Volume 26 — New Jersey Law Reports

This was an action of ejectment, brought in this court by Mary W. Southard against the Central Railroad Company of New Jersey, to obtain possession of the premises occupied by the defendants for their depot, machine shop, railroad tracks, and other purposes, in the village of Somerville. The plaintiff claimed as devisee of Isaac Southard, who in his lifetime had conveyed the property to the Elizabethtown and Somerville Railroad Company.

This cause was certified from the Sussex Circuit, and was argued in this court, on a motion by the defendant for a new trial. James Owen owed individual debts to the amount of $14,000. He had become liable, as surety for one Bross, in a large amount, and Bross bad failed. He owned real estate wortli $8000, and goods and chattels worth about $4000 more. He also owned bank stock worth $750.

On demurrer to Pleas. This action was brought in the Camden Circuit Court by the treasurer of the city of Camden, to recover of the defendant the expense of paving Pine street, in front of his premises, in said city. The action was in assumpsit, and the declaration contained three counts: 1, for work and labor done and materials provided; 2, for money paid, laid out, and expended ; 3, for money found due on an account stated.

An action was brought in this court, by William Mills against the New Jersey Flax Cotton Wool Company, to recover pay for services performed for the company as chemist. The case was tried at ■ the Somerset Circuit, before a jury, in December, 1855. On the trial, it was proved that the plaintiff was in the employ of the defendants from February 14th, 1854, to January, 1855.

The action below was brought by Quaife against the mayor and common council of Jersey City, to recover compensation for bis services as a commissioner of estimate and assessment for opening streets and building sewers in Jersey City. On the trial, the defendants offered in evidence an ordinance of the city council, fixing the compensation of the commissioners of assessments. This evidence was objected to, and overruled.

On demurrer to pleas, John Moore White brought an action of replevin in this court against James B. Caldwell, John Eyles, and John M. W. Tallman, for taking and detaining two cows belonging to the plaintiff. Caldwell and Eyles pleaded non cepit.

An action oi‘ assumpsit for lumber sold and delivered was brought in the Middlesex Circuit Court, by Abner B. Tomlinson against Peter V. Degraw, upon a lien under the lien law of 1853.

This was an action of debt, brought in the Middlesex Circuit Court by Nelson Gavit against Andrew Snowhill, on a judgment rendered in the District Court for the city and county of Philadelphia, in the State of Pennsylvania. The case was tried at the said Circuit Court, September Term, 1855, and a judgment rendered for the plaintiff. The defendant brought a writ of error removing it into this court.

An action of assumpsit was brought in the Hudson Circuit Court, by Owen Riley, against John Corrigan, on a written agreement not under seal. The agreement and the tacts in the case are sufficiently shown in the opinion delivered in this court. The case , was tried at the Hudson Circuit, December Terra, 1854, before a jury, and. a verdict and judgment rendered for the plaintiff, Riley, for $496.69, and costs.

This was an action of assumpsit, brought in this court by John D. Watkins and John R. Kilburn, as the holders of a promissory note, drawn by Joseph Perrine, payable to the order of J. S. Mott & Co., and endorsed by the payees and the defendant. The action was brought against the defendant, Kirkpatrick, as endorser. The cause was tried at the Essex Circuit, at January Term, 1856, before a jury, and a verdict rendered for the plaintiffs.

An action of trespass on the ease for the use and occupation of a storehouse and wharf at the Princeton basin, was brought in the Mercer Circuit Court by Richard Stockton against Joseph Holmes. The declaration was in assumpsit for use and occupation, with a quantum meruit. The defendant pleaded the general issue. The case was tried at the Mercer Circuit before a jury, at January Term, 1856. On the trial, occupation of the premises was admitted by the defendant.

At the last .February Term, Jonathan H. Morgan, alleging himself to be one of the overseers of highways in the township of Marlborough, in the county of Monmouth, obtained a rule to show cause why a mandamus should not issue to the Monmouth Plank Road Company, commanding them to remove a certain fence, alleged to have been placed by them across the public highway leading from Freehold to Keyport, said fence being on that part of the road within the district assigned to the…

The certiorari in this ease brings up for review a Certain order and proceedings, made and had before one of tlie justices of the Supreme… Held: as he did, a very large amount of property, and among the rest over $700 in cash, in trust for said defendants, as but one creditor had applied and been paid, made a new assignment for the benefit of creditors to said John J. Brown, who now holds the said sum of over $700 in cash and notes, and securities and other property and…

<p>In a suit brought against a corporation, the venue should be laid in the county whore their principal office is located, that being considered their place of residence; the rule applies to railroad companies where their road runs through, and their franchises are exercised in different counties.</p>

<p>1. A defendant in execution is not entitled to claim an exemption of 55200 worth of goods after he has made an assignment for the benefit of his creditors.</p> <p>2. The sheriff! holding a fi. fa. de bonis, may make a levy and inventory of pari of defendant’s goods, and afterwards, before the writ is returnable, may levy on and inventory other goods, and his right to do this is not affected by the defendant making an assignment prior to the second levy.</p> <p>3. An execution delivered to the sheriff, and by him endorsed, will be considered as delivered to be executed, according to tlie command of the writ, although the plaintiff directed part of the goods to be levied on.</p> <p>4. If a judgment by confession for the purpose of preferring creditors, be void within the meaning of the act respecting assignments, it must be a judgment confessed in contemplation of an assignment, and with a view to give a preference over creditors claiming under the same.</p> <p>5. A creditor who puts in a claim under an assignment, does not thereby waive his lien under an execution.</p>

<p>An assessment of damages made by surveyors of highways in laying out a road, awarding §5200 to A B and C D, without saying how much is assessed to each of them, is bad, unless it appear by the return that they owned the land as joint tenants or tenants in common.</p>

This was an action of debt, brought by Richardson against Lanning, in a justice’s court. The justice refused to non-suit the plaintiff, on an objection taken to the sufficiency of the state of demand, and the plaintiff obtained a judgment. On appeal, the Court of Common Pleas held the state of demand insufficient, and non-suited the plaintiff. The certiorari is brought to reverse this judgment.

Tins was a certiorari to a justice of the peace, brought to review the proceedings and judgment in an action of debt, in which the administrator of James Coyle, deceased, was plaintiff, and Patrick Coyle was defendant. The summons was for thirty dollars. The demand filed was for a book account and interest, amounting in all to $100. On the return day of the summons, the plaintiff appeared, and the defendant sent word that he wished an adjournment, which was granted.

<p>1. This court will not grant a mandmnus, except where it is clear that there is a legal obligation to perform the duty commanded to be done.</p> <p>2. The tenth section of (lie supplement to the act to establish public schools, (Nix. Dig. 739, pi. 41,) does not expressly vest the authority anywhere to abolish an incorporated school district.</p> <p>3. The consent of a majority of the taxable inhabitants of a school district, that the same may be abolished, however such consent may be expressed or certified, does not abolish the district; and where such consent is given, the court will not issue a mandamus to compel the trustees to certify that fact to the county clerk.</p> <p>4. The trustees are under no obligation to sign such certificate, and even if they should sign it, and have it recorded by the clerk, it would not have the effect to abolish the district.</p>

<p>Where a party, by unavoidable accident or any cause beyond his control, and without.laches on his part, is prevented from appearing at the trial, and defending a suit, if-judgment is rendered against him, courts will always grant relief upon being satisfied there is a reasonable ground to believe that injustice has been done him by a trial in his absence.</p>

<p>1. In altering a ditch pursuant to the act to enable owners of swamp and meadow ground to drain the same (Nix. Big. 478), the same notice is required as in ease of proceedings to lay out and open a ditch, and the return of the freeholders and surveyors in such eases must show that everything was clone which is required by the statute under which they act.</p> <p>2. Damages cannot be assessed to an applicant for the alteration of a ditch. Where damages assessed are clearly illegal, this court will relieve on certiorari: but where they are only objected to, as being unjust and inequitable, the remedy, in the first instance, is by appeal to the Court of Common Pleas.</p>

This was a certiorari to the collector of the township of Bridgewater, Somerset county, to review a certain assessment of tax made by the assessor on James Hodge, the prosecutor, for the purpose of maintaining a free school in Willow Grove district, No. 13, in said township, for the year 1855.

This was an action of debt, brought in the name of the Ordinary of the State of New Jersey, against Samuel A. Allen, Thomas S. Smith, and William R. Thompson, on an administration bond. Judgment was for the plaintiff, and a bill of costs was taxed, amounting to $69.22. The defendants now move a re-taxation of this bill.

On demurrer to pleas. Peter Tinsman brought an action of trespass on the case, in this court, against the Belvidere Delaware Railroad Company, to recover damages for an injury alleged to have been caused by the defendants in the construction of their road.

On demurrer to narr. An action of debt was brought in this court by Jacob W. Hoffman against Zephaniah Hoffman, to recover the amount of an award.

<p>An incorporated company of this state is not liable to be taxed for so much of its capital as is represented by stock standing in the name of nonresident stockholders, and owned by them.</p>

This action was brought to recover an alleged indebtedness from the defendants to the plaintiffs, for goods sold and delivered. The defendant, Conrad Teese, pleaded separately the general issue ; the other defendant, Hollingsworth, also pleaded the general issue, but did not contest the case at the trial. The cause was tried at the Essex Circuit, at April Term, 1854, before a jury. On the trial the plaintiffs called Hollingsworth, one of the defendants, as a witness.

This action was brought by Howell Hoppock and Richard B. Greenwood, partners, against John Grover and John D. Van Nortwick, to recover the amount of a joint and several promissory note, signed by the defendants.

The facts in this canse fully appear in the following state of the case, agreed, upon by counsel: This suit, was brought for the recovery of three certain lots of land in the city of Newark, known as lots Nos. 74, 75 and 76 of the James Baldwin property, situate on the southwest .corner of East Market and Adams streets. The declaration was in the eommon form, laying the demise on the 10th day of April, 1854, for the term of five years, Ac.

<p>A foreign attachment, issued against a person whose actual residence and usual place of abode was at the time in this state, will be set aside, although lie may have temporarily removed into another state, and the plaintiff’s affidavit was made in good faith.</p>

<p>The plaintiff in ejectment must lile his declaration within thirty days after the day tire summons is returnable.</p>

<p>A certiorari may be issued to bring' up an order of two justices in a pauper case after the expiration of eighteen months.</p>

This was an. action brought by Dunn against Smith, in a justice’s court. The demand filed was for “ visit and medicine” at various -times, from September to December, 1854, amounting to $54.25, reduced by credits to $45. It nowhere appeared for what purpose or in what capacity the visits were made, or how the plaintiff claimed to be entitled to compensation for them.

Certiorari in matter of proceeding under the supplement to the act concerning landlords and tenants, approved March 4th, 1847.

<p>To an information in the nature of a gno warranto, the defendant cam plead but one plea.</p>

<p>1. It must clearly appear, by the constable’s return to an attachment, that some property was attached, or the justice cannot appoint a day for the hearing of the cause, and render judgment for the plaintiff.</p> <p>2. It must be stated on the docket that proof was made of the due advertisement of the attachment.</p>

On habeas corpus to the sheriff of the county of Mercer. This case came before the Chief Justice, and was decided by him in vacation. The facts sufficiently appear in the opinion delivered.

This cause was tried at the Hudson County Court of Oyer and Terminer and General Jail Delivery, at October Term, 1856. The defendant was a conductor on the New Jersey Railroad, and was-indicted for an assault and battery on George J. Leghae. The substance of the evidence on the trial and the facts iu the case sufficiently appear in the opinion delivered in this court. The jury rendered a verdict of guilty of an assault only.

Moses B. Martin brought an action of ejectment in this court against William Carrón, the tenant in possession, to recover the possession of a house and lot in the city of Newark. The case was tried at the Essex Circuit, before a jury, at' May Term, 1855.

Peter M. Ryerson, who sties for (he use of David Ryerson ami Ehenezer B. Woodruff, brought an action of trespass on flie case against William II. Quackenbush, sheriff of .the county of Passaic. The defendant, by virtue of sundry executions, issued and directed to him, against Thomas Wallace and James H. Coneklin, had sold certain personal property belonging to said Wallace and Coneklin, on premises leased to them by Peter M. Ryerson.

Henry Whitely and James Angus brought an action of ejectment, in the Passaic Circuit Court, against Archibald Graham, to recover the possession of a tract of land in the city of Paterson. The case was tried at the Passaic Circuit, before a jury, at April Term, 1856.

This case came up from the Warreo Circuit on the following case, certified by the judge who tried the cause1. This action was brought to recover the value of certain cattle, sold and delivered by the plaintiff to the defendants. The summons was served upon Freese only, and returned by the sheriff “ not found,” as to the other defendant. Freese alone appeared and pleaded to the action. No appearance was entered or plea filed for Bellis.

An action of trespass on the case was brought in this court by George W. Hallock against the Commercial Insurance Company. The plaintiff declared on a policy of insurance, and the defendants pleaded the general issue. The case was tried at the Hudson Circuit, before a jury, at May Term, 1856.

Case certified from Mercer Circuit. This action of indebitatus assumpsit was brought by the plaintiff to recover the value of nine shares of stock, assigned and transferred by the plaintiff to the defendant. The declaration contained the common counts only. The plea was the genera! issue.

The state of demand was in covenant, and after setting forth the material parís of the agreement upon which (he action was brought, averred that the plaintiff well and truly performed and fulfilled all and singular the covenants and agreements in the said agreement mentioned on his part to be done and performed, and that he found all the labor necessary to carry on the ordinary and usual operations of said farm for the term of one year, &c., including the care of the stock…

<p>1. The process required in oases of suits for a penalty incurred hy violating an ordinance of the city of Paterson, is sufficient if it sets out the substance of the ordinance and the nature of the offence charged.</p> <p>2. An ordinance requiring all persons who sell hay or other produce, and deliver the same within the limits of the city, to pay a fee of five cents, is unreasonable and illegal.</p>

<p>Certiorari to the Circuit Court of the county of Hudson in a ease of attachment.</p>

<p>1. The proof exhibited to a judge or commissioner to obtain an order for an attachment under the supplement of 1855 must be proof of facts sufficient to establish some one of the particulars required to be proved by the first section. The mere belief or conclusions of the witness are not enough.</p> <p>2. If an attachment be set aside as illegal, it will not bo allowed to stand as a summons.</p>

<p>1. A justice of the peace has no jurisdiction in a case where the action is brought for obstructing a private road.</p> <p>2. A person entitled to use such road cannot maintain trespass for obstructing it. The proper action is trespass on the case.</p>

<p>On motion for mandamus in matter of appeal.</p>

<p>A slave acquired no settlement, unless he was legally manumitted or his master became insolvent.</p>

This cause came before the court by a 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 Bergen. The plaintiffs in error, Joel M. Johnson and Albert Smith, were indicted, with others, for a conspiracy. The indictment was as follows: Bergen Oyer and Terminer and General Jail Delivery, December Term, A. d. 1854.

An action of debt was brought in this court by,Silas Cook against the board of chosen freeholders of the county of Middlesex. The ground of action and the facts in the case appear in the opinions delivered.

An action of ejectment was brought in this court, by Adrian Van Blareom and others, against Walling Kip and Henry I. Kip, to recover possession of certain premises in the county of Passaic. The case was tried at the Passaic Circuit, before a jury, and a verdict rendered for the plaintiffs, and judgment entered thereon.

Isaac I. Cole brought an action in this court against the Bergen County Mutual Assurance Association, on a policy of insurance issued by said company. The cause was tried at the Bergen Circuit, at April Term, 1856. Ou the trial the following facts appeared in evidence: The policy was dated December 8th, 1853, and issued for one year.

The question in this case was, whether an award made by arbitrators without being sworn or affirmed, as prescribed by the statute, was good. The facts sufficiently appear in the opinions delivered in this court.

An action of ejectment was brought in the court below to recover possession of a tract, of land in the county of Ocean. The lessors of the plaintiff claimed title under (be will of Anthony Ivins, and the defendant claimed under a deed from said Ivins, and Sarah, his wife.

Circuit. An action of debt was brought by Rebecca Cottrell, in her lifetime, before a justice, for the wages of her son, aged about nineteen years, and a judgment rendered for the plaintiff. An appeal having been taken to the Middlesex Pleas, and the action revived after the death of the plaintiff, in the name of her administrator, the ease was re-tried, and a new judgment rendered for the plaintiff.

On demurrer to narr. This case was certified from the Camden Circuit for the advisory opinion of this court. The facts appear in the opinions delivered.

On demurrer to plea. An action was brought in this court, by Mary Jane Vain Arsdale against William Van Arsdale and others, to recover her dower in lands in the State of New Jersey, of which Elias Van Arsdale died seized. The defendants filed three pleas. 1. That said plaintiff and said Elias Van Arsdale were never lawfully married. 2.

An action of trespass was brought in the court below, by John J. Brown, assignee of Thomas C. Brown and Henry Demarest, against Jasper Garretson, sheriff, to recover damages of the defendant for taking away and selling certain goods and chattels, which the plaintiff claimed as assignee of said Brown and Demarest.

<p>1. Tlie common council of Jersey City have authority to pass an ordinance for filling up Grand street, although said street is covered by a plank road, laid by virtue'of a special act of the legislature.</p> <p>2. A person assessed for a part of the expenses of filling up a street, held to have waived any objection to the ordinance in consequence of an irregularity in the mode of giving notice of the time and place when objections might be made, and also his right to appear before the board of assessors.</p> <p>3. The assessment must show on its face that the commissioners pursued strictly the authority vested in them by the statute.</p>

Alexander McEowen brought an action of trespass, in this court, against Alvah Lewis, for cutting and carrying away timber from land claimed by the plaintiff. The defendant pleaded title. The cause was tried at the Somerset Circuit, in April Term, 1856, and a verdict rendered for the •defendant. On the retara of the postea to this court, the plaintiff obtained a rule to show cause why the verdict should not be set aside, and a new trial granted.

<p>1. Where, in a suit before a justice of the peace, a judgment is rendered against several defendants, and one of them is allowed to'prosecute an appeal alone before the Court of Common Pleas, and On the trial of the appéal the judgment is reversed, as to all the defendants, this court will not issue a mandamus to compel the Court of Common Pleas to issue execution against the defendants who did not appeal.</p> <p>2. If an action is brought against several, on a contract wherein all the defendants must be shown to- be liable, and one of the defendants prosecutes an appeal, the party who was plaintiff below must prove bis whole case, so far as to show the liability of all, or else the whole judgment will be reversed.</p> <p>3. But in an action of tort it is different; there, on the trial of an appeal prosecuted by one defendant, if judgment is rendered in his favor, it does not affect the judgment below against the other defendants, and the judgment against the others remains in fall force.</p>

<p>1. The commencement of a prior action for the same cause is a good plea in abatement, whether such prior action be at the suit of the plaintiff <or of his attaching creditor.</p> <p>2. A plea of an action pending is a good cause for suspending the proceedings for a reasonable time for tlie former action to be determined.</p> <p>3. If a plea in abatement is tiled, setting up a former suit for the same cause of action, the plea must show that the former action is still pending, or has been prosecuted to judgment; and it must be proved to the court, by affidavit or otherwise, that the matter set forth is true.</p> <p>4. In just ices’courts, strict and formal pleading is not required, but everything in substance must be done there that is required in the higher courts.</p> <p>5. A writ of attachment was returned, served on goods and chattels, moneys, rights, credits, and effects of S., the defendant therein, in the possession or custody of ~W. H. Held, that in a suit by S. against W. H., the attachment could not be pleaded in abatement, as it was not shown that the debt for which the suit was brought was attached under the writ of attachment.</p>

Tin's canse came before the court by writ of error to remove to this court the judgment of lhe Court of Oyer and Terminer and General Jail Delivery iu and for the county of Monmouth. At the September Terra of said court, in 1857, James P. Donnelly was indicted and tried for the murder of Albert S. Moses. The jury rendered a verdict of guilty of murder in the first degree, and judgment was entered on the verdict.

<p>1. Where a party, by his admissions, has qualified his own right, and another claims to succeed him, he succeeds only to the right as qualified at the time his title commenced.</p> <p>2. Whore title deeds convey a tract of land by metes and bounds, which embraces witliin its boundaries a water-power, without specifying the extent of that power, in a suit brought for injury caused by using such waterpower, it is competent for the plaintiff to show to what extent the right was claimed and exercised by a former owner and occupier of the land, and for that purpose the admissions of such former owner, as to the extent which he claimed and occupied the right, are admissible against his successor or grantee.</p> <p>3. But if the extent of a right to use a water-power is fixed by the title deeds, the admissions of a former owner, that he only claimed and exercised a lesser right than is fixed by deed, are not admissible against a subsequent owner.</p>

<p>In error to the Supreme Court.</p>

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

An action of covenant was brought in the Supreme Court by Ebenezer B. Woodruff against the Sussex County Mutual Insurance Company, upon a lost policy of insurance. The cause was tried at the Morris Circuit, at the October Term, 1855, and a verdict rendered for the plaintiff. Final judgment was entered on that verdict in the Supreme Court, at February Term, 1856. To reverse this judgment, a writ of error was brought, removing the cause into this court.

This cause came .before the Supreme Court on eertiorari, to set aside an assessment of taxes on the personal property of Cornelius S. Yan Winkle. The Supreme Court sustained the assessment, (1 Dutcher 531) and the prosecutor brought a writ of error,- removing the cause to this court. The facts are stated in the report of the case in the Supreme Court, and also appear in the opinion delivered in this court.

This ease is reported in the Supreme Court,eases, ante page 124. The facts of the case are sufficiently shown by the opinion there delivered, and by the opinion of this court.

This was an action of ejectment in the Circuit Court of the county of Hunterdon, brought to recover the premises which were the subject of the action in the case of Den v. Lawshee, 4 Zab. 613. The same facts were given in evidence as in that case, together with some others not necessary to notice, as in the opinion of (he court they did not affect the result.

' Iti error to the Supreme Court. The facts in this case, and the opinions -delivered in the Supreme Court, appear in the report of the case, at page 230 of this volume.

The writ of error in this case being returned, the counsel for the plaintiff in error alleged diminution of the record in the following matters, to wit: the record of the case, which was returned to the Supreme Court, having annexed thereto the bills of exception made at the trial; also a certain order of the said Supreme Court denying a habeas corpus to the said plaintiff, to bring him before the said court to assign errors, and be present at the hearing- of said cause;…