Volume 29 — New Jersey Law Reports

On demurrer to indictment for obtaining goods under false pretences. The indictment was removed to this court from the Gloucester Oyer and Terminer.

<p>1. Where land is sold, a part of the purchase money paid, and a deed executed and placed in the hands of a third person to be delivered to the grantee, and the balance of the purchase money to be paid on the happen* ing of a certain event, if the grantor die before the event happens the title to the land does not vest in the purchaser, but descends to the heirs of the vendor subject to the equitable rights of the purchaser.</p> <p>2. If the heirs of the vendor afterwards make a deed to the purchaser, and the purchase money is paid over to the vendor’s administrator, such administrator will not hold the money as a part of the estate of the reudor, but will hold it as an individual for the heirs as their property, and an action will lie against him to recover it.</p> <p>3. The deed given by the heirs is an absolute title for the land ; it is not a deed of confirmation, because there had been no previous deed delivered nor estate created to be confirmed.</p> <p>4. Where one of the heirs in such case is a married woman, and an action is brought against the person receiving the money to recover her share, previous to the act for the better securing the property of married women, passed March 25th, 1852, the action might be in the name of the husband alone; and if the husband died after verdict, and before judgment, the suit would not abate, but might be continued, and judgment entered by the administrator.</p> <p>5. Whether the judgment in such case enures to the benefit of the husband’s estate or goes to the wife, query.</p>

<p>1. A deed was made to J. G. B., trustee of the Lexington and Danville Railroad Company of Kentucky, of the second part, the habendum and tenendum clauses and the covenants being to said party of the second part, his heirs and assigns. Held, that on the face of the deed it showed a grant, to J. G. B., and not to him in trust for the company.</p> <p>2. - The railroad company executed a mortgage to J. G. B. and others, and J. G. B. made agreements for the culture of the lands, in which he styles himself as agent, and signs as such. Held, that these circumstances, together with the deed being made to him as trustee, &c., were sufficient evidence that the property was conveyed to J. G. B. in trust for the company, and that it was a mere naked trust; held, also, that taking a mortgage from the company, and acting as agent as above stated, were inconsistent- witli his character as trustee, and were sufficient evidence from which to presume a surrender of the trust and conveyance of the land to the company. .</p> <p>3. To establish a trust, no particular form of expression is necessary in a deed ; it cannot be declared by parol, but may be created by any writing showing that a trust is intended.</p> <p>í. A cestui que trust cannot recover in ejectment against his trustee unless a surrender to him of the legal estate can be reasonably presumed. He has no alternative but to bring the action against a stranger in the name of his trustee.</p> <p>5. A trustee, as tenant of the legal estate, may recover in ejectment from his own cestui que trust, and the cestui que trust has no defence to the action at law : .ins only remedy is to sue out an injunction in a court of equity.</p> <p>6. A surrender of the trust, and a conveyance thereof by the trustee, may be presumed when the object of the trust has been accomplished. -</p> <p>7. A mortgagee by taking a mortgage assents to his mortgagor’s right to execute it, and is estopped from denying the mortgagor’s title.</p> <p>8. Where a mortgage is given to A, B, and C, to secure them as endorsers for the mortgagor, if C is in possession of the premises-and- A and B bring an action of ejectment against him to recover the-land, if the plaintiffs are entitled to recover they Will obtain the whole premises, unless the defendant can prove damage to him by payment of or liability on some of the bills of exchange or notes against which he was to be indemnified by the mortgage.</p> <p>9. Where an action of ejectment is brought by one joint tenant, tenant in common, or coparcener against another, if the defendant files his plea, and does not give notice that he defends as joint-tenant, (enant in common, or.coparcener, and does not admit the plaintiff ’s right to a share of the property, but defends for the whole premises, it is an admission of ouster, a denial of the whole right of the plaintiff, and the plaintiff will recover whatever part his proof shows he is entitled to.</p>

In ejectment. The cause was tried at the Gloucester Circuit, and a verdict rendered for the defendant. On the coming in of the postea the plaintiff moved to set aside the verdict and for a new trial.

<p>1. A deed of conveyance to the Central Railroad Company contained the following reservation, viz., excepting and reserving to the said M. S., his heirs and assigns forever, the right and privilege to keep up and retain on said premises the small house and yard thereto attached, as the same is now located, forever, and also the right and privilege to enter upon said premises from time to time to make, amend and repair his mill-dams, and to remove from the pond the manure that may there accumulate from time to time. Held, that by that reservation the grantor and those claiming under him had the right to enter upon the premises, not only to amend and repair the dam, but to keep up and maintain all dams upon the premises in the same condition in which they were at the time of making the deed of conveyance, and that the grantees had not the right to take down or remove the dams, or any part thereof.</p> <p>2. The grantor made an agreement with the company, granting to them the right and privilege to extend, widen and strengthen their embankment by the use of his lands, and relinquishing to them all claim for damages that might arise from the use of the rights and privileges thus granted, and also relinquishing all claim for damages which he had previously sustained at their hands; held, that this agreement did not give the company any right to take down or remove any part of the dam.</p>

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

<p>1. An action was brought before a justice of the peace to recover a penalty of two dollars for leaving open a swinging gate on the plaintiff’s premises. The defendant pleaded title, and an action was brought in the Supreme Court, according to the provisions of the 40th section of the “ act constituting courts for the trial of small causes.” The plaintiff declared for a penalty of two dollars for leaving open a swinging gate across a private road on his premises. The defendant pleaded that he was the owner of a close contiguous to and adjoining the land of the plaintiff in the declaration mentioned, and that he was entitled to a certain way across the plaintiff’s land where the said way was situated, and that the said swinging gate was unlawfully erected across the said way, obstructing the road, and that he had a right to remove the obstruction j held, that as the pleas set up a way without stating whether it was a public or private way, and did not deny the existence of a private road, as stated in the declaration, they were defective, and were not a sufficient answer to the declaration.</p> <p>2. The inducement and traverse must be adapted to each other, and if the traverse consists of issuable matter, the inducement must consist of the same matter though differently expressed.</p> <p>3. The right to erect swinging gates across private and by-roads extends to all ways except such as come within the description of public roads.</p>

<p>1. A release of a creditor to a debtor, executed by an agent of the creditor, appointed for a particular purpose, will not discharge the liability of the debtor.</p> <p>2. If an instrument of release is not sufficient to create a legal bar to an action, all facts collateral to and accompanying its execution are irrelevant to the issue, and should not be proved before the jury.</p> <p>3. A person who receives a portion of the profits of a business, as compensation for his agency in it, does not thereby become a partner so as to authorize him to release debts due to his principal created through his agency.</p> <p>4. If a debtor has knowledge of any fact which should lead him to doubt the general powers of an agent of his creditor, it is his duty to make reasonable inquiry into the character of the relation between them before he takes a release of his debt executed by the agent alone.</p> <p>5. A power to execute an instrument under seal generally must be conferred by an instrument of equal solemnity.</p> <p>6. It is no good ground for a new trial that the judge rejected pieces of testimony, which viewed abstractly might technically have been admissible, if it is manifest from the whole case that they were offered as introductory to an instrument in writing which of itself was not competent evidence in any aspect of the case.</p> <p>7. No injustice could be done to the party by such rejection.</p>

This action was brought by James G. King and Archibald G. King, executors of James G. King, deceased, against the Paterson and Hudson River Railroad Company, to recover dividends which had been declared by said company on the stock held by the plaintiffs, as such executors. The cause was tried at the Hudson Circuit, and a special verdict rendered, by which the following facts were found.

Tills cause came before the court on the following state of the case, certified from the Hunterdon Oyer and Terminer. The indictment is framed upon the second section of the act approved March 24th, 1855. Nix. Rig. 178, § 108. The first count charges that the defendant did maliciously and willfully open, break down, injure, and destroy a certain rail fence, to wit, twenty panels of rail fence belonging to and in the possession of George Arnwine.

<p>Certiorari to Somerset Pleas.</p>

[This case was decided at February Term, 1860 but was not received by the reporter in timo to be published in the previous volume.]

<p>Certiorari to Passaic Pleas.</p>

<p>Certiorari to set aside an ordinance passed by the mayor and common council of the City of Hudson</p>

<p>Certiorari to Hunterdon Pleas.</p>

<p>1. The abutment and piers of the bridge crossing the Delaware river from Phillipsburgh to Eastop are taxable as real estate in the township of Phillipsburgh, to the centre of the river.</p> <p>2. If the property is assessed to the company as real estate the assessment is good, and it makes no difference whether the interest of the company is leasehold or fee simple.</p> <p>3. The township of Phillipsburgh is bounded on one side by the Pennsylvania line (Laws of 1851, page, 188,) and that line being in the centre of the Delaware river, all real estate to that point within the bounds of the township of Phillipsburgh is taxable in that township.</p>

<p>1. An agreement was made between Y. and H., giving V. power, authority and permission to erect a mill-dam on the land of IT., to fill up a certain di-tcb thereon, if he found it to his interest so to do, and dig another ditch, and to do such other work and acts as might be necessary in the construction of his mill; and it was further agreed that all damages sustained by the privileges granted should be paid, and that they should he assessed by arbitrators, one chosen by each party, and in case of disagreement they to choose a third, and the report of any two of them to be final and conclusive between the parties. Held, that the damages contemplated by the agreement were entire; that they were the subject matter of one submission and award, which would be final between the parties.</p> <p>2. The parly granting the privileges parted with them, and the other party acquired them irrevocably as soon as the agreement was executed; they then became a burthen upon the land, and the grantor might have immediately called for an appraisement of the damages sustained by the burthen created upon his estate.</p> <p>3. There could be but one award under that agreement; and an award made at a certain time, though purporting to be only for damages to that time, yet was final and conclusive as to all damages submitted, or which might have been submitted to arbitrators chosen to assess the damages; and a plea setting up an award, and payment thereof, is a good plea in bar to an action brought for damages under the agreement:</p> <p>4. Where damages are entire, an award upon them, although part are omitted, extinguishes the whole.</p>

The action below was brought on two promissory notes, given by Hiram Gilbert, payable to the order of David Rowland. They were given as accommodation notes for the benefit of Rowland, Gilbert having received no consideration for them.

<p>In ejectment. Case certified from Passaic Circuit. The facts sufficiently appear in the opinion of the court.</p>

<p>On rule to set aside report of referee.</p>

<p>Certiorari to set aside an ordinance passed by the common council of Jersey City.</p>

An action -of assumpsit was brought in this court, by George D. Hutchinson against Richard C. Hendrickson and James C. Norris, to recover the amount of a joint and several promissory note given by said Hendrickson and Norris to said Hutchinson. The summons was returned by the sheriff duly served on Norris, and not found as to Hendrickson. Judgment by default was entered against both defendants.

The plaintiff brought an action to recover her dower in certain lands devised to her husband by Robert Kennedy. After issue was joined, the counsel for the respective parties agreed upon a state of the case, upon which the cause was argued in this court. The question presented for consideration sufficiently appears in the opinion of the court.

<p>1. Where a pilot is tried before the commissioners for neglect of duty, 'he cannot lawfully be tried on any other charge than that which he is cited to answer.</p> <p>2. If charges are preferred against a pilot for neglect of duty, and the commissioners try him on those charges, and, as a punishment, suspend him from acting under his license for a certain length of time, they cannot afterwards retry him for the same offence and inflict additional punishment.</p> <p>3. When the term for which he was suspended expires, he can perform his duties as a pilot, under his license, and the commissioners have no right, as an additional punishment, to revoke his license.</p>

<p>On demurrer to pleas.</p>

An action of replevin was brought by Smethurst against Harwood, to recover possession of certain furniture in the Columbia Hotel, at Cape Island. The cause was tried at the Cape May Circuit, and a verdict rendered for the plaintiff. On the coming in of the postea, the defendant obtained a rule to show cause why the verdict should not be set aside, and a new trial granted. The facts in the case sufficiently appeal’ in the opinion of the court.

Levi Helfield, Jr., brought an action of trespass against the Central Railroad Company of New Jersey for using the street in front of his premises for the purpose of their railroad track. The plaintiff claimed title to the centre of the street, and upon the half of the street claimed one track of the railroad was located. The plea was not guilty, with notice of special matter.

<p>If an association organized under the act establishing mutual loan and building associations, (Nix. Dig. 75,) by the sale of loans ata premium, or the purchase of shares at a discount, cause the shareholder to pay more than legal interest for the money he borrows, it is not usurious.</p>

<p>1. The provisions of the act entitled, “An act for the relief of such portion of the mititia of this state as may be called into service,” approved May lltli, 1861, are not confined to such persons as, previous to theeall of the president for troops, belonged to the organized militia of this state. The terra “ militia,” as used in the act, applies to all persons by law liable to do military duty in the state, and all accepted by the state as such, whether previously resident here or not.</p> <p>2. The provisions of the act, except the seventh section, apply to all the forces then raised or thereafter to be raised under state authority, whether for active service in the state or for tire general government, in pursuance of the call of the president.</p> <p>3. The seventh section of the act is entirely retrospective, and applies only to those who had been enrolled, reported to, and accepted by the governor before May 11th, 1861. The value of the rations furnished to the men by the state cannot be deducted from their pay under that section, nor are they entitled to pay for rations furnished by themselves.</p> <p>4. The benefits of the act will not extend to any person who enlists in the regular army of the United States.</p> <p>5. That part of the act which provides for paying the families and widowed mothers of volunteers applies only to those families and mothers who, at the time of tiie enlistment, have their permanent residence in this state, and not to those who reside elsewhere; nor does it apply to the family or mother of any volunteer who is mustered into the service of the United Stales in another state.</p> <p>6. If the volunteer has no family or mother entitled to the $6 per month, he is entitled to the increased pay provided for in the fifth section.</p>

<p>On demurrer to narr.</p>

<p>On case certified from the Salem Circuit for the advisory opinion of this court.</p>

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

<p>1. The notice of propositions to make improvements, required to be given by the thirty-first section of the charter of Perth Amboy, should state the time when, and place where parties interested can be heard, and make known their objections.</p> <p>2. If an ordinance be passed for building a sewer, without such notice, it will be void, and no assessmeuts can be made under it.</p> <p>3. If a meeting be held to hear objections to the assessments, and at such meeting a party interested appear and remonstrate agaiisst the whole proceedings, and complain that the improvement was uncalled for, and that property-holders were not consulted, it is no waiver of the notice required by the charter.</p>

<p>1. Where a defendant files a set-off, if the plaintiff does not file a replication in due time, and put the cause at issue, the court will grant a rule on the plaintiff to reply, and in case of failure to comply with the rule, will allow the defendant to put the cause at issue, and after such issue joined, if the plaintiff do not bring the cause to trial, the defendant may have a trial by proviso.</p> <p>2. Where both parties are actors, and each has an inferest in taking a verdict, the court will not grant leave to discontinue against objections.</p>

<p>By the charter of the town of Bergen, commissioners appointed to assess the costs of grading a street are to assess the costs and expenses upon the real estate of said town upon principles of equity, and according to the damage or benefit which the owners may derive therefrom. A report that the commissioners omitted assessing anything against the owners of property lying off the lines of the improvement, because they believed to do so would be contrary to the spirit of our laws, will be set aside, as made on illegal principles.</p>

<p>1. If A and B contract with a railroad company to build their road, and ■afterwards sell and assign to C and D a part of the contract, so that C and I) shall be equally interested with A and B in the profits of the contract, 0 and D become partners and jointly liable with A and B for work done on the road ; and where a note is given for labor or materials signed “ A and B,” 0 and D will be liable on such note as partners.</p> <p>2. An agreement to sell and transfer an interest in a business carries with it, as a consequence, the right to a share of the profits.</p> <p>3. The members of a firm cannot enjoy all the benefits of a partnership, and by a secret agreement between them, that they shall not be considered partners, exempt themselves from the liabilities arising from the partnership relation.</p> <p>4. If A and B, who have a contract for building a railroad, agree to pay to 0 one-third of the profits of the contract, In consideration of his services in procuring the contract and the benefit of his skill and experience in constructing the railroad, it does not constitute C a partner, and make him liable for labor and materials used in building the road.</p> <p>5. In a suit by.creditors against the parties to a written agreement, by the terms of which all were partners, held, that none of those who signed it could show by parol testimony that they were not considered partners by the others, and not liable, as such, to creditors.</p> <p>6. A party who becomes an ostensible partner, or is so inter sese, is liable for the debts of the firm, even if by an agreement with a third person such third party becomes entitled to the partner’s share of the profits; but a partner may show that by a sale of his interest to a third party he has retired from the firm, and is thereby relieved from the liabilities pertaining to the partnership, created after his retirement.</p> <p>7. Where interrogatories served by a party are not answered within the time required by law, the party serving them is not bound to receive the answer; but if he receives the answer without objection after the time has expired, and permits the case to proceed to trial, he cannot afterwards object to the answer as not received in time.</p> <p>8. If a party fails to answer interrogatories served on him within the time required by law, it does not, since the passage of the act of 1859, (Nix. Nig., p. 928,) prevent him from being a witness in his own behalf.</p>

<p>1. The will of a woman married before the act of March 23d, 1852, for the better securing the property of married women, passed no legal estate in lands conveyed to her since the passage of that act.</p> <p>2. That statute gives to a married woman a mere jus tenendi, not a jas disponendi; the latter does not necessarily attach to the separate ownership of the real estate.</p> <p>3. In order to construe a statute so as to repeal a former statute by implication, the implication must be a necessary one.</p>

<p>The title of a purchaser of land at sheriff’s sale cannot be impeached by parol evidence that the judgment was satisfied before the sale.</p>

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

<p>Certiorari to Mercer Pleas.</p>

This cause came before the court on the following state of the case. This is an action of assumpsit brought in the court below . to recover one hundred and twenty-five dollars, with interest, of the defendant, as a subscriber for five shares of the capital stock of the Elizabeth Library Association. On the trial the act of incorporation of the Elizabeth Library Association was proved.

<p>1. Where one of several defendants pays to the plaintiff a certain sum, which the plaintiff agrees to receive in satisfaction of the judgment, it is a satisfaction of the judgment not only as to the defendant paying the money, but as to all the defendants.</p> <p>2. If the plaintiff assigned the judgment to the defendant who pays the money, or to any other person for his benefit, it cannot be used to recover of the other defendants the amount paid; the judgment being satisfied as to one is satisfied as to all, and on application for that purpose by one of the defendants the court will order satisfaction to be .entered.</p> <p>3. Where one defendant pays off a judgment he cannot use it to collect of his co-defendants the share they were liable to pay. His remedy is by action for money paid.</p>

<p>The ordinances of Jersey City provide that no person licensed to keep an inn and tavern in the city shall expose intoxicating liquors for sale on Sunday. Held, that having liquor, in its usual place in the bar, without some affirmative act offering to sell it, was not a violation of the ordinance.</p>

<p>1. Where land is conveyed to be used for a certain purpose, with a clause of forfeiture if it cease to be used for the object specified, it is no ground of forfeiture if the land is used for other purposes, provided it is also used for the purpose for which it was conveyed.</p> <p>2. Where lands were conveyed for a raceway and embankment for a water power, with a proviso iti the deed tha-t so much of the premises as should not be used for the purpose specified should revert to the grantor, it was held that the grantees took a title in fee simple, subject to forfeiture by non user, in so mnch of the premises as were necessary for the purposes specified, and that the balance of the premises reverted to the grantor.</p> <p>3. Where the grantor afterwards conveyed lo other parties that part of the premises conveyed to the company which was not used for a raceway and embankment, and in the second conveyance bounded the premises conveyed by the line of the towpath of the first grantees, it was held that it was an admission by the grantor that the company needed, for the purposes specified in their deed, all the land to the line of land described in the second conveyance.</p>

<p>1. H. was the owner of a farm, which he offered to sell at §125 per aere; S. offered to sell it for him, and an agreement was made between them that II. should ask §130 per acre, and not sell below that price; and in case S. procured a purchaser, and effected a sale, he was to have a commission of §5 per acre for selling. Held, that the contract was not against public policy, and was valid.</p> <p>2. If an agent or broker is the means of bringing the parties together, although the offer which is accepted be made by the purchaser to the principal in person, and the agent afterwards draws the writings, and receives the purchase money, he is entitled to his commissions.</p>

<p>A testator devised his real estate to his wife for life, authorizing her to sell so much thereof as might be necessary for the payment of his debts and her own support, and further devised as follows: “ And at the decease of my said wife, if any portion of my real estate remains unsold, I order and direct the same to be equally divided between my brother'J., my sister H., and my deceased sister S.’s children, the said children to inherit the mother’s share in case she had survived me and the brothers and sisters of my beloved wife ” — the testator’s sister H. died before him. Meld, that the brothers and sisters of the testatoi’s wife took equally with his own brother and his sister Sarah’s children, and that the share of H. lapsed into the residuum of the estate, and should be divided in the same manner as the rest of the estate.</p>

<p>Where a railroad charter gives the company power to alter and grade the public and other roads crossing their railroad, so as not to impede the travel on such roads, the company have no right to change the route of any public or other road.</p>

<p>Case certified from Monmouth Circuit.</p>

<p>1. In an action brought to recover the amount of a subscription to the capital stock of an incorporated company, the declaration should set out the act of incorporation. It is not sufficient to state the agreement to be to pay the amount claimed according to the provisions of the charter of the company.</p> <p>2. The court will not take judicial notice of a private act, and where a promise refers to another writing or a private act, to ascertain its extent and mode of performance, the writing or act so referred to becomes a part of the agreement, and must be set out in pleading, or the statement of the contract will be defective.</p> <p>3. The defect is one of substance, and not of form, and may be taken advantage of on general demurrer.</p> <p>4. "When the common counts are included together they are considered a's one count; they are not different considerations for one debt, but are distinct debts, and one general promise to pay is a promise to pay each debt, and the plaintiff may recover some of them, and fail on the others.</p> <p>5. Common counts, setting forth that the defendant is indebted to the plaintiff in a certain sum for the unpaid installments on a specified number of shares of the capital stock of the plaintiff before that time subscribed by him, and in a further certain sum for the capital stock of the said plaintiff before that time subscribed for and taken by him, are insufficient, they evidently being founded on an executory contract.</p> <p>6. There cannot be a recovery on the common count for goods sold and delivered, unless the agreement is complete by an absolute delivery. If anything remains to be done to complete the sale, and vest the property in the vendee, the action must be brought on the special contract.</p> <p>7. A general demurrer to a declaration will be overruled if one count is good.</p>

<p>This case was certified from the Monmouth Circuit for the advisory opinion of this court.</p>

<p>1. A warrant of distress cannot be issued against an overseer of the poor tinder the 8th section of the “ act for the settlement and relief of the poor,” (Nix. Dig., 609,) unless such overseer has notice of the application for the Warrant and an opportunity to be heard.</p> <p>2. If a warrant of distress is issued against two overseers, and only one of them has been served with notice, the warrant will be set aside.</p> <p>3. Before proceedings can be had to enforce the penalty against the overseers by warrant of distress the legal settlement of the pauper must be determined, and the order of removal, or a copy thereof, must be served on tlie overseer of the township to which the pauper belongs.</p>

<p>1. Under the act of March 3d, 1854, (Nix. Nig. 801,) real estate in the city of Newark, owned by persons residing in other townships in the same county, is liable to taxation for the full valuation thereof, without any deduction for mortgages thereon held in that city.</p> <p>2. The party assessed, upon making application to the assessor or commissioners of appeal for that purpose, and presenting a sufficient affidavit, is entitled to have his debts owing in the state deducted from his property, both real and personal; but if he neglect to make such affidavit, he cannot correct the assessment by certiorari.</p>

<p>Certiorari to Hunterdon Pleas in matter of road.</p>

<p>If a party upon whom a summons is served is induced to come into this state by a deception practised upon him by the plaintiff, for the purpose of serving the summons, such service is not good, and the court will set aside the writ on the application of the defendant.</p>

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

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

<p>1. A return of the surveyors of the highways laying out a road will not be set aside upon the ground that the appointment of one of the surveyors by the township committee was not made under their hands and seals.</p> <p>2. A person so appointed is a surveyor defacto, and his acts, as regards the public and third persons, are valid.</p>

<p>On ease certified from the Morris Circuit for the advisory opinion of this court.</p>

<p>R. sold to L, a horse, for which L. conveyed to him a house and lot, and gave a note for §25. L. brought a suit against R. to recover damages for a false warranty of the horse; held, that evidence of the value of the house and lot was inadmissible, the only question in the case being the difference in value between a sound horse and an unsound one.</p>

This was an appeal to the Orphans’ Court of Sussex county, from an order of the surrogate of that county, granting letters testamentary upon filing an exemplified copy of the will of Sylvanus Howell, and the record thereof, as admitted to probate in the State of New York. The opinion was delivered by the Chief Justice, as presiding judge of that court.

This cause was decided in the Orphans’ Court of Sussex couuty, the opinion being delivered by the Chief Justice, as presiding judge of that court. The facts sufficiently appear in the opinion delivered.

On habeas corpus in matter of Frederick Kniesch, Jr. This cause came before Mr. Justice Ogden, at chambers, and was decided by him on a habeas corpus, brought to discharge the prisoner.

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

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

<p>1. An officer, having an execution or attachment in his hands, has a right to seize the goods of the debtor, and to hold them until an inventory and appraisement can be made according to law; and tiie officer will not be liable to an action of trespass for unlawfully taking goods exempt from seizure on civil process under the acts of 1851 and 1852, (Mix. Dig. 249, 251,) until he has time to make the inventory and appraisement.</p> <p>2. If his famiiy reside here, the goods of an absconding debtor are entitled to the exemption for the benefit of the family.</p> <p>3. Although the goods of a debtor may be of less value than $200, it is not a trespass to seize them upon execution before they are appraised and selected according to the act.</p> <p>4. In the absence of the defendant, or after his death, the head of tha family may select the goods to be exempted.</p>

Several certioraris were issued out of the Supreme Court, to the mayor and common council of Jersey City and to the water commissioners of said city, to set aside an assessment for building a sewer, known as the Wayne street, Railroad avenue, and Newark avenue, sewer, and the lateral sewers connected therewith. By a rule of the Supreme Court, the several certioraris were consolidated.

<p>In error to the Supreme Court.</p> <p>The facts in this case fully appear in the report of the case in the Supreme Court, 2 Dutcher 313.</p>

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

<p>1. An ordinance passed by the common council of Hudson City for grading, curbing, and paving streets, is invalid and'illegal, unless previous notice is given, according to the charter; and even where, by several ordinances duly passed, certain work was ordered to be done, if a general ordinance is passed for doing the same work, and repealing the previous ordinances, without notice given for that purpose, the ordinance is invalid, and assessments for work done under it will be set aside.</p> <p>2. Persons affected by the passage of an illegal ordinance are not prejudiced in their rights by not attempting to get the ordinance set aside until after an assessment is made under it.</p>

<p>1. Co-sureties are entitled to contribution from each other towards the moneys paid in discharge of their joint liability, and also to the benefit of all the securities which any of them may have taken to indemnify himself.</p> <p>2. A surety may take securities from his principal to indemnify himself, and if he brings an action against his co-surety for contribution, the fact of his holding such securities will not bar a recovery; but after such recovery the defendant is entitled to enforce his right of subrogation, and so obtain the benefit of the securities.</p> <p>3. If, before action brought for contribution, the securities held for indemnity are converted into money, it is a payment pro tanto jn liquidation of the amount paid on the liability, and in an action against the co-surety it is competent for him to show that iqoney has been so realized. It is a payment of so much by the original debtor, and is so far an extinguishment of the joint liability.</p> <p>4. In an action of assumpsit, brought by one co-surety against another for contribution, the defendant may show that the plaintiff held securities for the benefit,of all the sureties, and that those securities had been surrendered to the principal debtor by the surety holding them, without the consent of his co-sureties, and if such surrender is proved, it releases the co-surety from contribution to the amount of tfie securities surrendered.</p> <p>5. It makes no difference whether the securities were surrendered by the surety before or after he paid the debt.</p> <p>6. The presumption is that the securities surrendered are of the value expressed upon their face, and the burthen of showing that they were of leas value rests upon the party surrendering them.</p>

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

<p>1. To maintain an action brought to recover a penalty for leaving open a swinging gale across a private or by-road, the plaintiff must prove that the way in question is a private road, laid out or made such in the manner prescribed by statute.</p> <p>2. An act giving a penally should not be extended beyond its words.</p> <p>3. There is a clear distinction between a private or by-road and a private way; in the former the public have an interest, in the latter they have notj and the 13th section of the act concerning roads, [Nix. Dig.,) which provides for erecting swinging gates across a private or by-road, does not extend to a private way.</p> <p>4. To an action brought to recover a penalty for leaving open a swinging gate across a private or by-road, the defendant cannot set up the defence that he had a private way where the road in question is laid.</p>

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

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

<p>1. The mere fact that a note is given as accommodation paper does not affect it in the hands of a third party, even if the fact of its being such paper was known by the endorsee at the time of the endorsement; and where no other proof is given in defence, the holder is not bound to prove that he gave value for the note.</p> <p>2. In a suit brought against the maker or endorser of negotiable paper, the defendant may prove that the note was obtained from him by fraud, or that it was fraudulently put in circulation ¡ and in such case, to entitle the plaintiff to recover, he must prove that he bought it before maturity, bona fide, and for value.</p> <p>3. To constitute a misappropriation of negotiable paper, there must be a fraudulent perversion of its original object or design.</p> <p>4. If a note is made or endorsed as accommodation paper, with the understanding that it is to be discounted at a certain bank, or that money is to be obtained upon it in a particular manner, it is no fraudulent misappropriation of the note if it is discounted at another bank, or that money or eredit was obtained upon it in a different way from what was intended. If the note effects the substantial purpose for which it was designed, it is not material whether it was effected in the precise manner contemplated, unless there is fraud, or the interest of the maker or endorser is prejudiced.</p> <p>5. Where an accommodation note is given with the understanding that the payee is to get it discounted- at a certain bank for his benefit, and, instead of getting it discounted, he deposits it as collateral security for letters of credit obtained for himself, it constitutes no misappropriation of tiie note, unless there is evidence of fraud, or that the interest of the drawer is prejudiced.</p> <p>6. Where a defendant alleges that a note was given to take up a certain other note, parol evidence is admissible to prove that it was given and accepted to take up a different note from the one alleged ; and even if an accommodation note is given to take up a certain note of the payee, and lie uses it to take up a different note from the one intended, it is no fraudulent misappropriation of the note.</p> <p>7. The holder of accommodation paper, assigned to him as collateral security, cannot recover of the accommodation maker or endorser any more than the amount actually advanced upon it; but-, in such case, as well as where the note is taken in payment of a security for an antecedent debt, the presumption is that the holder paid full consideration for the note; and, to overcome this presumption, the defendant must prove that the plaintiff did not give full consideration for it.</p> <p>8. Where an accommodation note is pledged as collateral security for letters of credit, the liability incurred 6y the party issuing the letters of credit is a sufficient consideration for the note ; and, to entitle him to recover the face of the note, he is not bound to prove that he has actually paid the amount for which the letters of credit were issued. If the letters are unrevoked, and his liability still continues, it is a good consideration.</p>

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

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

The averment of lien in the declaration filed in this cause was as follows: And the said plaintiffs aver that the said debt mentioned in this declaration as due from the said defendant, Nathan J. Beebe, to the said plaintiffs is, by virtue of the provisions of the act of the legislature of the State of New Jersey, entitled “ An act to secure to mechanics and others payment for their labor and materials in erecting any building,” approved March 11th, eighteen hundred and…

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

<p>1. In an action of trespass quare clausum fregit, title to the land may be given in evidence under the plea of not guilty; but matter admitting the trespass, and seeking to justify it, as leave and license, must be specially pleaded.</p> <p>2. A license to enter upon land, not coupled wiih an interest in the premises, may be revoked at the will of the party granting if. A right to come upon land of another, and remain for an indefinite time, can be granted only by deed; and where the license is by parol, it may bo revoked at any time, even if money be paid for it, and expense incurred in erecting buildings or other permanent improvements on the premises.</p> <p>3. Where the charter of a railroad company provides that the company may obtain land by consent of the owner, it means a legal consent; and they can only obtain it in such manner as existing laws provide for acquiring title to or the right to occupy real estate. Such a clause in a railroad charter does not alFect the statute of frauds.</p> <p>4. The title to land for a railroad does not pass by the filing of the survey in the office of the secretary of state.</p>