Volume 28 — New Jersey Law Reports

This action was commenced in this court, and was tried before a jury at the Somerset circuit. On the return of the postea, a motion was made for a new trial.

<p>1. A supplement to the charter of the Somerville and Easton Railroad Company provides that the company shall pay annually to the slate treasurer ‘"a tax of one half of one per centum upon the cost of said road, as shown by the animal report of such cost made the year preceding.” The report included, as required by law, the cost of the road and equipments. Held, that the company are only required to pay tax upon the cost of their road and its appendages, and are not bound to pay tax upon their engines, cars, boats, or other personal property.</p> <p>2. The phrase “ road, with Us appendages,” in a railroad charter, does not include the equipments, ears, engines, or other personal property of the company, but is applied to the real estate.</p>

<p>1. To constitute the crime of larceny, it must appear tnat the goods were taken with the intention of permanently depriving the owner of his property.</p> <p>2. If the property is taken with the intention of only using it temporarily, and then returning- it to the owner, it is not larceny.</p> <p>3. Whether the taker intended to wholly deprive the owner of his property, or whether he intended to only use it temporarily, and then return it, is a question of fact to be decided by the jury from the evidence.</p>

<p>1. J. M. and wife executed to J. S. adeed, by which they conveyed to the grantee all the real and personal estate of the grantors, upon the special trust that the grantee would immediately proceed to sell so much of the estate conveyed as would be sufficient to pay all the then existing debts of J. M., and hold the residue thereof in trust for his wife aud children, as designated in the deed. Held, that the deed was a deed of bargain and sale, and vested in the grantee the absolute legal estate in the premises, and was not an assignment for the equal benefit of creditors under the act to secure to creditors an equal and just division of the estates of debtors who convey to assignees for the .benefit of creditors.</p> <p>3. The statute providing for an assignment for the benefit of creditors was designed to secure au equal and just distribution of the estate of an insolvent debtor among Ms creditors, and to secure to the debtor a discharge of his debts from all the creditors who consent to receive a dividend of the debtor’s property.</p> <p>3. Where a trustee holds the legal title, and is authorized to sell the premises for certain purposes, the estate in Ms hands has all the properties and incidents of legal ownership, and any conveyance made by him will vest in the grantee a clear legal title; and although the trustee, in making the sale, acts in violation of the trust, yet the legal estate passes by the conveyance, and is vested in the grantee.</p> <p>4. Previous to the act in Nix. Dig. 575, § 17, there was no law authorizing a repoi't of sale made by commissioners in eases of partition to be recorded, nor making a certified copy of such report by the clerk of the Court of 'Common Pleas evidence. „</p> <p>5. Where a party claims'title under a deed made by commissioners on a • sale under proceedings for partition, it is not necessary to show the regularity of the proceedings previous to the order confirming the sale. In confirming the sale, and ordering the deed to be made, the court act as a court of general jurisdiction, and the rogulax-ity of the previous proceedings and validity of the order cannot be inquix-ed into collaterally.</p> <p>6. In proving title under a deed made by vii’tue of an order or judgment of a coux-t, if it appear that the court had jurisdiction of the subject matter, it is sufficient to prove the oi-der or judgment which authorizes the deed to be made; axxd it is not necessary to prove the regulai-ity of the pi-oceedings previous to the order or judgment.</p>

In case on lien claim, certified from the Morris circuit for the advisory opinion of this court. The facts fully appear in the opinions delivered.

<p>1. Where a member of a firm draws his endorsed note payable to A., who endorses it as accommodation paper upon the credit of the firm, upon the representation by the drawer that it is for the use of the firm,it is no error for1 the court to charge that the jury had no right to infer, from such representation, that the note was for the use of the firm.</p> <p>2. Nor is the admission of the drawer afterwards, and while the firm is in existence, any evidence that the proceeds of the note went actually to the use of the firm.</p>

<p>1. Tf land is describe ,1 ii a 1 * * 1 by courses and distances and fixed monuments, the latter control thv- former; but if no monuments are mentioned in the deed, then the courses and distances will control.</p> <p>2. In a case where a boundry line is in dispute, and the land it described in the deed by courses and distances, and no fixed monuments or corners are mentioned in the description, the question whether the courses aud distances carry the lines to certain points claimed by' a party in the cause, is not a question of construction, but of boundary or location, and is not a question of law for the court to decide, but a question of fact for the determination of a jury upon the evidence bef ore them.</p> <p>3. The correspondence between the courses and distances in a deed to a party in a suit, and under which he claims title, and those in a prior deed for the same land and land adjoining, together with a map endorsed by a former owner of the same land on his deed, is evidence to be considered by the jury in determining the boundaries of the land in dispute.</p> <p>4. In settling a question of boundary, when there is a latent ambiguity in the description contained in the deed, or a doubt as to the true location of the lines, evidence aliunde is admissible to show where the lines are. Boundaries may be proved by every kind of evidence admissible to establish any other fact.</p> <p>5. The question of construction is a question of law to be decided by the court upon the terms of the instrument itself, and where no latent ambiguity exists, it must be decided without evidence aliunde ; but a question of location or the application of the grant to its proper subject matter, is a question of fact to be determined by the jury by the aid of extrinsic evidence.</p>

<p>The condition in an insurance policy issued to C. & Co., was as follows* «* any member of this company who shall have been assessed for the payrcent o£ any loss or damage by Are, neglecting or refusing to pay such assessment for thirty days after he or she shall have had notice of the same, shall forfeit his or her policy, provided the premium note or notes deposited •with the company, after paying any losses or expenses which may have accrued thereon, shall be given up to him or her on demandthe policy was assigned January 13th, 1855, the transfer approved by the company March 5th, 1855, and the premium note of C. & Co. given up, and a new note tafeen from the assignees. An assessment had been made on the note of C. & Co. October 3d, 1854, notice of which assessment was given to them and the plaintiffs May 17th, 18 5 ; the assessment was not paid: in an action on the policy, brought by the assignees to recover for a loss by Are, held, that the validity of the policy was not affected by nonpayment of the assessment against C. & Co., they not being members of the company when notice of the assessment was given to them.</p>

<p>Where an injury for which suit Is brought Is slight, and the verdict, though for a small amount, seriously affects the interests and rights of the defendant, even if the weight of evidence is not decidedly with the defendant, but is conflicting and open to great doubt, the court will set aside tho verdict, and grant an opportunity for further Investigation.</p>

<p>Where one party proves title by documentary evidence, and the opposite party rests his claim of title solely upon adverse possession, the burthen of proof is upon the latter, and he must prove such advex-se possession beyond a reasonable doubt.</p>

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

<p>1. Partnership execution creditors ha,ve the legal right to he first paid out of the proceeds arising from the sale of partnership property, before the same, or any portion thereof, can go to the individuals of the firm, or be appropriated to the payment of individual debts.</p> <p>2. Such creditors may, however, waive their legal right of preference by express agreement, and admit individual creditors to take equally or ratably with themselves, if such arrangement be expressly or tacitly assented to by all the members of the fii'm.</p> <p>8. In making an order for the payment of money paid into court by the sheriff, in pursuance of an agreement entered into by execution creditors, it is sufficient for the court, if practicable, to follow the wording of the agreement, instead of determining by calculation the specific amount to be paid to each execution creditor.</p>

<p>1. The plaintiff’s oath or affirmation is admissible, and is sufficient oí ii ®lf to prove as well the facts constituting the fraud as the indebtedness, to obtain an order for a capias ad respondendum under the act abolishing imprisonment for debt in certain eases.</p> <p>2. Counter affidavits to show no indebtedness, or to show a rectitude of dealing, and a total absence of any fraud on the part of defendant, or to contradict the facts as sworn to in the original affidavits, cannot be admitted. But the facts, as sworn to in the original affidavits, must be taken as true, and upon these, and these only, the question of discharge is to fco determined.</p> <p>3. Of indebtedness, prima facie evidence is sufficient, and false and deceitful representations, made by way of inducement to contract or surrender one’s rights, sufficient evidence of fraud; but the intent to defraud must be clearly inferriblo or positively proved.</p>

<p>1. It is improper to ask the court to charge the jury in a specific way, upon a specific point, especially if it be not purely a question of law. But the court may be requested to charge upon any point of law when asked to do so in a general way, and they should not, and have no right to decline.</p> <p>3. This court will not, upon certiorari, interfere with the judgment of the Court of Common Pleas on the verdict of a jury, when it appears they fairly had all the evidénce before them, although a question of law should be raised that really had no bearing upon the result of the case, nor In any such case, except it he made plainly to appear that gross injustice has been done the party.</p>

<p>An attachment will not lie against a tenant or debtor who is in the act of removing his goods out of the jurisdiction of the court and out of the state, as an absent, nonresident, or absconding debtor, although he may have completed his tenancy, and handed over the keys and possession of the premises recently occupied by him to the incoming tenant.</p>

<p>A state of demand containing a single charge “to money lent,” without stating by whom or to whom, is insufficient.</p>

<p>1. After a judgment upon the merits or nonsuit, in the case of an appeal from a justice’s court, the Common Heas have no right to g-rant a new trial or reinstate the ease for a rehearing.</p> <p>2. The powers and duties of the Court of Common Pleas in appeal cases are statutory, and are merely parallel to the powers and duties of a justice of the peace.</p>

<p>On motion to have satisfaction of a judgment entered of record.</p>

<p>1. To enable a turnpike company to maintain an action for tolls due them for travelling their road, it is not necessary that they should erect gates across their road, nor that they should demand the toll of the traveller at the time that he passes.</p> <p>3. Every person passing over a turnpike road is bound to pay the toll prescribed by the charter of the company, whether it is demanded or not.</p> <p>3. The charter of a turnpike company provided that nothing in the act should be so construed as to entitle the company to demand or receive toll of or from any person “ passing to or from his common business on his farm” —held, that the exemption from tolls applied to those who were compelled to pass upon the road in going from one part of their farms to-another, or in going from their dwellings to any farm which they'may cultivate, but did not extend so far as to allow a farmer, who owned a marl pit from five to seven miles from his farm, to haul marl from the pit to his farm without the payment of toll.</p>

<p>t. To make a parent liable for necessary clothing furnished to a child who is a minor, and living in his family, it is not necessary to prove that there was an express authority given to make the purchase; it is sufficient to prove such circumstances as manifestly indicate the parent’s assent, such as the payment of former bills of a similar character, and wearing the clothes while living at home with the parent, and with his knowledge.</p> <p>2. The court should not nonsuit a pai-ty where he makes out his case by prima facie proof, but should put the defendant upon his defence for the purpose of rebutting the conclusions dedueible from the facts and circumstances proved by the plaintiff.</p> <p>3. Where a judgment of nonsuit, rendered by tho Court of Common Pleas in an appeal case, is reversed, the court should not continue the trial from the point where the evidence offered by the plaintiff was closed, but should proceed de novo with the trial of the appeal.</p>

<p>1. The return to a writ of attachment by a constable, that he served the writ of attachment according to the statute in such case made and provided, is insufficient. He should return the way in which he executes the writ, so that the court can judge whether it is according to law.</p> <p>2. It should appear affirmatively in the proceedings under an attachment, issued by a justice of the peace, that on the return of the attachment tho justice fixed a day for the hearing of the cause.</p> <p>3. In an action brought befoi-e a justice of the peace by the holder oí a promissory note payable to order, the state of demand must show that the note has been legally transí erred to the plaintiff.</p>

<p>1. Where a declaration charges one single act of trespass, and the defend ant pleads in justification a replication which traverses the several matters of justification, and also new assigns, and sets forth other trespasses, is bad for duplicity, arid on motion for that purpose the court will order the replication to be stricken out.</p> <p>2. Where but a single act of trespass is charged and is justified, the new assignment admits its justification and abandons the charge, and in effect puts the plaintiff out of court.</p> <p>3. A new assignment should narrow the charge, and' make the particular trespass complained of more specific. In the case of a single act of trespass, it is an attempt to enlarge the cause of action stated in the declaration, and cannot he allowed.</p> <p>4. If the act sought to be justified was excessive, or was committed with more violence than the subject of justification authorized, that may bo put on the record by the replication, and not by a new assignment which sets up a different trespass.</p>

<p>1. If personal property, exempt from seizure on civil process, is seized and sold by virtue of an attachment or execution, an action of trespass is the proper remedy, and it may be brought either against the party at whose suit the goods are taken or against the oiBcer seizing them.</p> <p>2. To entitle a debtor to the benefit of the act exempting from civil process personal property to the amount of $200 (Nix. Dig. 247), it is sufficient if the family reside in this state, wherever the temporary or permanent residence of the husband or head of the family may be.</p> <p>3. The residence of the family, once obtained in this state, remains until a new one is gained, and such new residence cannot be gained while the family continue here, although they may he at a railroad depot with their goods, and actually removing.</p> <p>4. If the goods of a debtor are of greater value than $200, or if it is doubtful whether they are or not, it is the duty of the officer to make a particular inventory of them, and to secure them until the appraisement; and if, on the appraisement, the goods are found to be of less value than $200, the officer will not be held liable as a trespasser.</p> <p>5. If the debtor’s goods are clearly of less value than $200, the officer has no right to seize and talco exclusive possession of them. The officer should make a careful and particular account and inventory, and for his own safety may have them appraised, but he should suffer them to remain in the possession of the defendant.</p>

<p>1. In a suit brought for services in tending a horse, the plaintiff offered in evidence a printed handbill, witn the defendant’s name printed at the bottom, giving notice that the services of the horse were offered to the public. Held, that the handbill was not competent evidence against the defendant, unless it was shown that he caused it to be printed, or authorized his name to be used in it, or sanctioned it afterwards.</p> <p>2. In such case it is competent for the defendant to show that the plaintiff was to receive a part of the service money of the horse, as a compensation for his services in attending, him, and also to show, by his admissions, that he had received a portion of said service money.</p> <p>3. If a printed or written paper is offered in evidence with the name of a party to the cause attached, and purporting to be signed by him or by his authority, it is competent for such party to show that such use of his name was not authorized or sanctioned by him.</p>

<p>1. Where land has been condemned under the prov'sions of the Erie Railroad charter, and the money paid into court, the money, as between •hose haying an interest in the land, represents the whole fee simple, and should bo disposed of among them as nearly as possible as if it were the land itself.</p> <p>2. Where husband and wife had executed a mortgage upon the land before it was so condemned, the wife being at the timo under age, the wife, by coming in and claiming the money at the first opportunity after she comes of age, and while the money is still in court, avoids the mortgage so far as her interest is concerned.</p> <p>3. Where the land was conveyed to the wife after marriage, and after the passage of the act for the better securing of the property of married women, (Nix. Dig. 466) and before it was condemned, the husband has no present interest in the laud or the money.</p> <p>4. By the term grant, in the above mentioned statute, the legislature intended all the ordinary modes of acquiring land by deed.</p> <p>5. If the wife, by force of the conveyance, had an estate either in fee or in tail and issue of the marriage before the condemnation, the husband, notwithstanding said act, became tenant by the curtesy initial.</p> <p>6. Where a deed, dated September 9th, 1854, purporting to be made between A. T., party of the first part, and C. A., wife of A. A., party of the second part, in consideration of natural love and affection and of one dollar, and to grant, bargain, and sell unto the said party of the second part for and during her natural life, and at her death to her children which may bo begotten of her present husband, the lands condemned, to have and to hold the same unto the said party of the second part for and during her natural life, and at her death to her children which may be begotten of her present husband, and the deed is in all other respects in the ordinary form of a deed in fee simple with full covenants as of a deed in fee simple, and at the date and delivery of the deed there were no children born of the marriage, but were afterwards, the estate thereby conveyed to the wii'o was a fee tail special.</p> <p>7. The covenants cannot enlarge the estate to a fee simple.</p> <p>8. Although the covenants cannot be used to enlarge the estate, yet they may be used to show in what sense the words in the conveying part of the deed wore intended to translate the term children.</p> <p>9. It never was the intention of the elementary writers to sa.y that in a deed no estate of inheritance could be created by any other word or form of expression than the word heirs, or by the sound represented by that construction of letters, hut only that such language should be used as made it appear that it was meant to include the line of inheritance.</p> <p>10. Under this deed the interest of the children born of the marriage is a remainder in fee, and vests at their birth.</p>

This cause came before the court on a motion, for a new trial. The facts sufficient for a proper understanding of the case appear in the opinions delivered.

<p>. A writ of attachment créate» no lien on real estate, nor can any title ho ’acquired by virtue of a sale under proceedings in attachment, unless the land is inventoried and appraised, and returned by the sheriff as attached.</p>

In ejectment. On motion for new trial. The action was commenced in this court, and was tried at the Passaic Circuit before a jury, at January term, 1859.

Tliis cause came before the court on the following state of the ease, certified from the Warren Circuit. . This suit was brought by the plaintiff against the defendants, as administrators of the estate of John S. Smith, deceased, to recover the cost and expenses of erecting a dwelling house and cow shed by plaintiff upon a farm of the deceased, situate in the township of Blairstown, in the county of Warren.

An action of trespass was brought in this court, was tried at the Ocean Circuit before a jury, and a vérdict rendered for the plaintiff for $150. The defendant moves to set aside the verdict and for a new trial.

<p>1. Where a sheriff, having an execution against the goods and chattels of one person, levies upon and sells the goods of another, it is not a breach of the condition of his official bond, and does not make his sureties liable to the party whose property is taken.</p> <p>2. If an officer seize the property of a person not named in the writ, it is. not an official act done by virtue of his office, but unofficial, and done by-color of the office.</p> <p>3. In such case the officer is guilty of a tort, for which he is liable as an individual to the party injured, but it does not entitle the party to prosecute the officer upon his official bond.</p>

<p>Certiorari to Bergen Orphans Oonrt.</p>

<p>On motion for mandamus.</p>

In debt. On demurrer to Harr. The action was brought on an improvement certificate, of which the following is a copy. “ Ho. 50.-—Improvement Certificate, $500.

<p>1. A judgment was confessed on a bond and warrant of attorney given for money loaned. Subsequently to giving the bond and warrant of attorney, tliere were dealings between tho parties, by which the defendant claimed that the plaintiffs became indebted to him in a sum more than sufficient to discharge the debt secured by tho bond. After judgment was entered- on the bond, the defendant moved to stay proceedings on tho execution and for the award of a feigned issue to try the question, whether the debt, which was the consideration of tho bond, had been paid. From the proofs before the court on the argument of the motion, it satisfactorily appeared that there was a balance due from the defendant to the plaintiffs, independent of the debt secured by tho bond: held, that there was no ground for awarding- a feigned issue, and that the motion should bo refused.</p> <p>2. Where a tenant rents a coal mine, and is to pay to the lessor tho rent in coal at specified prieta?, in tho absence of :siy special agreement as to tho condition in which tho coal is to be delivered, it is the duty of the tenant to deliver it in a marketable condition; and if not so delivered, tho expense necessarily incurred by the landlord in preparing it for market may bo charged by him to tho tenant.</p>

<p>t. In assessing the damages sustained by a landholder by laying out a road through his lands, the benefits accruing to him by opening the road should not be taken into consideration.</p> <p>2. If tlie basis upon which damages are estimated by is, taking the value of the land and the cost of fencing, a,nd it appear that the amount of damages allowed is not equal to the value of the land taken and the cost of the fence, the assessment will be set aside.</p>

On rule to show cause. This was an action of ejectment, commenced in this court, and tried at the Essex Circuit before a jury. The facts in the cause are fully stated in the opinions delivered.

<p>1 Where an action is brought to recover penalties incurred for violation of a statute, each count in the declaration must show, either in itself or by explicit reference to the averments of preceding counts, what statute has been violated, and each count must also contain an averment that the acts complained of were contrary to the form of the statute.</p> <p>2. In a suit brought against a railroad company to recover several penalties incurred by them for running their locomotives in violation of the statute, the first count set forth the statutes under which the penalties were claimed, and in the other counts the statutes were only referred to in the introductory part of each count, by averring that the defendants, not regarding the said statutes, nor fearing the penalties therein contained, at certain times did run their locomotive engines across certain highways without stopping, and without causing the bell on the engine to be rung, or the whistle to be blown, whereby an action hath accrued, &c.—held, that all the counts, except the first one were insufficient.</p> <p>3. Where an action is brought for penalties, the manner in which they were incurred must be explicitly stated.</p> <p>4. The 23d section .of the act to facilitate practice and pleadings relates to matters of form, and only authorizes amen'iments in cases which were previously the subject of examination by means of a special demurrer.</p> <p>5. The granting or refusal of a motion to amend pleadings in a matter of substance rests in the sound discretion of the court of original jurisdiction, and is not assignable for error.</p>

<p>In error to the Morris Circuit.</p>

<p>1. Where a suit is commenced by attachment, if the defendant enters an appearance, gives bond, and gets the attachment dissolved, the personal properly attached is discharged from the lien.</p> <p>2. If judgment is recovered by the plaintiff, the property may be surrendered in discharge of the bond, but it must bo delivered in the same condition, as to title and encumbrance, as it was when the bond was executed.</p> <p>8. If the property has been seized by virtue of a second attachment, it is beyond the power of the defendant and his surety to return it; the bond becomes substituted as the plaintiff’s security, and his remedy is by action upon it.</p> <p>4. In an action on the bond, the measure of damages is the amount of the plaintiff’s judgment recovered in the former suit, with the costs of that suit, nd judgment should be entered for the penalty of the bond, and for the carnages sustained for the plaintiff, ascertained as before stated.</p>

<p>1. The act of March 20th, 1857, authorizing the common council of the city of Newark to appoint commissioners to lay out streets-in said city, repeals so much of the act of the 11th of March, 1857, amending the charter of said city, as authorizes the council to lay out streets; and an ordinance of the council laying out a street, passed after the passing of the act of the 20th of March, and before the appointment of commissioners, is without authority and void.</p> <p>2. By the act of March 20th, 1857, the exclusive power to lay out streets in the city of Newark was vested in commissioners, to be appointed by the common council, and after the passage of that act the common council had no power to lay out a street. The power given by that act to appoint commissioners was not a discretionary one but was a power to be exercised for the public benefit.</p> <p>8. Words of a statute, giving to a public body or officer power or permission to do an act which concerns the public interest, are to be construed as requiring the act to be done.</p>

<p>1. Commissioners appointed under the 52d section of the act to incorporate Jersey City (Pamph. Laws 1851, page 414,) must show, upon the face of their report, schedule, or map, that the expenses for flagging, &c., streets in said city have been assessed by them upon the lands benefited in proportion to the benefit.</p> <p>2. An assessment upon each lot according to the amount of frontage, without regard to the benefit accruing to the lot, is invalid.</p> <p>3. Where a petition and notice are for grading and paving a street, and an ordinance is passed in pursuance thereof, which provides in detail for filling, paving, curbing, guttering, laying the crosswalks and intersections, and flagging the sidewalks, the ordinance is not invalid oh the ground of variance between it and the petition and notice.</p> <p>4. If an ordinance require notice to be given of the time and place of meeting to receive and consider objections to opening a street, but doe- not expressly require the notice to be given by common council, a notice given by the clerk is a sufficient compliance with the ordinance, if adopted and acted upon by common council.</p> <p>5. If the notice limit objections to those made in writing, neither a person who appears and makes objections in writing nor those who do not appear can afterwards object to the form of the notice.</p> <p>6. It is not necessary to obtain the consent of the owners of a majority of the lots to grade and pave a street in Jersey City, unless the street, or a portion of it, is -without the limits of the improved part of the city.</p> <p>7. The charter of Jersey City requires the common council to appoint four commissioners, one in each ward, and that each one shall be a residont and freeholder in the ward for which he shall be appointed : a report made by them will not be invalid because it does not appear that the commissioners had the qualifications required by their charter.</p>

<p>1. The obligor of a bond paid to the holder thereof fifty dollars, to apply on the bond, and which the holder agreed to endorse on it: without making the endorsement, the holder assigned the bond to a third party, and the assignee claiming the whole amount of the bond, the obligor paid it, and brought an action of debt against the former holder to recover back the fifty dollars paid: held, that the action could not be maintained.</p> <p>2. An assignee of a bond cannot recover of the obligor more than is due upon it, and the latter is entitled to the benefit of any payments he has made to a former holder of the bond, whether such payments are endorsed upon it or not.</p> <p>3. If the holder of a bond assign it for more than is duo upon it, he is liable to the assignee for the deficiency.</p>

<p>M. resided in the state of New York, and his wife, previous to her marriage, and at the time, was a resident of this state, and they were married here. After the marriage, in 1S59, they went.to Europe, Mrs. M. intending on then- return, to remain at her former residence in this state until the fall of 1860. While absent, an attachment was issued against them both to recover a debt contracted by the wife before her marriage. On their return from Europe, she came to her residence here, where her husband also spent a part of his time, but retained his residence, and attended to his business in New York: held, that the residence of both was in the state of New York, and process by summons could not be served upon the husband unless a personal service could be made upon him in this state, and that a foreign attachment was the proper remedy.</p>

<p>A party cannot be indicted under the 4Sth section of the act respecting crimes (Nix. Dig. 169) as an accessory before the fact, nor without charging-guilty knowledge and intent to defraud.</p>

<p>1. An incorporated school district cannot be annexed to an unincorporated district or altered by the town superintendent alone. Notice, at least, of such intended alteration must be given to the trustees of the district to be affected, and an opportunity given them to act in conjunction with the superintendent.</p> <p>2. The town superintendent, in conjunction with the trustees of an incorporated district, has no jurisdiction over the territorial limits of an unincorporated district. A tax purporting to be raised by the inhabitants of two districts meeting in common is void upon the inhabitants of both districts.</p>

<p>1. The act to facilitate the administration of justice (Jfe. Dig. 633) does not prevent the plaintiff from entering judgment before the time for pleading expires where the defendant consents to such entry of judgment.</p> <p>2. The time allowed by law fox- filing a plea is given for the benefit of the defendant, and ho may waive it, and consent that a judgment be entered against him before the time for pleading has expix-ed.</p> <p>3. Judgments entered by consent after process has been served are not within the act regulating judgments by confession.</p> <p>4. If a case is not within the letter of an act, yet if, by an equitable construction, it can be brought within the spirit and intent and within the mischief which the act was intended to remedy, such construction should be adopted</p>

<p>If a party against whom a judgment is rendered beforo a justice of the peace pays the judgment in the presence of the other party, and after-wards appeals, and brings the appeal to trial beforo the Pleas without notice to the appellee, and in his absence, and obtains a judgment in his favor, the judgment of the Pleas will bo sot aside in this court upon certiorari.</p>

<p>The city of Newark have no authority under the act of the 29th of February, 1886, Pamph. L. 1886, page 198, § 30, to lay out a street, longitudinally over the waters and towpath of the Morris canal; nor if they had the chartered power, could they do it without fii'st making compensation.</p>

<p>1. Where an action of trespass is brought, before a justice of the peace, and on the defendant pleading title and giving bond a new action is brought in this court, if the plaintiff enlarge his claim in his suit here, it discharges the obligation of the defendant to plead title, and the suit stands as if no bond had been given.</p> <p>2. Toa declaration, which was general, the defendant pleaded li-emm tenementum, the plaintiff new assigned, describing the close as Chambers lane in both counts of the declaration; to one count of the new assignment, no new plea was filed, and to the other the defendant pleaded a public and common highway; a verdict was rendered for plaintiff for $4 damages: held, that the plea of public highway was not a plea of title to lands, and that no title was in question on the trial, by the pleadings the title being admitted in the plaintiff; held also, that the plaintiff could not recover costs.</p>

<p>1. Ignorance of a penal statute is no excuse for its violation; the violation of the statute consists in doing the prohibited act, or in the refusal or omission to perform the required duty, and not in the intent and motive by which the party is actuated.</p> <p>2. The nineteenth section of the act to authorize the establishment of manufacturing companies (Nix. Dig. 456) is in full force, and by it a certificate is required to be made after payment of the last instalment of the amount upon which business is commenced, and also upon payment of the last instalment of any increase thereof between the amount upon which business is commenced and the limit of the original certificate.</p> <p>8. The 20th section requires a certificate to bo made after the payment of the last instalment of the additional stock beyond the limit of the original certificate.</p> <p>4. The liability created by the 80th section of the act extends to violations of the 19th section; and if a certificate made under the provisions of the latter section is false, the officers signing it are liable for the debts of the company contracted while they were stockholders or officers thereof.</p>

By three writs of certiorari, certain proceedings relative to the alteration of school districts, numbers 5 and 7, in the township of Newton, in Camden County, were brought before the Supreme Court. The cases are reported in 3 Dutcher 527.

<p>1. Tho assignment of a chose in action will not, under the statute, (JSHx. Dig, 542) vest the right of action in tho assignee ill his own name, unless it be a bill, bond, or other instrument of writing for the payment of money only.</p> <p>2. The statute includes only obligations by which one party binds himself to pay money to another, and does not apply to contracts of indemnity cases and other agreements where either party is bound to perform other distinct and independent acts, or where the payment of money by one party depends upon the performance of somo act by the other.</p>

<p>1. A writ of error will not lie, in this state, to review the decision of the Supreme Court on the award of a mandamus.</p> <p>2. Whether the proceedings can be reviewed by writ of error, where the court, under color of an award of mandamus, decide private rights. Query.</p>

This cause came before the court in the same manner as the foregoing case, and the same question being presented, was controlled by the decision in that case.

<p>1, Where land Is conveyed by deed without any clause of reservation, the title to the manure lying in and around the barn-yard does not pass to tho grantee.</p> <p>3. Manure lying in a barn-yard, where it has accumulated, is personal property, but after it is spread upon the land, and appropriated to fertiliz;ing purposes, it becomes a part of the freehold, and passes with it.</p>