Volume 27 — New Jersey Law Reports

This cause came before the court on a certiorari to review the proceedings of the board of chosen freeholders of the county of Hudson, in granting a license to Albert N. Brown to build a wharf on the shore of New York bay. The facts are fully stated in the opinions delivered in this court.

This was an action of trespass, brought iu the Passaic Circuit Court, and tried at the December Term, 1856. On the trial, a special verdict was taken for the plaintiffs, questions of law being reserved for the advisory opinion of this court. The facts sufficient for an understanding of the case appear in the opiuions delivered.»

This case came before-the court upon questions reserved on the trial before the Circuit-Court of the county of Morris. The facts sufficiently appear in the opinions delivered.

<p>In error to the Hudson Circuit Court.</p> <p>The facts neeessary to an understanding of the case sufficiently appear in the opinions delivered in this court.</p>

On motion for new trial. John B. Stryker, administrator of Lawrence V. Stryker, deceased, sold certain real estate at public sale, by virtue of an order of the Orphans’ Court of the county of Somerset. The hmd was bid off by Peter Vanderbilt, and he signed a certificate under seal, by which he covenanted and agreed to pay the purchase money by a time therein named, and receive his deed, according to the conditions of sale.

An action of ejectment was brought in the Mercer Circuit Court, by Robert II. Wright against Benjamin Carter. When the case was called for trial, at the January Term, 1857, the attorneys of the respective parties agreed upon the following stale of the case to be submitted to this court.

This was an action of trespass on the case, brought in the Circuit Court of the County of Morris, and was tried before Justice Elmer, at January Term, 1857.

This cause came before the court on a motion for a new trial. The facts in the case and the points presented to the court sufficiently appear in the opinions delivered.

William J. Moore was indicted, by tbe grand jury of Camden oonnty, for illegal voting at tbe November election in 185G. Tbe cause was tried before tbe Oyer and Terminer for that county, at May Term, 1857, and the jury returned a verdict of guilty against the defendant, A motion being- made by the defendant’s counsel in arrest of judgment, upon the ground that the indictment was fatally defective, the Court of Oyer and Terminer ordered the case to be certified to this court…

<p>An indictment under the 51st section of the act to regulate elections (Nix. Dig. 223) for unlawfully counseling and advising a person to vote, must specify the particular disability which constitutes the disqualification of the voter.</p>

This cause was tried at the Atlantic Oyer and Terminer, at September Term, 1857. The jury rendered a verdict of guilty, and the counsel for the defendant, having obtained a rule to show cause why the verdict should not be set aside, and a new trial granted, the Court of Oyer and Terminer certified the case to this court for an advisory opinion.

This cause came before the court ou a case certified from the Cape May Oyer and Terminer. The facts appear in the following state of the case : The indictment charged the defendant, in the usual form, with stealing eighteen bushels of oysters, of the value of eighteen dollars, of the goods and chattels of one George Hildreth.

The defendant was indicted by the grand jury of the county of Somerset-, at the Court of Oyer and Terminer held in and for that county in December, 1857.

<p>1. An addition to a building, within the meaning of the mechanics’ lien law, must be a lateral addition on ground outside of the building to which it constitutes an addition.</p> <p>2. Adding to the height, extending the depth, or increasing the interior accommodations of a building are alterations, and not additions, within the contemplation of the act.</p> <p>3. Where the change in the building is clearly shown by the evidence, the question whether it constitutes an addition or alteration, is a question of Law, upon which the court should instruct the jury.</p>

This was an action of covenant, commenced in the Supreme Court, on a policy of insurance. The cause was tried at the Mercer Circuit, at April Term, 1857, and a verdict rendered for the plaintiff for the amount of the insurance and interest. On the return of the postea to this court, the defendants obtained a rule to show cause why the verdict should not be set aside, and a new trial granted.

' Catharine Everingham brought an action against the executors of William R; Davison, deceased, to recover lor domestic services performed by her for said Davison during his lifetime. When the plaintiff was about fifteen years old, her mother made an agreement with Davison, by which it was agreed that Catharine should work for him as a domestic servant for six shillings per week, for the first year, and after that her wages were to be increased, the wages to be paid weekly.

An action was brought in the Essex Circuit Court by William M. Babbitt against James Condon, builder, and Daniel G. Mason, as owner, on a lien filed by the plaintiff for lumber furnished by him to Condon, and which was used in constructing a dwelling-house on lands of Lowell Mason. The facts necessary to an understanding of the case appear in the opinions delivered in this court.

On demurrer to narr. An action of covenant was brought in this court by William G. Bayles against the Hillsborough Insurance Company. The policy had been assigned to the plaintiff, as collateral security for a bond.

<p>By the law of the Stale of New York, certain corporations, therein named, are required to report annually, within twenty days after the first day of January, the condition of their affairs, and to have the report published ; and on failure to do so, all the trustees of such corporation to be jointly and severally liable for all debts then existing, and for all that, shall be contracted before such report shall be made ; held, that an action brought by a creditor of the company against a trustee to recover on a liability incurred under that statute, cannot be enforced in this state.</p>

<p>1. Growing crops may be levied upon and sold as chattels under a writ oifieri facias de bonis, and the purchaser under such sale acquires the right of leaving the crop upon the soil until its maturity, and also the privilege of entering upon the soil to gather and take away the crop.</p> <p>2. A judgment binds the land of the defendant from the time of its entry. But neither the judgment nor the levy of an execution upon the land creates a lien upon the growing crops.</p> <p>3. Notwithstanding such judgment and levy upon the land, the growing crops may be sold, or may be levied upon by virtue of a subsequent execution ; and such sale or levy will be valid and operative, provided the crops are severed during the continuance of the defendant’s title, and before the sale and conveyance of the land under the judgment.</p> <p>4. The purchaser of land under a sheriff's sale acquires, by virtue of the conveyance, a legal title to the growing crops then upon the land, against a previous purchaser of the crops from the defendant in execution; such purchase of the crops being made subsequent to the entry of the judgment by virtue of which the land is sold.</p>

This certiorari was brought to set aside an assessment, made on property of the New Jersey Railroad and Transportation Company, for widening Market street, in the city of Newark.

This cause came before the court on a motion for a new trial. The action was commenced in this court, and was tried at the Essex circuit, at April Term, 1857. The jury rendered a verdict for the plaintiffs for $3250.83. On the return of the postea, the defendants moved to set aside the verdict and for a new trial.

<p>1. Under the eighth section of the act of March 20th, 1857, to authorize the water commissioners to introduce water into the city of Hoboken, the power of removal conferred on the mayor and council is a judicial power, and cannot he exercised by the council alone.</p> <p>2. Judicial powers delegated to two or more must be executed jointly.</p>

<p>An attachment will not lie against a foreign corporation owning property in this state, and transacting business here under legislative authority.</p>

This was a writ of error to the Circuit Court of the county of Hudson. The facts sufficiently appear in the opinion of the court.

This certiorari was brought to set aside an assessment, made on lands of the prosecutors, for the purpose of regulating and improving Bergen-wood avenue.

Caso reserved by the Court of Oyer and Terminer for the opinion of the Supreme Court, upon a motion for a new trial, after a conviction upon an indictment for nuisance.

The cause was heard upon the following special case, made at the Atlantic circuit before Justice Elmer, at April Term, 1857. This was an action of assumpsit, brought by the holder against the maker of a promissory note, hearing date April 2d, 1855, for ¡$160t.24, payable two years after date, with interest semi-annually, to the Camden and Atlantic Railroad Company, and endorsed, in the name of said company, by Robert Frazer, treasurer.

This cause was heat'd upon the following case certified from the Camden Circuit Court for the advisory opinion of the Supreme Court. This action was brought upon a promissory note for $287.62, dated the 14th day of February, 1855, payable sixty days after date, drawn by Tomlinson and Kennady to Samuel C. Bell, and by him endorsed.

This cause came before the court on the following special case, certified from the Middlesex Circuit Court: This is an action brought by plaintiff, under the statute relating to mechanics’ lien, against John Parker, as builder, and Mary J. Parker, as owner, to recover for work done and materials furnished by the plaintiff in the erection of a certain dwelling-house by said John Parker, as builder, on the land of his wife, the said Mary J. Parker, in the county of Middlesex,…

An action of trespass was brought in the court below, by Joanna V. Herring, against Evans and Davis, to recover damages for taking and removing her goods and chattels. The goods were distrained and sold by Davis, under a landlord’s warrant, issued for rent claimed by Evans. On the trial at the circuit, several exceptions were taken to the ruling of the court, upon which errors were assigned.

This was a certiorari to the Court of Common Pleas of the county of Passaic, to bring up the judgment and proceedings in a case of appeal from a justice’s court. The nature of the action will appear in the opinions of the judges. A verdict was rendered for the plaintiff, after a charge from the court, for seventy-five dollars damages.

This was a certiorari to two justices and surveyors of the county of Essex to bring up an order, professing to determine in regard' to encroachments alleged to have been made upon a certain highway in the township of Orange, known as Valley street.

Certiorari in matter of taxation. The following affidavits were, presented to the commissioners of appeal.

<p>1. Where a party who has obtained bills of exceptions applies for a rule to show cause why a new trial should not be ordered on the points contained in said bills, or any of them, it will be made a condition of granting the rule that he abandon all his bills of exception.</p> <p>2. If the application is solely on points which cannot be raised on a writ of error, the bills of exceptions need not be abandoned ; but in that case the rule will be special, so as to confine the argument to the grounds upon which the rule has been allowed.</p>

George J. Gear brought an action of assumpsit against the mayor and council of the city of Hoboken to recover his salary as a policeman of said city.

This cause was tried at the Bergen circuit, at September Term, 1857. On the trial, the court instructed the jury to find a special verdict on two points: 1,.whether the wharf was dedicated to the public by the defendant j 2, and if so, what damages the plaintiff had sustained. The jury, by their verdict, found that the defendant had dedicated the wharf to the public, and assessed the plaintiff’s damages at sixty dollars.

This canse came before the court oh a motion in arrest of judgment on the following state of the case.

The indictment in this case contained two counts—one for burning a dwelling-house, and the other for burning a barn, not parcel of a dwelling-house. The cese was tried at the Passaic County Oyer and Terminer, at September Term, 1858. The jury acquitted the defendant on the first count, and found him guilty on the second.

This cause was tried at the Warren Oyer and Terminer, and the jury rendered a verdict of guilty. The court suspended sentence, and certified the case to this court for an advisory opinion. The points presented to the court sufficiently appear in the opinion delivered.

This writ of error is brought to reverse the judgment of the court below, for certain errors in the admission of testimony offered by the defendants in error, and in the charge given by the court to the jury on the trial. - The plaintiffs’ action was brought to recover the amount •of a hill for moneys paid by the plaintiff) for the use of the defendants, and for commissions on the sale of certain cattle of the defendants.

This cause was commenced in this court, and was tried at the Hudson Circuit, at May Term, 1858. At the trial several exceptions were taken to the ruling of the court on the admissibility of evidence, and on the return of the postea, the defendants moved to set aside the verdict, and fora new trial. The facts in the case and the points raised on the argument sufficiently appear in the opinion of the court.

An action of ejectment was brought, in the Somerset Circuit Court, by Daniel B. Coleman against Vincent Barklew and Charles Stines, to recover possession of a lot of land in the village of Kingston. The cause was tried at the Somerset circuit, and the jury rendered a verdict for the defendants. The plaintiff obtained a rule to show cause why the verdict should not be set aside, and a new trial granted; and the case was certified to this court for an advisory opinion.

This was an action in covenant, seeking to charge the defendants on a contract under seal between the plaintiffs, of the first part, and the water commissioners of the city of Hudson, of the other part. The declaration contains three counts. The first alleges an agreement made between the plaintiffs and the defendants by the water commissioners of the city of Hudson, and sealed with the seal of the said water commissioners.

The action below was brought by a sub-contractor, against the owner, to recover for work and labor in the construction of a house. Judgment in the court below was rendered in favor of the plaintiff. The facts appear in the opinion of the court.

Action of indebitatus assumpsit for money paid and money bad and received. PJea, the general issue. The case was originally commenced in the Morris County Circuit Court, and was argued before the Supremo Court upon the following, certified ease.

<p>In error to the Essex Circuit Court.</p> <p>The facts in this case sufficiently appear in the opinion of the court.</p>

This cause 'was certified from the Hudson Circuit for the advisory opinion of this court. The material facts are nearly the same as in the case of Gear against the same defendants, ante p. 265. The points raised in this case, that were not raised in'that, sufficiently appear in the opinion of the court.

<p>An individual cannot sustain an action against the board of chosen freeholders, for injuries sustained by reason of a defect in a public bridge constructed by them.</p>

<p>1. It is no objection to an order of filiation and maintenance, that it is made against the father of the bastard alone. The order may be against both or either of the parents.</p> <p>2. An order for the payment of costs by the parent is unauthorized and erroneous.</p> <p>3. The existence of an order of maintenance cannot he shown by parol.</p> <p>4. If there be conflicting evidence upon the question whether the previous examination of a witness was reduced to writing, and signed by the magistrate, the exclusion of parol testimony of the contents of such examination would constitute no error. It is the province of the court to decide upon which side the conflicting evidence preponderates.</p> <p>5. But, if the court admit parol evidence of what the witness testified on a former occasion, the' adverse party is entitled to show by parol that conflicting statements were made by the witness.</p>

<p>1. A mere clerical error in the name of one of the land-owners across whose land the road is intended to be laid, is not such a variance as will set aside the proceedings, if correct in other respects, and the road as laid be unmistakable.</p> <p>2. Notice of the time and place of meeting of the surveyors may be served by the applicants, or by any other person in their behalf.</p> <p>~3. By the supplement to the road act, passed March 1st, 1850, the words, “ ever having regard to the appointment of those surveyors of the townships in which the road is applied for to be laid out,” &c., are rendered inpoerative, and need not appear, in the order appointing the surveyors, that regard was had to the appointment of such surveyors.</p> <p>4. If tiie application is to lay. a road running a northwesterly direction, and pne of the many courses of the road, as laid, is southwest, this is not a sufficient variance to set aside the. return, if the general course of the road laid be northwesterly, when the beginning and ending points are compared with each other.</p>

<p>1. If ah execution is placed in the ’hands óf a sheriff, and Is afterwards settled by the parties, either by payment of the claim or otherwise, so that a sale is rendered unnecessary, the sheriff is entitled to one-half of the amount of percentage allowed in cases of saile.</p> <p>2. It makes no difference to the sheriff' how the matter is arranged between the plaintiff'and defendant.</p> <p>3. Where several executions are issued (o the sheriffs of different counties oil the same judgment, and each sheriff' makes a levy on property, if the claim is settled, each sheriff is not entitled to his percentage on the whole amount of the execution; he is only allowed percentage on the value of the goods levied on by him ; and if the value of the property levied on by all the sheriff’s exceed the amount due on the judgment, then each sheriff should be allowed in proportion to the property levied on by him.</p> <p>4. Should a question arise about the value of the property levied on, the court can determine it on proof submitted under a rule for taking affidavits.</p>

<p>1. In procuring an order to hold to bail, it is not necessary that the affidavit should be made before the judge or commissioner who makes the order; the affidavit may be made before any person authorized to administer such an oath.</p> <p>2. Under the act of March 10th, 1853, (Nix. Dig. 132, pl. 57,) an affidavit to hold to bail may be made, in a foreign country before a consul of the United States.</p> <p>3. If an agent, who is authorized to accept for his principal, appropriate the avails of the acceptances to his own use, he is liable on an implied contract for money had and received.</p> <p>4. Where an agent is intrusted with goods, to be used in the business of his principal, or where he lias in his hands blank acceptances, to be filled up and used as required in the business of his principal, in divers sums to a certain aggregate amount, and he tills up the acceptances to a much larger amount than authorized, and appropriates the goods or the avails of the acceptances to his own use, it is a fraud upon his principal, for which he may be held to bail.</p> <p>5. An affidavit, to hold an agent to bail for misappropriating the avails of acceptances, stated the number of bills, by whom drawn, to whose order, and how endorsed, by whom accepted, the amount of each, and when they matured, respectively, but did not state the precise date of the bills— held, that the description was sufficient.</p> <p>6. The affidavit also charged that the principal intrusted and delivered to the agent certain goods, consisting of woolen fabrics and yarns, to be manufactured by the defendant for the benefit and use of the deponent, and that he also intrusted and delivered to the defendant dye-stuffs and other ingredients to be used by the defendant in the manufacture of the said articles or materials to the amount of 32,000 florins and 10 kreutzers, at the twenty florin standard—held, that the affidavit did not sufficiently describe the particulars of this part of the demand.</p>

<p>On certiorari in matter of taxation.</p>

<p>1. It is not necessary that a bastard should be adjudged a pauper under the 9th section of the poor, law act (Nix. Dig. 609) before the justices can take proceedings for the relief of the township. *</p> <p>2. The township where a bastard is born may take proceedings for the relief of the township, notwithstanding the 4lh section of the poor law act, (Nix. Dig. 607,) and the 2d section of the act of 1851, Nix. Dig. 60.</p> <p>3. Nor is it necessary that the township should have actually paid money for the lying-in expenses of the mother before proceedings are instituted for its relief, by an order upon the putative father to pay it; it is sufficient if the township lias promised to pay them.</p>

The plaintiffs were dealers in lumber at Bound Brook. The defendant, in the summer of 1856, was building a seminary at. Plainfield. One Gibson had contracted with him to build it, and furnish the materials. In August, 1856, Dow came to the saw-mill of the plaintiffs, and inquired of plaintiffs’ agent how they would sell him lumber delivered in Plainfield, and said he would want a large quantity, 50,000 feet.

' In error to the Morris Circuit. This was an action of trespass on the case, brought in the Morris Circuit Court by Martin J. Ryerson against the Morris Canal and Banking Company', and tried at October Term, 1855. On the trial, the judge charged the jury as follows: The plaintiff claims damages for injuries to his land, caused, as he alleges, by the erection of the two dams and embankment spoken of by the witnesses, and their, not beitig kept in a proper state of repair.

This cause came before the court ou a rule to show cause why the report of audilors in attachment should not be set aside. The application was made by Fuller, Lord & Co., creditors, who came in under the attachment. The facts sufficiently appear in the opinions delivered.

<p>1. Where the common council of Jersey City refer an application to construct a sewer, to a committee, to examine and report upon (he matter, a majority of the committee are a quorum, and competent to act.</p> <p>2. Tlie proceedings to construct a sewer will not be set aside on account of a variance between the application and other proceedings in the name of a street, if the exact locality can be fixed by other streets and sewers named in the proceedings. Tlie discrepancy should appear affirmatively to invalidate the proceedings.</p> <p>3. The provisions of the 55th section of the charter of Jersey City, in the laws of 1851, relative to constructing sewers, is repealed by the act of 3851, except as to the preliminary proceedings which precede the decision of the common council that the work should be done.</p> <p>4. If a municipal corporation attempt to act in accordance with a statute not in force, it does not afloat their proceedings, provided such proceedings are in accordance with existing laws.</p> <p>5. It is not necessary that the common council should decide, by ordinance, that a sewer shall be built; it may be done by resolution.</p> <p>6. Nor is it necessary for the common council to state, in tlieir decision, that the sewer ‘‘ is required for the benefit or convenience of the citizens or the promotion of tlie public health.”</p> <p>7. If, after the order is made by common council, it become necessary to extend the sewer further in the same street than was originally contemplated, in order to complete it and make it available, a second order may be made ordering such extension.</p>

This cause was tried at the Hudson Oyer and Terminer, and was brought before this court on questions reserved upon the trial. The facts in the case and the points presented to the court appear in the opinion delivered in this court.

This was an action of assumpsit, brought.in the court below by Kaiglui against Paulin, to recover of the defendant his contributivo share on a bond given by Kaiglui aud Paulin and Joseph M. Cooper to William Champion, to secure a debt of the South Camden Ferry Company. On the trial, it was proved that judgment had been obtained on tho bond, and that it had been paid by Kaiglui and Cooper.

. This was an action of assumpsit, brought against Bennett and Carlisle, as guarantors for Evernham and Hill. In the fall of 1856, the plaintiffs made a contract with Evernham and Hill to build and complete a school-house, and find all materials therefor, according to specifications annexed to the contract; the building to be located on a lot owned by the plaintiffs, and designated in the contract.

This was an action under the mechanics’ lien law, brought in the court below by Matthews against Cornell, to recover for lumber furnished to build a house on land to which Cornell’s wife claimed title under the will of her father. On the trial at the circuit, a verdict was rendered in favor of MatLhews for the amount claimed, and on that verdict a special judgment was entered against Cornell’s estate in the premises upon which the lien was claimed.

<p>1. In order to set aside the alteration of an incorporated school district, the original proceedings of the inhabitants voting such alteration, or the original certificate of alteration, or both, should be brought into court, and the certiorari in such case should be directed to the person or persons having the legal custody of such papers.</p> <p>2. An incorporated school district cannot alter, abolish, or absorb another district, incorporated or unincorporated, without notice to and the consent of such district.</p> <p>3. School taxes assessed upon property lying in a district illegally absorbed by another district, will be set aside on application by persons aggrieved, upon certiorari, but the whole assessment will not be set aside, although the alteration be illegal, and the notice to the assessor be defective.</p>

• This certiorari was brought to set aside the proceedings of the common council of Jersey City, in making an assessment for paving and repaving Mercer street.

<p>An individual member of a corporation cannot bring suit in the name of the corporation to protect or recover his own rights and interests, or those of the corporation, or carry on a suit by bringing a certiorari in the name of the corporation, without the consent of the legal majority of such corporation.</p>

<p>1. To hold a defendant to bail under the “ act respecting imprisonment for debt in cases of frauds,” the fraud must be clearly proved by such testimony as would be legal in a court of justice.</p> <p>2. Under the act respecting imprisonment for debt in eases of fraud, the affidavit may be taken before any person competent to take the same, and the order may be made by any judge or commissioner to whom the affidavit may be exhibited.</p>

<p>1. It must appear on the face of an order for the removal of a pauper that all the facts exist which are necessary, under the statute, to authorize such removal, and thaL the officers making such order have acted clearly •within their authority.</p> <p>2. The order must further show that the facts necessary to authorize such order were duly proved before the officers making it.</p> <p>3. If a person coming from Europe, and intending to come into this state, merely lands in New York, and without remaining there, takes a conveyance to the place of destination, it is coming directly from Europe into this state, within the meaning of the statute.</p>

This causo came before the Supreme Court on certiorari, to set aside the assessment of a tax levied for the purpose of building a school-house. The Supreme Court set aside the assessment, and the defendant in certiorari removed the cause to this court by writ of error.

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

Durant brought ail action in the Hudson circuit, against Banta and Northum, to recover the amount of a promissory note, of which the following is a copy : “ §375.60. Jersey City, Feb. 23, 1856. Ninety days after date, I promise to pay to the order of D. Northum, three hundred and seventy-live .60 dollars, at Hudson County Bank, value received, without defalcation or discount. J. J. Banta.” Endorsed—D. Northum, Jersey City.

<p>1. A pardon expressly remitting a fine paid by a person convicted of a crime, will not entitle him to a return of it; the constitution of this state not having given sucti power to the governor and those acting with him.</p> <p>2. If the Court of Pardons had the constitutional power to restore a fine that had been paid, the person who had paid it could not, under the existing laws, maintain an action to recover it.</p>

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

Hallock against the Commercial Insurance Company, to recover upon a policy of insurance. On the trial at the circuit the court directed that a verdict should be taken for the plaintiff, with liberty to make a special case for the opinion of the Supreme Court, or turn it into a special verdict, at the instance of either party, within ninety days after the judgment of the Supreme Court should be rendered and entered.

Brown applied to the board of chosen freeholders of Hudson county for a license to build a wharf in front of land, to which he claimed title, lying on the shore of New York bay. The chosén freeholders granted the license, and the Morris Canal and Banking Company, who also claimed title to the same land, brought a certiorari, to remove the proceedings to the Supreme Court for review.