage contract operated as a conveyance or gift by the wife to her husband of all her choses in action, subject to the condition that he should reduce them to possession during the coverture.</p> <p>4. This is not a vested, but only a contingent interest in the husband under the contract; until the condition is performed, the property remains in the wife.</p> <p>5. The act of 1852, operates to secure to the wife all personal property in which she had, at the time it took effect, an exclusive vested interest; it bars and intercepts the suspended or inchoate right of the husband to acquire an interest in such property by any proceeding after the act took effect.</p>

<p>1. A power delegated by the legislature to a municipal corporation to take private property for public use must be strictly pursued.</p> <p>2. Where the charter directs the common council to appoint a time when persons intorostod ill an application for opening or altering any street will be heard, it is not sufficient for council to devolve that duty on the clerk.</p> <p>3. Where the charter directs that persons interested, &e., shall be heard before council, it is an excess of authority in the council to limit tho right to objections made in writing.</p> <p>4. Charter provides that no ordinance shall be passed by the common council, unless introduced at a previous stated meeting; and an ordinance being introduced at an adjourned meeting, held that it should appear that it was an adjourned meeting of a stated meeting.</p> <p>5. It need not appear that a resolution of tho common council of Jersey City appointing commissioners in-the placo of others resigned, was approved by the mayor.</p> <p>6. It should appear upon the record that the commissioners appointed were judicious disinterested freeholders residents in said city as required by the charter.</p> <p>7. Form of commissioners’ report, in what particulars defective.</p>

Certiorari in matter of taxation. Tliis was a certiorari, prosecuted by the New- Jersey Railroad and Transportation Company, against the collectors of the East, Fifth, and Ninth wards of the city of Newark, to bring up for review an assessment upon certain real estate owned by said company, and not used by them for the purposes of their business.

<p>A scire facias issued on a mechanic’s lien, under the lion law of 1840, and the supplement thereto, passed in 1851, should include, as defendants, the owner of the property and the person who contracted the debt.</p>

An application was made, under the act, concerning evidence, approved April 5, 1855, Pamph L. 1855, p. 668, by the plaintiff in this case, for an order upon the defendant to give to the plaintiff’s attorney an inspection and copy, or permission to take a copy,- of an ageeement alleged to be in the defendant’s possession.

The ground relied upon for setting aside the return was that said highway was within the village of Hackensack, and, by the thirty-fourth section of the “ act concerning roads ” (Rev. Stat. 527), the surveyors were prohibited from acting. The facts sufficiently appear in the opinion of the court.

<p>In laying out a road, tlie surveyors should make an assessment to each owner of land who is not an applicant, and if they omit to do so the return will be set aside; but if such owner mislead the surveyors, and cause them to omit making any assessment to him, he cannot take advantage of his own wrong, and the assessment will not be set aside on account of the omission.</p>

This cause came before the court upon the argument of the following rule, entered on the fifteenth of November.

<p>1. Whether a certiorari is, in any case, a proper mode of testing the validity or determining the result of a public election. Query.</p> <p>2. It is clearly a question of sound discretion, whether, in a given care the writ is properly used, and whether the retmedy which is asked for should be applied.</p> <p>8. In the exercise of its discretion, the court will not sanction such use of the » writ, as will leave an important public office vacant, while the conflicting claims of private individuals to the office are being settled.</p> <p>4. A quo warranto is the legal and usual mode in which title to office may be tried and finally adjudicated.</p> <p>5. The determination of the board of county canvassers has no such final ef_ feet, as to interfere with a full investigation of the result of an election upon a writ of quo warranto.</p>

This cause was argued upon tlie following case, certified from the Mercer Circuit for the advisory opinion of this court. The action is brought to recover damages done to a lot of the plaintiff by reason of excavations made upon an adjoining lot, (jprout declaration). The plea is the general issue. The plaintiff is the owner iri fee of a lot of land in the city of Trenton, fronting on Broad street, and extending m the rear to Cooper street.

Action by an executor. Plea in abatement for the non joinder of another executor. The plea avers that tlie tectatrix appointed the plaintiff and one I. Y. executors of lie. will; that the said I. Y., as executor, administered upon tin-estate, and that lie is still living. The plaintiff replies tlia\ the said I. Y. did not administer upon the estate. To thU replication the defendant demurs.

Action for injuries sustained by the plaintiff’s wife, while crossing the track of a railroad in Jorsey City. The declaration avers that the road, at the time of the alleged injury, was in the possession of the defendants; that the cars and engines upon the road were managed by them ; and that the injury was occasioned by the negligence and carelessness of their servants and agents. Demurrer to the declaration. The ground of demurrer appears in the opinion of the court.

<p>1. An indictment for perjury is fatally defective if it does not appear, either by direct averment, or by-necessary implication, upon the face of the indictment, that the.statement upon -which the perjury is assigned was material to the matter before the court.</p> <p>2. It is a- matter of discretion whether the court will quash an indictment; but where it is manifest that no judgment can be rendered upon the indictment, it will be quashed.</p>

. The prisoner was indicted for the murder of her infant child, by the grand jury of the county of Camden; and having been tried before the Court of Oyer and Terminer, at October term, 1855, was found guilty of murder in the •first degree. It appeared that she went on board a steamboat at Philadelphia with her young child, three or four weeks old, and that upon the arrival of the boat at Camden-the child was gone.

An action of replevin was brought by Edward M. Green against William Boswell, sheriff, to recover a quantity of coal, levied upon by said Boswell, as the property of Dewar, Mein & Kay. The coal was lying on the wharf of Jonathan S. Fish & Co., and Green claimed it, by virtue of a bill of sale executed to him by Kay, one of the partners, in the name of the firm.

Two writs of certiorari were sued out, to bring before this court, for review, assessments ordered by the common council of tbe city of Newark for the construction of two sewers, one called the north and the other the south sewer.

<p>L The law requires all property to bo asses iod for taxation at its actual value; the amount it will sell for at apahlio sale made under authority of law, is a good prima facie criterion of such value, and will not be overcome by a valuation made by an assessor, with the consent of the owner,’ in a previous year.</p> <p>2. The income of property is no criterion for an assessor in making a valuation.</p> <p>3. If other lands in the township are assessed much below their value, it is l) ground for setting aside an assessment made upon a correct valuation; but the z-emedy of the latter is to appeal from his assessment, and at the same tizne apply to the commissionez-s of appeal under the act of Maz-ch 9, 18-18, (Nix. Dig. 801, § 57,) to z-aise such assessments as may be too low.</p> <p>4 Where an assessment is reduced by the commissioners of appeal, the assessznent merges in the judgment of the commissionez-s; and izz the absence of any evidence that the amount fixed by the commissionez-s is too gz-eat, the couz-t will not intez-fez-e.</p> <p>5. If a pez-son agaizzst whom an assessment is made make an affidavit befoz-e the commissiozzs of appeal to what he believes to be the true value, and the commissionez-s z-efuse to malee a coz-responding z-eduction, relief can be obtaizied in' this couz-t by certiorari.</p> <p>6. If more tax is assessed than authoz-ized by the proper authorities, the as sossznent will be set aside to the extent of such excess, and each person agains -. whozn an assessznent is made will be entitled to a l-eductiozz, in pz-oportion to the amount of his assessment.</p>

<p>1. In laying out a road, the return of the surveyors should show that the requirements of the statute are complied with: it should show that the road is laid “ as may appear to them to be most for the public and private convenience,” and also “ in such a manner as to do the least injury to private property.” If the return shows that public convenience was regarded, but says nothing about private convenience, the omission raises the presumption that the latter was disregarded, and the return will be set aside,</p> <p>2. Where a road is vacated, a map should accompany the return, showing the courses and distances, with reference to the most remarkable places, and the improvements through which the road passes, the same as is required in laying out a road.</p> <p>3. If application is made to vacate an old road, and lay out a new one, the return should particularly describe the old road vacated, and also the new one laid out.</p>

The Morris and Essex Railroad Company was indicted for nuisance. The case was tried at the Morris Oyer and Terminer, January term, 1856, and a verdict of guilty rendered by the jury. The defendants applied for a rule to show cause why the verdict should not be set aside, and a new trial granted, on account of misdirection of the jury, in the charge of the court, as to matters of law involved in the issue.

To an action of trespass de bonis asportatis, for taking .and carrying away tbe plaintiff’s horse,-the defendant pleaded: 1st. Tbe general issue. 2d. Actio non, &c. That before the time mentioned in said declaration, upon application made before Leonard Bunn, one of the justices of the peace in the county- of Somerset, by one Casimer Abos, to the effect that Thomas McCarty, a nonresident, was owing said Casimer Abos the sum of one hundred dollars, a writ of attachment was…

This was an action of ejectment, brought in this court by John Probasco and others, against John H. Creveling, to try the title to a tract of land in the county of Warren. The titles relied upon by the respective parties are sufficiently shown in the opinion of the court.

An.action of trespass quare clausum fregit was brought in the Morris Circuit Court, by John Wallace and James McKenna, against Forbes Shaw. The declaration contained three counts.

Daniel K. Allen brought an action of ejectment against Henry Muzzy and James II. Wells, to recover possession of certain premises in the town of Paterson. Allen claimed under a lease made to him by the Society for Establishing Useful Manufactures, dated January 1st, 1843, by which the property was leased to him for eleven years. Muzzy and Wells claimed under two deeds from the society to Thomas 0. Colt, and two leases from Colt to them.

On demurrer, case certified from Morris Circuit. David Ayres and others brought a suit, under the lien law of 1853, against Joseph W. Eevere, owner, and the administrators of Ashbel Bruen, deceased, builder, to recover pay for materials furnished by them to Bruen for a house built by him for Eevere. The declaration was against Joseph W. Eevere, owner, jointly with the administrators of Bruen, and was, in other respects, in the form prescribed by the act.

;On demurrer to pleas. Lawrence Y. Stryker, of the county of Somerset, died intestate. The administrator of his estate, Stephen Stryker, died leaving the estate unsettled. John B. Stryker, the administrator of Stephen Stry key’s estate, became also the administrator of the estate of Lawrence Y. Stryker, left unadministered by Stephen Stryker, deceased.

On demurrer to narr. John Flanagan and George W. Carpenter brought an action against the Camden Mutual Insurance Association, on a policy of insurance, made by the defendants to one James Stewart, and assigned by said Stewart to the plaintiffs. The declaration is in debt.

Samuel Killmer, who sued as well for the use of the poor of the county of Hunterdon as for himself, filed an information against Garret Lair, and seven others, for violating the act entitled, “ An act to prevent obstructions, to the navigation of the river Delaware,” passed March 1st, 1820, (Nix. Dig. 533.) The case was tried in the Hunterdon Quarter Sessions, at the April term, 1855, and judgment given against all the defendants except one.

<p>1. The right of tho owner of lands bounding on a navigable river extends only to high water mark, and all below that belongs to the state. The inchoate right, which tho owner of the upland has to acquire an exclusive right to the property, by wharfing out or otherwise improving the same, gives him no property in the land while it remains under water; the state may grant it to a stranger at any time before it is improved.</p> <p>2. Where a person owns land above and below high water mark, and an assessment of taxes is made upon the whole for an amount not greater than the value of the land above high water mark, it will bo sustained; but if a separate assessment is made on the land below high water, it cannot be supported.</p> <p>3. The charter of Jersey City requires tho assessors to value tho property assessed at its full fair value, designating the number of lots or parcels of land which they assess to each person. Held that if several blocks and lots lying contiguous to each other, and not separated by streets are taxed as one parcel, the charter is complied with. The designation of separate blocks and lots, some of which are above and some below high water mark, with a distinct value attached to each, is a good assessment, provided the aggregate value is not greater than the value of the property above high water.</p> <p>4. The water tax of Jersey City is assessed, by virtue of a special law, upon all grounds within the city limits liable to taxation, at a certain rate for each one,hundred square feet of surface: held that such assessment should only be upon land above high water mark.</p>

Certiorari in matter of taxation. This case was argued and decided with the preceding one, the questions arising in it being nearly the same.

Tlie prosecutor was taxed in tlie township of Manchester, county of Passaic, for an aggregate value of personal property amounting to $75,000. It appeared that he had been assessed for the same amount the previous year. He had not made oath of the value of his real and personal estate, nor appealed.

On motion for mandamus. The state of the case upon which this motion was argued is briefly as follows: The aldermen elected in the several wards constitute, ex officio, the common council of Jersey… Held: accordingly, in the said ward, on the 5th February, 1856, and Tyrrell was re-elected by a majority of votes.

<p>1. Where the goods of a tenant are levied on by the sheriff under a judgment and execution, left for a long time in the tenant’s possession, and then removed by the tenant to another tenement, and subsequently sold by the sheriff, the lan dlord cannot compel the sheriff to pay him rent which accrued after the levy was made, by proceedings in the nature of a distress.</p> <p>2. After the levy made, the goods were constructively in the sheriff’s possession; they were not the goods of the tenant within the meaningbf the act concerning distresses.</p> <p>8. The sheriff did not, by suffering the goods to remain on the demised premises, become the tenant of the landlord.</p>

<p>Certiorari in matter of proceeding under the supplement to the act concerning landlords and tenants.</p>

<p>Certiorari to reverse proceedings under the 21st section of the act entitled, “ An act authorizing the incorporation of plank road companies,” approved February 26, 1852.</p>

On motion for a rule to show cause why the nonsuit in this case, entered at the Middlesex Circuit, should not be set aside.

<p>1. In attachment under the act of April, 1852, if the writ is not served on the defendant in time, it will be quashed.</p> <p>2. The writ performs the offices of a summons and an attachment.</p> <p>3. The summons is the commencement of the suit, the attachment an incident of it. If the writ is quashed as a summons, the attachment falls with it.</p>

The assessor of the town of Lambertville assessed the bridge over the Delaware at Lambertville after it was sold from the incorporated company formerly owning it, by receivers appointed by the chancellor, and purchased by individual owners, and valued it. at half the value of ¡the whole structure, as ascertained by - the sale. The limits of the town of Lambertville are defined, in .the charter of the town, as extending to. low water mark. of the river.

<p>Certiorari in matter of taxation.</p>

This canse came before the court by writ of error, to remove to this court the judgment of the Court of Oyer and Terminer and General Jail Delivery in and for the county of Middlesex.

<p>1. R. II., by his last will and testment, dated December 26, 1783, devised to his son, H., and his heirs (that is the issue of his body lawfully begotten, being either male or female,) for ever certain real estate, the will containing a subsequent clause, that in case said J. H. died before he eaine and arrived at the ago of twenty.one years, or without issue, heirs of his body lawfully begotten, then the property to be equally divided among the testator’s surviving children : J. H. survived the other children of the testator, arrived at the age of twenty-one years, and died without lawful issue: held, that the will created an estate tail in J. H., and that the other children took nothing by the devise; held, also, that upon the death of the testator the reversion descended to his heirs, according to the law of descents then existing.</p> <p>2. Where thero is a devise in fee or in tail, with a limitation over in case the devisee die under twenty-one years, or without issue, the word or must be construed and, unless there are words in the will manifesting a contrary intention.</p>

This was an action of ejectment, tried before Justice Potts, at the Somerset Circuit. A verdict having been rendered for the defendants, judgment was entered thereon in the Supreme Court, and the case came before this court on a writ of error. The errors relied on for a reversal arose on exceptions taken at the trial to the charge of the judge, and sufficiently appear in the opinion delivered in this court.

<p>Error to the Supreme Court.</p> <p>A writ of attachment was issued out of the Hunterdon County Circuit Court, at the snit of Peter H. Huffman and Mahlon Bisler, against one George Wilkes.</p> <p>The sheriff returned, that he had attached the said Geoi’ge Wilkes by money in the hands of Conrad Lomerson, due to said Wilkes, and appraised at fifty dollars.</p> <p>The plaintiffs in attachment caused a writ of scire facias to be issued against Lomerson, as garnishee under the attachment. To this scire facias Lomerson pleaded that he had no goods or chattels, rights or credits, moneys or effects of George Wilkes, in his custody or possession.</p> <p>The ease was tried in the Hunterdon Circuit, before a jury, and on the trial the judge charged as follows :</p> <p>“ The question in this ease is, had Lomerson, the defendant, at the time of the service of the writ of attachment in the case of Peter H. Huffman & Oo. against George Wilkes, any money in his hands belonging to Wilkes, actually or constructively.</p> <p>The writ was served on the 26th August, 1851, - and judgment entered in April, 1852; they are in evidence. It is also in evidence that several executions, issued out of the court for* the trial of small causes, were placed in the hands of Lomerson, the garnishee, who is the defendant here against Wilkes, by virtue of which he levied on and sold certain property belonging to said Wilkes, as per vendue list, &e., on 26th February, 1851.</p> <p>The proceeds of this sale, as per said list, was $467.17. The amount of the executions was $243.97, which left a balance, including interest, of about $235.74 over and above the amount of the executions.</p> <p>This makes out the plaintiff’s case, and he is entitled to recover, unless the defendant has made out a sufficient defence ; for it is not necessary to go further than, to show, in the first instance, the sale by the officer, and the amount for which the property was bid off, to charge him with the money. The legal presumption being, in the absence of evidence to the contrary, that he received the money, and that it is in his hands, unless he shows a legal acquittance for it.</p> <p>The defendant’s plea is, that he had no money of Wilkes’ in Ms hands on the 20th August, 1851, or, in other words, that he was not indebted to Wilkes -at the time, and under this plea he is entitled to show any matter of law or fact which ought to protect him. Has he done so.</p> <p>He does not deny that he levied on and sold this property at the time mentioned; nor that he sold it as the property' of Wilkes; nor that the excess of amount of sales over the executions in his hands was as heretofore stated. He does not show that any legal notice of claim of property was interposed by any one before or at the timé of the sale, or that he was in any way obstructed in the legal execution of the writs under which he acted. He does not show that he paid the amount of the sales .over to the execution creditors, or Wilkes, or to anybody else. But he puts his defence upon this, that in point of fact he never did receive any, or but a very small part of t is proceeds of the sale, and he accounts for this in this i ay: He shows that a person by the name of Callendar, in the city of Hew York, had claimed to be the owner of this property, and had sold it to a firm, called Boody, Boss & Co., for $500; that this firm had paid Callendar $200 in cash, and given him their note for $300 ; and he, Callendar, had commenced a suit against them on this note, in Hew York, in which the question whether Callendar or Wilkes was the real owner, was to be settled; that an agent or attorney of Boody, Boss & Co., Mr. Trefren, was present at the sale, who was also the attorney of a number of the execution creditors; and that there was a private understanding, between him and the defendant, that Mr. Trefren was to bid off the articles of principal value, as the agent of Boody, Boss & Co. (which he did), and if Callendar should fail in his suit in Hew York, to show that he, and not Wilkes, was the owner, then the under standing was that the bids were to be considered good, and the money paid; but if Callendar should establish his right to the goods by a reeqvery in that suit, then the bids were to be considered null and void, and the sale to go for nothing.</p> <p>' Here the defendant stopped; he had ny competent evidence to show how the suit was decided, and we consequently know nothing about it.</p> <p>How the question we have to decide is not whether this defence, as it stands, would be good or not in an action by any of the creditors under whose executions the .sale was made. As to them, it might be only necessary for Lomerson to show that they were parties to the understanding between Mr. Trefren and the defendant, and thai the contingency upon which the sale was to be avoided actually happened; but these creditors are not here.</p> <p>The plaintiffs, at the time of the constable’s sale, as far as appears, were creditors at large of Wilkes. They had no lien on his property. Lomerson had no claim of theirs ■in his hands to satisfy. It is not pretended that they had anything to do with the understanding between Mr. Trefren and the defendant.</p> <p>The executions in his, Lomerson’s, hands required him to levy on and sell so much of Wilkes’ property as would be sufficient to satisfy them, and no more. He was not required to raise any surplus money out of the goods levied on for the benefit of Wilkes’ general creditors. But whatever overplus the sale produced, so far .as we have any evidence, was the money of Wilkes.</p> <p>Whatever goods of those levied on, which might not have been sold, would have remained to Wilkes. Lomerson could have discharged himself, in either case, by showing that he paid the surplus realized, or returned the goods not sold to Wilkes or his order, after the executions were satisfied.</p> <p>The plaintiffs proceed here upon the ground that, inasmuch as the evidence shows an excess in the amount of sales beyond the amount of the executions, on the 26th February, 1851, this excess, or surplus, was the proper subject of attachment in Lomerson’s hands in August, 1851. This presents the single question, had Lomerson anything of Wilkes’ that could be the subject of attachment on the 26th August, 1851.</p> <p>The writ of attachment commands the sheriff to attach the rights and credits, moneys and effects, goods and chattels, lands and tenements, of the debtor, wheresoever they may be found.</p> <p>Now, was this excess of the sales over the amount of executions, on 26th February, 1851, a debt due Wilkes from Lomerson on 26th August, 1851 ? There is evidence • that in point of fact Lomerson did not receive the money, in consequence of the understanding had with Mr. Trefren. But. it is not pretended, that Mr. Wilkes was a party to this understanding. He was in no way bound by it.</p> <p>The sale was binding as between Lomerson and "Wilkes, and, as between them, Lomerson was bound, having sold this property as Wilkes’, to account to Wilkes for the surplus. If he had settled this matter with Wilkes before the plaintiff’s, attachment was served he would have a good defence.</p> <p>As between Lomerson and Wilkes then, he, Lomerson, was liable for this surplus. Being so liable, the plaintiffs’, standing in Wilkes’ place, having attached his rights and credits in Lomerson’s hands, are, I think, entitled to recover it, as a debt due from Lomerson to Wilkes, and not paid over or accounted for.</p> <p>Lomerson was in possession of this property, as an officer, by virtue of judicial writs in his hands.</p> <p>His business was to sell the property for as much as he could get for it, and if a surplus was produced by the sale, he is accountable to the creditors in attachment for it. What he sold, and what the purchasers bought, was Wilkes’ right in the property sold.</p> <p>lie sold the property as Wilkes’. There was no legal notice of any claim to the property by anybody else. The constable cannot set up that the property was not Wilkes’ under the evidence here. That is a question for the purchasers, Boody, Ross & Co., and they must take the risk of it.</p> <p>The defendant, by his counsel, excepted to all that part of the charge of the court which ruled—</p> <p>That upon the evidence of the plaintiffs in this case, they are entitled to recover, for it is only necessary for them to show the sale by the defendant, and the amount of the sale, the presumption being that the money was received by the constable, and that the surplus remains in his hands.</p> <p>That between Lomerson and Wilkes, Lomerson was liable to Wilkes for the surplus money, and being so liarble, Wilkes might recover it of him.</p> <p>That what Lomerson sold, and' what the purchasers bought, was only Wilkes’ right in the property sold, and in a suit by Wilkes against Lomerson for the surplus,Lomerson could not set up that the property w-as hot Wilkes’ property.</p> <p>And also to all that part of the said charge in which the court instructed the jury, that in this case the plaintiffs were entitled to recover.</p> <p>The defendant called upon the court to charge the jury—</p> <p>That upon the attachment of money in the hands of a-garnishee, the plaintiffs- cannot have execution against the garnishee for a bare right or credit, or for any other chose-in action.</p> <p>That the presumption in law, until the contrary is-proved, is, that the constable paid over the surplus money to the defendant in execution, if he -had any surplus in his hands after paying the claims of the plaintiffs in execution.</p> <p>The court having declined so to charge the jury, the defendant .excepted, and bills of exceptions were allowed and sealed.</p> <p>A verdict and judgment were rendered for the plaintiffs (Huffman and Risler) for $272.13 damages.</p> <p>A writ of error was then brought by Lomerson, the defendant below, removing the case into the Supreme Court.</p> <p>It was there argued before Justices Potts and Haines, and the judgment of the Circuit Court was affirmed. 4 Zah. 674.</p> <p>A writ of error was then brought, removing the case into this couit.</p>

This was an action of ejectment, brought by Albert II. Osborne and Adeline his wife, and others, in the Supreme Court, for lands described in the consent rule entered into in this cause, as being one tract of land in the township of Morris, and county of Morris, containing fifty-two acres, and the undivided half of two other tracts, containing, the one forty-seven acres, one rood and thirty-seven perches of land, and the other lot containing seventy-six acres of land.

<p>In error to the Supreme Court.</p> <p>The facts in this case are sufficiently shown in the opinion of the court.</p>

<p>In error to the Supreme Court.</p> <p>The facts in this case sufficiently appear in the opinion delivered.</p>