Volume 3 — New Jersey Law Reports

OH CERTIORARI. This was a certiorari to Edward Burd, Esquire, one of the Justices of the Peace, of the county of Sussex. The Chief Justice delivered the opinion of the court.

<p>ON CERTIORARI.</p> <p>This certiorari was brought on a judgment obtained by the defendant in this court, who was plaintiff below, before David D. Crane, Esquire, of Essex county, against the plaintiffs in this Court, who were sued below, as late Overseers of the Poor, of the township of Caldwell, for medicine furnished, and attendance given, by the plaintiff below, to. ' three children of Mary Wright, paupers on the said town-* ship of Caldwell. The account filed with the justice, charged this to have been done by the direction of Joseph Tomkins, one of the defendants below.</p>

Ejectment for lands in the county of Burlington. Submitted without argument, on the following state of the case; William Smith, about the first of November, one thousand seven hundred and ninety-three, died intestate, without issue, seized in fee of the premises herein after mentioned.

<p>Instruments of manumissions must be executed conformably to the act of 14th March, 1793. Rev. 369.</p> <p>The claims of freedom of the above named negroes, were submitted to the Court on the following state of the case.</p> <p>The claims of freedom in the above causes, are founded on two manumissions, purporting to be signed, one by John Emmons, and to bear dale on the 16th day of June, 1803, declaring the freedom of the negro Richard, otherwise called Dick. And the other by John Emmons, and Mary his wife, and to bear date on the same day, declaring the freedom of negro Phebe, (pro ut the said manumissions produced.) The defence set up, questions the validity, in point of law', of the said manumissions; and also, that the said manumissions were respectively obtained by fraud, or by forgery.</p> <p>Now it is agreed that the question of law arising on the said manumissions, whether effectual to enable the [*] negroes named in the said manumissions, to a discharge on the present habeas corpus, as free persons, be submitted to the Supreme Court, on an argument in bank, at the ensuing September term. If the Court shall decide against the validity of the said manumissions, in point of law, it is to conclude the claims, and be final on the question of the freedom of the said negroes. If the Court shall decide in favor of the validity of the said manumissions, in point of law, that question is likewise to be considered as concluded; but the defendants are nevertheless to be entitled to the full benefit of their other, ground or grounds of defence, namely, on the fraud or forgery of the said manumissions; and said causes are to be tided thereon, at the next circuit, without any manner of prejudice to the said questions of fraud or forgery, and the verdict of the jury thereon to be conclusive. Dated in Hunterdon Circuit, May 8, 1805.</p> <p>I approve of the above,</p> <p>(Signed,) Thomas P. Johnson.*</p> <p>I agree to the above,</p> <p>(Signed,) G. C. Maxwjem.</p> <p>I agree to the above,</p> <p>(Signed,) G. Ckajtt, Mfy for Pros.</p> <p>This cause was submitted without argument, in March term last; and in this term, the Court gave the following opinion:</p>

Assignment of a bond implies no guarantee. This was an action brought by the plaintiff, assignee of a bond, against the defendant, the assignor. The [*] bond was given by Daniel Yandel to Simeon Yan Ness, the defendant, and by him assigned to Henry Garretsie, the plaintiff.

Ejectment. What is legal proof of executing a will devising- land. Award of arbitrators cannot operate as a conveyance of land. This cause was tried at the Middlesex June circuit, in 1805, before the Chief Justice, and a verdict for the defendant.

OX CERTIORARI. Costs of ca sa, denied on writ of restitution, in certiorari. (a) On motion, on the part of the defendant, to set aside a ca sa in this cause, the case was this: Randolph and others, brought an action against Bayles, the defendant, before Justice Kelly, of Somerset; upon the trial, judgment was rendered for Bayles, the defendant. The plaintiffs, thereupon, brought their certiorari,*,and the judgment of Justice Kelly was reversed in this Court.

<p>ON CERTIORARI.</p> <p>. Reversal, for demand exceeding one hundred dollars, (a)</p> <p>■There were seven reasons assigned for the reversal of this judgment. Those stated by the judges are sufficient to shew the ground on which the judgment was reversed.</p> <p>Kirkpatrick, C. J — The fourth reason assigned for the reversal of this judgment is, in substance, that it does not appear from the proceedings of the Justice, that the jurors who tried the cause, were legally summoned; or in other words, that the venire is erroneous.</p> <p>In the twentieth section of the act constituting courts for the trial of small causes, it is said, that if either party shall demand a trial by jury, a venire shall be issued to summon twelve, men, if the demand exceed1 sixteen dollars, being citizens of this State, above the age of twenty-one years and under the age of sixty-five, and freeholders in the county where the cause is to be tried, and in no wise of kin to the plaintiff or the defendant, nor interested in the suit.</p> <p>The venire issued in this cause, is to summon twelve good and lawful men- of said county, being freeholders of the same, and who neither to Benjamin Scudder, the plaintiff, nor to Daniel Sayres, the defendant, in any affinity £*] do touch; not directing, according to the act, that they should, be citizens of this state, above the age of twenty-one, and under the age of sixty-five years, and disintei'ested in the suit.</p> <p>The words of the act appear to me to be mandatory. And it would seem the more reasonable that they should be so, because the general provision with respect to the qualifications of jurors contained in the act relative to jurors and verdicts, does not apply to jurors, in those courts for the trial of small causes; nor upon the words of that act, could any exception be taken for want of such qualifications. To use the words good and lawful men, will not be sufficient, for there is no law declaring who are good and lawful men as jurors in these courts, except the very section now under consideration, and that does it only by way of prescribing the manner in which the venire shall be issued, (a)</p>

<p>Certiorari.</p> <p>Covenant lies not, on unsealed writing. Constable may not let prisoner to bail, (a)</p> <p>The state.of this case will sufficiently appear, from the observations of the judges.</p>

ON CERTIORARI. Defective service of summons, pleadable in abatement. Service must be five full days before return. Form of return. Adjournment. Thirteen reasons were assigned for the reversal of the judgment in this case. The first and fifth only, are taken, notice of by the Judges — and are as follows : 1st. The summons in this cause, was not served by the constable at least five days before the time of appearance mentioned therein.

ON CERTIORARI. Judgment reversed, for being entered in figures. The judgment in this case had been entered in figures, and not in words at length.

<p>ON CERTIORARI.</p> <p>Return of serving summons, by constable, to shew legal service.</p> <p>A trial, in this cause, had been bad in the absence of the defendant, by default. The return of the constable, [=*=] as appears by the record, was “served the thirtieth day ofi January.”</p>

ON CERTIORARI. Ex parte affidavit, without notice, illegally admitted in evidence.Action lies not against father of bastard, for its support, and boarding and nursing the mother, without order of affiliation.

<p>ON CERTIORARI.</p> <p>State of demand on anote, omitting the date, good.</p> <p>Six reasons were assigned for the reversal of this judgment. [*] The only one, the Court considered of any importance; was the</p> <p>4th. Because the state of the plaintiff’s demand doth not contain sufficient certainty.</p> <p>The state of the demand, was as follows:.</p> <p>Cornelius Vandervere, Dr.</p> <p>To William Ogburn, Jun.</p> <p>Feb. 6, 1805. To a note which I hold against him, $53 50</p> <p>Feb. 6, Cr. By 20 bushels of corn, 20 00</p> <p>$33 50</p>

<p>ON CERTIORARI.</p> <p>Judgment confessed by prisoner, must be in presence of an Attorney.</p>

<p>ON CERTIORARI.</p> <p>Payment to be pleaded, to let in a set off. (a)</p> <p>The only reason assigned for the reversal of this judgment that had any weight with the Court, was the</p> <p>4th. Because the justice allowed the defendant to prove matters of set off without the plea of payment, as the act requires.</p>

ON CERTIORARI. That party said “ his witness knew nothing,” no evidence. Tavern keeper may charge Jiis creditor, over $2.

<p>ON CERTIORARI.</p> <p>Defect in summons, demand, and venire, fatal.</p> <p>The summons had no seal; the action below was an action of trespass, and the justice entered it in his docket, on the case. The state of demand was as follows:</p> <p>Isaac Veal,</p> <p>To B. A. Brown, Dr.</p> <p>In trespass and damage, for killing a hog, fifteen dollars,</p> <p>The venire commanded the constable to cause to come, &c., six lawful men, being freeholders in said county, who are not of kind to Benjamin Brown, plaintiff, nor Isaac Veal, defendant; nor interested in the cause, &c. The jury found a verdict for plaintiff, ten dollars.</p>

<p>ON CERTIORARI.</p> <p>Judgment in figures, error.(a) On set fa. to award execution only, (b)</p>

Certiorari. The following transcript was returned : February 9th, 1805. John Platt, Jun.Summons in debt, returnable as above, vs. i. Adjourned until March the 9th. Reuben Potter, j Adjourned until March the 23d. Judgment for plaintiff, $39 45 Costs, 4 22 Execution issued April 27, 1805.

<p>OK CERTIORARI.</p> <p>Partners must sue in their Christian names, (a)</p>

ON CERTIORARI. Suit for township money expended for poor, must be in its corpoi’ate name, not in name of overseers of poor, (a) This action was brought by the defendants below, for twenty-five dollars, so much money laid out, expended, and paid by the plaintiffs to the use of the defendant, and at his sjiecial instance and request; and founded on an implied promise to refund to the plaintiffs, as overseers of the poor, a sum of money which they contended, that they had laid…

ON CERTIORARI. Judgment against constable for neglect on execution, reversed, if the original judgment be reversed, (a) The action below, was against Waldron the plaintiff here, for neglect of duty as constable, on an execution being put into his hands in favor of the plaintiff below, who is the defendant in this Court. After judgment was obtained against the constable, the judgment on which the execution Was issued, was reversed.

<p>ON CERTIORARI.</p> <p>Insufficient state of demand. Judgment in figures.</p> <p>This was an action on the case brought by the plaintiff below against the plaintiff in certiorari.</p> <p>[*] The state of demand is as follows:</p> <p>Wiliam Davis, OTo John M'Intosh, Esq., one of the justices of</p> <p>vs. i- the peace, in and for the county of Cumber-</p> <p>David Newcomb, j land, State of New Jersey.</p> <p>Whereas, the said David Newcomb, hath fraudulently taken from me several sums of money to the amount of $35 67</p> <p>To my damage in having my property advertised when the. money was paid, 10 00</p> <p>To my damage in going three days in going to hire the money to pay the same, 5 50</p> <p>To my damage in paying the money as above twice, 27 63</p> <p>To putting an execution into the hands of John Wise, which Was paid off, 10 00</p> <p>My demand, June 25th, 1805. $88 80</p> <p>Wm. Davis.</p> <p>The plaintiff below recovered 832 85 with costs, this was entered in figures.</p>

ON CERTIORARI. Action in justices court, on implied contract for money, to be debt. This was an action on the case, brought by the plaintiff below, against the defendant below, for money overpaid him on executions in his hands, the defendant below having been a constable.

<p>ON CERTIORARI.</p> <p>Administrators of deceased partner, not to be sued with survivors, lícturn on summons “served on defendant,” error.(a)</p> <p>In Debt. This was a proceeding, in the absence of the defendants below, one of whom was dead, and his adminis-trator sued jointly with himself. Judgment for ninety-five dollars debt with costs. The constable returned the sum-mons “served on the defendant.”</p>

<p>ON CERTIORARI.</p> <p>Judgment in figures, reversed.</p>

<p>OK CERTIORARI.</p> <p>Suit for trespass, by sons of defendant, illegal.</p> <p>This was an action on the case. The state of the demand, filed with the justice below, is as follows:</p> <p>November 25th, 1805.</p> <p>Aula M‘Cauley Wood, demands against Hannah M'Calla, incase of trespass committed by her sons, $16 00</p> <p>Judgment for plaintifij $8 00 debt, and $1 24 costs.</p> <p>Cost entered in figures.</p>

Certiorari. Vague demand, and no evidence. This was an action of debt; the state of demand as follows: May 22d, 1802. By a note of John Snidex-, Dr. to the estate of John C. Hummell, dec’d, for the sum of ten dollars and forty-seven cents by me. Phebe Hummell, Administratrix, John Statterly, Administrator-.

ON CERTIORARI. Action in case, and demand for detinue, sustained. This was an action on the case. The state of demand as follows: £*]Ama Waldron, ) vs, v jn case before Justice Smally, Cornelius Prall,j The plaintiff demands eighty dollars of the defendant, for detaining a roan mare and a heifer, the property of the plaintiff, from her wrongfhlly; and, therefore she brings this suit. Dated, 4th July, 1805. Judgment for plaintiff) $61 41 damages.

ON CERTIORARI. The record sent up by the justice, is in the following words and figures: Gloucester County, ss: Jacob Glover, J vs. C In debt on a judgment note. James Hinchman, j Execution was issued January 5th, 1806, against the defendant, $40 00, amount of note and interest. Francis Hover applied for the execution.

<p>ON CERTIORARI.</p> <p>Reversal of judgment on judgment note, without confession or proof!</p> <p>The record sent up by the justice is as follows:</p> <p>Gloucester County, ss:</p> <p>Christopher Croft, ^ April the 4th, 1806. Christopher Croft entered vs. up before me thesubscriberone of the justices Thomas Wilkins, j ot the peace, in and for the county aforesaid, a note with, leave to enter judgment, signed by Thomas Wilkins, for thirty-five dollars. T-he note bears date the seventeenth day of October, Anno Domini, 1805, payable on or before the first day of April, 1806, and I entered judgment, andissued execution for the above sum of debt and the costs, and sent it to Benjamin Ward, constable of the township of Deptford, in the county aforesaid.</p>

ON CERTIORARI. The record sent up by the justice, is as follows: Elizabeth Woodmansie, and') Samuel Woodmansie, tSeptember the 25th, 1805. vs. j Charles Falkenburgh, J Summons in debt, returnable as above. Adjourned until October the 12th. Judgment for plaintiff, $24 8 Cost, 73

<p>ON CERTIORARI.</p> <p>Action lies not for bringing, and failing in a suit.</p> <p>This was an action on the case, brought by the plaintiff below, against the plaintiff in certiorari. The state of the demand as follows: January 20,1806. Samuel Woodmansie, To Robert Logan, Dr. For expense going to Monmouth, $20 00 For my damages on the same account, 50 00 gro oo</p> <p>Judgment for plaintiff below, $50 00, and $3 74 costs.</p>

<p>CERTIORARI.</p> <p>Re-delivery of a note by assignee to assigner.</p> <p>This case is sufficiently stated in the opinion delivered by the Chief Justice.</p>

<p>ON CERTIORARI.</p> <p>Return on summons “lawfully served,” is insufficient.</p>

ON CERTIORARI. Error in -venire, cured by verdict and judgment. Ten reasons were assigned for the reversal of this judgment. The controversy turned upon the sixth, which is as follows: Because the venire does not command the constable to summon «twelve men, being citizens of this state, above the age of twenty-one, and under the age of sixty-five,” as required by the act of Assembly.

ON CERTIORARI. Reversal, suit on parol promise to pay another’s debt. This case is sufficiently stated in the opinion of the Chief Justice.

<p>ON CERTIORARI.</p> <p>Judgment in figures, reversed.</p>

<p>ON CERTIORARI.</p> <p>Reversal, no state of demand filed.</p>

<p>ON CERTIORARI.</p> <p>Affirmance, state of demand sufficient.</p> <p>The controversy turned upon the sufficiency of the state of demand, delivered by the plaintiff below, to the justice, which though not very plainly written, was as follows:</p> <p>1st 2d mo. 1804. William Lewis, I)r. to John Albertson, for 11J cords of oak wood, sold at $4 50 per cord — 4,j- cords sold at $4 25 cents.</p> <p>$39 38 14 03</p> <p>27th 12th mo. 1804. $53 41</p> <p>Cash received, 1 89</p> <p>$51 52</p> <p>The whole amount, $51 52.</p> <p>And one year’s interest, 3 60</p> <p>$55 12</p> <p>A trial by jury, and verdict and judgment for $50 81, and costs.</p>

ON CERTIORARI. Reversal, a charge of merchandize per bill, insufficient. The error relied on for the reversal of this judgment, was a defect in the copy of account rendered to the justice ; which instead of giving the account at large, particularly setting out the items, was abridged in the following mannerr 1804, May 14. To merchandize per bill, folio 218, ¿644 6 5 June 2.

<p>CERTIORARI.</p> <p>Reversal, on entry of judgment upon report of referees, without record or proof of reference.</p> <p>The matters in controversy between the parties, had been submitted to reference on an agreement, that the agreement to submit, should be made a rule of any court of record having cognizance of the sum reported. The referees reported: First, that the defendant have peaceable and quiet possession of the wood and timber, on a certain piece of land: Second, they reported in favor of the defendant the sum of S32 28. This report of referees was taken to the justice, who, without any £*] proof of the agreement to submit, made the following entry in his docket: — February the 27th, 1806, after examining the above report, I gave judgment in favor of the defendant, for thirty-two dollars and twenty-eight cents debt, and twelve dollars and ninety-three cents costs.</p> <p>It was contended by Mr. I. H. Williamson, on the part of Burroughs, the plaintiff in this Court; 1st, that a submission to arbitration and reference, out of court, could not be made a rule of a court for the trial of small causes; and 2d, that in case the Court should be of opinion that it could, yet that the statute had not been complied with, in proving by affidavit, the agreement to make the submission a rule of court.</p>

ON CERTIORARI. Reversal, for rejecting proof of set-off. It appeared by the transcript of the justice, that the defendant below, who is the plaintiff in this Court, filed his plea of payment with a demand to be set-off, and this in due time; but that when he came to give evidence in support of his plea on the trial, which was on the return day of the summons, the justice refused to permit him to do it, on the ground that the plea filed, was a plea that had been used on a…

<p>ON CERTIORARI.</p> <p>Reversal, judgment in defendant’s absence, without proof.</p> <p>The state of demand, sent up by the justice, is as follows:</p> <p>To cash paid to Sands and Dickerson for repairs of</p> <p>schooner Union, as per bill, £7 1 5</p> <p>Interest, * 11 9</p> <p>£7 13 2</p> <p>Cost in New York, 6s. extra to Paterson, 24s. 110 0</p> <p>£9 3 2</p> <p>Several adjournments were had; but at the time judgment was obtained, the defendant did not appear, and the justice made the following entry on his docket: The plaintiff appeared agreeable to adjournment, and defendant did not; and I gave judgment by default, for the plaintiff, twenty-two dollars and fifty-cents, and one dollar and twenty cents costs.</p>

<p>ON CERTIORARI.</p> <p>Reversal, judgment in defendant’s absence, without proof!</p> <p>Judgment was obtained below, for g51 83 and costs of suit, in the absence of the defendant, by default. — The judgment was rendered on the demand of the plaintiff, without proof, under an opinion common in some parts of the state, that in cases of judgment by default, the justice is to consider the state of demand of the plaintiff as confessed, or not denied, and give judgment accordingly, without any proof.</p>

ON CERTIORARI, Reversal in forcible entry. Complaint not setting out the “ estate” of plaintifF.(a) Costs in figures. Olí a judgment in a forcible entry and detainer. Several reasons were assigned for the reversal of this judgment; the following were principally relied on: 2(1. That the estate of the plaintiff, in the land on which the entry was said to be made, was not specified in the complaint on which the action was founded.

<p>ON CERTIORARI.</p> <p>Costs denied in Supreme Court, on judgment for $50 in action on the case, brought up by habeas corpus for loss of service by assault and battery.</p>

ON CEBTIORARI. Decree of Orphans’Court, in favor of an executor against his co-ex’r, in a controversy between the heirs and executors, is no ground for an action on it as a judgment, in a suit between executors.

ON CERTIORARI. Recital of corporate name in the writ and bond, must agree in language, or by averment and proof. This action was brought by the plaintiffs, inhabitants as abovesaid, against Forrest a constable, and his sureties on a bond given by them to the town. The defendants prayed oyer of the bond and condition, and demurr ed; the points in controversy will fully appear in the opinion of the judges.

Constable’s bond must conform to the statute. The plaintiffs declared against the defendants, in debt on bond, in the usual form; the defendants prayed oyer of the bond and condition; by which it appeared that, John Giles, one of the defendants, was duly elected at the annual town-meeting, a constable.

ON CERTIORARI. Insufficient demand. Joint action lies not, for injury to one. The state of demand exhibited to the justice below, was as follows: Joseph Denman and William I)enman, DC. Isaac Winans. - in case. Joseph Denman demands of Isaac Winans forty dollars, damages for converting to the use of said Isaac, a bond of him the said Joseph. After a trial by jury, and verdict, a judgment was for the plaintiff below, for §25.

ON CERTIORARI. Notice to Overseers of Poor, necessary to obtain settlement, by a pauper from another State. This certiorari removed an order from Sessions,affirming an order of two justices of the county of Monmouth, removing Robert Howell and Mary his wife, from Stafford to Northampton.

ON CERTIORARI. Notice to Overseers of Poor, necessary for a settlement in a township. Aw order was made by Luther Opdycke and William Potts, Esquires, two of the justices of the peace for the county of Hunterdon, removing Ruth White and George her son, from the township of Kingwood, to the township of Hopewell. Hopewell appealed to the Sessions, who affirmed the order, subject to the opinion of this Court, on a case stated.

<p>In dower, if damage be not assessed by the jury, a writ of inquiry to issue.</p> <p>This was a dower cause, tried at the Salem circuit, before Rossell, Justice. There were two issues tried, to wit, marriage and seisin. The jury found a verdict for the defendant, but neglected to assess damages.</p> <p>moved the Court to award a writ of inquiry to assess damages; in support of which motion, he cited Sayer on damages, page 126. This was opposed by Leake, Sergeant, on the ground, that where issue is joined in a cause, a writ of inquiry cannot be awarded; in support of which, he cited, 5 Comy. Dig. Title Pleader, Z. 2. 2 Bac. 12, 2. Comy. Title Damages, E. 2, 2 Blac. Com. 397, from which he argued, that the remedy in this case, was to order a new trial; and contended that Sayer on damages, was not an authority to be relied on in this case. This question was argued in September term; the Court took time to look into the authorities — and in this term, Pennington Justice, delivered the following opinion; in which the Chief Justice, and Bossell Justice concurred.</p>

ON CERTIORARI. Justice cannot issue venire until appearance of defendant. The reason assigned for reversing the judgment below, was that the justice, on the motion of the plaintiff, issued a venire for a jury, before the defendant appeared, and this fact being supported by the record:—

<p>ON CERTIORARI.</p> <p>Justice cannot adjourn beyond fifteen days from the return of summons.</p> <p>The reason relied on for reversing the judgment below, was, that the justice adjourned the cause beyond fifteen days from the return of the summons, on the motion of the plaintiff below, the defendant in this Court. It was contended, on the part of the plaintiff, that this was error; and on the part of the defendant, that if error, yet that it was cured by a subsequent trial, verdict and judgment.</p>

ON CERTIORARI. Overseers of the poor cannot maintain action in their own names, for township monies. It appeared by the transcript of the justice, that this was an action brought by the overseers of the poor, to recover the value of necessaries which they had furnished a negro man, who had become chargable to the township, who, they contended, belonged to the plaintiff in this Court, who was the defendant. The necessaries had been furnished, by the order of two justices.

<p>ON CERTIORARI.</p> <p>Tort and contract cannot be joined.</p>

<p>ON CERTIORARI.</p> <p>Action brought in name of firm, error.</p>

<p>ON CERTIORARI.</p> <p>Reversal. Demand uncertain. Damages for not paying debt punctually, not allowed.</p> <p>It was contended, on the part of the plaintiff in this Court, who was the defendant below, that the state of demand was uncertain, illegal, and waited substance. The state of demand, is as follows :</p> <p>Aaron Stout,</p> <p>1806, June 7th.</p> <p>To William Phillips, Dr.</p> <p>To damages sustained by building a store house, &c., as per articles of agreement, entered into by myself and said Stout; likewise damages sustained by not keeping up an assortment of goods, in consequence of said articles; likewise damages sustained for the want of the money that said Stout was to pay on the first day of May, 1806. The above is my demand: William Phillips. — The cause was tried, and a verdict and judgment for fifty dollars, with costs.</p>

<p>ON CERTIORARI.</p> <p>Demand filed, but not sent up, rule must be taken on justice to send it up.</p> <p>In this case the justice, although he had stated, that the plaintiff had put in his plea and demand, yet he had not sent it up with the proceedings; an idea had been entertained, that the Court would reverse the judgment of the justice for this default.</p>

ON CERTIORARI. Covenant to deliver boards, not assignable. It appears from the return of the justice in this cause, that the defendant, James Bell, had entered into a covenant under seal, to deliver a certain quantity of boards to one John R. Reading; that this covenant was afterwards assigned by Reading to the plaintiff, and that upon this covenant, the plaintiff instituted this action, which is an action of debt in his own name.

<p>ON CERTIORARI.</p> <p>Reversal, no demand filed,</p>

<p>ON CERTIORARI.</p> <p>Reversal, written plea requisite, with set-off only. No style of action.</p>

ON CERTIORARI. Affidavit for bail, must state cause of action, and be filed before writ issue, The defendant, a citizen of New-York, was arrested on a capias ad respondendum, in June last, in the county of Middlesex, and in virtue of our act of Assembly, Pat. 348, held to bail on the following affidavit: Middlesex County, June 28, 1806» Isaac Parker and *1 Francis Gantz, vs. Samuel G. Ogden.

<p>A motiost had obtained the sanction of this Court, in May term, 1805, that the sheriff of Cumberland, bring into this Court, money ailedged to be levied by him on an execution in this cause, in his hands against the defendant, James Meeks. A motion was now made, that [*] the sheriff pay the money over to the plaintiff. The case was this : On a fieri facias issued in this cause, against James Meeks, the sheriff returned, that he had levied on the lands and goods of the defendant, on which a venditioni exponas issued, to which the sheriff returned, that he had sold the lands and goods, and paid over the money arising therefrom, to Abraham Sayre, the plaintiff in another execution issued against Meeks, which execution had been issued out of the Court of Common Pleas, in the county of Cumberland, and which was prior to the execution in this cause. It appeared that the judgment in the Cumberland Pleas, on which the before mentioned execution had issued, was confessed before a Judge at his chambers, in vacation,-that is, on the 18th of August, 1803, as of the term of June preceding. The judgment, in this cause was not obtained till May term, 1804, nearly a year after. It appeared, however, that the judgment in Cumberland was intended to be entered up, under the act of the legislature, passed the 20th of February, 1794, Pat. 454, which authorizes the appearance of the defendant in open court, and on motion of the plaintiff or his attorney, confessing a judgment. This being done in vacation, it was contended by Mr. White, on the part of the plaintiff in this court, that the statute not having been striclly pursued, the judgment was void, and so to be considered by this Court. It was also contended, on the same side, that the judgment was fraudulently obtained, and, therefore, void for that cause, and affidavits read in support of the fact.</p> <p>contended, first, that the judgment in Cumberland was a valid judgment; that the case in 2 Lord Ray. 850, proved that a judgment might be entered in vacation by a Judge at his chambers, on confession; that the Common Pleas of Cumberland had recognized it as a judgment, a motion having been made to quash the execution issued on it, on the ground of defects in the judgment, which the Court had refused.</p> <p>said, that when the term begins, it continues on to the next term, and that a judgment entered in vacation, relates to the preceding term; that, therefore, the judgment in the Common Pleas of Cumberland, might be considered as a judgment entered in term, in support of which he cited 6 Mod. 184, 191.</p>

<p>ON CERTIORARI.</p> <p>Return of summons “lawfully served,** by constable, error.(a)</p>

<p>ON CERTIORARI.</p> <p>Demand on agreement, must state it to be mutual.</p> <p>The state of demand before the justice, was as follows:</p> <p>March 13,1806. John Scott, Dr. to Abigail Eldridge, twenty dollars, for which sum, she agreed to assign away her right in a certain piece of cedar swamp, bought by said Scott.</p>

CERTIORARI. Demand insufficient. No judgment.(b) The state of demand delivered the justice, was as follows; May 2d, 1805, 1, as overseer of the road, do find damage done on the road from John Bodineto Nicholas Sooyes, by Eli Lofton and Joseph Nailer, by which 1 bring this action, against them, my demand is sixty dollars. $60. Elias Champion, overseer of the road.

<p>ON CERTIORARI.</p> <p>Assignment of sealed bill, implies no warranty,(a)</p>

ON CERTIORARI. In set off, items to be set out. This certiorari was brought by the plaintiff below.

<p>ON CERTIORARI.</p> <p>Party craving a venire, not to procure its service.</p> <p>Isr the progress of the cause below, the defendant had requested a jury; a venire had been issued, and the cause adjourned. On the next meeting, the cause was tried by the justice without a jury; the justice assigning as a reason, the defendant’s not having the venire sen'ed.</p>

ON CERTIORARI. Reversal, demand not to be found. The only reasons assigned for the reversal of this jiidga snent, that had any weight in the decision of the Court, were, 1. Because no copy of account, or state of demand, Was delivered to, or filed with the justice, 2. Because tiie copy of account, or state of demand, if any such there was, is entirely incompetent, illegal, and insufficient.

ON CERTIORARI. “Toamount of accouuts unsettled, $100,” insufficient state of demand. The state of demand, filed before the justice, was as follows: Dr. Barnt Hagerman, To John Titus. To amount of accounts unsettled, due me, one hundred dollars. December 13th, 1806. JOHN TITUS. It was objected against this state of demand, that it was too uncertain.

<p>ON CERTIORARI.</p> <p>Reversing original judgment, affects all those founded thereon. ,</p>

<p>ON CERTIORARI</p> <p>Verdict must be rendered by voice, in open court.</p>

<p>Os Certiorari, to Morris County Common Pleas.</p> <p>On plea admitting a sum due plaintiff without a tender, judgment must be for plaintiff.</p> <p>The plaintiff in this Court, was also plaintiff before the justice.</p>

IN ERROR. In action for slander, on plea of not guilty, proof to mitigate damages, admitted. The defendant in error, the Rev. David Barkley, brought an action for words in the Common Pleas of Somerset, against the plaintiff in error.

<p>ON CERTIORARI.</p> <p>In qui tam actions, the demand must shew who are entitled to the penalty, (a)</p> <p>This was an action brought by the defendant in this Court, against the plaintiff, to recover a penalty of forty dollars for beating or driving on South River, in the county of Middlesex, in order to molest or disturb [#] the natural run of shad or fish in said river, under the act of Assembly of the 22d February, 1804, entitled “An act to regulate the shad fishery in South river, in the county of Middlesex.”</p> <p>The reason assigned for the reversal of the judgment of the justice, was, that the action was brought and prosecuted In the name of the plaintiff only, whereas it ought to have been a qui tam action, as wéll for the informer as for the overseer of the poor of the township where the offence was committed, to whom, half the penalty was given for the use of the poor. It was contended on the part of the defendant in error, that as the act authorized the penalty to be sued for and recovered in the name of any person that should make complaint thereof, the qui tam part was unnecessary; at least that the omission of it was not a fatal error, and that the judgment ought to be affirmed.</p>

. Execution against lands must be recorded, before delivei-y to sheriff. This was an action of- debt, brought against the defendant in-the Cumberland common pleas, and removed from thence, into this Court by habeas corpus.

<p>Challenge of a judge, for having given an opinion judicially, over-ruled. Form of challenge and trial. What defects in a judgment affect a sale of land under it.</p> <p>This was an ejectment for a house and lot of land in the county of Burlington, tried before the Chief Justice, at the Burlington circuit, in May, 1806, when a verdict was found for the plaintiff. .A rule had been obtained on the part of the defendant, for the plaintiff to shew cause why the verdict should not be set aside, and a new trial had. This cause being called on in the paper, Mr. Leake, on the part of the defendant, filed the following challenge to the competency of the Chief Justice, to sit to hear the argument:</p> <p>And whereupon the said Daniel Hopkins, by Samuel Leake his attorney, comes and challenges Andrew Kirkpatrick, Esq. Chief Justice of the Supreme Court of Judicature of the State of New-Jersey, because he says, that the said Chief Justice, in a Circuit Court held at Mount Holly, in and for the county of Burlington, in the sessions of May, in the year of our Lord, one thousand eight hundred and six, formed and delivered his opinion upon matters in question in this cause, depending in the said Circuit Court, and this lie is read to verify; wherefore he prays judgment, and that the said Chief Justice may not sit in judgment upon argument in this cause, depending in the said' Supreme Court.</p> <p>To this challenge, the plaintiff filed the following plea:</p> <p>And the said John Demi, by Robert Pearson, his attorney comes and says, that the said Andrew Kirkpatrick, Chief Justice of this Court, ought not to be precluded from sitting in judgment on the argument of this cause, because he says, that the said Andrew Kirkpatrick did not form and deliver his opinion upon the matters in question in this cause, as the said Daniel Hopkins hath alleged, wherefore he prays judgment, &c.</p> <p>[*] To which the defendant, replied, as follows:</p> <p>And the said Daniel Hopkins, by his said Attorney says, that the said Andrew Kirkpatrick, did form and deliver his opinion upon matters in question in this cause, as the said Daniel Hopkins hath alleged, and the said Hopkins prays judgment, &c.</p> <p>Similar challenges were filed by Mr. Leake, in behalf of the defendant, against the competency of Justice Rossell and Justice Pennington, grounded on a rule that had been taken in the cause at bar, while they were on the bench.*</p> <p>Mr. Leake moved that these issues be tried by triors, appointed by the Court, in conformity to the provision of the act of Assembly on the subject. This was ordered by the Court, and for the trial of the challenge to the Chief J ustice, the Court appointed A. D. Woodruff, Esquire, the Attorney General, Franklin Davenport, and Joseph MTllvaine, Esquires, all counsellors at law. The oath put to the triors, was, “You shall well and truly try and determine this issue of challenge joined.” The triors, after hearing the evidence and argument of counsel, made a special finding, in the nature of a special verdict, as follows:</p> <p>And now at this day, to wit, on the twenty-fifth day of February, in the year of our Lord, eighteen hundred and seven, Aaron Dickinson Woodruff, Franklin Davenport, and Joseph MTlvaine, Esquires, triors, chosen, tried, and sworn by the Honourable Justices of the said Supreme Court, to declare the truth of the issue within contained, upon their oath say, That the said Andrew Kirkpatrick, Esquire, Chief Justice aforesaid, in a Circuit Court held at Mount Holly, in and for the county of Burlington, in the sessions of May, in the [*] year of our Lord, one thousand eight hundred and six, did form and deliver his opinion on the trial of the cause, depending between the aforesaid parties, in the said Circuit Court, and did over-rule the objections made by the said defendant, on the trial of the said cause, to certain proof offered by the said plaintiff, in support of the issue joined in the said cause, and did permit the plaintiff to give in evidence to the jury, the said offered proof; saving, nevertheless, the objection of the said defendant, for the consideration of the Supreme Court at bar, without costs. And also, that the said Andrew Kirkpatrick, Esq. Chief Justice, did then and there, on the trial aforesaid, between the parties aforesaid, form and deliver his opinion in the said Circuit Court, and did over-rule the motion of the defendant for a nonsuit, and did direct the jury to consider the said rule for judgment as a regular and lawful judgment, and did direct to jury to find a verdict for the plaintiff, reserving, the case nevertheless, and allowing the defendant to move for a nonsuit, thereupon at bar, without costs. But if, upon the whole matter found, it shall appear to the justices of the said Court, that the said Andrew Kirkpatrick, did form and deliver such opinion in this case, as by law doth exclude him from sitting in judgment on the argument of this cause, we find the said challenge to be true. If not, that the said challenge is not true, and that the said Andrew Kirkpatrick, Chief Justice as aforesaid, ought to sit in judgment on the argument of this cause.</p> <p>A. D. WOODRUFF, FRA: DAVENPORT.</p> <p>J. M'lLVAINE.</p> <p>Mr. Leake moved for judgment on the finding of the triors, and offered the proceedings had at the Middlesex Circuit, on a challenge to the Chief Justice in that Court, as a case in point.*</p>

ON CERTIORARI. Credits to reduce the plaintiff’s account to one hundred dollars, must be specifically set out.

ON CERTIORARI. Entering judgment by a justice on judgment note, without process and proof, illegal. (a) The following being a transcript of the justice’s docket, was returned with the certiorari: [*] Jos.Hancock,-) vs. V Joseph Stretch, the 22d May, the 10 December, 1806,1 gave judgment by virtue of a note, with judgment confessed thereon, for eighty-j seven debt and ten cents costs, with interest fn m same time execution granted for the debt and costs.

<p>ON CERTIORARI.</p> <p>A justice must record the name of jurors and witnesses.</p>

<p>ON CERTIORARI.</p> <p>Illegal adjournment cured, if made at request of party complaining of it.</p>

ON CERTIORARI. Filing a promissory note, is not filing a state of demand. The plaintiff below, the defendant in error, filed before ‘the justice, a note of hand, as the state of his demand, and •this was assigned for error.

<p>-IN EJECTMENT.</p> <p>Brothers of half blood do not inherit as such, unless the real estate come from common ancester, or is acquired by intestate.</p> <p>This cause came on to trial at the Salem circuit, in June 1806, before Rossell Justice, -when the jury found a special verdict, in substance, as follows : That on the 19th of April, 1758, Joseph Wright, called'Joseph the first, was seized in fee of the premises in question, being a messauge, tenement and one acre of land; that on the same day, he made his last will and testament, and devised and bequeathed bis estate in the following, manner: — To Joseph Wright, his son. he gave 2001. [*] and a mulatto boy. To his son, James Wright, he gave all and singular the lands and tenements which he bought of Margaret Keniman. To his son, Thomas Wright, he gave the plantation and tract of land whereon he then lived, and a negro boy; in the devises to Thomas and James, he provides, that in case either of them should die before be arrived at the age of 21 without issue, that in such case, the plantation so devised to the son so dying under age without issue, should go to his son Joseph Wright. To his five daughters, he gave the residue of his personal estate. That in February, 1761, the said testator died seized of the land before mentioned, said will remaining in full force, at which time Thomas, his son, in virtue of the will, entered on the premises in question, being part of the premises devised to him as aforesaid, and being seized thereof in February, 1772, died intestate without issue of his body. That on the death of the said Thomas, Joseph, the brother of the said Thomas, and devisee in remainder, in the will of his father, entered upon the premises; and being seized thereof on the 9th December, 1782, died intestate, leaving issue Thomas the second, and another child named James, iiis only children and heirs at law. That the said Thomas and James entered on the premises, and were seized thereof. That the said James afterwards died intestate, without issue, in the life time of the said Thomas the second, his brother, who thereupon entered on the remainder of the said premises, and was seized in the fee of the whole. That on the 31st Jan. 1802, the said Tilomas the second, died, seized in fee of the premises intestate, and without issue. That Joseph Wright, the second, father of the said Thomas, and devisee in remainder, mentioned in the will of Joseph Wright the first, inter-married with Lydia Lambson, by whom he had issue the aforesaid, Thomas Wright, the second. And that after the death of the aforesaid Joseph, the said Lydia intermarried with Isaac Bilderback, by whom she had issue one child, Margaret, one of the lessors [*] of the plaintiff. That after the death of the said Isaac Bilderback, the said Lydia intermarried with George Fox, by whom she had one child only, to wit: Ann, one of the lessors of the plaintiff. That Margaret inter-married with David Lloyd, the other lessor of the plaintiff. That on the death of Thomas the second, James Wright, the before named son of Joseph the first, and brother of Joseph the second, and uncle to the said Thomas the second, entered on the premises in question, claiming the same as heir at law to his said nephew, the afoi’esaid Thomas Wright the second, and possesses the same by the said Thomas Urison, the defendant. That the lessors of the plaintiff demised the said premises to John Den, who entered and was expelled by the defendant, aud pray the advice of the Court, &c.</p> <p>This cause was argued last term, by Mr. M‘llvaine and Mr. Griffith, for plaintiff; and Mr. L. H. Stockton and Mr. E. Stockton for the defendant.</p> <p>contended, that Thomas Wright the second, being seized in fee of the premises, and dying so seized, under our act of Assembly, entitled, .“An act to alter the law directing, the descent of real estate,” Pat. 44, the sisters of the half blood were to be preferred to the uncle of the whole blood. That ther words of the enacting clause, fiilly and. completely embraced their case; and that the preamble could not limit or control them.</p> <p>. On the part of'the defendant, it was urged, that James Wright, who was the real defendant, was the only son of Joseph Wright the first, from whom the land came, and was heir at common law, of the person last seized, being, his paternal uncle of the whole blood. That the statute taken altogether,, did not embrace the case of the lessors of the plaintiff; that the whole statute must be taken together as well what goes before, as what follows; that a statute in the affirmative terms, does not take away the common law; [*] that the preamble to the statute made use of the word venter, which was a term applicable to woman only, and shews the intent of the Legislature was, to make provision in cases where a man should leave children by different wives, and not where a woman should leave children by different husbands; that a statute making use of 'a common law term, such term must have a common law meaning, and be so construed ; that-the preamble shews the intent of the Legislature, and is part of the statute; that the construction contended for by the lessors of the plaintiff, would cause the very mischief intended to be remedied by the statute, by taking the estate out of the family, an evil the preamble evidently shews was the principal object of the statute to guard against and prevent; that the reason and intent of the Legislature must govern in the construction of statutes; the great rule, in the construction of statutes, is to be guided by the intent of the law giver; if in construing statutes, you remedy the mischief intended to be remedied, you follow the intent of the Legislature; in this case the preamble must limit and control the enacting clause; that the construction contended for by the plaintiff’s counsel, would establish a rule of descent against the law of every nation and country; that the act must be construed one of the two ways,- and the true one was, that the half blood of. the paternal line is only embraced by the act; but if it is to be extended to the maternal line, it must be confined to cases where the land comes from the mother. At the close of this argument Mr. L. H. Stockton, very solemnly pressed on the feeling of the Court, the situation of his client, Mr. Wright, who he represented as a worthy respectable man, ami meritorious citizen, grown grey in the patriotic services of the revolution, and now called upon at the close of a virtuous life, to defend his paternal inheritance against strangers to his blood and family.</p> <p>admitted the respectability of Mr. Wright, but said it was out of the question; that we were not on an inquiry into character, but on [*] the investigation of an abstract right; that the preamble to a statute does not always recite all the mischief intended to be remedied by it; that the Legislature had adopted a rule of consanguinuity ; that Thomas Wright, the younger, was seized in fee in his own right, and was the stock from which the inheritance grew; that the lessors of the plaintiff' uere his nearest kindred, being his sisters by the same mother. So far from the rule, he contended, for being at variance with the laws of other nations, the statute of distributions, haring the civil law for its basis, carries persona] property in the same manner. If the construction given even to the preamble, by the gentleman opposed to ns, is correct, it will not provide a remedy to the ei il the Legislature intended to cure, being confined to male ancestors and not suffered to extend to female, both lines of ancestors being within the mischief.</p>

On reference, with agreement that it be made a rule of Court. No costs being reported, none are allowed. The cause had been submitted to reference out of Court, on an agreement that the submission be made a rule of this Court. The referees reported a sum in favour of the plaintiff, but had said nothing as to costs. The question was, whether the plaintiff was entitled to costs.

<p>IN DOWER,</p> <p>Trial of issue on death of the husband, by witnesses, without jury. Proof of absence from the State seven years, deemed sufficient.</p> <p>The test of a writ not conclusive evidence of commencement of a suit. Parol evidence admitted to specify the day.</p> <p>This was an action of dower, and issue taken on the death of the husband. The trial of this issue being by witnesses examined by the Court, without the intervention of a jury, was of course at bar. On the trial it appeared, that the husband of the demandant, Peter Wambaugh, left the country about seven years ago, last June or July, and there was no satisfactory evidence of his being alive since; but a vague report of the death of a man of his name, in the parts of Pennsylvania, where it was thought he went, had been circulated. The demandant, on this evidence, relied on the presumption raised by the act of Assembly, Fat. 241, of death, in cases of persons absenting themselves from the State seven years, unless proof be made that they were alive within the time.</p> <p>first contended, that the issue in this case was on the demandant; that she was bound to prove the death of the husband. But,</p> <p>The Court said, proof being made, that he has absented himself from the State seven years, the statute attaching on that fact, raises the presumption of his death, which, however may be rebutted by proof of his having been alive within the seven years.</p> <p>that there was a deficiency in proof; that the fact of the death of the husband should be proved by two witnesses at least, for which he cited 3 Blac. Com. 336, and 6 Com. Dig. Title Trial B. 5. But,</p> <p>The Court said, that the fact of absence out of the [*] State, had been proved by two witnesses and more: that the presumption raised by law, was created by the statute.</p> <p>that the seven years had not been made out; that the writ in this action was sued out in May Term, 1806; and that according to the evidence, the seven years absence was not complete until June or July after.</p> <p>then offered to prove by the attorney in the cause, that although the writ was tested in May term, yet that it was not actually sued out until the latter part of August; and cited Johnson v. Smith, 2 Bur. 950, as warranting the proceeding; to this</p> <p>and said that the test of the writ being a matter of record, could not be contradicted by parol evideuce; and that even according to the case in Bur. it ought to lie pleaded.</p>

Pleading general issue in debt on bond, admits plaintiff’s probate. This was a writ of error from the Common Pleas of Sussex. The plaintiff in error, who was the plaintiff below, declared against the defendant below, on two bonds given by the defendant’s testator to the plaintiff’s testator, to which the defendant had pleaded non est factum, and gave notice to the plaintiff’s attorney to produce on the trial of the cause, the probate of the will of the plaintiff’s testator.

<p>FUROR FROM SUSSEX PLEAS.</p> <p>Words spoken in defence at a trial, not actionable.</p> <p>The defendant in error, brought an action against the plaintiff in error, in the Common Pleas, for words. The three first counts charged, that the plaintiff below, was examined as a witness, on a trial in a Court for the trial of Small Causes, in a cause wherein the defendant was a party; and that after the plaintiff liad testified to a fact, the defendant maliciously intending, &c., spoke, published, and proclaimed, &c., the following false and defamatory words, of and concerning the plaintiff, that is a lie, and I can prove it; varying the counts so as to meet the evidence. On the trial of this cause, before the Common Pleas, the plaintiff below, offered to give in evidence, that while she was under examination, as a witness in a Court for the trial of Small Causes, held before Justice Abraham Woolley, (the record of his proceedings having already been given in evidence,) and immediately after she had testified to a fact, the defendant declared that what she had testified was a lie, and that he could prove it; on which the counsel for the defendant below, insisted that the evidence was illegal and inadmissible, and ought not to he given to the jury. The Court over-ruled the objection, and admitted the evidence. The defendant excepted to this opinion. The witness being sworn, proved, that the plaintiff below was produced, sworn, and examined as a witness on the part and behalf of the defendant; and, that in the course of her evidence, she testified to a particular fact; and, that immediately on her testifying to that fact, and while she was under examination, the defendant said, “that is a lie, and I can prove it;” and a little while after, added — “and I think I have proved it.”</p> <p>The fourth count, charged certain other slanderous words, no way connected with those charged in the three first counts. The plaintiff, as to this count, only proved, [*] that the defendant said, that he was told so by another person, naming him, the brother of the plaintiff. On this the defendant moved the Court to over-rule the testimony, on the ground of variance between the words charged and those proved, but the Court of Common Pleas refused to overrule the testimony, on the ground, that although the words were not sufficient to support the fourth count, yet that they were proper to be given in evidence, by way of aggravation of damages, and to shew' malice under the three first counts in the declaration. To this opinion, the defendant also excepted, the whole appearing on the record.</p> <p>said, that it must be considered that no evidence w'as given on the fourt count, the words not being proved as charged. That the three first counts were not actionable, being spoken in a Court of justice, in the course of trial, and in a manner lawful for the defendant to do in defence of himself; for which he.cited Cro. Jac. 432; 1 Tin. 388; 6 Bac. 225; 2 Bur. 807. That there was not any malice expressed, but a mere denial of the truth of what the plaintiff had testified to. Mr. W. also contended, that the declaration ought to have charged, that the matter testified to by the plaintiff below, was material to the issue under trial, otherwise declaring it to be false, even out of Court w'ould not amount to a charge of perjury: for this he cited 2 Blac. Com. 6 Bac. 207; 1 New-York T. Rep. 347. On the fourth count he said, that the evidence wras inadmissible to aggravate damages on the three first counts, being words that were of themselves actionable; and that words that were of themselves actionable, could not be given in evidence, by way of aggravation.</p> <p>said, that no action could lay against an advocate for words spoken in defence of his client, and cited 6 Bat. 225; Styles’ Rep. 462. That if the advocate was protected on the ground of his defending his client; the client himself, or a party in a cause, must certainly be protected on the same principle.</p> <p>denied that the words were spoken in a judicial proceeding; and alledged that they were not necessary for the defence of the defendant below, in his cause before the justice; and that it was not necessary to aver, that the words testified to wore material; ho also said, that Lord Kenyon had laid it down, that auy words which shew malice may be given in evidence, by way of aggravation, in order to shew the intent with which tlie words charged were spoken.</p>

ON CERTIORARI. On a release of errors, made by one of tlie plaintiffs, judgment was, that the releasor be barred, and the other plaintiff prosecute alone.(a) The defendant, Ellison, obtained a judgment on a force-able entry and detainer, against the plaintiffs; to get rid of this judgment, the plaintiffs bring this certiorari.

<p>ON CERTIORARI.</p> <p>Three varying transcripts being returned, the first taken as true.</p>

ON CERTIORARI. A demand for trespass in action on the case, error, (a) Tins was an action on the case, brought by the defendant in certiorari, against the defendant below, who is the plaintiff in this Court. The state of demand is in the following words: Thomas Warren in trespass, to Benjamin Fisher, to taking and carting away off of my land, a quantity of rye, [*] which belonged to me, on a field purchased of Win.

<p>ON CERTIORARI.</p> <p>In action for deceit, the fraud should be specified. Affidavits not legal evidence, without consent.</p> <p>This was an action of trespass on the case, brought by the defendant in this Court, against John Lummis, the plaintiff in certiorari. The following state of demand, was filed with the justice:—</p> <p>Job Stratton, vs. John Lummis.</p> <p>Actiontrespassonthe case. JobStratton,theplainktiff in the above cause, comes into court and demands j of the said John Lummis, the sum of eighty dollars, for a horse, which the said Job Stratton purchased ofj and from Thomas Smith, and which the said Lummis took from the said Stratton by false representation.</p> <p>This was tried by a jury, who found for the plaintiff below, §60 damage, on which judgment was rendered. On the trial, the justice had admitted in evidence, depositions which had been taken before another justice; several reasons were assigned for reversal. ‘</p>

ON CERTIORARI. Action trespass, and verdict and judgment for debt, not error.

ON CERTIORARI. On suit on the swine act, the case must be proved within the act. The appraisement is only the evidence of damages, not the foundation of the suit. This was an action of debt, brought under the Swine Act. Pat 324, for double damages, done by the swine of the plaintiff, in this Court, who was the defendant below.

ON CERTIORARI, Adjournment not to exceed fifteen days from return of summons, -without consent. The opinion of the Chief Justice, so fully states the case, that it supersedes the necessity of any observations of the Reporter.

<p>ON CERTIORARI.</p> <p>In justices’ court, suit for use and occupation, must be in debt.</p>

<p>ON CERTIORARI.</p> <p>Set-off without pleading payment, illegal.</p>

<p>ON CERTIORARI.</p> <p>State of demand on the apprentice act, sufficient. Certiorari lies in such case.</p> <p>The action below, was founded on the following state of demand, and wms brought on the 6th section of the act respecting apprentices and servants, Pat. 306, giving a penalty of thirty dollars against any person who shall counsel, persuade, entice, aid or assist, any clerk, apprentice, or servant to run away, or absent himself or herself from the service of his or her master or mistress.</p> <p>Nimrod Woodward, ~i ts. £ James Tallman. _></p> <p>In action of debt. 1806, April 25th. To counselling,persuading,enticeing, aiding and assisting, or some part thereof, my servant, named Phebe, to absent herself from my service,</p> <p>Contrary to the law of the State made and provided, passed the 14th day of March, 1798, in the penalty of thirty dollars, which I do demand.</p> <p>NIMROD WOODARD.</p> <p>On this there was a trial and verdict — and judgment for the plaintiff below. This writ was brought to reverse, the judgment of the justice, on two grounds : 1st. The uncertainty of the state of demand. 2d. That [*] Phebe named in it, was a slave, and not a servant — and therefore, could not come within the act. There was, however, nothing in the record of the justice to shew that Phebe was a slave.</p>

<p>ON CERTIORARI.</p> <p>Set off in a different right, legalized by consent.</p>

<p>ON CERTIORARI TO CUMBERLAND PLEAS.</p> <p>Courts of Common Pleas, are to rehear a cause on appeal, not to sit as a Court of Error. A judgment of a Justice and that of the Pleas, on the appeal, being both irregular, were both reversed.</p> <p>The plaintiff in this Court, brought a suit before a Justice against the defendant, for a hook account, against which the defendant liad a set-off. This was tried by the Justice, and the plaintiff recovered §30 93, with costs. The defendant appealed to the Common Pleas of Cumberland. After some rules had been taken on the Justice, to perfect his return, the Common Pleas gave the following judgment: “The Court having heard the counsel of the parties on this appeal, order that the judgment of the justice be reversed for irregularity, with costs,” &c. The plaintiff before the Justice, who is the plaintiff in this Court, brings a certiorari, by which the whole of the proceedings are brought up. Several reasons were assigned for the reversal of the judgment of the Common Pleas. The third gave rise to the opinion of the Court, and was as follows: The Court reversed the judgment of the Justice for irregularity, with costs, which they had not authority to do.</p>

<p>OK CERTIORARI.</p> <p>Objection to venire without seal, too late after verdict.</p>

<p>OK CERTIORARI.</p> <p>Adjournment over fifteen days without consent, error. Consent not inferred from appearance.</p>

<p>ON CERTIORARI.</p> <p>State of demand need not be dated, signed, or marked “filed."</p>

<p>ON CERTIORARI.</p> <p>Defective state of demand cured by reference. Report of referees for sum in figures and not in words, not cause for reversal.</p>

ON CERTIORARI. Party’s confession as to possession, legal evidence in trespass. This was an action of trespass, brought by the defendant in this Court, against the plaintiff here, for breaki ng and entering a certain room in the quiet and peaceable possession of her, the said Mary, and committing various acts of violence and injury therein, particularly set out in the state of demand. The defendant pleaded not guilty.

<p>ON CERTIORARI.</p> <p>On suit for debt of ancestor, the process must shew defendants to be his legal representatives.</p>

ON CERTIORARI. On suit by overseers of poor, the addition overseers, &c. may be rejected as surplusage. Rut the proof being for them as overseers, illegally admitted.

ON CERTIORARI. In suit on covenant made by a guardian, he must be named as party. The state of the case, so far as it respects the point in controversy, is fully stated in the opinions of the judges.

ON CERTIORARI. Action, a state of demand in trespass, and entry in docket, in case. Court will not reverse merely because verdict is against evidence. Party cannot complain that no costs are awarded against him,

<p>ON CERTIORARI.</p> <p>Subscribing witness must be called, or his absence legally accounted for, before other evidence admitted.</p>

Motion that defendant stand trial at the. next circuit, the having once put it off, refused. Held: by the Chief Justice, and on its being called on in the paper, the defendant put off the cause [*] on the common affidavit, of the absence of a material witness. now tnoved tiie Court, that the defendant stand trial, at the' Middlesex circuit, to lie held in December next; or, in default thereof, that in the term of February…

<p>OX CERTIORARI.</p> <p>Adjournment after hearing evidence, illegal, without consent.</p>

A widow remaining on the homestead of her late husband, with their children, is entitled to the crops until dower is legally assigned; accountable to the children for their portion ; and a sale of part of the crop, for a child’s debt, does not divest the widow of her right therein. This was an action of trover, brought by the plaintiff against the defendant for converting a crop of wheat and rye to his own use.

The birth place of a legitimate child is flrima facie his place of settlement, and so remains till another is found. A‘pauper to gain a new settlement, must give notice to the overseers.(b) Two justices had made an order for the removal of Thomas Au'mock, his wife and children, from the township of Tewksbury, to the township of Readington, both in the county of Hunterdon. This order had been appealed from to the sessions of Hunterdon, and the order affirmed by the sessions.

IN EJECTMENT. A grant in consideration of natural love, by a father to a child, of aa estate tail, is such an advancement as bars pro tanto, her share in his real estate, after his death. This action was brought to recover the eighth part of a lot of land containing thirty-one acres, in the township of Kingwood, in the possession of the defendant. The cause was tried before his honor the Chief Justice, at the October Hunterdon circuit, 1806.

ON CERTIORARI, Lands purchased for the Brotherton Indians in this State, exempted from taxes, by the act authorizing the purchase, and afterwards sold by them, are subject to taxation.

<p>ON CERTIORARI.</p> <p>Order of removal of pauper directed to overseer, instead of Constable, amendable. Justices residing in a township whence pauper is removed, may order his removal. The order need not insert the pauper’s refusal to give security against becoming chargeable.</p> <p>Air order of removal was made by Eyi Adams, and Ebenezer Mead, Esquires, two Justices of the Peace for the county of Sussex, to remove Moses Heldron, a pauper, from the township of Wantage to the township of Yernon, both townships in the county of Sussex. From this order, the township of Yernon appealed to the General Quarter Sessions of the Peace of the county of Sussex. The order appearing on the face of it, to be directed to the overseers of the poor of the removing township, instead of the constable. The Sessions, on motion of counsel in behalf of Wantage, amended the order in this respect; and that amendment was assigned for error in this Court. It also appeared, that the Sessions over-ruled evidence [*] that went to shew that the justices who made the order, resided in the township from whence the pauper was removed, and that they had paid poor tax in the said township, at and before the time of making the order. This was also assigned for error.</p> <p>It was also objected, that the original order of removal was defective, in as much, that it did not appear on the face of the order, that the justices had previously ordered the pauper to remove by a certain day by them prefixed, and that he neglected or refused to comply with such order.</p> <p>contended, that the wrong direction in the order was not amendable, it being matter of substance, and not mere error in form; that it could not be executed, being directed to a wrong person; in support of which, they cited 1 Bur. 595, 602. and 3 Burn’s Justice, 554. That it wras against the first principles of our law, that the justices making the order of removal, should be interested in the question; and that before the justices had authority to make the order of removal, they should have made the previous order on the pauper to remove himself; that this was necessary to give them jurisdiction; and that every thing necessary to give the magistrates jurisdiction should appear on the order, to which point, they cited 3 Burn’s J. 27, 466. 2 Balk. 475. 2 Stra. 1016. Mr. M’Whorter said that the order of removal was a distinct thing from the warrant of removal — and that an appeal might be made from either: — By which 1 understood him to mean, that the order to the pauper to remove himself, ivas the order of removal — and that the order to the constable to remove the pauper, was the warrant of removal.</p> <p>that the first error assigned was all form, anti cured by the statute authorizing the sessions to amend in such cases. That the testimony was properly over-ruled; and last, that it was not necessary that a previous order to the [*] pauper to remove should appear on the face of the order; and at all events, it was not an objection in the mouth of Yernon, that town not being injured by the omission.</p> <p>This cause was argued in September term last; and at this term, Pennington J. delivered the following opinion, in which Kirkpatrick, C. .1. and Rossexx J. concurred.</p>

ON CERTIORARI. Proceedings void. Verbal report of referees, no judgment. The following transcript of his docket was sent up by [*'] the justice on the return of the writ, and constitutes the whole of the record below-- Gloucester County: February 16, 1807. Warrant for trespass on the case, returnable forthwith. William Stewart, John X, Steelman, Demand one hundred dollars The constable brought the plaintiff and defendant forward.

<p>ON CERTIORARI.</p> <p>Judgment for more than the demand, reversed.</p>

<p>ON CERTIOHARI.</p>

<p>ON CERTIORARI.</p> <p>Return on summons “duly served,” illegal, Attorney in fact, may not sue on his own account blended with his principal’s. Execution for costs without judgment, void.</p>

<p>ON CERTIORARI.</p> <p>Judgment in defendants absence, must be on evidence.</p> <p>This cause before the justice, had been adjourned to a particular day. On the day to which the cause had been adjourned, the justice made the following entry: — Plaintiff appeared/ judgment on default, for S91 68 debt, and 73 cents costs of suit. It did not appear by the record, that any witness had been examined. The reason assigned for reversing this judgment was, because the justice did not proceed in the absence of the defendant, to hear the cause; but rendered judgment for the plaintiff, to the amount of sum demanded, without any evidence whatever being proved or offered by the plaintiff, in support of the same.</p>

ON CERTIORARI. A justice is not bound to convey his return on a certiorari, to the Court, It was alleged, that a certiorari had been delivered to the justice, who had made no return thereto; and that a rule hadjbeen served on him for that purpose, but that still no return was* made; on which it was moved by the counsel for the plaintiff in certiorari, for a rule on the justice to show cause why an attachment should not issue against him for a contempt, in not making return…

<p>ON CERTIORARI.</p> <p>This action was brought by the defendant in this Court, against the plaintiff in certiorari, who had been appointed a trustee by an act of Assembly, to execute and fulfil the purposes of the last will of William Connelly, deceased, (the executor named in the will having died in the life time of the testator) for a legacy left Mary, one of the defendants, in the will of the said Connelly, she being a daughter of the testator’s wife. The defendant below, offered in proof of payment, a receipt of the said John Kendle, one of the plaintiffs below, for the amount of the legacy, which receipt [*] was dated in June, 1804, and expressed to be in full of said legacy, paid him by John Conncllcy, jun. The justice overruled this receipt, and rejected the testimony of the subscribing witness to the receipt, on the ground, as he states, in his docket,</p> <p>“ 1st. The action at issue was not between John Connelly, jun. and plaintiff.</p> <p>“2d. The receipt bearing date above two years prior to defendant’s being appointed trustee, by virtue of said act; it was no act or payment of his as trustee.</p> <p>“3d. As w’holly repugnant to the aforesaid act.”</p>

ON CERTIORARI. In case of unlawful detainer. Affirmance. — -The facts to be tried are whether parties were landlord and tenants to each other, and whether the tenants held over after the lease expired. The estate of plaintiff must be set out, but his title not to be tried. This action was commenced by Nicholson, the plaintiff below, against the two Barnes, the plaintiffs in certiorari, under the 5th section of the act, concerning forcible entries and detainers.

<p>ON CERTIORARI.</p> <p>Action on parol award, must be in debt, under the statute.</p> <p>Jacobus brought the action on the case, before justice Martin, against Riker, on the following state of demand:-—</p> <p>Isaac I. Riker to Ralph Jacobus — In damages.</p> <p>To damages done in his meadow, in the year 1804, and by agreement of both parties, Aaron Keirsted and Henry Van Ness, were to apprize the damages; and accordingly did award to Ralph Jacobus the sum of $25, for which suit is brought.</p> <p>This was tried by a jury, and verdict and judgment for the plaintiff, Jacobus. Severel reasons were assigned for the reversal of the judgment of the justice.</p>

ON CERTIORARI, Defect in return of summons cured by defendant’s appearance, and in return of venire, cured by verdict. The action below was brought by the defendant in certiorari, grounded on a book account.

ON CERTIORARI. Davis was the defendant below, against whom a verdict and judgment was had for $60, on the following state of demand: Samuel C. Davis, to Robert Stewart, accountable for damages sustained in the following manner, viz. : — Some tíme in the year 1803, the aforesaid Samuel C. Davis was charged by Elizabeth Hurst, with being the father of a bastard child, which the said Elizabeth was then pregnant with ; and the said Samuel C. Davis, in [#] order to get clear of…

<p>ON CERTIORARI.</p>

.ON CERTIORARI. Damages resulting from plaintiff's negligence, not cause of action.

<p>ON CERTIORARI.</p> <p>No costs allowed on discharge of apprentice by justices of the peace. Execution for costs of suit, set aside.</p> <p>This case is sufficiently stated in the opinion delivered by the Chief Justice.</p>

ON CERTIORARI. Special certiorari not to issue without leave of Court. Attorney may not issue subpoena for witnesses in certiorari cases. A certiorari had issued in the ordinary course of certiorari to justices of the peace or Quarter Sessions, to the Secretary of State, to send up the proceeding, had in laying out and return of the road, laid out under the act, to incorporate the Newark and Pompton Turnpike Company.

<p>ON CERTIORARI.</p> <p>I forcible entry, 8cc. — •“ I give judgment accordingly,” error. (b) Notice to quit necessary only -míen tenants hold over. Treble costs are thrice the amount of single costs, (c)</p> <p>Don and wife, brought an action of forcible entry and detainer against Crane, before justice Harrison, and ohtained a verdict — on which the justice made the following entry : J give judgment accordingly. There was no previous notice to deliver possession given; the justice issued execution, and in which literally trebled the costs.</p> <p>moved the reversal of the judgment, alleging first, that the judgment was irregular, uncertain, and in fact could not be called a judgment. Second, that no notice was given to deliver possession, which he contended w'as necessary under our act of Assembly. And third, that the justice had mistook the method of trebling the costs, which the act in such cases allowed.</p> <p>contended that notice in this case was not required; and that the costs were rightly trebled; that he knew' no other way of doing of it, than the plain one of multiplying the amount of the taxable costs allowed by the act in such cases, by three.* That the judgment was well entered, and in [*] the words of the act of Assembly. But even if it was not, advantage could not be taken of it, for that no judgment was necessary; that it was evident from the precedents in the books, that a judgment, in cases of forcible entry and detainer, was not requisite; that the justice might have issued execution on the finding of the jury, without rendering judgment; that the entry made by the justice, if unnecessary, ought to be rejected assurplussage.</p>

ON CERTIORARI. Defective return on summons cured by appearance and plea, (a) Judgment for damage, in action of debt, no cause for reversal. (b) The first error complained of in the proceedings below was, that the return of the constable to the summons was defective. The fact appeared to be so; but the defendant appeared on the return day of the summons, and filed a plea.

<p>ON CERTIORARI.</p> <p>For penalty under the swine act, the demand must state the facts as well as the appraisement, (c) If defendant attend the trial, evidence will be presumed, (d)</p> <p>This was an action brought for damages under the swine act, on the following state of demand:</p> <p>Amos Sharp, the plaintiff comes into court and demands of John Jessop, defendant, the sum of $2 28, and craves judgment for the same. To $1 28 to appraisement of John Sleeper and Jacob Hains, for damage of one of his hogs; and to $1 28 agreeable to the act of the Legislature, which makes $2 28.</p>

ON CERTIORARI. Justiee of the peace may try trespass quare clausum fregit, but not on a plea of title, (a) This cause came up on certiorari from a justice’s court. The only question for the decision of the court was, whether justice’s courts have jurisdiction of the action of trespass quare clausum fregit.

<p>IN ERROR.</p> <p>Overseer of highways may not sue township for money laid out by him on roads, beyond the sum raised or ordered by the township.</p> <p>The action in the Common Pleas was brought by Losey, as late overseer of a district of road, against the inhabitants of the township, for work and labor, care and diligence of himself and servants, with their oxen, carts, and carriages, done and performed in opening, clearing out, making, working, mending, repairing, and keeping in good order, a certain division of the highways in the said township, of which he was overseer. The town had resolved to work and repair their roads by hire. There were counts on a quantum meruit for money laid out and expended, and for money had and received; the general issue of non-assumpsit pleaded — verdict and judgment for the plaintiff below. In September term last, this cause was argued exparte, in behalf of the inhabitants of the township, the plaintiffs in error, by</p> <p>In the first place, he contended, [*] that an action of assumpsit on an implied contract, could not be maintained against an aggregate corporation; that the contract must be express, and made under the seal of the corporation, for which he cited 1 Blac. Com. 475, 4 Comy. 258, ,3 Dallas 496; and he said that there was nothing in thé áct incorporating townships that dispenses with the common law.</p> <p>Second : He contended that an action could not be sustained by an overseer of the road, for money expended by him at his discretion. On this point, it appeared in evidence. by a bill of exception taken by the plaintiffs in error on the trial below, that the district of road, on which the labor was bestowed, was very bad and wanted repair; and that 8120 was not an extravagant sum to pay for the work done by the plaintiff below.</p> <p>Third : Mr. Williamson contended that the evidence was not sufficient to maintain the action, and therefore, that the Common Pleas ought to have non-suited the plaintiff. It not being proved that the district of road on which the labor had been bestowed, had been assigned to the plaintiff below; that the assignment should have been in writing by the township committee, and delivered to the overseer. On this head, it appeared in evidence, at the trial below, that the. township committee, whose duty it was to assign the district to particular overseers, kept a book of the minutes of their proceedings; but that this book was not produced at the trial; but it was proved, that in 1800, the town committee assigned the district in question to one Jacob Losey 3 that in 1801, Jacob Losey was re-elected an overseer of the road ; and in 1802, that Jacob Losey was left out, and that the plaintiff below was elected in his room.</p> <p>that the defendant should have accounted with the township committee annually, and should produce vouchers and could not recover on a quantum meruit; that the inhabitants of [*] the township, under the authority given them by the act of incorporation had made a bye-law, requiring overseers of the road to render their accounts under oath; that, therefore, the defendant ought to have rendered his account under oath, which from the bill of exception it appeared that he had not done. It appeared that the township had voted to raise one thousand dollars in 1802, for the support of the highways; that the value of labor on the said roads be the same as usual; that the overseer of the road shall be the collector of the road tax within his own district, and be accountable for the same to the town, and subject to the same fines and penalties as the collector for other taxes. At this term the following opinions were delivered:</p>

Sheriff’s sureties for one year, not liable for money by him raised in that year on execution of another year._ Application tor assessments on sheriff's bonds, limited to six years, against sureties. Per C. J. Judgment had been obtained against the sureties of Hardenburgh, late sheriff of the county of Somerset, in September term, 1797, on the prosecution of Thomas Irwin.

<p>ON CERTIORARI.</p> <p>Affidavit that plaintiff owes defendant above $100, not to stay a suit before a justice. Demand, “to services of my son in your store,” good. Set off must be filed, before proved.</p> <p>The state of this case very fully appears in the opinion delivered by the Chief Justice.</p>

ON CERTIORARI. Setoff must be-with plea of payment, filed in due time. Judgment must be for the costs of the gaining party only, and not of both.

<p>ON CERTIORARI.</p> <p>Demand, for trespass in action on the case, error. (b)</p> <p>This was an action on the case, brought by the defendant in this Court, against the plaintiff in certiorari. The state of demand filed by the plaintiff below, stated the cause of action to be “for trespassing on my premises, by letting down, or ordering, or suffering my fence that went around my rye-field let down, in order that horses should run over my rye, the time that he, the said Gershom Hull, made a horse race, in the fall of the year, 1806, and left the said fence down the whole of the winter and spring, by which means the whole of my rye was destroyed, to my damage, $15 50.” To this the defendant below, pleaded that he did not owe the plaintiff any thing, but that the plaintiff owed the defendant- — and therefore prayed to be discharged from the action:</p> <p>This was tried by a jury, and verdict and judgment for the plaintiff S15 50. Several reasons were assigned for the reversal of this judgment: those taken notice of by the judges were principally relied on.</p>

ON CERTIORARI. Suit for maintaining child lies not against his father’s administrators or executors. This case is sufficiently stated in the opinion delivered by the Chief Justice.

<p>ON CERTIORARI.</p> <p>Defective state of demand, not cured by trial thereon. Its requisites.</p>

ON CERTIORARI. On plea of infancy, in suit on promissory note, court will not presume that proof was given below, that it was taken for necessaries. This action was brought by the defendant in this Court, against the plaintiff in certiorari.

<p>ON CERTIORARI.</p> <p>Judgment for more than demand, error. In such case, interest not to be allowed. The original judgment being reversed, this judgment founded thereon, reversed also, (a)</p>

ON CERTIORARI. In action of Covenant, judgment for debt, is valid. Omission of one of plaintiff’s name in venire should be objected to at the trial. The state of this case very fully appears in the opinion of the Chief Justice.

<p>ON CERTIORARI.</p> <p>Judgment on award of arbitrators upon submission out of court, and agreement that justice enter judgment thereon, reversed. The act regulating references, Rev. 158, not applicable to small cause courts.</p> <p>The parties out of Court, no action depending, agreed in writing, to submit the matters in difference between them to referees, and that their report should be made a judgment of Richard Johnson’s docket. The referees made their report, in favor of the defendant in this Court, who was the plaintiff below, of g-46 75: — On which, the justice renders judgment, and issues execution. No affidavit was made, or any other evidence offered of the execution of the agreement to submit.</p>

ON CERTIORARI. Record should state days and years of issuing process. In trespass, for striking a horse, the special damage must be stated. Tins was an action of trespass, brought by the defendant in this Court, against the plaintiff in certiorari.

<p>ON CERTIORARI.</p> <p>Attorney may not sue in her own name.</p> <p>The action below, was brought by the defendant in error, against the plaintiff, in her own name, styling herself the attorney of Edmund Hollinshead, executor to [*] the estate of James Hollinshead, deceased; and the state of demand charged the defendant below, as indebted to the estate of James Hollinshead for the rent of land. The objection taken was, that the plaintiff below, could not sustain an action in her own name, for a debt due to a third person.</p>

ON CERTIORARI. A constable may not pay an execution in his hands and sue defendant for it, unless on his request or promise to repay. This action was brought before the justice by Disbrey, a constable, to recover the balance due on an execution in his hands, against Wolley, which balance, the constable alleged, that lie himself had paid to the person in whose favor it was.

<p>ON CERTIORARI.</p> <p>When parties have all the same sir-names, it is needless to repeat them with the Christian names. Not filing demand in time, granting venire after enquiring into merits, and adjourning more than fifteen days, cured by reference. Report of referees need not be copied into the docket.</p> <p>The Chambers’s were the plaintiffs below. The first objection to the proceedings below was, that the action was commenced and prosecuted by certain persons assuming the style and denomination of John, Jeremiah and Daniel Chambers, whereas, the same ought to have been commenced and prosecuted by the proper Christian and sir-names of the persons assuming that style and denomination.</p>

ON CERTIORARI. The state of demand in this case, charges Despreaux, the defendant below, that on the 10th of Sept. 1806, he being indebted to the plaintiff in the sum of 828, in consideration thereof, undertook, and faithfully promised the plaintiff to pay him the same sum of money when requested. The justice, after hearing evidence, gave judgment against the defendant for the $28.

<p>ON CERTIORARI.</p> <p>This was an action of debt, brought before the justice by Myres, against Seeley, on the following state of demand:</p> <p>Samuel C. Seely, Esquire, in account with Adam Myres,</p> <p>Dr. To a note or hand against Joseph Van Auckin, which I letyouhave, ain’t. $12 32$</p> <p>To cash at the same time, 2 SO</p> <p>$14 62$</p> <p>Interest on the above act. for three years. 3 06</p> <p>$17 68$</p> <p>[*] The above note and money, I let the said Samuel C. Seeley have in the Spring of 1802.</p> <p>It was now contended, that the slate of demand does not contain sufficient legal certainty; and that an action of debt will not lie for a note of hand.</p>

A member of the board of Freeholders, may be a witness in a suit commenced by their order. Affidavit of a juror not allowed to prove what was the ground of the verdict. Thus was a motion to set aside the inquisition of the jury of inquiry, which had been had in the cause. There was someevidencc that this suit was prosecuted at the instanceof the board of chosen freeholders of the county of Hunter-don ; the board had actually paid money, towards carrying on the suit.

Action lies not for taking oysters claimed by plaintiff, as planted by him in a common navigable stream, in which other oysters were found. An action of trover and conversion was brought by Leverson against Shepard and Layton, before justice Tiebout, for taking and converting to their use, one thousand oysters, the property of Leverson, the plaintiff before the justice.

<p>Habeas Corpus allowed to enable bail to surrender his principal, already in custody, on a ca. sa. in another suit.</p>

Flea of nil debet, allowed oil demurrer, in action on a judgment in a foreign attachment in Pennsylvania. Quere. As to effect in this state, of a judgment in Pennsylvania. This was an action of debt, brought on a judgment obtained by the plaintiff against the defendants, in the Court of Common Pleas in and for the county of Philadelphia, in the state of Pennsylvania. The defendants pleaded nil debet; to which the plaintiff demurred, and the defendants joined in demurrer.

<p>This was a case of certiorari from a court for the trial of small causes.</p>

<p>ON CERTIOEAEI.</p> <p>Demand must be filed in time.</p>

ON OEETIOEAEI. The action below was brought on the following state of demand:— [310] Michael Sherrow, Dr. To cash paid to Frederick Limebeck, on an old execution, for neglect of duty.

ON CERTIORARI. The action below was brought on the following state of demand:— Michael Sherrow, Dr. To cash paid to Frederick Limebeck, on an old execution, for neglect of duty. The insufficiency of the state of demand, was assigned as a reason of reversal.

Covenant of seizAn is not a real covenant, so as to pass with the land. A reconveyance by mortgage to covenantor is no release or bar to such covenant, nor has a purchase by co venan tor atsheriff’s sale, any such effect. This was an action of covenant.

ON CERTIORARI. Charge “ to an account for ferriage,” &c. insufficient.

<p>ON CERTIORARI.</p> <p>Demand must be filed in time.</p>

OH CERTIORARI. Charge “to an account for ferriage,” &c. insufficient.

<p>ON CERTIOKARI.</p> <p>The action below was brought against Ramsey by Wright. On the return of the warrant, the justice made the following entry in his docket, as sent up on the return of the certiorari: “The warrant returned with the defendant brought forward. Jacob Woolly then came forward and said that he was accountable ■ for Phineas Wright, as his clerk, and did assume the defense of Phineas Wright, and filed a statement of defense, on which the plaintiff requested a trial by jury, which I allowed, and dismissed Phineas Wright from custody.” The cause was tried, and on the finding of the jury, the justice made the following entry: “ They find for the plaintiff, $25, which I enter against Jacob Woolly, who said that he was accountable for Phineas Wright, and would assume his defense.”</p> <p>The counsel for the plaintiff in error, now moved the court to reverse this judgment, for that the justice had illegally and improperly entered judgment against Jacob Woolly, who was no party to the action, and against whom no process had issued.</p>

ON CEETIOBAEI. The action below, was brought by Wilber against Giberson, a constable, charging him that under color of law, he illegally took a mare of the plaintiff, and sold it under value, and became himself the purchaser.

<p>ON CERTIORARI.</p> <p>In a suit on Tavern Act, verdict must specify which of the penalties (if several) is found forfeited. (b)</p>

ON CERTIORARI. ,Attorney in fact may not bug in his own name.1 The defendants in this court were the plaintiffs below; and brought their action against Ward, the plaintiff in error, for a- debt due to one Thomas Marshall, styling themselves in the state of the demand, attorneys in fact of Thomas Marshall.

<p>OK C-ERTIOHARI.</p>

OH CERTIORARI. The justice makes the following entry in his docket on the return of the summons, to wit: “ The plaintiff appeared and filed his account, defendant did [314] not appeal’, and I gave judgment for the plaintiff.” It was alleged for error, that there was a judgment without trial, apparent on the face of the record; that it also appeared by the record that the plaintiff did not file any state of demand, but that the judgment was rendered on a note which, according…

OH CERTIORARI. Beference must be of a suit pending.1 Judgment in figures, error.2 In this case, a rule of reference was agreed on out of court, and the referee sat and made report, on which the agreement and report was brought to the justice, and on which he entered judgment, and that in figures.

<p>ON CERTIORARI.</p> <p>Action by three, and judgment for one, error.</p> <p>The action below was brought by Jacob Stout, Francis Denny and David C. Lea, for the use of Jacob Stout. This cause was submitted to reference, and the referees reported in favor of Jacob Stout, and the justice entered judgment in favor of Jacob Stout, taking no notice of the other plaintiffs, and this was assigned for error.</p>

ON CERTIORARI. Widow cannot sue heirs for support of a slave without their request. The action below was brought on the following state of demand:— Hannah Potter, widow of Caleb Potter deceased vs. Samuel Potter, jun. Phebe Maxwell and Easter Maxwell, heirs'of said CalebPotter.

ON CERTIORARI. Action by three, and judgment for one, error. The action below was brought by Jacob Stout, Francis Denny and David C. Lea, for the use of Jacob Stout. This cause was submitted to reference, and the referees reported in favor of Jacob Stout, and the justice entered judgment in favor of Jacob Stout, taking no notice of the other plaintiffs, and this was assigned for error.

ON CERTIORARI. The action below, was brought by McCullough against the plaintiff in error, late constable, who as it is charged in the state of demand, while constable, in virtue of an execution in his hands against the said M'Cullough, took and arrested him, and delivered him to the custody of [*o] the keeper of the jail, &c, and also on the same day took and seized certain goods, chattels, and wearing apparel of the said McCullough, particularly enumerated, of the value of…

OH CERTIORARI. Widow cannot sue heirs for support of a slave without their request. The action below Avas brought on the following state of demand: [316] Hannah Potter, widow of Caleb Potter, deceased, vs. Samuel Potter, Jr., Phebe Maxwell, and Easter Maxwell, heirs of said Caleb Potter.

<p>OS CERTIORARI.</p> <p>The- action below, was brought by M’Cullough against the plaintiff in error, late constable, who as it is charged in the state .of demand, while constable, in virtue of an execution in his hands against the said M;Cullough, took and arrested him, and delivered him to the custody of [*o] the keeper of the jail, &c., and also on the same day took and seized certain goods, chattels, and wearing apparel of the said M’Cullough, particularly enumerated, of the value of $100, and on the same day converted the same to his own use, and hath neglected to render an account of the moneys arising from the sale thereof, or to pay the same, or any part thereof, to the plaintiff in the said execution named, in satisfaction of the debt, interest, and costs in the execution, or to indorse or credit the same, or cause the [317] same to be indorsed credited on the said execution, by reason whereof the said M’Cullough was kept and detained in jail until he paid the whole of the debt, interest and costs on the said execution, without any credit, allowance or deduction therefrom for the said goods, chattels, and wearing apparel so seized and taken by the said Mershon, the defendant below, or any allowance for the money arising from the said goods, &e. On this state of demand there was a trial, verdict, and judgment for the plaintiff below for $50; on which the defendant below brings this certiorari.</p> <p>The counsel for the plaintiff in error insisted that the state of demand did not set out a legal cause of action; that the goods levied on was a satisfaction of the execution, and that the defendant in the execution, the plaintiff below, had his remedy against the plaintiff in the action on which the execution was issued, for improperly detaining him in prison.</p>

ON CERTIORARI. Creditor assenting] to an assignment, and accepting a dividend in discharge of a debt, cannot recover tlie balance. The following state of facts were agreed on by the attornies for the parties, andsubmitted without argument.

Sealed bill payable on demand, draws interest only from day of demand.(a) This was an action of debt, brought on a sealed bill, wherein the defendant promised to pay to the plaintiffs’[*o] testator £200 upon demand; no mention was made of interest.

OH CBBTIOBABI. Creditor assenting to an assignment, and accepting a dividend in discharge of a debt, cannot recover the balance. The following state of facts were agreed on by the attorneys for the parties, and submitted without argument.

This was an action of debt, brought on a sealed bill, wherein the defendant promised to pay to the plaintiffs’ [jo] testator ¿£200 upon demand; no mention was made of interest. The only question submitted for the opinion of the court by the parties, was, whether the plaintiffs were entitled to recover any, and what interest upon the said sealed bill, there being no evidence of any demand of payment previous to the bringing of the action.

What apprenticeship gains a settlement. What is a year under the act. Two justices of the peace in the county of Hunterdon, made an order to remove Daniel Pearce, a pauper, from the township of Amwell to the township of Hopewell.

Two justices of the peace in the county of Hunterdon, made an order to remove Daniel Pearce, a pauper, from the township of Amwell to the township of [321] Hopewell.

ON CERTIORARI. A state of demand is needless, if judgment be confessed, (a) The plaintiffs in this Court were the defendants below, and voluntarily confessed a judgment before the justice for $>82 20.

<p>ON CERTIORARI.</p>

<p>ON CERTIORARI.</p> <p>The action below, was an action of trespass, brought on the following state of demand:—</p> <p>The plaintiff’ comes into Court and pleads, that in the year of 1801, that Aaron Bozorth did wrongfully, and in fhe night season, take a cow from me without my knowledge, at that time, or consent, for which I prosecuted the said Bozorth, and obtained judgment for, before John Furman, Esq. and afterwards the said Bozorth did prosecute me before Moses Kimpton, Esq. in Mount-Holly, which appeared a malicious prosecution, by said Bozorth not filing no plea, nor attending the suit; and as the said Bozorth has had the judgments reversed by the Supreme Court, I the said William Cranmer, do plead to this Court for judgment for the loss of property and cash ; that the above damages now will be proved to the Court.</p> <p>To the cow and cash I paid to ascertain the property, is $64 87, for which sum I pray judgment.</p> <p>1 July, 1808.</p> <p>WILLIAM CRANMER.</p>

<p>1 July, 1808. WILLIAM CRANMER.</p>

ON CERTIORARI. Assignor of sealed bill not liable for maker’s non-payment. This was an action brought by the assignee of a sealed note against the assignor, on the ground, that after due diligence being used, the debt could not be collected against the maker of the note.

ON CERTIORARI. Penalty for detaining or receiving more than lawful toll, from travellers, applies not to persons exempt.

<p>Notice of special matter with plea of general issue, no part of the record!</p>

Statute limiting suits on bonds, to 16 years, is constitutional.(b) ti applies to bonds dated before it was passed. This was an action of debí.

This was an action of debt. The plaintiff declared on a bond, dated 30th August, 1787, to which the defendant pleaded, that the plaintiff ought not to have or maintain his aforesaid action against him, the defendant; because he says, that the cause of action in virtue of the said writing obligatory for the payment of money only, did not first accrue within sixteen years next before the commencement of the said action, against him the said defendant, by him the said…

<p>Possession 12 or 13 years, is evidence, ¡aima facie, of title against a wrong doer in ejectment. Bale of land is void, if made by surviving executor, unless authorized by will. (a)</p> <p>This was an ejectment for a house and lot of land in Hunterdon! tried before the Chief Justice, at the Hunterdon Circuit. The plaintiff at the trial, set up a title to tho premises in question, under Walter Cain, the father of his lessor. It was proved at tho trial, that Walter Cain was in actual possession of the premises twenty seven or twenty eight years ago- — That Walter Cain put the defendant into possession about that time, at the rent of £6 per year; that this rent was paid in weaving done by the defendant, for Walter Cain, until his, Walter Cain’s death, about fifteen years ago. On this possession, the plaintiff founded the title of the said Walter Cain, without exhibiting deeds or written conveyances, resting upon the possession only. In the course of the trial, one of the sons of Walter Cain was examined, who said, that he believed his father had no title for the premises, but held by title bond only. It was proved that Walter Cain had six sons and three daughters; in order to make out the title of the lessor of the plaintiff, the will of Walter Cain was given in evidence, dated in July, 1789; whereby, he ordered the premises to be sold, as soon as convenient, after his death; and empowered his executors to make good and lawful deed or deeds for the same, and appointed several executors, of whom the lessor of the plaintiff was one, all of whom died, except [*] the lessor of the plaintiff, who, on the 15th January, 1806, as surviving executor, deeded the premises to one Pettit, who on the twentieth pf the same month, deeded it back again to the lessor of the plaintiff.</p> <p>On this evidence, the defendant moved for a nonsuit; and the Chief Justice in the report of the case, says, That the court rather inclined to think, that the plaintiff had not made out a title upon which he could recover in this action; yet, as his counsel seemed to have taken much pains in investigating the case, and to maintain it with much confidence, it was thought best to take the verdict upon the facts anil Jet the questions of law, if it should be thought proper, be agitated again at bar; and the motion for nonsuit was therefore over-ruled. The jury found averdict for the plaintiff; a rule nisi was obtained to set aside the verdict, and that judgment of nonsuit be entered. This was argued in May Term, last; and in this term the following opinion delivered.</p>

Tins was an ejectment for a house and lot of land in Hunterdon; tried before the chief justice, at the Hunterdon circuit. The plaintiff at the trial, set up a title to the premises in question, under Walter Cain, the father of his lessor.

<p>ON CERTIORARI TO MIDDLESEX SESSIONS.</p> <p>A child bound at three years old, to service, gains a settlement under the poor laws. Overseers of poor may bind a pauper to serve in another township or county. Consent of two justices indorsed on only one of the indentures, sustained.</p> <p>This writ brought up the proceedings, in the case of the removal of Mary Doneldson, a pauper, from the township of South Brunswick, to the township of Franklin; it appeared that the legal residence of the pauper, when a child, was in Franklin, with her mother: that when three years of age, she was hound an apprentice to one Clark, in South Brunswick, to servo until she was eighteen years of age, by the overseers of the poor of Franklin, who gave Clark ten pounds for taking her: that she served out the full time of her apprenticeship with said Clark, in South Brunswick. [*] The indenture was not produced, or at least, not furnished the judges; but it seemed to be admitted in the argument, that the part of the indenture which Clark had, had the indorsement of the consent of one justice of the peace only; but the indenture that remained in the hands of the overseers, had the consent of two justices indorsed on it. The Sessions on an appeal from the order, of the two justices, removing the pauper, affirmed the order, on which this writ was brought.</p>

ON CEBTIOKAEI TO MIDDLESEX SESSIONS, A child bound at threo years old, to service, gains a settlement under the poor laws. Overseers of poor may bind a pauper to serve in another township or county. Consent of two justices indorsed on only one of the indentures, sustained. This writ brought up the proceedings, in the case of the removal of Mary Doneldson, a pauper, from the township of South Amboy, to the township of Franklin.

<p>Twenty years adverse possession, gives title to bond. What adverse possession is.</p> <p>Ok the trial of this cause at the Hunterdon Circuit, before the Chief J ustice, it was satisfactorily made out, that Stephen Johnson, under whom the lessor of the plaintiff claimed title, was seized of the promises in question, in the year 1773; that afterwards, Stephen Johnson died intestate, and letters of administration were granted in 1791; that a judgment was obtained against the administrators, and the land sold by the sheriff, in 1794, to the lessor of the plaintiff. It appeared, however, from the plaintiff's witnesses, that thirty years before the trial, John Fairly, who was the real defendant, (Alpaugli being his tenant,) went into the possession of the premises under John Emly, the agent of Stephen Johnson; that one of the witnesses was in possession at the time; that Emly wrote a letter to him, informing him that he had sold the land to John Fairly, that there was about 215 acres, and that the, defendant was now in possession, and that Fairly had been in possession by himself or tenants, thirty years. One witness testified, that about fifteen or sixteen years ago, he purchased of Johnson an acre and a half of the same tract; that Fairly did not approve of his taking possession; that he got an article from Johnson, also one from Fairly; that he paid Fairly d317, and Johnson dB8; that Johnson offered him a warrantee deed against all the world hut John Fairly’s claim. Another witness swore, thatFairly told him in a conversation about the land in question, that he had tendered the money to John Emley, and also to Stephen Johnson, but had missed it in one thing, lie had not lodged the money in the office. Another witness swore, that ho was present when John Fairly tendered money to Emley; that it was continental money, but could not tell how much; Emley ordered them to bo gone: A witness who had been a tenant of the premises, to Fairly about fifteen years ago, swore, that an ejectment was served on him While lie lived there. [*} The plaintiff gave in evidence, an article of agreement between John Emley as agent of Stephen Johnson, of the one part, and John Fairly of the other part, for the lands in question, dated the 25th March, 1776; the consideration J425 or £475* money, to be paid in three equal payments; the first, on the IstMay, 1776; second, IstMay, 3777; the third, 1st May, 1778; a deed to he made on the first payment, and security given for the residue; there was a receipt on the article for £70 2 0, signed by John Emley, dated 5th August, 1776. The plaintiff offered in evidence, an'exemplification of a record of the Supreme Court, of the proceeding in an action of ejectment, brought on the demise of Stephen Johnson, against a tenant of Fairly, for the lands in question, in which the declaration had been returned to the term of April, 1790, and the first rule thereon entered j but the court over-ruled the same. On this evidence, the defendant moved fop a nonsuit, which the Chief Justice overruled, but informed the defendant that he would note the motion, that he might have the benefit of it at bar. The defendant called a witness who had been examined by the plaintiff, who testified, that the money tendered by Fairly to Emley was in a paper, and marked 1079 dollars; that the tender was made in July, 1779; Emley refused to receive the money, and- said he did not know the money was there ; that the money was opened but not counted, and Fairly told Emley the full amount was there, and said it was for the purchase he had made, and demanded a deed. A memorandum of John Emley was given in evidence, shewing the amount of consideration money to be ¿420. The defendant swore two other witnesses, who testified more fully to the tonder and to the acknowledgements of Emley and Johnson ; the latter, that he supposed a deed had been given; hut their characters were impeached by respectable witnesses. The jury found a verdict for the defendant. A rule nisi for a new trial, had been obtained, and was argued in May Term last, [*'] and now at this term, the following opinions were delivered.</p>

Shreaves Island, as per contract, 1 June, 1804, $200 00 $36 00 It was objected, first, that this state of demand was too uncertain; but the court thought that this was a sufficient statement of a contract of sale. It was then contended that this was a contract for the sale of land, and therefore ought to be in writing, according to the statute; but the court overruled the objection, and

ON CERTIORARI. In suit on the timber act, the demand should state the number of trees and the other requisites in the act.

<p>ON CERTIORARI.</p> <p>State of demand “for apiece of meadow ground at, See. as per corn tract,” sufficient.</p> <p>The state of demand below was,</p> <p>For a piece of marsh or meadow ground, on the island called Shreaves Island, as per contract, X June, 1804, $200 0(1</p> <p>It then gave credit at the same date with three notes, in all, 164 00</p> <p>$36 00</p>

<p>ON CERTIORARI,</p> <p>Challenge of a juror for favor, “thathe is a neighbour,” illegal.</p>

<p>ON CERTIORARI.</p> <p>Judgment against administrator must be of intestate’s goods, as to debt and costs, anclif insufficient, of administrator’s as to the costs.</p>

<p>ON CERTIORARI.</p> <p>The action before the justice was an action on the [*] case; tiie plaintiff' below delivered the justice the following state of demand:</p> <p>Joab Chard against Robert Alderman. — Tn Trespass.</p> <p>The plaintiff' complains of the defendant for this, that he, the plaintiff) sent the said Robert AMc.rman718 feet of poplar boards, about 18th April, 1808, at the rate of §4 per thousand, and the said defendant refuses to pay the said plaintiff' for the said boards, which he the said plaintiff pleads that it is a damage to him the sum of ten dollars. And further, the plaintiff pleads that his trouble and plagiye concerning the boards aforesaid, that it is a damage to him the said plaintiff, in the sum of live dollars.</p>

<p>ON CERTIORARI,</p> <p>Demand for burning hay, need not state where it was.</p> <p>The action before the justice, was an action of trespass, founded on the following state of demand:</p> <p>“The plaintiff complains of the defendant for this, on the 4th day of March, 1808, or thereabout, the said defendant with force of arms, entered into the salt meadow, and burnt up one stack of hay belonging to said plaintiff, on Oconoke Peppers Creek, to my damage, $16.”</p> <p>. To which demand the plaintiff put in the following plea: “The said Dickinson Moore comes forward and pleads, that the action ought to be abated, and no further prosecuted against him, the said Dickinson, and pleads that the said action is not stated in a right manner, because he saith that he hath committed no offence against the said Joseph Whitaker, jun, in the manner he is prosecuted by the said Joseph Whitaker, jun.” There was a jury trial, verdict and judgment for Whitaker, the plaintiff below, for §8. It was contended on the part of Moore, the defendant below, the plaintiff in this Court, that this being an action for trespass on land, it was local, and in order to give the justice jurisdiction of the cause, it ought to have stated the place where the trespass was committed, With more certainty, for it did not appear that the land lay in the county.</p>

Informal state of demand, susfained. The cause had been tried before a justice, and judgment for plaintiff below, for g50; the defendant appealed to the Common Pleas, who tried the cause anew, and rendered judgment for the plaintiff below, for $50, the same as the justice; the whole proceeding being brought up to this Court by certiorari.

<p>ON CERTIORARI.</p> <p>Report of referees after the time limited, is void.</p>

OS OEBTIOItAEI TO COMMOH PLEAS OP CUMBEBLASD. Informal state of demand, sustained. The cause had been tried before a justice, and judgment for plaintiff below, for $50; the defendant appealed to the common pleas, who tried the cause anew, and rendered judgment for the plaintiff below, for $50, the same as the justice; the whole proceeding being brought up to this court by certiorari.

<p>OH CEBTIOBABI.</p>

<p>. - OJT CERTIORARI.</p> <p>Constable after returning jury panel, may not strike out names of defaulters and add otlier'names.</p>

<p>ON CERTIORARI.</p> <p>Assignee of book account may not sue as' assignee.</p>

<p>OH CEBTIOBABI.</p> <p>Charge “to cash had to my use,” insufficient.</p> <p>The action below was brought by Douglas against Bruen, on the following state of demand:</p> <p>Caleb Bruen to David Douglass Dr.</p> <p>To cash had to my use, $76 60</p> <p>On which there was a credit given of 29 76</p> <p>Leaving the demand, $46 84</p> <p>There was a trial, verdict and judgment, for $28 with costs. It was contended on the part of the plaintiff in eertiorari that the state of demand was insufficient; that the purposes for which the money was had by the plaintiff, ought to have been more fully set out; that a state of demand so loose, vague and uncertain as this, would expose defendants in justices’ courts to continual frauds and injustice.</p> <p>[351] The Chief Justice and Rossell, J., being of opinion that the state of demand for money had and received, in the justices’ courts, ought to be more particularly set out than it was in this case,</p>

ON CERTIORARI. The action below was founded on the following state of demand: Benjamin Ward, Dr. to an execution in my favor against Josiah Eldridge, $91 34 Costs, 1 05 Interest due thereon, 1 87 19th Sept. 1807. $94 26 The first meeting of the parties before the justice, the cause was adjourned, and on the day of adjournment the justice made the following entry on the record: 1808, Jan. 2d. Plaintiff met, defendant not appearing; judgment was entered in favor of the…

<p>ON-CERTIORARI.</p> <p>Charge “ to cash had to my use,” insufficient.</p> <p>The action below was brought by Douglass againstBruen, on the following state of demand:</p> <p>Caleb Bruen to David Douglass Dr.</p> <p>Tocashhadtomyuse, $76 60</p> <p>On which there was a credit given of 29 76</p> <p>Leaving the demand, . @46 84</p> <p>There was a trial, verdict and judgment, for §28 with costs. It was contended on the part of the plaintiff in certiorari, that' the state of demand was insufficient; that the purposes for which the money was had by the plaintiff, ought to have been more fully set out; that a state of demand so loose, vague and uncertain as this, would expose defendants in justice’s courts to continual frauds and injustice.</p>

ON CERTIORARI, The action below was brought on the following state of demand: Josiah Hunt to Matthias Clark, Timothy Clark, and John Loree, Dr. 1804 October 10th. To freight of brick taken to New-York by you asCapt. of the sloop Mary Gordon, as per billrendered, ¿231 1 9 Interest till paid, 7 10 0 £38 12 3 Of the value of $96 S3 There was a jury trial and verdict, and judgment for the plaintiff, for 896 53.

<p>On Habeas Corpus.</p> <p>Indenture of binding German redemptioner, signed by the father only, and stating theyear, but not day or month of his birth, held good.</p> <p>Eenning'toh J., dissehtin'g;</p> <p>Oit the returri of the writ, it appeared that the boy was a German redemptioner, brought into Amboy, and sold for his passage, to the defendant, as a servant; that the father of the boy came in the same ship, and in order to give validity to the sale, bound the boy to the defendant, to serve in such employment as he should think proper to employ him in; the year that the boy was born was inserted in the indenture, but not the month or day.</p> <p>It was contended on the part of the prosecution — that the boy was unlawfully held in the custody of the defendant; that the indenture was void for two reasons.</p> <p>1st. The age of the hoy was not inserted in the indenture; and</p> <p>£d. That a father could not hind his son a servant; that the binding must be the act of the infant, even in cases of apprenticeship, and not the act of the father.</p> <p>On the part of Mr. Taylor; it was contended by his counsel, that the binding was correct; that a father had a right by the common law, to bind his son an apprentice; 4 Comy. Mg. 579, and no reason could be offered why he should not bind him as a servant.</p>

In action for false imprisonment, a copy of the commitment is not legal evidence. ' This was an action by Snowden against the defendant, for an assault and imprisonment. The defendant was á Justice of the Peace, in the county of Cape May, and had committed the plaintiff to the jail of that county, on a charge of a, breach of the peace, where he laid part of a day before he procured bail. The'venue was laid in Burlington, where the plaintiff resided.

<p>In action for false imprisonment, a copy of the commitment is not legal evidence.</p>

ON CEKTIOHAM. In trespass for pulling down a house, plea of title ousts the justice of jurisdiction. The action below was an action of trespass, for breaking and entering the house of the plaintiff below, and with force of aims pulling down the house, and otherwise injuring the property of the plaintiff.

When order to remove a poor child must state his age. On appeal from such order, it is not affirmed, by an equal division of the court.

<p>ON CERTIORARI.</p> <p>Record need not shew that constable was sworn to attend the jury. Nor need it appear that plaintiff was called at taking the verdict.</p>

<p>ON CERTIORARI.</p> <p>When order to remove a poor child must state its age, On appeal from such order, it is not affirmed, by an equal division of the court.</p> <p>Hannah Hand, and her two sons, William and Isaac, had been removed, by order of two justices of the peace, from Springfield, in the county of Essex, to Elizabethtown, in the same county; from this order there was an appeal to the sessions of Essex; after the hearing was had in the sessions, the clerk makes the following entry [*] in the minutes of that court — ■“ The court, after hearing the evidence and arguments of counsel on both sides, were equally divided in opinion; whereupon the order of removal was affirmed.”</p> <p>The proceedings below being brought up by certiorari, the recital to the order of removal, which contains the complaint of the overseers of the poor, and the adjudication of the justice, is as follows: — Whereas, Philip Denman and Aaron Hand, two of the overseers of the poor of the township of Springfield, have this day made complaint-to us, Abraham Woolley and Samuel Parkhurst, two of the justices of the peace of said county, that Hannah Hand and her two boys, William and Isaac, are in such indigent circumstances as to need immediate assistance, and as the said Hannah was brought before us, and duly sworn; after hearing the proof, and due consideration being had thereon, we adjudge her last legal settlement, and that of her two sons, William and Isaac, in the township of Elizabeth, and county of Essex. It was now moved on the part of Elizabethtown to quash the' two orders, the grounds of which will fully appear in the opinions delivered by the judges.</p>

IN EJECTMENT. The act to alter the law directing the descent of real estate, of 24th May, 1807, Pat 44, construed so as to prevenían estate going out of the family of the ancestor, (a) The following case was stated by the parties, and submitted to the Court, to wit: Lewis - Mulford deceased, late of Elizabethtown, was, before and at the time of his decease, seized in fee simple of the premises in question; and being so seized, did by his last will and testament, bearing date…

<p>The following case was stated by the parties, and submitted to the court, to wit:</p> <p>Lewis Mulford deceased, late of Elizabethtown, [364] was, before and at the time of his decease, seized in fee simple of the premises in question; and being so seized, did by his last will and testament, bearing date the 5th October, 1789, and duly executed as the law requires, to pass real estate, (among other things) devise as follows: “ Item, I give and bequeath unto my beloved wife Anna, for so long time as she shall remain my -widow, the use of all real estate; and also the use of all my movable estate remaining after paying my debts; and the aforementioned legacies to be and remain unto my said wife’s use for so long time as she shall remain my widow.” “ Item, I give and devise unto my grandson Stephen Mulford, son of [*] my son David, deceased, and to his heirs and assigns forever, all and singular, my lands with the tenements and appurtenances situate in Elizabethtown, on the north west side of the country road, which I purchased of Aaron Lane; and it is my will, that all the devises herein contained, shall be subject to my wife’s use thereof in the manner before directed,” as in and by the said will, more fully appears. That the said testator died about the 18th day of March, 1790, without having altered or revoked his said will, and that immediately after his death his widow entered and took possession, and held and enjoyed the said devised premises under the said will until the time of her death, which happened about the 21st day of July, 1807.</p> <p>That the said devisee, Stephen Mulford, died about the 29th day of July, 1792, under age and without issue, leaving a sister of the whole blood, named Mary Mulford; and the two lessors of the plaintiff, John Pierson and Sarah Pierson, a brother and sister of the half blood, that is, children by the same mother with the said Stephen, but of a different father.</p> <p>That the said Mary Mulford departed this life about the 25th day of October, 1793, under age, and without issue, leaving the said John Pierson and Sarah Pierson, her brother and sister of the half blood, also uncles and aunts, children of the said testator, and under whom the defendant claims.</p> <p>That since the death of the said Mary Mulford, but before the death of Anna Mulford, the testator’s widow, the mother of Stephen Mulford, has intermarried with a third husband, by whom she had issue, Joseph Christie and William Christie, the other two lessors of the plaintiff.</p> <p>The question for the decision of the court is, “whether the lessors of the plaintiff, or any, and which of them, are entitled to the premises in question.”</p>

• In trespass quaré clausum fregit on a plea that the premises were the freehold of R., at whose command the defendant entered, 8tc. replication a former verdict and judgment that the premises were plaintiff’s freehold and not R’sj was adjudged bad, on demurrer. This was an action of trespass quare clausum fregit.

<p>In trespass guare clausum fregit on a plea that the premises were the freehold of R., at whose command the defendant entered, &c„ replication a former verdict and judgment that the premises were plaintiff’s freehold and not R.’s, was adjudged bad, on demurrer.</p>

A bond by three, in the penalty of $100 each, is several, not joint. This was an action of Debt, brought on a bond. The declaration set out a bond taken in the name of the Inhabitants of the said Town, by the name and description of the Inhabitants of Middletown aforesaid, in their corporate capacity, by which the defendants and Charles Dubois since deceased bound themselves in the sum of one thousand dollars each.

<p>This was an action of debt, brought on a bond. The declaration set out a bond taken in the name of the inhabitants of the said town, by the name and description of The Inhabitants of Middletown aforesaid, in their corporate capacity, by which the defendants and Charles DuBois, since deceased, bound themselves in the sum of one thousand dollars each. It then averred that the plaintiffs were the same body politic and corporate as described in the bond. The defendants prayed oyer of the bond and condition, which condition was as follows: — “ The condition of this obligation is such, that if the above bounden Dennis M’Cormick [*] shall and do well and truly serve the State of Yew Jersey in the office of constable, for the county of Monmouth aforesaid, for and during the term of one year from this date, that he will truly, faithfully and punctually pay and dispose of all moneys that may or shall come to his hands, in such manner and to such persons as by law directed, and that in all respects whatsoever he shall do and execute all services, acts and duties appertaining to his office, to the best of his judgment and abilities, as well agreeable to law,1 that then,” &c. After setting out the bond and condition, the defendants demurred generally, and the plaintiffs join in demurrer. The points raised in the cause will sufficiently appear in the opinions delivered by the judges.</p>

= ON CERTIORARI, On appeal from justice’s court, the Common Pleas may give judgment for more or less than the justice did. Semb, that appellee should have notice of the appeal.

<p>ON CERTIORARI.</p> <p>On appeal from justice’s court, the common pleas may give judgment for more or less than the justice did. Sernb. that appellee should have notice of the appeal.</p>

ON CERTIORARI TO SALEM ORPHAN’S COURT. A certiorari may issue to remove proceedings of the Orphan’s Court in dividing lands: but it must be within three months after final decree.

<p>ON CERTIORARI TO SALEM ORPHANS’ COURT.</p> <p>A certiorari may issue to remove proceedings of the Orphans’ Court in dividing lands; but it must be within three months after final decree.</p> <p>A motion was made to quash this writ:</p> <p>1st. On the ground that it was improvidently issued, it being allowed by a judge at his chambers; that a special certiorari, ought not to be allowed but on motion in open court, on a sufficeint cause made out by affidavit; but as the court gave no opinion on this point, it is unnecessary to say anything more on it.</p> <p>2d. That the act authorizing the partition of land under an order of the Orphans’ Court, Pat. 77, declared the report of the commissioners when confirmed by the court conclusive to all parties, and therefore that a certiorari could not legally issue for want of jurisdiction in this court over the subject matter.</p> <p>3d. That the Orphans’ Court was substituted in this State, in place of the ecclesiastical courts in England, to which no certiorari would lie; that the Legislature, sensible of this, had in certain cases in the Orphans’ Court act, authorized a certiorari to issue from this court; but in doing that, they had in express terms limited the time for bringing such certiorari to three months from the time of pronouncing the final sentence or decree of the court; that the conformation of the report of the commissioners [*] in this case, was about ten years before the certiorari issued.</p> <p>[384] To these objections the counsel for the plaintiffs answered, that the-general superintending authority of this court over all inferior jurisdictions, could only be restrained by plain negative words in a statute; that although the Orphans’ Court might be said in some sense, to be substituted in the place of the English ecclesiastical courts, yet that depended on the subject matter, of which the partition of land made no part; that there had been no final sentence or decree of the Orphans’ Court in the sense contemplated by the act, which spoke of parties to the suit, confining the provision in the 19th section of the Orphans’ Court act, to cases where actions existed, and had been finally determined; that the proceeding below could not be considered as an action, it was an exparte application against an infant, who was not cited to show cause against the partition, the whole proceeding therefore was exparte; that there could not be an action without parties; that it.appeared from the return sent up that the commissioners had exceeded their authority; they were appointed to divide the estate among three children,' and had given the whole to two, thereby disinheriting the third; that the conformation of the report of commissioners by the Orphans’ Coui't was a matter of course, no party being in court to oppose it; that the act comprehended a body of jurisdiction, independent of the case of partition of land, to which the provision and limitation in the 19th section applied, and not to that of the partition of land; but even if they did, yet that the plaintiff in this court was an infant; that the Legislature could not intend in this manner to sacrifice the rights of infants by authorizing an ex parte proceeding, and then preclude them from all remedy; that by the principles of law, infants cannot be guilty of laches, but are privileged. 1 Blac. Com. 493; 1 Swift, 318.</p> <p>The counsel for the defendants replied, that as to the infancy of the plaintiff, in whose right this writ is brought, [*] the first answer is, that the statute makes no exception in case of infancy, which is usual in cases where it is intended that they are to be privileged; besides, it is only in cases of infancy that the Orphans’ Court have jurisdiction of the subject matter, that is, the partition of land; now it would be strange that the very circumstance that gives the court jurisdiction, should create an exception to a general provision in the act, limiting a review of the proceedings. Yet even supposing there is an exception in favor of infants, yet the infant is only given a reasonable time after it comes of age to bring the action, which in the present case, under the equity of the act, ought not to exceed three months, or at most a year, yet years have elapsed since the plaintiff came [385] of age, before she brings her action. But they further contended, that a eertiorari would not lay at all; that the confirmation of the report of the commissioners by the court was conclusive to all persons concerned, that is, it is conclusive as to the subject matter, it was,not conclusive as to title, neither was a judgment in a writ of partition conclusive as to the title, but to the partition and nothing more; that the order of the Orphans’ Court, confirming the report of the commissioners; is conclusive, and ex vi termini, a final sentence or decree of that court: the words of the act do not confine the limitation to cases arising out of suits originating by process, nor to suits at all; but even if it did, there was a suit below, there were parties and a judge, and that was all lhat was necessary to constitute a suit or action; that a certiorari is not a writ of right, nor quasi a writ of right, but issuing under the sound discretion of the court; as the court could not give relief, the writ ought not to have been issued.</p>

Trial at bar, by a foreign jury, under special circumstances, not -within the terms of the statute.

<p>It was moved on the part of the plaintiff, for a foreign jury, and also for a trial at bar, on the ground that the real parties were the East Jersey proprietors, plaintiffs, and the corporation of the town of Bergen, in Bergen county, defendants ; that the members of the corporation of Bergen had great influence in the county of Bergen, and therefore, that a fair and impartial trial could not be had by a jury from that county; that the cause [*] embraced matter of difficulty and importance, and therefore required a trial at bar.</p> <p>This was opposed by the counsel for the defendant. They contended that an impartial jury could be obtained from those towns in Bergen county, that had no interest in the controversy ; that even if a foreign jury was necessary, there could be no necessity for a trial at bar; the action was an action brought for the arrearges of rent, and depended on a plain instrument; besides, there was a legal objection to a trial at bar, all such trials being restrained by our act of Assembly, except the matter in controversy amounted to $3000; that the declaration in this case only charged $2800 for rent in arrear.</p> <p>The counsel for the plaintiff argued, that it was not the precise sum contained in the declaration that constituted the matter in controversy, but that any other interest collaterally in question, might be brought in; that although they did not charge as rent arrear more than $2800, yet the matter in controversy was the right to the future rent as well as that already due; and also damages for the detention of the rent.</p>

Declaration amendable after judgment by default, on giving time to plead.(a) A judgment by default had been obtained in this case, on a declaration in an action of covenant on a lease; after which, it was discovered that a mistake had been made in drawing the declaration in the date of the lease, and also in the description of the premises; if was now moved on the part of the plaintiff, for leave to amend the declaration in the particulars above mentioned, for which, was…

<p>Court refuse to nonsuit plaintiff for not trying his cause at Circuit, ■when he offered to proceed, but was prevented by the Court, because he did not produce a paper he had promised to do, for the defendant’s use. Costs denied to defendant.</p> <p>A motion was made on the part of the defendant, for judgment of nonsuit, on the ground that the plaintiff did not go to trial at the last Circuit held in Salem; the facts to support which, were, that when the cause was called on in the paper at the Circuit, the plaintiff proffered himself ready for trial; the defendant's counsel, before the jury was sworn, called on the plaintiff to produce a certain instrument of writing, which he alleged to be in the plaintiff’s hands, and which he had promised to produce on the trial, and which the defendant considered material evidence for him in his defence. The plaintiff refused however, to produce the paper; jt was made out in evidence, to the satisfaction of the Chief Justice who held the Circuit, that the plaintiff had frequently promised the defendant that he would produce the paper on the trial; in consequence of which, the Chief Justice would not permit the plaintiff to proceed.</p>

Change of venue, on common affidavit, refused. The counsel for the defendant, moved to change the venue from Sussex to Essex, on the common affidavit that the cause of action, if any, arose in the county of Essex, and not in the county of Sussex, or elsewhere out of the county of Essex.

Witness, unless under subpoena, may be arrested when attending court.(a) A motion was made on the part of the defendant, to he discharged from arrest, on the ground that he was [*] attending the trial of a cause in a county court as a witness, It appeared, however, that he liad not been subpoenaed. — ■ On the part of the defendant, it was argued, that if he was ionajide attending as a witness, it was immaterial whether he was subpoenaed or not; for which they cited 1 Dallas…

<p>ON CERTIORARI.</p> <p>The action below, was an action brought under the supplement to the election law, for a penalty, for offering a vote twice at the same election. A number of objections were taken to the record of the justice; but the one that the Court decided the cause on, was, that the state of demand did not set out, or any way state, that the election was held for members of the Legislative Council, General Assembly, Sheriffs, &c. It was contended on the part of the defendant in error, who was the plaintiff below, that this was sufficiently done by stating the election to be holden on the 11th of October, 1808; which was the time of the annual election.</p>

A motion was made on the part of the defendant to be discharged from arrest, on the ground that he was [*] attending the trial of a cause in a county court as a witness. It appeared, however, that he had not [891] been subpoenaed. On the part of the defendant, it was argued, that if he was bona fide attending as a witness, it was immaterial whether he was subpoenaed or not; for which they cited 1 Dallas 439 ; 3 Dallas 183; 6 Bac. 376.

<p>ON CERTIORARI.</p> <p>Suit on bond conditioned to deliver goods, must be in debt on the penalty, not in covenant, (a)</p> <p>The action below was an action of covenant, brought by Clark against Powell and Lord, on a bond in the usual form for §200, conditioned for the delivering up certain goods taken in execution at a certain time to Clark, who was a constable, and had levied on the goods. Breach assigned in not delivering the goods at the time mentioned in the condition.</p>

ON CERTIORARr. Suit on bond conditioned to deliver goods, must be in debt on the penalty, not in covenant.1 The action below was an action of covenant, brought by Clark against Powell and Lord, on a bond in the usual form for $200, conditioned for the delivering up certain goods taken in execution at a certain time to Clark, who was a constable, and had levied on the goods. Breach assigned is not delivering the goods at the time mentioned in the condition.

<p>ON CERTIORARI.</p> <p>On ¿ward to pay costs in five days, the party must pay them -without waiting for the tax bill to be presented.</p> <p>Bishop had commenced a suit in the supreme court against Woodruff. After this suit had been depending some time, and before judgment has been obtained thereon, the parties agreed, by an instrument under seal, to submit to arbitrators, who should pay the costs accrued on said suit; andthat Bishop should withdraw the suit if Woodruff abided the award of the arbitrators.</p> <p>The ai’bitrators awarded that Woodruff should pay the costs in five days. Woodruff did not pay the costs. After waiting some time, Bishop progressed in his suit in the Supreme Court, and obtained judgment by default. On this, Woodruff commenced the action below before the justice; which was an action for breach of covenant on the agreement and award, which he set out, and averred that he was always ready to pay the costs when'the taxed bill should be presented to him; in which action before the justice, Woodruff obtained judgment. To reverse, this judgment of the justice this certiorari was brought.</p>

<p>ON CERTIORARI.</p> <p>On award to pay costs in five days, the party must pay them without waiting for the tax bill to be presented.</p> <p>Bishop had commenced a suit in the Supreme Court against Woodruff. After this suit had been depending some time, and before judgment has been obtained thereon, the parties agreed, by an instrument under seal, to submit to arbitrators, who should pay the costs accrued on said suit; and that Bishop should withdraw the suit if Woodruff abided the award of the arbitrators.</p> <p>The arbitrators awarded that Woodruff should pay the costs in five days. Woodruff did not pay the costs. After waiting some time, Bishop progressed in his suit, in the Supreme Court, and obtained judgment by default. On this, Woodruff commenced the action below before the justice; which was an action for breach of covenant on the agreement and award, which he set out, and averred that he was always ready to pay the costs when the taxed bill was presented to him ; in which action before the justice, Wood-ruff obtained judgment. To reverse this judgment of the justice this c&rtiorari was brought.</p>

ON CERTIORARI. Moving to nonsuit on state of demand, does not preclude a motion £0 adjourn in justice’s court. The first reason assigned for the reversal of the judgment below, was, that the justice granted an adjournment and trial by jury after he had proceeded to inquire into the merits of the cause.

<p>ON CERTIORARI.</p> <p>State of demand being a half-cent over $100, does not oust a justice of jurisdiction. Court -willnot presume plaintiff absent atrendering a verdict, or that constable was not sworn to attend the jury, from those facts being omitted in the record.</p> <p>The action below was an action of debt. The first point urged by the counsel for the plaintiff in this Court, who was the defendant below, was that the state of demand, after deducting all costs, exceeded $1.00; and therefore, that the justice was ousted of his jurisdiction of the cause. It appeared by the state of demand sentup, that the plaintiff below had charged a great many items, in all amounting to $341 413 and then credited the defendant with sundries, 241 41</p> <p>And without carrying down the half-cent, stated this balance of $100 00</p>

ON CERTIORARI. The state of demand did not express a consideration for the contract, yet after verdict, reversal refused, (a)

<p>OH CERTIORARI.</p> <p>State of demand being a half cent over $100, does not oust a justice of jurisdiction. Court will not presume plaintiff absent at rendering a verdict, or that constable was not sworn to attend the jury, from those facts being omitted in the record.</p> <p>The action below was an action of debt. The first point urged by the counsel for the plaintiff in this court, who was the defendant belowq was that the state of demand, after deducting all costs, exceeded $100; and therefore, that the justice was ousted of his jurisdiction of the cause. It appeared by the state of demand sent up, that the plaintiff below had charged a great many items,</p> <p>In all amounting to $341 41J</p> <p>And then credited the defendant with sundries, 241 41</p> <p>And without carrying down the half-cent, stated</p> <p>this balance of $100 00</p>

ON CEUTIORARI, Justice may not without recording ids reason, set aside a vei'diet and grant new trial. Quere? if he may in any case, (a) It appeared by the record of the justice, that after a trial and verdict in this cause, the justice set aside the verdict, and ordered a new trial; no cause was assigned on the justice’s record for this proceeding, and this was assigned for error.

<p>OS OEETIOBABI.</p> <p>The state of demand did not express a consideration for the contract, yet after verdict, reversal refused.1</p> <p>The action below was an action on the case, brought to recover damages for not taking a freight of wood to [395] Philadelphia from Pea Landing, in West Jersey, according to agreement; verdict and judgment for plaintiff below, for $9.31 damages. The defendant below brought this writ, and his counsel contended that the action below was misstated ; that it ought to [*] have been debt, under the supplement of the act for the trial of small causes.</p>

ON CERTIORARI. The action below was brought on a note of hand. The justice certified that on the trial of the cause before him, that no witness was sworn; but that papers in the hand writing of the defendant was delivered to [*] the jury, to compare them with the note on which the action was brought, from which the jury inferred that the note was in the hand writing of th¡e defendant. On this evidence alone, the jury rendered a verdict for the plaintiff below.

<p>ON CKllTIOHAKI.</p> <p>The action below was brought on the following state of demand:</p> <p>The plaintiff comes into court and demands of the defendant, damages to the amount of dolls. 99, for- not paying forward overplus money on a sale of my property, in March, 1802; which property was sold by William Field, constable; and the present defendant demanded and received the overplus, for which the said defendant has never accounted, for which I bring suit, dated 22 December, 1808. There uvas a verdict and judgment for the plaintiff below, for dols. 49 5.0. The counsel for the defendant below, who is the plaintiff in this Court, moved to reverse the judgment, on the ground of the uncertainty and insufficiency of the state of demand.</p>

<p>ON CERTIORARI.</p> <p>In debt, judgment that a note, set-off, be given up, is error.</p>

<p>ON CERTIORARI.</p> <p>The action below was brought on a note of hand. The justice certified on the trial of the cause before him, that no witness was sworn; but that papers in the handwriting of the defendant was delivered to [*] the jury, to compare them with the note on which the action was brought, from which the jury inferred that the note was in the handwriting of the defendant. On this evidence alone, the jury rendered a verdict for the plaintiff below.</p>

ON CERTIORARI, Summons if served on a wife, must be at lier home. The defendant below did not appear on the return of the summons, and the justice proceeded to try the cause in his absence.

<p>ON CERTIORARI.</p> <p>Suit may not be on a sealed bill before it is due.</p> <p>The action below was brought by the assignee, against the assignor of two scaled bills. It was moved to reverse the judgment of the justice, on the ground that the action would not lie. The case of Garrctsio v. Yan Ness, was cited; it appeared that one of the bills was not duo when the action was commenced. It appeared by the record of the justice, that it was contended below, that there was a special undertaking of the defendant below, to be answerable for the debt.</p>

ON CERTIORARI. Suit may not be on a sealed bill before it is due. ■ The action below was brought by the assignee, against the assignor of two sealed bills. It was moved to reverse the judgment of the justice, on the ground that the action would not lie. The case of Garretsie v. Van Ness was cited; it appeared that one of the bills was not due when the action was commenced.

<p>ON CERTIORARI,</p> <p>Fictitious credit to give justice’s jurisdiction, illegal.(a)</p> <p>The action below was brought on a bond; the principal and interest due at the commencement of the suit, was dols. 110 10, and so set forth in the state of demand; but the plaintiff below, in order to bring his demand within the jurisdiction of the justice, credited in his state of demand against the defendant below, dols. 10 10 for services performed, and considerations of friendship and good will. The Court was moved to reverse the judgment of the justice, on the ground that the credits to bring an original debt within the jurisdiction of the justice, must be real; that it was evident on the face of the state of demand, that this was a fictitious credit, set up by contrivance to give the justice jurisdiction of the cause.</p>

<p>ON CERTIORARI.</p> <p>Fictitious credit to give justice’s jurisdiction, illegal.1</p> <p>The action below was brought on a bond; the principal and interest due at the commencement of the suit, was dols. 110.10, and so set forth in the state of demand; but the plaintiff' below, in order to bring his demand within the jurisdiction of the justice, credited in his state of demand against the defendant below, dols. 10.10 for services peformed, and considerations of friendship and good will. The court was moved to reverse the judgment of the justice, on the ground that the credits to bring an original debt within the jurisdiction of the justice, must be real; that it was evident on the face of the state of demand, that this was a fictitious credit, set up by contrivance to give the justice jurisdiction of the cause.</p>

<p>ON CERTIORARI.</p> <p>Scire facias must issue from the court rendering judgment,(b) The judgment is, “that execution issue,”</p> <p>Anbersokt was the plaintiff below, and brought a scire facias against Boylan, the defendant below, on a judgment rendered before another justice, and obtained judgment on on this scire facias.</p>

<p>OK CEBTIOKAKI.</p> <p>Scire facias mast issue from the court rendering judgment.1 The judgment is, •* that execution issue.”</p> <p>Anderson was the plaintiff below, and brought a scire facias against Boylan, the defendant below, on a judgment rendered before another justice, and obtained judgment on this scire facias.</p>

ON CERTIORARI, Judgment without trial, in defendant’s absence, reversed. The action below was brought to recover an account forcarpenter’s w'ork. At the day of trial, the defendant below, who is the plaintiff in this Court, did not appear. The justice entered in his docket, that after examining the account of the plaintiff, he gave judgment for dols. 17 88, which was the exact amount of the state of demand; no witnesses were examined.

ON CERTIORARI. The action below was brought by Stow, a constable, against the plaintiffs in this Court, as sureties of Samuel Jennings, late constable, on an execution in the hands of the plaintiff, Stow, in favor of Benjamin Tomlinson, against Jennings.

<p>Judge’s order to strike a jury to assess damages, need not set out prior •proceedings. Nor need theapplication therefor be sealed. Nor can one freeholder conrolainforii-regularityastoothers,orof excessive damages allowed himself; On certiorari in turnpike cases, the prosecutor’s name must be indorsed.</p> <p>An order had been made under the turnpike act, by one one of the justices of this Court at his chambers, for striking a jury, to assess the damages done to several land holders, by running the turnpike road through their land. This had been done, and an inquisition [*] returned ; and on motion, in behalf of the Turnpike Company to affirm the inquisition,</p> <p>one of the land holders, objected,</p> <p>1st. That it ought to appear that the application to the judge was made under the seal of the corporation. That an aggregate corporation was an ideal invisible body, existing only by legal intendment, and spoke only by its seal; that it could do no act except under its corporate seal; for which he cited, 2 Bac. 13. Gwillim Edi. Kid on Corp. 259, 263. 1 Blac. Com. 475.</p> <p>2d. That in case of proceedings under a special authority, the authority must be strictly pursued; and this ought to appear on the face of the proceedings. That all the anterior acts of the company, required to be done previous to making the order for striking the jury, ought to appear oh the order itself, to have been done.</p> <p>3d. That the inquisition did not follow either the words of the law or the order. The law and the order were the same, and directed the jury to estimate the injury and disadvantage the land holders sustained by reason of the road ■running through their lands. The inquisition sets forth that the jury assess the damages which the said Andrew Yan Orden sustained by the occasion of the operations of the said Paterson Turnpike Company, their servants and agents, as well in the viewing, laying out, and working the said road, as well as in occupying and appropriating of the land of the said Andrew Yan Orden for the said road, as also all other damages; that this variance, although it might not be injurious to the land holder, yet in the execution of a special authority, it was an error that must vitiate the proceedings.</p> <p>4th. That the law and the order of the judge required but one jury to estimate the damages done to all the land holders, yet a separate jury had acted as [*] to different land holders; the fact as to this was, that the sheriff, under the advice of the directors of the company, took the jury from the top of the panel certified by the judge, in the case of Van Orden; but in the case of the other land holders from the bottom of the pannel.</p> <p>The order itself, states that application was made by the president and directors of the company, and is at least prima fade evidence, that it was duly and regularly made. It does not appear but that the application was made in writing and under the seal of the corporation. But supposing it was not, the act does not require it; it was not necessary; the act requires the corporation to advertise certain matter proper to be made public. Must this be done sub pede sigilli? It would be absurd to require it. But if this was even a sound objection to the proceedings, it is now too late to take it. It should have been taken at the time of striking the jury. And this last observation applies to the second objection. As to the third objection, it could not lay in the mouth of Van Orden to complain that the jury had assessed damages in his favor for more, or greater injuries than the law and the order required of them. He has got more than he ought to have; and yet complains. As to the fourth objection, admitting that there was an irregularity, yet Van Orden could not take advantage of it. The right jury assessed the damages as to him; he was not injured, and therefore need not complain of wrongs done to others.</p>

<p>Judge’s order to strike a jury to assess damages, need not set out prior proceedings. Nor need the application therefor be sealed. Nor can one freeholder complain for irregularity as to others, or of excessive damages allowed himself. On certiorari in turnpike cases, the prosecutor’s name must be indorsed.</p>

Return on certiorari, amended on terms. This cause being called on in the paper, opposed bringing on the argument. He produced a rule of the last term, taken by the plaintiff, setting forth the deficiency of the return, and leave given to take the writ off of the files of the Court. In fact, he said the plaintiff was out of Court. said, that this was done to amend the return.

<p>ON CERTIORARI TO THE SECRETARY OF STATE,</p> <p>Return on certiorari, amended on terms.</p> <p>This cause being called on in the paper.</p>

<p>IN ERROR.</p> <p>Guardian binding an apprentice, is bound only to perforin his own, not the boy’s covenants.</p> <p>The action below, was an action of covenant, brought by Woodruff -against Corey, on an indenture of apprenticeship, very much in the usual form. The indenture first set out that Conklin Miller put himself, and by and with the consent of Benjamin Corey, and Moses Miller, executors to the estate of his father, Ephraim Miller, deceased, doth voluntarily, and of his own free will and accord, put himself an apprentice to Stephen Woodruff, to learn the art, trade and mystery of a house carpenter, and after the manner of an apprentice, him to serve, and that he would not absent himself from his master’s service during the term of his apprenticeship, with other usual covenants of faithful service. The indenture then set out the covenants on the part of the master. That he shall use the utmost of his endeavors to teach the apprentice his trade, and„ provide meat, drink, lodging, washing and mending for him; also find him certain working cloathing, and six months evening schooling; after which was the following clause: — And that the said Benjamin Corey and Moses Miller, covenant and engage to find the said apprentice all the rest of his wearing apparel during his apprenticeship ; and for the true performance of all and singular, the covenant and agreement aforesaid, the said parties bind themselves, each unto the other firmly by these presents. In witness whereof, the parties aforesaid, have interchangeably set their hands and seal thereunto; dated, &c. .</p> <p>The breach assigned, was, that the apprentice had. absented himself from his master’s service, contrary to the covenant. The defendant demurred to the declaration, and the plaintiff joined in demurrer, and the Common Pleas rendered judgment for the defendant; on which the plaintiff below brought this writ.</p> <p>Several points were raised by counsel, but as the [*] decision turned -upon one, I shall confine the report of the case to that; viz: That the plaintiff attempted to make the dedefendant liable on covenants only obligatory on the apprentice, and which the defendant never personally entered into.</p> <p>cited Whiteley v. Loftus, 8 Mod. 192; and Branch v. Ewington, Douglass, 518, which he said were in point, and as he considered, settled the question, as far as those decisions were law in this State: that it was a very important question, and he trusted that the Court would not depart from the settled adjudications on the subject,</p> <p>The covenant on which the breach is assigned, is not the covenant of Corey, the executor,, but of Miller, the apprentice. That there was certainly no express covenant on the part of the executor. That if it was a covenant at all, it was an implied one. That implied covenants are restrained by particular covenants in the same instrument. 1 Vesey, 101. That there was no analogy between this case and that in Mod. Each one of these parties bind themselves for their own covenants. If this construction is to prevail, no guardian will ever sign an indenture of apprenticeship. The intent of the parties is to govern, in all instruments. He cited a case from Mass. Rep. 228, to shew that a case in Massasachusetts had been decided that favored the construction which lie contended for.</p> <p>The Massachusetts case is a case that arose on the binding out a pauper, and therefore inapjilicablo.</p>

<p>ON CERTIORARI.</p> <p>Discretionary with justice to admit unlicensed attorney.</p> <p>The opinion of the Court was delivered by Pennington, Justice.</p>

ON CERTIORARI. This case is the same as the foregoing, except that the plaintiff below was a woman, and did not appear in person.

<p>OH CERTIORARI.</p> <p>Discretionary with justice to admit unlicensed attorney.</p> <p>The opinion of the court was delivered by Pennington, Justice.</p>

ON CERTIORARI. It appeared by affidavit taken in this cause, that on the trial of the cause below, after the parties had been heard, and as the jury were withdrawing in order to consider of their verdict, that the plaintiff below took a paper out of his pocket, and handed it to one of the jurymen, who took it out with him; that it appeared to the witness to he a paper which the plaintiff had before shewn to the justice, and which he called a plea, that this paper had not…

<p>ON CERTIORARI.</p> <p>This case is the same as the foregoing, except that the plaintiff below was a woman, and did not appear in person.</p>

<p>ON CERTIORARI.</p> <p>The Common Pleas act not as a court oí errors on appeals. Their jdgment on the merits, is a bar to another action for the same cause.</p> <p>It appeared by the state of demand filed in this cause, that a former action had been brought for the same injury as complained of in the action below, before a justice of the peace of Gloucester county. That the justice had tried the cause and rendered judgment for the plaintiff below, Leonard ; that the plaintiff in certiorari appealed from the judgment of the justice, to the Common Pleas of Gloucester. That the Common Pleas reversed the judgment of the justice, on which the plaintiff below brought an action for the same injury before another justice, and obtained judgment again. To reverse this last judgment this certiorari is brought.</p>

ON CERTIORARI. Filing note as the state of demand, illegal. Daxieis was the plaintiff below, and Heritage the defendant. On the return day of the summons, the justice made the following entry on his record. Plaintiff appeared, proved and filed a note of hand, drawn in favor of Daniel Hewes, by the above defendant, for forty-five dollars, dated 17th June, 1809.

Jurisdiction of justices of peace, in suits for legacies. The action below was brought to recover a legacy bequeathed in the will of Isaac Woodruff, the testator of the defendants below. The only point of objection to the proceeding below, taken notice of by the judges in giving their opinion, was whether the court for the trial of small causes, have jurisdiction in case of legacies, and to what amount.

The action below was brought to recover a legacy bequeathed in the will of Isaac Woodruff, the testator of the defendants below. The only point of objection to the proceeding below, taken notice of by the [414] judges in giving their opinion, was whether the court for the trial of small causes, have jurisdiction in case of legacies, and to Avhat amount. The plaintiff beloAV, demanded $100, and recovered judgment for the same sum.

ON CERTIORARI. Omission of precise dates to items in copy of book account, no cause for reversal. Attorney in fact admissible in justice’s court. The reason relied on for the reversal of this judgment, was, that the copy of the account filed with the justice, did not set out with sufficient certainty, the date of the items contained in it. The year was noted in the margin, but not the month, or day of the month; but the Court said it was too strict to reverse for that cause.

<p>ON CERTIORARI,</p> <p>Technical formality in justice’s courts, not requisite.</p> <p>The action below was brought on the following state of demand. The plaintiff Joseph Anderson, complains of Alexander M‘Cannon, that he, the plaintiff let the said Alexander have a horse to ride to Joseph Benor’s, about 16 miles, and was to return him the next day, but he did not, but held the horse two days longer than he was to; and also put out one of the horse’s eyes, to the great damage of the horse, to the amount of $40: — For which, Joseph Anderson brings this action against the defendant; and demand of him $40, damage done to said horse. June. 10, 1809.</p> <p>1st. It was objected that the style of the action was an action of damage, when no such action was known in law.</p> <p>2d. That the action was brought for damages done to the horse, and not damages done to the plaintiff below.</p>

<p>ON CERTIORARI.</p> <p>Defendant cannot by unverified charge over glOO, oust a justice of jurisdiction.</p> <p>The objection raised to the proceeding helpw, was, that the defendant below, Reading, by his plea, had set up a de-; pi and against the plaintiff below, Hoffman, a sum exceeding the justices jurisdiction, and thereby ousted the justice of the jurisdiction qf the cause. That the justice, notwith-j stsnding this plea, proceeded in the cause.</p>

ON CERTIORARI TO MIDDLESEX ORPHAN’S COURT, Executors of an administrator are not to account as representatives of tire intestate. The following case was submitted to the consideration of the Court. Martin Schenck died intestate, about the year 1784, leaving personal estate; and administration of all and singular, the goods and chattels, rights and credits, of the said Martin Schenck, was granted to Albert Schenck, and Catharine Schenck.

<p>ON CERTIORARI TO MIDDLESEX ORPHAN’S COURT.</p> <p>Executors of an administrator are not to account as representatives of the intestate.</p> <p>The following case was submitted to the consideration of the court.</p> <p>Martin Schenck died intestate, about the year 1784, leaving personal estate; and administration of all and singular, the goods and chattels, rights and credits, of the said Martin Schenck, was granted to Albert Schenck, and Catharine Schenck. The said Catharine died in the lifetime of the said Albert, who thereby became the surviving administrator of the said Martin Schenck, deceased. The said Albert Schenck departed this life about the year-, leaving the said John A. Schenck, and John Cox, his executors, and-who have taken upon themselves, the burden of the executorship. The citation in this case was issued, [*] to compel the said John A. Schenck, and John Cox, as executors of the said Albert Schenck, to settle the account of the administraton of the estate of the said Martin Schenck, deceased, by the said Albert. The Orphans’ Court decided that the said executors were accountable. It is agreed by the counsel for the respective-parties, that if the Supreme Court shall be of the opinion, that on the foregoing state of facts, the said executors are liable to account, that then the said judgment be affirmed; but if the Supreme Court should be of the opinion that they are not liable to account, that then the said judgment be reversed and set aside.</p>

. Affidavit that the debt exceeds $60; does not entitle plaintiff to costs in Supreme Court; on a judgment under $200. This was an action oí debt, on a penalty fcontainéd in an indenture of lease.

This was an action of debt, on a penalty contained in an indenture of lease. The plaintiff recovered filo, and now, by his counsel, moved the court to award costs, on the ground of his having made affidavit, under the 40th section of the act constituting courts for the trial of small causes, and regularly filed the same before the commencement of the suit, that he believed that he had sustained damage exceeding sixty dollars.

<p>in error;</p> <p>Trover lies to recover back property delivered in exchange for other property fraudulently described, arid not owned by defendant.</p> <p>The action below whs an aétion of trové!*, brought by Waters, against Yan Winkle, for a mare. On the trial of the cause before the Common Pleas, the plaintiff proved that he had sold the defendant the mare, and delivered the mare to the defendant. That the defendant agreed to give the plaintiff for the mare, two acres of wood land, laying at some miles distance from the residence of the parties, between the mountains; and also, to give him five dollars in cash, or five loads of nut wood, which the plaintiff was at liberty to take out of the defendant’s wood land, at his own expense, in case he concluded to take wood; that the plaintiff concluded to take the five loads of nut wood, but had not done it, nor had the defendant refused to permit the plaintiff to take the wood. It was also proved by the plaintiff’s witnesses, that the defendant had deceived the plaintiff, in describing the two acres of land. That he had described land to the plaintiff that did not belong to him. That the defendant’s land was much inferior to the land which he had described. That the defendant refused to give a deed for the land described, and had boasted that he [*] had taken the plaintiff in. That part of the land described by him to the plaintiff, did not belong to him, and that part of the land he was to give the plaintiff, was not worth a cent. That the bargain w'as not reduced to writing. A demand of the mare, and ref.tsal was also proved. On this evidence, without examining any witnesses on his part, the defendant moved the Common Pleas to nonsuit the plaintiff, on the ground that ho had not given sufficient evidence to support the action. That the Common Pleas being of that opinion, nonsuited the plaintiff, w ho brought this writ to reverse the judgment of the Common Pleas.</p> <p>It wras contended on the part of the plaintiff, that in this transaction, there was a gross fraud committed by the defendant, which vitiated the contract. That contracts infected with fraud, are void, aud the party injured may rescind them, and bring an action to recover damages suffered in consequence of the fraud. That when a man parts with his property, on a promise to get something of value for it, and this is refused to be complied with, he may disaffirm the eodtract, by bringing an action to recover damages for the injury. That a man who gains possession of property by fraud, cannot maintain possession of this property, which he thus acquired by fraud. In support of their positions, they cited, 2 Bur. 1011, 1 New-York Term Rep. 1 Stra. 407. 1 Bur. 395. 1 Blac. Rep. 465.</p> <p>On the other side, the counsel for the defendant said, that if the plaintiff was injured, he had mistaken his remedy. That the property w'as changed, and became vested in the defendant; that therefore, an action of trover could not be maintained. That where the property has been delivered, and the contract executed, it cannot be considered a void act, and the property still remaining in the plaintiff. That it was a mere deception at most. The consideration was not illegal, but only insufficient, and not as valuable as represented. That the whole of the difference between the parties was a controversy [*] about the description of the land, made by the defendant, at the time of the sale; they cited 2 John. Rep. 177; Cowp. 818. — That there was no difference between an exchange and a sale; 2 Blac. Com. 446. That in case this action can be maintained, an action against the innocent vendee of the mare, might also be maintained, in case it had been sold by the defendant.</p>

<p> m ERROR. </p> <p>Trover lies to recover back property delivered in exchange for other property fraudulently described, ana not owned by defendant.</p>

IN ERROR. Record of a court in Maryland, in favor of the freedom of negroes, is inadmissible evidence in this State, in a suit on a warranty of their being slaves; the warrantor being no party to, and not having notice of the proceedings in Maryland. Pattest was the plaintiff below, and brought an action of assumpsit, against Prall, on the warranty of two female negroes, sold by Prall to Patten, at Baltimore, in Maryland.

<p>Patton was the plaintiff below, and brought an action of assumpsit, against Prall, on the warranty of two female negroes, sold by Prall to Patton, at Baltimore, in Maryland. Patton alleged in his declaration, that Prall warranted the negroes to be slaves, but that the negroes were free. On the trial it appeared by the bill of sale, that Prall sold the negroes as slaves, and warranted and defended them against himself, his executors, administrators and assigns, or every other person or persons. It also appeared in evidence at the trial, that Prall had represented to Patton at the time of the sale, that he had obtained the negroes in Maryland, from the estate of a deceased relation; there was evidence, however, that he had taken the negroes from Jersey. After Prall had left Baltimore, the negroes found friends, who set up their freedom under the laws of Maryland, and obtained process, and took them out of the hands of Patton; they were put into the hands of one Hicks, who had been active in asserting their freedom. A record of a judicial proceeding had in the County Court of Hartford county, Maryland, between the negroes and Hicks was offered in evidence by the [*] plaintiff below. The admission of this evidence was objected to by the defendant below, Prall; but admitted by the court. A bill of exception was taken to the proceeding below ; on which this writ was brought. Several objections were taken to the proceedings below, but the argument and decision of the court turned on the admission of this record. The record from Maryland when read, show a proceeding had for the freedom of the negroes. The negroes petitioned the court, alleging that they were free; that they were held in servitude by Hicks; and then Hicks came in, and in answer could not deny but that they were free. On which they had judgment. It did not appear that Prall had any notice of the proceeding in Maryland.</p>

<p>Application was made for a mandamus, to two justices of the peace, and two overseers of the poor, to compel them to make a certificate for the manumission of a slave. The application was made on the part of the executor, to enable him to comply with the will of his testator. The facts disclosed by the affidavits read, were, that application had been made to the justices and overseers of the poor, who had met, heard the application, and decided against it, by refusing to make the certificate.</p>

Suit on replevin bond, may be in a justice’s court. If in superior court, and judgment for less than $60, no costs are allowed, (a) Motion was made in this case, on the part of defendant, to set aside an execution so far as it respected the costs.

<p>New trial awarded; tlie damages found for slander, being excessive;</p> <p>This was an action for words importing felony, The defendant in this plea, on which issue was taken, justified the speaking the words, for that , the words were true. At the trial before the Chief Justice, at the Monmouth Circuit, the defendant failing to support his plea of justification, called ou a witness present at the time of speaking the words, to prove, byway of mitigation of damages, the circumstances under which the words were spoken; allcdging that the [*] words were drawn from the defendant by highly abusive and provoking language, on the part of the plaintiff, at the time of speaking. The testimony wás opposed by the counsel for the plaintiff, on the ground, that as the defendant bad undertaken to justify, and deliberately spread a plea of justification on the record, averring the words to be true: that he could not now, as lie bad failed to prove bis case, resort to any circumstances that attended the speaking the words, even in mitigation of damages; and the Chief Jusiice being (if that opinion, rejected the witness. . The jury found a verdict for tlie plaintiff of upwards of §400 damages.*</p> <p>At the last term, a motion was made for a new trial.</p> <p>1st. On the ground of excessive damages.</p> <p>2d. For that the court rejected legal evidence.</p> <p>At this term, the following opinions were given.</p>

This was an action for words importing felony. The defendant in this plea, on which issue was taken, justified the speaking the words, for that the words were true.

A mother may sue for debauching her daughter per quod, the loss of fervice being after, but the seduction before, the father’s death.

A demise in fee must show testator’s intention that it be in fee. Death of plaintiff’s lessor, after notice of trial, no bar to the trial. This was an action of ejectment, for lands in Essex County, bought by Sarah Terril, who claimed title under the will of her father, old Daniel Sayre. This will was dated 1763 ; soon after which, in the same year, the testator died.

ON CERTIORARI. Money paid by one fora joint purchase of a sloop, is not a pai’tnership charge; nor within the statute of frauds, though the agreement to buy, was parol. Tiib principal reason assigned for the reversal of the judgment below, was the insufficiency of the state of demand. The action was brought for money paid and expended for the use of the defendant.

ON CERTIORARI. Judgment for costs of both parties, is error. The justice in rendering judgment, had given judgment both for the plaintiff’s and defendant’s costs.

<p>ON CERTIORARI.</p> <p>The objection to the judgment of the justice in the cause below, Was founded on the insufficiency of the state of demand. This contained a variety of charges irregularly made, among which was the following: — “ And a execution I gave him, the said defendant, against as constable for collection.”</p>

ON CERTIORARI. Judgment for costs of both parties, is error. The justice in rendering, judgment, had given judgment both for the plaintiff's and defendant's costs.

<p>ON CERTIORARI.</p> <p>The summons in this case, was for $28 42. There had been an adjournment below; and on the day to which the ■cause was adjourned, the justice made the following entry on his docket:—</p> <p><eThe defendant did not appear; the plaintiff produced in evidence, a former execution against the defendant; whereupon I gave judgment against the defendant in favor of the plaintiff, for the above sunn, and sixty-three cents costs.”</p>

ON CERTIORARI. The state of demand filed with the justice, was for a running account, in all, amounting to gl60, on which no credit was given. But the justice set out in his record, that the plaintiff filed with him his declaration, demanding one hundred dollars on balance of book account. It was contended on the part of the defendant in this Court, who was the plaintiff below, that this was regular, and the jurisdiction of tine justice not exceeded.

<p>ON CERTIORARI.</p> <p>The state of demand filed with the justice, was for a running account, in all, amounting to $160, on which no credit was given. But the justice set out in his record, that the plaintiff filed with him his declaration, demanding one hundred dollars on balance of book account.</p> <p>It was contended on the part of the defendant in this court, who was the plaintiff below, that this was regular, and the jurisdiction of the justice not exceeded.</p>

ON CERTIORARI, The action below, was founded on the following state of demand:— The plaintiff demands of the defendant $50, for this; that on or about the 24th. or 25th day of September last, the defendant took from the yard or enclosure of the plaintiff a horse, the property of the defendant, (or so considered and called) the said horse shut or tied up by the said plaintiff for the purpose of having the damages appraised on the subsequent morning; and that the defendant…

ON CERTIORARI. In action for breach of contract, breaches must be assigned.

ON CERTIORARI. A consideration of promise, musffbe alledged. The action below, was brought on the following state of demand:'— Moses Shepherd, jun’iv Dr. To Thomas Layton, in damages. Jan. 9, 1808.

<p>OH CERTIORARI.</p> <p>In action.for breach of contract, breaches must be assigned.</p> <p>The action below was brought on the following state of demand:</p> <p>The plaintiff demands of the defendant, Richard Gibbs, the sum of $50 damages, for that the plaintiff did, on the 9th of March, 1809, haul 10 beach logs to the saw-mill of the defendant, and three more logs to be hauled at a certain time appointed by defendant, all to be sawed into scant-ling; and for thér further performance of said contract, said defendant did agree with the said plaintiff, that if said plaintiff would give him one dollar per thousand more than the common price, said defendant would saw said logs in said month; said plaintiff lost ten days attendance on said defendant, for which he demands ten dollars. Plaintiff demands ten dollars in loss of [*] hauling, ditto ; freight for ditto ; lost time at the sale of ditto; and in the sale of said beach scantling, thirty dollars; and the subscriber says, that he hath sustained damages to the amount of $50, for which he brings this suit.</p>

ON CERTIORARI., The actiou below, was an action on the case, and founded on the following state of demand:— The plaintiff demands of the defendant, $80 for this; that on the seventh day of August last, did damage to [*] said plaintiff’s dock, one dollar 50 cents, besides being deprived of the use of said clock from date, until April 3, 1809, five dollars.

<p>OH CERTIORARI.</p> <p>A consideration of promise, must be alleged.</p> <p>The action below was brought on the following state of demand:</p> <p>Moses Shepherd, jun’r. Dr. To Thomas Layton, in damages.</p> <p>Jan. 9, 1808. To judgment obtained before William Cooper, Esq., at the suit of Michael Desperaux, wherein said Shepherd warranted and defended me from any harm whatever, agreeable to said judgment, that I should sustain agreeable to said suit.</p> <p>[*] Which judgment was $34 11</p> <p>Expenses, costs and damages, for which I pray judgment, 20 00</p> <p>There was a trial, verdict and judgment, for $41.07 damages and costs.</p> <p>It was now moved to reverse this judgment.</p> <p>1st. That the state of demand did not contain any lawful cause of action.</p> <p>2d. Eor that the contract set forth in the state of demand, being to answer for the debt, default or miscarriage of a third person, ought to have been in writing • and that the justice suffered the plaintiff below to prove it by parol evidence.</p>

OH CERTIORARI. The action below was an action on the case, and founded on the following state of demand : The plaintiff demanda of the defendant, $80 for this: that on [461] the seventh day of August last, did damage to [*] said plaintiff's clock, one dollar fifty cents, besides being deprived of the use of said clock from date until April 3, 1809, five dollars.

<p>ON CERTIORARI.</p> <p>Summons well served on one of joint debtors. Verdict and judgment cure a want of proving administration, not before required.</p> <p>It was objected to the proceedings below, that judgment was rendered against both defendants; whereas, the summons was served on one of them only; and that there was no allegation in the state of demand, that the defendants were partners.</p> <p>But the Court said, that a joint account against both defendants, was stated; and that the statute cured the want of appearance of the other defendant.</p> <p>It was also objected, that it was not proved at the trial below, that the plaintiff below, was administrator of the intestate.</p>

<p>ON CERTIORARI.</p> <p>Whether an account is for tavern debts, is a question for the jury, and not for the magistrate, on motion to nonsuit.</p> <p>It was objected to the proceedings below, that the action was for a tavern debt; and that the defendant below pleaded the tavern act; and that the justice refused to nonsuit the plaintiff. On the face of the account filed, it appeared, that the account was very much for liquor by small measure; there were some charges for meals of victuals, and a considerable number for lodging; that the defendant, at the first meeting, said that he would plead the bar act, (which it was admitted was understood in that part of the state, to mean the tavern act.) On the day of trial, the justice made the following entry in his docket: — “ That the defendant pleaded a nonsuit, because the amount of the plaintiff’s account was more than two dollars, the plaintiff being a tavern keeper; the defendant filed no plea in writing on the return day of the summons; for which reason I did not grant a nonsuit.” The cause was tried by a jury; and verdict and judgment for the plaintiff, §34 97.</p>

<p>Defendant allowed to remove his cause into Circuit Court of the United States, two tei’ms after appearance.</p> <p>Mr. M‘Ilvaine, in behalf of the defendant, presented a petition in behalf of the defendant, to remove this cause into the Circuit Court of the United States(a); and read an affidavit of the defendant, stating that he is a citizen of the State of Ncw-York, and not a citizen of the State of New-Jersey; and that the [*] plaintiff is a citizen of New-Jersey. The defendant had entered his appearance by attorney, in September Term last; ho admitted, that by the laws of the United States, the petition ought to have been presented on the appearance of the defendant, and application made at that time; hut as the defendant was not at that time apprised of the nature of the demand of the plaintiff, and that he had entered an appearance for him without adverting to the circumstance of the necessity of the application at thé time; he moved that it be done nunc pro tunc.</p> <p>— He said no reason had been assigned why the application for removing the cause had not been made at the time of appearance; by not doing it at that time, the defendant had lost the advantages provided for him by the laws of the United States, and ought not at this time to have the benefit of it, by an indulgence prejudicial to the plaintiff.</p> <p>contended, that the defendant had, by the Constitution and laws of the United States, a right to have the cause tried in the Court of the United States; that the nature of the action also required it, it being for a trespass, in seizing a vessel at Powles-Hook, for breach of the laws of the United States; and involved a question of jurisdiction; that the vessel liad been libelled in the District Court of the State of New-York; and that Judge Talmadge had given an opinion thatshe had been seized in the District of New-York.</p>

Mr. M’llvaine, in behalf of the defendant, presented a petition in behalf of the defendant, to remove his cause into the Circuit Court of the United States;1 and read an affidavit of the defendant, stating that he is a citizen of the State of New York, and not a citizen of the State of New Jersey; and that the [*] plaintiff is a citizen of New Jersey.

On judgment by default, on a bond for prison limits, a jury must assess the damages. Capias may not issue without affidavit. Waiver of baii must be entered on the minutes. The action below, was brought on a bond for the prison' limits. The bond and condition was set out in the declaration, and a breach assigned; there was a judgment by default, for the whole penalty of the bond.

<p>ON CERTIORARI.</p> <p>Judgment obtained by a trick, annulled.</p> <p>It appeared by the affidavits taken in this cause, that the plaintiff below, Ramsey, shortly before the trial, and the same day that the trial was had, informed the defendant below, the plaintiff in error, that he could not attend the trial, and that the defendant need not attend with his witnesses, for that no trial would be had. This was at Flemington, several miles from the place of trial; that in consequence of which, the defendant did not attend the trial. The fact, however, was that the plaintiff did not attend the trial in person; but employed a licensed attorney to appear for him, and obtained judgment in the absence of the defendant. There was some controversy as to the fact; yet it satisface torily appeared to the court as above, and that the defendant befow had been completely surprised by the conduct of the plaintiff, and a judgment obtained against him in his absence, for one hundred dollars; and this on a very suspicious cause of action.</p> <p>Mr. Maxwell moved the Court to reverse the judgment pf the justice on the above facts.</p> <p>[*] This was opposed by the counsel for the defendant in error, on the ground that the above facts, admitting them to be true, did not furnish a proper subject for the assignment of error.</p>

<p>ON OEETIOBAEI.</p> <p>Judgment obtained by a trick, annulled.</p> <p>It appeared by the affidavits taken in this cause that the plaintiff below, Ramsey, shortly before the trial, and the same day that the trial was had, informed the defendant below, the plaintiff in error, that he could not attend the trial, and that the defendant need not attend with his witnesses, for that no trial would be had. This was at Flemington, several miles from the place of trial; that in consequence of which the defendant did not attend the trial. The fact, however, was that the plaintiff did not attend the trial in person, but employed a licensed attorney to appear for him, and obtained judgment in the absence of the defendant. There was some controversy as to the fact; yet it satisfactorily appeared to the court as above, and that the defendant below had been completely surprised by the conduct of the plaintiff, and a judgment obtained against him in his absence, for one hundred dollai’S; and this on a very suspicious cause, of action.</p> <p>Mr. Maxwell moved the court to reverse the judgment of the justice on the above facts.</p> <p>[*] This was opposed by the counsel for the defendant in error, on the ground that the above facts, admitting them to be true, did not furnish a proper subject for the assignment of error.</p>

ON .CERTIORARI, Time of issuing writs of certiorari, not limited like writs of error. This was a certiorari to a Court for the trial Small Causes; the judgment below was rendered in the year 1800; and the certiorari- was not taken out until 1809.

ON CERTIORARI. Time of issuing writs of certiorari, not limited like writs of error. This was a certiorari to a court for the trial of small causes; the judgment below was rendered in the year 1800; and the certiorari was not taken out until 1809. Mr. Ewing now moved the court to dismiss the certiorari; contending, 1st. That the certiorari was barred by the 11th section of the act respecting writs of error, Pat.

<p>ON CERTIORARI.</p> <p>Sill of particulars, when required, to be delivered before a plea. It should, in a charge for money had, name theperson of whom received.(a)</p> <p>A declaration for money had and received, had been duly filed in this cause.</p> <p>moved for a rule, that the defendant plead in thirty days, or judgment be entered against him.</p> <p>opposed the motion, on the ground, that a bill of particulars had been required; and although one had been given, yet it was as general as the declaration, and therefore insufficient; that in case they went to trial, they would be as much exposed to surprise as though no bill had been given. The bill set out, that the defendant had received money belonging to the testator, of several persons, naming them; and then added, also divers other sums of money, of divers other persons, without naming the persons or sums.</p> <p>that in an action for money had and received, no bill of particulars is necessary, nor could legally be required; but even if it could, yet the one rendered Wás sufficient, and was as particular as he could make it, without examining the witnesses.</p> <p>By the 54th section of the practice act, it is eilacted, that the plaintiff, or his attorney if required before plea shall be tiled, shall deliver to the defendant, or his attorney, a copy Of the account, or a bill of the particulars of the demand, or á copy of the bill, bond, deed, bargain, contract, note, instrument, or other writing, whereon the declaration is founded.</p>

Bills of exceptions before a justice, irregular. Suit to recover township money, mispaid by an officer, must be in the township’s name. The action below, was an action of debt. The state of demand was generally for money had and received.

<p>CEBTIOEARI TO JUSTICE’S COTJET.</p> <p>Bills of exceptions before a justice, irregular. Suit to recover township money, mispaid by an officer, must be in the township’s name.</p> <p>The action below was an action of debt. The state of demand was generally for money had and received. Among other things, it was objected to the proceedings below,</p> <p>1st. That the state of demand did not set out, with a sufficient certainty, a sufficient cause of action.</p> <p>2d. That the action, if any could be sustained, ought to have been brought in the name of the township, instead of the collector.</p> <p>[*] 3d. Because the justice refused to nonsuit the plaintiff. It was contended that the action below had been brought by Bennet against Elkinton, to recover back money which he, Bennet, the collector, had paid Elkinton, under the by-laws of the township respecting the loss of sheep killed by dogs; under an idea that Elkinton had imposed on him, and got the money, when in fact he was not entitled to it.</p>

ON CERTIORARI. Penalty for enticing apprentice, extends not to slaves. The action below, was an action of debt, brought for a penalty under the sixth section of the act respecting apprentices and servants; for enticing away the servant of the plaintiff below, the defendant in this Court; who obtained a verdict and judgment for S30, the penalty given by the act.

.OX CERTIORARI. Penalty for enticing apprentice, extends not to slaves. The action below, was an action of debt, brought for a penalty under the sixth section of the act respecting apprentices and servants; for enticing away the servant of the plaintiff below, the defendant in this court; who obtained a verdict and judgment for $30, the penalty given by the act.

<p>After demanding freeholders, return is not to be recorded unless confirmed by four freeholders. (a)</p> <p>Ax' order had been obtained in this Court, appointing surveyors of the high way, to lay out a road running into two counties; under the act of Assembly as in such case provided. The surveyors had made return of the road; on the coming in of the return, the land holders had applied to the court to appoint six chosen freeholders, to review the proceedings of the surveyors, under the supplement to the Road Act, passed in December, 1807". The court had appointed the chosen freeholders, and five of them had met; the remaining freeholder did not meet, being sick: three of the freeholders were against laying the road, and two for it/ but as the act required four of the freeholders to agree to confirm the road, the road could not be confirmed.</p> <p>on the ground that the road could not be confirmed after an appeal to the freeholders, until it was approved of by the freeholders, as required by that act.</p> <p>that the road in this way would be hung up forever; that the land holders dissatisfied with the road, were the actors ; it was their duty to take the freeholders on the land, and to procure a decision; and if they did not do this, the return must be recorded, and the road confirmed.</p>

<p>An order had been obtained in this court, appointing surveyors of the highway, to lay out a road running into two counties; under the act of Assembly as in such case provided. The surveyors had made return of the road; on the coming in of the return the landholders had applied to the court to appoint six chosen freeholders, to review the proceedings of the surveyors, under the supplement to the road act, passed in December, 1807. The court had appointed the chosen freeholders, and five of them had met; the remaining freeholder did not meet, being sick: three of the freeholders were against laying the road, and two for it; but as the act required four of the freeholders to agree to confirm the road, the road could not be confirmed.</p>

<p>ON CERTIORARI.</p> <p>The action below, was an action on the case.</p> <p>The plaintiff below, who is the defendant in this Court, filed with the justice, the following state of demand:—</p> <p>“The plaintiff in this action, demands of the defendant, [*] the sum of $85, for this: — That on, or about the 19th of December, in the year 1803, thejplaintiff and defendant, both holding executions against the goods and chattels, and body of Anthony Hartly, as constables of the county of Salem, did go together to the house of said Anthony Hartly, to procure property to make to satisfy the executions, held by them against the said Anthony Hartly; when they arrived at the house, á dispute arose between them the said constables, and the representatives of David Reed, who was the landlord of the said Anthony Hartly, as to the several claims on the goods and chattels of the said Anthony Hartly. — The plaintiff and defendant claimed a right to the goods, to discharge the several executions ; and the landlord to discharge his rent due for the premises; whereupon it was agreed between the plaintiff and defendant in this action, that they would at all hazards, take the goods out of the possession of the landlord, and sell them; each of them take a proportion of the money arising from the sale, to discharge, their several executions; and if the landlord should commencehis action against them, they would be at equal and joint expense in defending themselves against the landlord; and the plaintiff further says, that landlord did commence his action against the plaintiff and defendant in this action, before Lewis Yorke, Esq., justice of the peace for the county of Salem, and did recover judgment against Wood Bishop, late constable, and William Harvey, late constable, at the suit of David Reed, the aforesaid landlord, seven dollars and thirty five cents, together with costs of suit, making in the whole, $10 58, besides interest, on which an execution issued in favor of said David Reed, against the plaintiff and defendant in this action. And the plaintiff further saith, that Wood Bishop, late constable, did receive all the money arising from the sales of the goods of the said Anthony Hartly, and applied it to his own use; and has ever since wholly refused to pay any part thereof to the plaintiff; and the plaintiff saith that he did pay the other half part of the demand of the executors of the said David Reed, against the plaintiff and defendant in this action; and the said defendant hath refused, and doth refuse to pay the two several sums of money, or any paxt thereof; by which the plaintiff is greatly damaged.</p> <p>WILLIAM HARVEY, late constable.</p> <p>To tills state of demand, the defendant below, filed the following plea:—</p> <p>Wood Bishop, late Constable, comes into Court, and pleadeth and saith, that he has not trespassed on the said William Harvey, late Constable, or done him any damage; and also says, that the said William Harvey never did sell the property of Anthony Hartly, or advertise it; and the said Wood Bishop, late Constable, pleads that the said William Harvey, late Constable, hath sued him six or seven times about the country, and never recovered judgment, to the great damage of the said Bishop, late Constable, one hundred dollars; for which he craves a judgment against said William Harvey, late Constable.</p> <p>WOOD BISHOP, late Constable.</p> <p>Upon these pleadings, the parties went to trial, and Harvey obtained a verdict and judgment for gig 50 debt, and g5 37 costs; and now Bishop prosecutes this certiorari to reverse the judgment of the justice.</p>

OH OBKTIOEABI. A combination of constables to pay proceeds of sale of goods to execution creditors, though claimed for rent, is illegal. The action below was an action on the case.

<p>ON CERTIORARI.</p> <p>The action was founded on a note of hand, given by one William Abel to the plaintiff below, De Camp. The action was commenced by De Camp against Elkanan Babbit, and Mary, his wife, late Mary Abel. There was no state of demand filed; but the note given by Abel was produced at the trial and proved; there is nothing in the proceedings of the justice to show the liability of Babbit and wife; it is probable that Babbit had married the widow of Abel, and that she was the executrix or administratrix of her late husband ; but no state of demand having been filed, nothing of this appears.</p>

<p>ON CERTIORARI.</p> <p>• A challenge that a juror has a suit' for the like cause, against the challenger, is good.</p> <p>Lanníng, the plaintiff below, brought an action before a justice to recover a sum of money of Gardner’s children who had been pla ed witli Lanning by Gardner’s wife, in the absence of Gardner. The right of Lanning to recover this money, was the issue to be tried. At the trial, one Andrew Crockill was challenged as a juror, on the ground that he had commenced an action before the same justice, for a cause of action involving the [*] same controversy; that is, to recover of Gardner for the maintenance of other children of Gardner under the same circumstances; but this challenge was over-ruled by the justice, and this was assigned for error, and clearly appeared from the record.</p>

<p>ON CERTIORARI.</p> <p>Defective rerurn on summons, cured by defendant’s adjournment.</p>

<p>ON CERTIORARI.</p> <p>An action lies to recover notes deposited.</p> <p>Several reasons were assigned for the reversal of this judgment, founded however, on the insufficiency of the following state of demand, filed with the justice:</p> <p>The plaintiff demands of the defendant ninety-eight dollars for this, to -wit. — The plaintiff left two notes of hand, or sealed instruments, commonly called notes of hand, against one Ebenezar Horton, amounting to ninety eight-dollars, bearing date the 12th of July 1808, and at the special agreement of defendant to return the same on a certain time, or was accountable to pay the amount thereof to the plaintiff. — The plaintiff having demanded the said instruments, so called notes of hand, of the defendant [*] at different times, and the defendant refused the same to return, the plaintiff has at different times, had the cash offered to him for the said notes, whereby damages occurred to the plaintiff for the amount of said notes, being ninety-eight dollars, for which, plaintiff prays judgment.</p>

<p>OH OEBTIORARI.</p> <p>An action lies to recover notes deposited.</p> <p>Several reasons were assigned for the reversal of this judgment, founded, however, on the insufficiency of the following state of demand, filed with the justice:</p> <p>The plaintiff demands of the defendant ninety-eight dollars for this, to wit: — The plaintiff left two notes of hand, or sealed instruments, commonly called notes of hand, against one Ebenezer Horton, amounting to ninety-eight dollars, bearing date the 12th of July, 1808, and at the special agreement of the defendant to return the same on a certain time, or was accountable to pay the amount thereof to the plaintiff. The plaintiff having demanded the said instruments, so called notes of hand, of the defendant [*] at different times, and the defendant refused the same to return, the plaintiff has at different times, had the cash offered to him for the said notes, whereby damages occurred to the plaintiff for the amount of said notes, being ninety-eight dollars, for which plaintiff prays judgment.</p>

<p>ON CERTIORARI.</p> <p>A guardian may be appointed for infant plaintiff, after process issued.</p> <p>The counsel for the plaintiff in certiorari, moved to reverse the judgment of the justice.</p> <p>1st. For that the name of the plaintiff below' was not in the caption to the state of demand; but only that of the defendant.</p>

ON CERTIORARI,- Admission of a witness under fourteen years of age, discretionary. The counsel for the plaintiff in this Court, who was the defendant below, moved to reverse the judgment of the justice, oh the ground that he had at the trial rejected a legal witness. The facts which appeared from the proceedings below were, that a boy, a son of the defendant below, was offered as a-witness.

<p>OH CERTIORARI. -</p> <p>A guardian may be appointed for infant plaintiff, after process issued.</p> <p>The counsel for the plaintiff in certiorari, moved to reverse the judgment of the justice.</p> <p>1st. For that the name of the plaintiff below was not in the caption to the state of demand; but only that of the defendant.</p>

ON CERTIORARI. The reason assigned for the reversal of the judgment of the justice, Avas, that the justice admitted in evidence at the trial of the cause, a paper purporting to be a transcript of proceedings liad before a justice of the peace of the state of New-York, whose signature to the same was altogether unintelligible, no evidence whatever accompanying said transcript, or in any wise showing that the person so alledgcd to be a justice of the peace, was duly appointed…

ON CERTIORARI, Justice may not privately converse with a jury after they retire.(a) The reason assigned for the reversal of the judgment of the justice, was, that after the jury had retired to their room to consider of their verdict, the justice before whom the cause was tried, went into the room and conversed with the jury on the subject of the cause for a considerable time. This fact was fully made out.

<p>ON CEETIOBAEI.</p> <p>The reason assigned for the reversal of the judgment of the justice was that the justice admitted in evidence, at the trial of the cause, a paper purporting to be a transcript of proceedings had before a [487] justice of the peace of the State of New York, whose signature to the same was altogether unintelligible, no evidence whatever accompanying said transcript, or in any wise showing that the person so alleged to be a justice of the peace was duly appointed or commissioned to act as a justice; the facts appeared from the record to be as above stated.</p>

ON CERTIORARI. The action below, was brought on the following state of demand:— 1806, March 5th, to work and labor performed from [*] this day till the 25th day of August 1808, $150 00 Credit by sundries, . 50 00 $100 00 Verdict and judgment for the plaintiff below, Oxsenius. It was contended on the part of the defendant below, the plaintiff in certiorari, that the state of demand, and also the credit, was too general and uncertain.

<p>ON CERTIORARI.</p> <p>The Court was- moved to reverse (lie judgment of the justice, on the ground that it did not appear on the record that the referees had been sworn.</p>

CERTIORARI. The action below was brought on the following state of demand: Verdict and judgment for the plaintiff below, Oxsenius. It was contended on the part of the defendant below, the plaintiff in certiorari, that the state of demand, and also the credit, was too general and uncertain.

<p>ON CERTIORARI.</p> <p>Judgment on forcible entry, is of restitution, not of guilt, (b)</p> <p>The action below was a forcible entry and detainer. The cause was tried before the justice, and verdict for plaintiff; after entering which, the justice makes the following entry jn his docket: — Whereupon I recorded the verdict of the jury, and gave judgment that Philip Weller, the defendant, is guilty of forcible entering and detaining the possession of the premises contained and described in the complaint of the plaintiff; and that the plaintiff recover of Philip Weller, the defendant, the sum of $14 24 cents of costs, and that the same be tribbled at $42 7*2.</p>

ON CERTIORARI. To recover appraised damages of cattle, &c. the statute must be pursued. The action below, was an action on the case, brought by Yan Camp against the plaintiff in certiorari, on the following state of demand, in substance: Plaintiff demands as follows, $12 75 cents, being double the amount of damage done in his corn and pasture, appraised by Peter Haughaworst and Peter Case, $6 37¿ cents, being by them appraised.

<p>CERTIORARI.</p> <p>Judgment on forcible entry, is of restitution, not of guilt.2</p> <p>The action below was a forcible entry and detainer. The cause was tried before the justice, and verdict for plaintiff; after entering which, the justice makes the following entry in his docket: — Whereupon I recorded the verdict of the jury, and gave judgment that Philip Weller, the defendant, is guilty of forcible entering and detaining the possession of the premises contained [489] and described in the complaint of the plaintiff; and that the plaintiff recover of Philip Weller, the defendant, the sum of $14.24 cents of costs, and that the same be trebled at $42.72.</p>

<p>ON CERTIORARI,</p>

ON CERTIORARI. Action of debt lies not between partners, on an unsettled partnership account.(a) The action below was an action of debt, brought on the following state of demand: The plaintiffs come into court and demand of the defendants one hundred dollars, for that; whereas the said plaintiffs and defendants, [*] on the 9th day of March, 1809, were the owners of the sloop called the Constitution, of Port Elizabeth, with her apparel, the one third part to the plaintiffs,…

<p>ON CERTIORARI.</p> <p>To recover appraised damages of cattle, &c. the statute must be pursued.</p> <p>The action below, was an action on the case, brought by Van Camp against the plaintiff in certiorari, on the following state of demand, in substance.</p> <p>Plaintiff demands as follows, $12 75 cents, being double the amount of damage done in his corn and pasture, appraised by Peter Haughaworst and Peter Case, $6 37¿ cents, being by them appraised.</p> <p>The appraisement given in evidence, was for damage done by the cattle and horses of Brittin, in the corn and pasture [*] of Van Camp. Van Camp recovered $6 37 cents.</p> <p>It was contended that this was a proceeding under the act respecting swine, to recover damage for trespass done by 'cattle, and horses; that the action should not have been an action on the case, but trespass; and that the appraisement should not have been given in evidence.</p>

<p>OH CERTIORARI.</p> <p>Action of debt lies not between partners, on an unsettled partnership account.2</p> <p>The action below was an action brought on the following state of demand;</p> <p>The plaintiffs come into court and demand of the defendants one hundred dollars, for that, whereas the said plaintiffs and defendants [*] on the 9t,h day of March, 1809, were the owners of the sloop called the Constitution, of Port Elizabeth, with her apparel, the one third part to the Slaintiffs, and the remaining two thirds to the defendants, and the said efendants had and used the one third part of said sloop belonging to the said plaintiffs from the said ninth day of March aforesaid, until the seventh of July next following, and during all that time, had and received all the freight of the said one third part of said sloop belonging to plaintiffs, amounting to the aforesaid sum of SjilOO and hath hitherto refused, and still do refuse to pay the same to the plaintiffs.</p> <p>Brick and M’Cormick, the plaintiffs below, recovered a judgment of $72, with costs.</p> <p>The counsel for the plaintiffs in certiorari contended, that the state of demand was for a partnership demand; and therefore ought to have been an action of account rendered, and not debt. Hinny’s Rep. 192.</p>

Mr. Ewing moved, on petition of a number of Freeholders of Burlington and Middlesex counties, for the appointment of Surveyors of the Highways to lay out a road. 1st. That the notice did not designate the hour in the day that the application would he made; there ought to have been a specification of a precise hour. 2d. That there was no proof that the applicants were freeholders.

Surveyors’ return must be bro’t in at first term after their appointment, (b) Mr. Scott moved for the confirmation of a return of Surveyors of the Highway. The act of Assembly has not been complied with; the return should have been made to the next court after the order made.† This has not been done; but now at a subsequent term, it is brought in. The act is merely directory to the surveyors.

<p>Surveyors’ return must be brought in at first term after their appointment.1</p>

<p>irregular removal of a cause from this Court to the Circuit Court of the United Slates, does not oust this Court of its jurisdiction. Of the regularity, that court is to decide, (a)</p> <p>Mu. I. H. Wiit.iamsox moved the Court to expunge from the minutes of the Court, the rule of February Term last,* allowing this cause to be removed to the Circuit Court of the United States; and that the cause proceed as though no such rule had been taken. As a ground of this motion, he read a certified copy of a rule of the said Circuit Court, setting forth the refusal of that Court to receive the cause as carried upfromthis Court on the rule of February Term last; he alledgcd that the Circuit Court was of opinion, that it could not obtain jurisdiction by a fiction of law.</p> <p>He said that the refusal at the Circuit Court to receive the cause, was done at the instance of the counsel of the plaintiff; that the plaintiff’ had brought himself into the situation in which he was; tbit he must lie in his bed as he had made it; that the Circuit Court could not take notice that any thing done in ibis Court, was done nunc pro tunc ; that in a legal contemplation it might be considered as done at the time it ougit t® have been done.</p> <p>There was nothing improper in his client in opposing the reception of the cause in the Circuit Court. It was a question of jurisdiction ; he had a right to submit that question to the Court on the first appearance of the cause; it would be unwise to go on while a doubt should remain as to the jurisdiction.</p> <p>There is no collision between the courts. The Circuit Court saith it hath no jurisdiction; this Court must then have it. But suppose there is a collision between the courts, what is to be done? This question arises under the Constitution [*] of the United States. The Circuit Court arc therefore, the constitutional judges of the question; and they have decided that they have no jurisdiction. This Court having jurisdiction, ought to proceed in tlíé cause; if it does riot, the plaintiff is thrown out Of Court, and has no remedy»</p> <p>Suppose the bond and petition were executed in September Term, but through some accident it was not presented, would not the court have a right to receive it the next term, as of the preceding term? The Circuit Court erred in not receiving the cause; they ought to have received and filed it. The defendant has acquired a right to have his cause tried in the Courts of the United States, and this Court cannot deprive him of it, by asserting a jurisdiction after the cause is removed. If the plaintiff is in a situation that he cannot proceed in his cause, it is his own fault, and his case is not a new one; parties are frequently in such situation that the cause cannot be proceeded in.</p> <p>This Court hath jurisdiction until the cause is removed, and received in the court above. This cause is depending in this Court until the Circuit Court has obtained and taken jurisdictionit must be depending in one .court or the other; it is not depending in the Circuit Court; it must therefore be depending in this.</p>

On covenant to give possession, it is no excuse that a tenant holds over. This was an action of covenant, brought on an article of agreement, under seal, dated the 1st January, 1807, wherein the defendant had agreed (among other things) to-let to the’ plaintiff, a garden, yard, and part of a house, wherein one Hannah Baughen then lived, for three years; the plaintiff to have possession of the prem ises on the first day of May next ensuing the date of the agreement.

<p>On covenant to give possession, it is no excuse that a tenant holds over.</p>

On indictment for passing counterfeit money, the passing other false money admitted, to prove a scienter and intent. The defendant was indicted at the Hunterdon Oyer and Terminer, for uttering and publishing as true, a counterfeit ten dollar bank bill of the Bank of the United States.

<p>ON CERTIORARI.</p> <p>The cause below had been referred to referees; and the objection to the proceedings below, was, that the justice had not entered on his docket the report of the referees. The justice had referred to the report of the referees in rendering judgment, but had not entered the report on his docket, nor even the substance of it.</p>

ON CERTIORARI. The justice in rendering judgment below, for costs in favor of the plaintiff, included also the defendant’s costs, that is, the costs of both parties were put together, and judgment rendered in favor of the plaintiff for the whole.

<p>Physician’s bill may be rendered after suit, if before the trial.</p> <p>The action below was brought to recover a Physician’s bill. It appeared that the bill of particulars had not been furnished the defendant before the action was hrought, but had been furnished several days before the day of trial. Also, it was alledged that the declarations of the wife of the defendant were given in evidence at the trial, as to which, the justice states the following fact: — That he admitted the confessions of the wife, made in the presence of her husband;, that medicine had been furnished by the plaintiff when her husband was not at home. It also appeared by affidavits, that after the parties met at the justice’s on the day of trial, that the plaintiff mentioned to the constable that he was not satisfied with one of the jurymen which he had summoned, alledging that the juryman was his enemy; on which the constable before the return of the venire, struck his name out of the panel and summoned another juryman; [*] that this was known to the-defendant, before the jury were sworn; the constable swore that as to this, he consulted Mr. Boylan, the attorney of the defendant, who informed him that he had a right to do. it. . It was now however denied by the counsel for the defendant below, the plaintiff in certiorari — that Mr. Boylan was the attorney of the defendant; and one of the witnesses swore' that he did not act as such on the trial. Three objections were taken to the proceedings of the justice. ‘</p> <p>• 1st. That the bill of particulars ought to have been delivered to the defendant before the commencement of the action. "</p> <p>■ 2d. That the declaration or confession of the wife ought not to have been given in evidence against the husband.</p> <p>3d. That there was an improper practice between the plaintiff below, and the constable, respecting the summoning the jury.</p>

<p>The action below was brought to recover a physician’s bill. It appeared that the bill of particulars had not been furnished the defendant before the action was brought, but had been furnished several days before the day of trial. Also, it was alleged that the declarations of the wife of the defendant were given in evidence at the trial, as to which, the justice states the following fact: — That he admitted the confessions of the wife, made in the presence of her husband; that medicine had been furnished by the plaintiff when her husband was not at home. It also appeared by affidavits, that after the parties met at the justice’s on the day of trial, that the plaintiff mentioned to the constable that he was not satisfied with one of the jurymen which he had summoned, alleging that the juryman was his enemy; on which the constable, before the return of the venire, struck his name out of the panel and summoned another juryman; [*] that this was known to the [500] defendant, before the jury were sworn; the constable swore that as to this, he consulted Mr. Boylan, the attorney of the defendant, who informed him that he had a right to do it. It was now however denied by the counsel for the defendant below, the plaintiff in certiorari— that Mr. Boylan was the attorney of the defendant; and one of the witnesses swore that he did not act as such on the trial. Three objections were taken to the proceedings of the justice.</p> <p>1st. That the bill of particulars ought to have been delivered to the defendant before the commencement of the action.</p> <p>2d. That the declaration or confession of the wife ought not to have been given in evidence against the husband.</p> <p>3d. That there was an improper practice between the plaintiff below, and the constable, respecting the summoning the jury.</p>

OST CERTIORARI. Justice’s docket must contain report of Referees and state that they were sworn. A justice cannot act as Referee in his own court.(a) The cause below was submitted to arbitrators, as the justice states in his docket.

<p>ON CERTIORARI.</p> <p>Action lies not against agent for his principal’s delinquency, (a)</p> <p>The action below was founded on the following article of agreement:—</p> <p>Article of agreement between Moses Tuttle, in behalf of Joseph D’ Camp on the one part, and Elisha Ayres on the other part, witnesseth: That whereas the said D’Camp has cut about one hundred cords of wood through mistake, on the said Ayre’s land, the said D’Camp agrees to and with the said Ayres, to pay the said Ayres four dollars in cash in hand, and to let the said Ayres have as much timber near the said Ayre’s land as shall make so much as the said D’Camp cut on the said Ayre’s land, be it more or less, and the timber and wood to stand for the use of the said Ayres and his heirs, executors, administrators, or assigns, for the full time of forty years, if they, or any of them should require it.</p> <p>As witness our hands, this 8th davof April, 1798.</p> <p>MOSES TUTTLE, in behalf of Jos. D’Camp.</p> <p>ELISHA AYRES.</p> <p>The breach assigned of this agreement, was, that neither D’Camp nor Tuttle liad let Ayres in his life time, or his executors since his death, have said timber and wood, or any part thereof.</p>

ON CERTIORARI. Snook brought the action below against John and saac Russell, on the following state of demand : I the plaintiff, plead that Isaac Russell, one of the defendants, bought a stack of hay for two thousand thirty inch shingles, which said Russell was to deliver the shingles at my own house at the taking away of the hay, but never brought the shingles, and afterwards, John Russell said that if Snook would let his father have the hay, he said that he would see him…

<p>■ ON CERTIORARI.</p> <p>Action for a malicious suit, lies not for two complaints before a grand jury.</p> <p>Coveyhovey brought the action before the justice on the following state of demand:</p> <p>Whereas, the said John Shoemaker did maliciously enter a complaint against me, in the term of August, 1806, before the grand jury of the county of Hunterdon, and I was acquitted by the said grand-jury; said Shoemaker also entered a complaint against me maliciously, in the term of October following, in consequence, an indictment was found against 'me, to my damage forty-five dollars and twenty-five cents, as will appear by my account, stating an amount for loss of time, expenses, witnesses and counsel fee.</p> <p>This was tried by the justice without a jury, in the absence of the defendant, on which he rendered judgment for the plaintiff below, for $37 25.</p>

ON CERTIORARI, Substituting in a venire, the words “good and lawfal men,” for “citizens of this State, and freeholders,” 8cc. not fatal error in justice’s court.(a) Tiie case sufficiently appears in the opinion delivered.

<p>A promise to pay another’s debt, must all be in writing.</p> <p>The action below w7as brought by Larue against Hoffman, on the following instrument:—</p> <p>Sept. 3, 1809: This is to certify, that I Jacob Hoffman, of the township of Lebanan, freeholder, do become security for Abraham Van Camp, in a note of sixty dollars. JACOB HOFFMAN.</p>

on OEBTIOBAEI. Substituting in a veniro the words, “ good and lawful men,” for “ citizens of this State, and freeholders,” &c., not fatal error in justice’s court.1 The case sufficiently appears in the opinion delivered.

<p>ON CERTIORARI.</p> <p>One of several defendants may not bring a certiorari without summons and severance, (a)</p>

ON CERTIORARI. Costs disallowed the appellee on appeal, when the judgment of the justice is lessened by the Common Pleas. This case sufficiently appears from the opinion delivered.

<p>ON CERTIORARI.</p>

A judgment by confession on warrant, must be entered of record, in debtor’s life time.

<p>ON CERTIORARI.</p> <p>Costs disallowed the appellee on appeal, when the judgment of the jus- ■ tice is lessened by the Common Pleas.</p> <p>This case sufficiently appears from the opinion delivered.</p>

A motion was made to set aside the judgment and execution issued thereon in this cause, on the following state of the case: Barzillai Hopkins, the defendant, on the 8th day of July, 1805, executed a bond and warrant of attorney [f] to Thomas N. Wood, the plaintiff, for the penal sum of two thousand five hundred and forty-eight dollars and forty-nine cents; conditioned for the payment of one thousand two hundred and seventy-four dollars and forty-nine cents, in one year from…

<p>In' suit for trespass, in the Supreme Court, after pleading title before a justice, the only plea allowable, is that of title.</p> <p>The plaintiff in this cause, had brought an action before a justice of the peace, against the defendant, for a trespass on his land. The defendant appeared before the justice, and teiidered a plea of title, and.entered into bond under the statute, for his appearance in this Court, to an action to be brought by-the plaintiff. This being' done, the defendant plead to the action in this Court, not only a justification by way of title, but also the general issue, not guilty; to the plea of the general issue he had added a notice of special matter, setting out a title.</p> <p>moved the Court to strike out of the defendant’s pleas, the plea of not guilty, thereby to confine the defence to the title, in conformity to the provisions of the statute; as a precedent for which, he cited from Mew-Vork Term Rep. 28, the case of Strong v. Smith, where the same thing had been done under like circumstances.</p> <p>The general issue pleaded in this case, is done only to let in notice of special matter under the act “to fácil itite pleadings; the judge at the Circuit will confine the evidence .to the title.</p>

<p>ERROR FROM SALEM PLEAS.</p> <p>William Brick, the defendant in this Court, brought an action of debt in the Common Pleas, against John Dickinson, the plaintiff in error; Brick brought the action as administrator of William Dickinson ; which said William Dickinson in his life time, was executor to Thomas Dickinson, and testamentary guardian of John Dickinson, son of the said Thomas Dickinson. The action was founded on the decree of the Orphan’s Court, and set out in the declaration as follows: — .</p> <p>For that whereas lately, to wit, on the 15th day of September, A. D. 1806, at an Orphan’s Court then held at Salem, m and for the county of Salem, it was allowed, adjudged and decreed, by the consideration of the said Orphan’s Court, before the judges thereof; (previous proclamation being duly made, and proof of public notice thereof by the said court being first had, agreeably [*] to the directions of the act of the Legislature of the State of New-Jersey, in such case lately made and provided) that the sum of $146 19 was due and owing to the said William Brick, as surviving administrator of the estate of the aforesaid William Dickinson, esquire, deceased, who was the executor of Thomas Dickinson deceased, and testamentary guardian of the said John Dickinson, to wit, at Salem, &c. whereof the said John Dickinson afterwards, to wit, &c. had notice, by reason whereof, and by force of the act of the Legislature of the said state, in such case lately made and provided, an action hath accrued to the said William Brick, surviving administrator as aforesaid, to demand and have from the said John Dickinson, the said sum of $146 19 so adjudged to him, the said William Brick, as surviving administrator as aforesaid, by the said judgment and decree of the said Orphan’s Court, &c. yet the said John Dickinson, although often required, hath not paid, &c.</p> <p>On this declaration judgment by default was rendered for the plaintiff. The defendant brought this writ of error to reverse the judgment of the Common Pleas.</p> <p>contended, that William Brick, the administrator of William Dickinson, who was executor to Thomas Dickinson, and testamentary guardian to John Dickinson, son of Thomas, is not the Representative of Thomas Dickinson: 3 Blac. Com. 506; that the administrator of an executor, was not the representative off the testator, although an executor was the representative of the first testator.</p>

William Brick, the defendant in this court, brought an action of debt in the Common Pleas, against John Dickinson, the plaintiff in error; Brick brought the action as administrator of William Dickinson; which said William Dickinson in his lifetime, was executor to Thomas Dickinson, and testamentary guardian of John Dickinson, son of the said Thomas Dickinson.

<p>Dower is recoverable to only a third of the value of land at the time of the husband’s sale. So also as to damages. Subsequent improvements are not liable to dower, (a)</p> <p>This was an action of Dower; and the following state of the case agreed on by the parties, and submitted to the Court:</p> <p>It is agreed that judgment be entered for the demandant, subject to the opinion of the Supreme Court, on the following case.</p> <p>1st. Jacob Van Dorn, the husband of the demandant, was on the 21st January, 1789, seized in fee of the premises out of which the demandant claims dower; and being so seized, he, together with the demandant, conveyed the same to the defendant; Jiro ut, the deed of that date, marked A, which deed was not acknowledged by the demandant, so as to bar her dower.</p> <p>2d. At the time of the said sale and conveyance, the premises consisted of land which had been cleared, but was altogether unimproved by buildings, and only in a state tobe used for the common purposes of husbandry. After the conveyance, and in the lifetime of the husband of the demandaut, the defendant laid out a considerable sum of money in erecting a Saw-Mill and other improvements on the premises, whereby the value was much increased.</p> <p>3d. After the death of the husband, the defendant laid out more money, to a large amount, in further improvements ; to wit, in the erection of a Grist-Mill, and other erections of the same nature, which arc now on the premises, and which have increased their value.</p> <p>4th. There was no demand of dower made by the demandant further Ilian is included in the bringing of this suit.</p> <p>If the Court shall be of opinion that the demandant is entitled to recover her dower of the premises as now improved; or as improved before the death of the late husband of the demandant, then a writ of inquiry is to be awarded to ascertain her dower, and the damages she maybe entitled to on this state of the case, in conformity with the said opinion.</p> <p>If the Court shall be of opinion, that the demandant is entitled to be endowed only as of the value of the said premises at the time of the said sale and conveyance, then a writ of inquiry is to issue to ascertain the said value, and final judgment to he entered in conformity to the said opinion.</p> <p>contended, that the widow was entitled to the whole dower as the land then was ; but if not to the whole, she was at least entitled to the improvements made since the death of the husband. In support of his position, he cited the following authorities, 9 Vin. 259. Coke Lit. 32, 2 Back. 368, Pat. 343.</p> <p>On the other hand, it was argued, that the widow is entitled to no more than the value of one third of the land at the time of the alienation by the husband; nor is she entitled to more damages than the one third [*] of the annual value of the land at that time; that the case of the heir might be laid out of the question as not applying; it was the duty of the heir to assign dower, and if he did not do it, and went on and improved the land, it was his own fault; as the alienee cannot recover of the heir on the warranty of his ancestor, more than the value of the land at the time of the alienation, and the same in respect of a personal covenant; so shall he not be compelled to pay more to the widow; Bin. 145. 2 Bac. 368. Coke Lit. 32. 2 John. Rep. 484. 3 Mass. Rep. 342, 3. That the alienee is not bound to assign dower until demand made.</p> <p>There is no distinction in our law between the heir and the alienee; they are both bound to assign dower; they both make the improvement with a knowledge of the right of the widow.</p>

This was an action of dower; and the following state of the case agreed on by the parties, and submitted to the court.

<p>Exceptions to surveyors’ return, and rule for appointing freeholders, allowable in Supreme Court at the same time.</p> <p>Aw order had been made, appointing surveyors to lay out a road; they had laid the road and made a return thereof to this term.</p> <p>through whose [*] land the road was laid, moved for leave to file exceptions to the return of the surveyors; and in compliance with the late act of Assembly on the subject, he also moved for the appointment of freeholders to review the road, in case the exceptions to'the proceedings of the surveyors should be adjudged by the Court insufficient, the act requiring the application for the appointment of the chosen freeholders, to be made at the term to which the return of the surveyors should be made.</p> <p>on the ground that the only authority to review the proceedings of the surveyors was by act of Assembly, vested in the chosen freeholders.</p>

<p>Exceptions to surveyors’ return, and rule for appointing freeholders, allowable in the Supreme Court at the same time.</p>

The defendant was convicted at the last term, of uttering and publishing as true, a counterfeit ten dollar bank bill, knowing the same to have been false and counterfeit; as he was on bail, he tied between the time of the trial and the rendering of the verdict of the jury. At the Morris Special Oyer and Terminer in [*] June, he appeared publicly in court, on which, Penstingtok, Justice, who presided at the Oyer and Terminer, ordered him taken into custody.

Acknowledgment of a debt on bond, is no answer to a plea of the statute of limitations.(a) This ivas an action of debt, brought on a bond given by the defendant to the plaintiff, bearing date the 13th August, 1787, in the penal sum of 1183 14 2 New-York currency, value of $459 27.

Acts and declarations of a person in possession, under -whom a party-claims, are competent evidence in a boundary cause, (a) Tms was an action of trespass qnare clausum Jregit. Pleas, 1, not guilty: 2, Liberum tenement,um. On the trial at the Cape-May Circuit, it was admitted to be a boundary dispute.

<p>Bail bond in double tlie sum, sworn to and indorsed on writ, is good.</p> <p>This was an action on a bail bond. The sheriff had taken bail for double the sum sworn to in the affidavit. To the declaration on this bond, the defendant demurred, to which there was a joinder.</p> <p>The act authorizing sheriffs to take bail bonds, limits them [*] to the sum contained in the affidavit; the sheriff is directed by the act* to take bail for the sum indorsed on the writ, and no more.</p> <p>It musthave been on the adage, that every generation grows wiser and wiser, that the gentleman has brought in question, a practice that has prevailed for near a century. The English act has the same negative words, and no more; yet the practice has been to take the bonds in double the sum sworn to in the affidavit and indorsed on the writ. Our act is a copy from the English:† and the practice under it has uniformly been, to take bonds in double the sum indorsed on the writ.</p> <p>insisted on the express and positive words of the act; the act was imperative, and could not be departed from.</p>

This was an action on a bail bond. The sheriff had taken bail for double the sum sworn to in the affidavit. To the declaration on the bond, the defendant demurred, to which there was a joinder.

Tins was an action of debt, brought on a judgment of the Court of Common Pleas of the city and county of Philadelphia, in the State of Pennsylvania. The defendant pleaded nul tiel record, and day was given to bring in the record.

<p>This was an action of dower. The demandant had obtained a judgment by default, on which, a writ of seizin and inquiry of damages, &c. had issued. The sheriff returned to the writ of seizin, that he had allotted to the widow one piece of land, giving in his return, the metes and bounds thereof; also, that he had allotted to the widow, one third of the house, barn, and orchard; the south end of the house and barn; no particular part of the orchard mentioned.</p> <p>It was moved, on the part of the tenant, that the writ and the return be quashed, on the ground of the insufficiency of the return.</p>

This was an action of debt, brought on a judgment of the Court of Common Pleas of the city and county of Philadelphia, in the State of Pennsylvania. The defendant pleaded nul tiel record, and day was given to bring in the record.

<p>Date of demise in- declaration in ejectment, amendable. (b)</p> <p>This cause had been carried down to the Circuit, but not tried.</p> <p>for [*] leave to amen d the declaration. In laying the demise, a mistake had been made by stating May, instead of July, when the title intended to be tried, had commenced in the lessor. He cited 1 Barnes 24, 26, where bills against an attorney had been amended though an original proceeding; he also cited 1 Stra. 583, 3 John. 597, 3 Blac. Com. 407, State Rep. 50, and other cases, he said that all were amendable while in paper; that the ideá that a demise in ejectment was not amendable, was supported only by old cases; the modern practice was more liberal, especially in this State, where it had been practiced these twenty years.</p> <p>1st. That a demise in ejectment was not amendable.</p> <p>2d. That it could not be amended after issue joined and cause once carried down to trial.</p> <p>3d. That at all events, it could not be amended without something to amend by; that a declaration in ejectment was in the nature of process, which'could not be amended without something to amend by; that the writ might be amended by the precipe, and the declaration by the writ, but here, there was nothing to amend by. That all original proceedings were not amendable, because nothing to amend by; they cited, 1 Salk. 48, Barnes’ Notes 16, 186. 2 Mod. 144, Tid’s practice 242, 3.</p>

<p>Date of demise in declaration in ejectment, amendable.2</p>

<p>OX CERTIORARI.</p> <p>Assignee of a note, need not be stiled assignee, in the process,</p>

<p>OH CERTIORABI.</p> <p>Assignee of a note, need not be styled assignee, in the process.</p>

<p>ON CERTIORARI.</p>

<p>ON CERTIORARI.</p>

<p>OH CERTIORARI.</p>

<p>ON OEE.TIOUABI.</p>

<p>OX CERTIORARI.</p>

<p>ON CERTIORARI.</p>

<p>ON CERTIORARI.</p>

<p>ON CERTIORARI.</p>

<p>ON CERTIORARI.</p>

<p>ON CERTIORARI.</p>

<p>OST CERTIORARI.</p> <p>An acting executor must sue in the name of all the Executors.</p>

<p>OH OEETIOBABI.</p> <p>An acting executor must sue in the name of all the executors.</p>

<p>ON CERTIORARI.</p> <p>The action below, was founded on the following state of demand:—</p> <p>April 4th,-1809. John J.- Van Middlesworth, Dr. to John Dodge, the snm of one hundred dollars for damages, for not complying with the bargain made concerning the hatter’s shop, furs and [*] tools.</p> <p>It was objected that the above state of demand was insufficient.</p>

<p>ON CERTIORARI.</p> <p>A due bill payable to ones creditors, is not negociable, (a)</p> <p>The action below, was brought on the following state of demand:—</p> <p>William' Headly, Dr. to Simon. Van Ness, indorsee of William Taylor.</p> <p>To amount-of account rendered, $16 18</p> <p>Interest, 5 56</p> <p>$21 74.</p> <p>Among the papers sent up by the justice, was a written acknowledgment, dated 26 Jan., 1805, made by William [*]• Headly, that he bad bought sundry articles, which were particularly enumerated, amounting to §16 18, of William Taylor, which he was to settle with his creditors; on the hack of which, was signed in blank, the name of William Taylor:</p>

<p>ON CERTIORARI.</p> <p>The action below was founded on the following state of demand:</p> <p>April 4th, 1809. John J. Van Middlesworth, Dr., to John Dodge, jihe sum of one hundred dollars for damages, for not complying with the bargain made concerning the hatter’s shop, furs and [*] tools.</p> <p>It was objected that the above state of demand was insufficient.</p>

ON CERTIORARI. The action before the justice, was brought by Ffirth on the timber act, for several penalties, for cutting timber. On the trial, the defendant below offered a witness, who was objected to fay the plaintiff and rejected by the justice; who assigns the following reasons for doing it: — That the witness offered, had been convicted by a jury of twelve men, of cutting wood on the same land, and at the same time that the defendant was cutting.

<p>ON CERTIORARI.</p> <p>A due bill payable to one’s creditors, is not negotiable.1</p> <p>The action below was brought on the following state of demand:</p> <p>William Headly, Dr. to Simon Van Ness, indorsee of William Taylor.</p> <p>To amount of account rendered, . $16.18</p> <p>Interest, 5.56</p> <p>$21.74</p> <p>Among the papers sent up by the justice, was a written acknowledgment, dated 26 Jan., 1805, made by William [*] Headly, that he had bought sundry articles, which were particularly enumerated, amounting to $16.18, of William Taylor, which he was to settle with his creditors; on the back of which, was signed blank, the name of William Taylor.</p>

OH CERTIORARI. The action before the justice, was brought by Ffirth on the timber act, for several penalties, for cutting timber. On the trial, the defendant below offered a witness, who was objected to by the plaintiff, and rejected by the justice; who assigns the following reasons for doing it: That the witness offered, had been convicted by a jury of twelve men, of cutting wood on the same land, and at the same time that the defendant was cutting.

<p>ON CERTIORARI.</p> <p>A parent after signing an indenture of his son’s apprenticeship, may not sue for his services to the master. The indenture may bind the father, although void as to the son.</p> <p>The action below, was brought by Henry I. Morrison, against Robert Mead. The principal item in the demand of Morrison against Mead, was to labor done andperformed from April, 1805, till December, 1809, by Abraham, forty-five dols. An indenture of apprenticeship was given in evidence by the defendant below, Mead, which indenture was sent up by the justice, with the papers in the cause. By this indenture, Abraham Morrison, the son of Henry I. Morrison, the plaintiff below, had bound himself an apprentice, by and with the consent of his father, to Robert Mead, during the time embraced by the before mentioned item in the state of demand. The indenture was signed both by the father and son.</p> <p>The counsel for the plaintiff in error, moved to reverse the judgment of the justice, on this ground, that the father, after binding his son an apprentice to a master, cannot, at his election rescind the contract, [*] and bring an action against the master for the work and labor of his son.</p>

OS CERTIORARI. A parent after signing an indenture of his son’s apprenticeship, may not sue for his services to the master. The indenture may bind the father, although void as to the son. The action below was brought by Henry I. Morrison, against Robert Mead. The principal item in the demand of Morrison against Mead, was to labor done and performed from April, 1805, till December, 1809, by Abraham, forty-five dols.

<p>ON CERTIORARI,</p> <p>A conveyance of land, in fee simple, passes the grain growing thereon, unless expressly reserved.</p> <p>The action below was an action of trespass, for cutting down and taking away eighty bushels of rye, and twenty bushels of wheat of the plaintiff below, Elberson, by the defendant below, Terhune, tho 7th July, 1810.</p> <p>The defence set up, was, that the defendant below purchased the land on which lie cut the wheat and [*] rye of the plaintiff below, the 4th ‘May, 1810, and ha'd gone into possession of the premises under tho said deed, on which the wheat and rye was cut at the time of cutting it, which facts appeared by the record.</p> <p>It was contended by the plaintiff below, that although he did sell the land on which the wheat and rye was cut, to the defendant, in May, and give-him possession thereof, .yet that this sale did not convey the wheat anti rye growing on the land. That whoever sowed in peace should reap in peace; the cause was tried by a jury, arid verdict and judgment for the plaintiff for g8.0, with costs.</p>

<p>OH CERTIORARI.</p> <p>A conveyance of land in fee simple, passes tie grain growing tbereon, unless expressly reserved.</p> <p>The action below was an action of trespass, for cutting down and taking away eighty bushels of rye, and twenty bushels of wheat of the plaintiff below, Elberson, by the defendant below, Terhune, the 7th July, 1810.</p> <p>The defense set up, was, that the defendant below purchased the land on which he cut the wheat and [*] rye of the plaintiff below, the 4th May, 1810, and had gone into possession of the premises under the said deed, on which the wheat and rye was cut at the time of cutting it, which fact appeared by the record.</p> <p>Tt was contended by the plaintiff below, that although he did sell the land on which the wheat and rye was cut, to the defendant, in May, and give him possession thereof, yet that this sale did not convey the wheat and rye growing on the land. That whoever sowed in peace should reap in peace. The cause was tried by a jury, and verdict and judgment for the plaintiff for $30, with costs.</p>

A witness need not answer a question tending to disgrace himself, (a) This was an action brought by the father, for debauching his daughter and getting her with child, per quod, &c. It was tried at the Monmouth Circuit, in October, 1804, before Pennington J. The daughter was called as a witness, and swore to the seduction and getting her with child, and that the defendant was the father of the child, and. no one else.

<p>Property is bound upon serving an attachment(a)</p> <p>Ox motion, made in behalf of Lummis, that the Clerk of this Court pay into the hands of the auditors, &c. the money arising from the sale of the property of Joseph S. Higbee, made by the Sheriff of Cumberland, by virtue of an execution, at the suit of Enoch Boon.</p> <p>. The parties agreed to the following facts:—</p> <p>On the twenty-sixth day of May, one thousand eighthundred andnine, a domestic attachment issued out of the Court of Common Pleas of the county of Cumberland, against the rights and credits, monies and effects, goods and chattels, lands and tenements of Joseph S. Higbee and Uriah Mills, absconding debtors, at the suit of the above named Ephraim Lummis, jun’r, who hath survived Dayton Newcomb, returnable to June Term, 1809; which attachment was executed as the law directs, on the same day, and an inventory and appraisement of the property attached, was made and returned to said court; the said attachment was fhrthei’ regularly proceeded in to judgment, which was entered for plaintiff, November term, 1869.</p> <p>On the thirtieth day of May, one thousand eight hundred and nine, a judgment was entered in this Court upon a bond and warrant of attorney, given by the said Joseph S. Higbee, to the above named Enoch [*] Boon, dated the first day of May, one thousand eight hundred and nine, and on the day of June, execution was issued, returnable, September term, 1809; on the fifth day of June it was delivered to John Buck, Esq., Sheriff of Cumberland, who on the day of June, levied the said execution upon the same property of Joseph S. Higbee, which had been previously attached by virtue of the attachment herein mentioned.</p> <p>It was agreed between the said Lummis and Boon, that the sheriff should proceed to sell the property of Joseph S. Higbee, attached upon the execution as aforesaid, and pay the money arising from the sale thereof, to the Clerk of this Court, to remain subject to the determination of the following question:—</p> <p>Was the property and estate of Joseph S. Higbee, attached in the manner herein before mentioned, bound by the writ of attachment from the time of the execution thereof?</p> <p>If the Court are of opinion, that the property and estate of Joseph S. Higbee, attached as herein before mentioned, is bound by the writ of attachment, it is agreed that they direct the money to be paid to the auditors appointed by the court in the attachment herein mentioned, to be disposed of as the law directs, with costs of the present motion, to Ephraim Lummis, Jun’r,</p> <p>But if the Court are of opinion, that the property and estate of Joseph S. Higbee, attached in the manner herein before mentioned, is not bound by the writ of attachment, but subject to the execution which was issued as herein mentioned, at the suit of Enoch Boon, it is agreed that they direct the money to be paid to the said Enoch Boon, with costs attending the present motion.</p> <p>It further appeared by affidavits taken by an agreement of the parties, that the Sheriff of Cumberland on [*] the morning of the day the attachment was taken out and served, was at Higbee’s house, about an hour after sunrise, with a capias at the suit of Lummis; that the Sheriff could not take Higbee, but that Higbee fled in a sulkey, full speed towards Salem, and passed the Delaware River, and had never returned; that between 12 and 1 o’clock of the same day, Lummis took out the writ of attachment in question, and that it was executed about 2 o’clock of the same day.</p>

On motion, made in behalf of Lummis, that the clerk of this court pay into the hands of the auditors, &c., the money arising from the sale of the property of Joseph Higbee, made by the sheriff of Cumberland, by virtue of an execution, at the suit of Enoch Boon.

<p>Appeal papers should be received by the Common Pleas, if filed during the term next after judgment of the justice. The act requiring them to be sent on or before the first day m the term, is only directory to the justice, not to the Court. (a)</p> <p>Mr. Van Arsdale moved for a peremptory mandamus [*] to the Common Pleas of Bergen, commanding them to receive an appeal from the judgment of Justice Beach, and to proceed to judgment thereon, on the following facts: — George Brueton had obtained] a judgment against John Harris, before Samuel Beach, Esquire, for sevexty dolls., with costs. Harris appealed from the judgment of the justice, to the Common Pleas, and delivered the appeal bond to the justice four or five weeks before court. The justice, either from the want of an opportunity or forgetfulness, as he himself states, did not send up the proceedings, &c. to the court on the first day of the term. The appellant perceiving that the justice had not sent up the proceedings as was required of him by law, went to the house of the justice and procured from him the transcript, appeal bond, &c. and brought them into court during the term, but after the first day, when they were duly filed. The next following term the Court dismissed the appeal, and assigned the following reason for so doing: — That the transcript of the justice was not filed on the first day of the Court next after the judgment was given by the justice below.</p> <p>A rule of this Court, having been obtained and served on the judges of the Common Pleas, calling on them to show cause why a mandamus should not issue against them, and no cause being shown, the facts were submitted without argument.</p>

<p>Appeal papers should be received by the common pleas, if filed during the term next after judgment of the justice. The act requiring them to be sent on or before the first day in the term, is only directory to the justice, not to the court.2</p>

ON CERTIORARI, The action before the justice, was an action of trespass, brought by Whitmore against Dean. The plaintiff below filed before the justice, two certificates of appraisement of damages done in the plaintiff’s corn and other grain, by sheep said to belong to Jacob Dean. The insufficiency of the state of demand was assigned for error.

<p>Demand need not be filed, if the cause be referred.</p> <p>No state of demand was filed before the justice, and this was assigned for error. But it appeared that the cause had been by agreement submitted to referees.</p>

No state of demand was filed before the justice, and this was assigned for error. But it appeared that the cause had been by agreement submitted to referees.

<p>ON CERTIORARI.</p> <p>On the appearance of the parties before the justice, the plaintiff filed his state of demand; on which, the defendant delivered to the justice, the following plea:</p> <p>To James Ludlum, justice, my state of demand and plea is, that I demand a nonsuit, lor which 1 plead relationship, and wish you to dismiss the action. From your friend, ENOCH S'l’EVENSON.</p> <p>The justice took no notice of this plea. It was contended by the counsel for the plaintiff in error, who was the defendant below, that the justice ought to have tried this plea: — That it amounted to a challenge.</p>

OH. CEETIOBABI. On the appearance of the parties before the justice, the plaintiff files his state of demand; on which, the defendant delivered to the justice, the following plea: To James Ludlum, justice, my state of demand and plea is, that I demand a nonsuit, for which I plead relationship, and wish you to dismiss the action. From your friend, ENOCH STEVENSON. The justice took no notice of this plea.

<p>ON CERTIORARI.</p>

<p>ON CERTIORARI.</p> <p>The action before the justice, was an action on the case, brought on an indenture; and a breach assigned for not schooling the plaintiffs son. The cause of action in the state of demand was very vaguely set out; there was not sufficient matter contained in the state of demand, to show the liability of Mr. Sayre to the action of the father.</p>

ON CERTIORARI. In a suit for a malicious prosecution, special circumstances of malice, 8cc. must be precisely alledged.

<p>ON CERTIORARI.</p> <p>The action before tbe justice, was brought by Townsend and two others, on tbe following state of demand, to wit:—</p> <p>Joseph Townsend, one of the plaintiffs in the above cause, comes into court and demands of Thomas Autin $100, which to him he [*] owes for damages sustained for detaining the Schooner Resolution thirty days from sailing on a voyage, after having cleared out for Richmond, State ol Virginia; and this the said Townsend is ready to prove, and therefore prayeth judgment against the said Thomas Autin.</p> <p>It was objected to this state of demand, that it did not set out a cause of action against any one. It was also contended, that even if the state of demand did show a cause of action in Joseph Townsend, that the other persons joined with him could not have a right of action for an injury done to him.</p>

ON CERTIORARI The action before the justice, was brought by Townsend and two others, on the following state of demand, to wit: Joseph Townsend, one of the plaintiffs in the above case, comes into court and demands of Thomas Autin $100, which to him he [f] owes for damages sustained for detaining the schooner Resolution thirty days from sailing on a voyage, after having cleared out for Richmond.

<p>ON CERTIORARI.</p> <p>Defendant without a set-off, can recover no sum except costs.</p> <p>The action below, was brought by Robbins against Eakin, for violating an agreement. To this charge, Eakins plead not guilty; no off-set was set up before the justice; yet on the trial by jury, Eakins, the defendant, recovered £16, for which sum the justice rendered [*] judgment against the plaintiff, who brought this certiorari to reverse the judgment.</p>

ON OEETIOBABI. Defendant without a set-off, can recover no sum except costs. The action below was brought by Robbins against Eakin, for violating an agreement. To this charge, Eakin plead not guilty; no offset was set up before [546] the justice; yet on the trial by jury, Eakin, the defendant, recovered $10, for which sum the justice rendered [*] judgment against the plaintiff, who brought this certiorari to reverse the judgment.

<p>ON CERTIORARI.</p> <p>The first objection to the action below was, that the justice had not entered on his docket the name of the county. The name of the county appeared on the proceedings, particularly on the plea of Gulick, in whose behalf the objection was taken. : • > V</p>

OS CERTIORARI. The first objection to the action below was that the justice had not entered on his docket the name of the county. The name of the county appeared on the proceedings, particularly on the plea of Grtilick, in whose behalf the objection was taken.

<p>ON CERTIORARI.</p> <p>In trover for a bond, plaintiff must show it Ids property, (a) Trover lies not for a bond paid off. (b)</p> <p>The action below, was an action of trover, brought by Swisher against John Besherer, to recover a bond which he alledged in his state of demand, he had given to one Abraham Besherer, which bond be alledged to have been paid off; that the said bond had been lost, and had come to the hands of the defendant by finding; and that the defendant refused to deliver up the bond to the plaintiff, but had converted the same to his own use. It was said in the course of the argument, that John Besherer, the defendant below, was the son of Abraham Besherer, the obligee.</p>

ON CERTIORARI. In trover for a bond, plaintiff must show it bis property.1 Trover lies not for a bond paid off.2 The action below was an action of trover, brought by Swisher against John Besherer, to recover a bond which he alleged in his state of demand he had given to one Abraham Besherer, which bond he alleged to have been paid off; that the said bond had been lost, and had come to the hands of the defendant by finding; and that the defendant refused to deliver up the…

<p>ERROR FROM BURROUGH COURT OF ELIZABETH.</p> <p>In assumpsit against partners on note by one of them, the partnership or joint contract must be proved.</p> <p>The action below was an action of assumpsit, brought by Muir against William Teller, Peter W. Teller, and Samuel Teller, trading under the firm of Peter W. Teller & Co., on a promissory note, alledged to be made by the defendants, in the name of the firm. At the trial, the plaintiff, Muir, offered in evidence a note, which he proved to be in the hand writing of Peter W. Teller, signed Peter W. Teller .& Co. The counsel for the defendants objected to reading the note in evidence, alledging that no evidence had been given of the existence of the partnership, which he contended was necessary, to make out a joint cause of action, and to show the authority of Peter W. Teller to execute a note in the name of the other defendants. The court below, over-ruled the objection; whereupon the note was read in evidence, on which the plaintiff rested his cause. The defendants counsel moved for a nonsuit, on the ground that no joint contract had been proved; but the court refused to non-suit, and the jury found a verdict for the plaintiff for the amount of the note. [*] This matter being brought up by bills of exception, and assigned for error,</p> <p>1st. That the note could not be read in evidence until the partnership was proved.</p> <p>3d. That no joint contract had been proved, and therefore the court below ought to have nonsuited the plaintiff.</p> <p>The action was against the firm, and the note proved to have been executed by one of the firm; it was evidence so far, and proper to goto the jury; that if they failed in making out evidence of a joint contract, by proving the partnership, the court below might, at their discretion, nonsuit the plaintiff, but this could not be assigned for error; that one of the justices of this Court, in another case, had expressed that opinion.</p>

<p>EEEOE EEOM BOBOUGH COUBT 01 ELIZABETH.</p> <p>In assumpsit against partners on note by one of them, the partnership or j oint contract must be proved.</p>

An assigned judgment may not be set-off in a suit. This was an action of assumpsit. A notice of set-off had been made of several matters; among others, that of an assigned judgment, that one Gaunt had obtained against the plaintiff, which judgment was assigned by Gaunt to the defendant, and notice thereof given to the plaintiff before the commencement of this suit.

<p>ON CERTIORARI.</p> <p>On dismissing a certiorari, execution for the debt and costs, issues from this Court, as on non-prossing a writ of error, (a)</p> <p>The certiorari in this case, was from a justice’s court, and was dismissed for want of prosecution. The defendant in certiorari issued an execution out of this Court, as well for the debt which he had recovered below, as for the costs of the certiorari.</p> <p>Hunter moved to set aside the execution for irregularity. He said that an execution was founded on the record, and must issue out of the court where the record is. 9 Saund. 101, x note.</p> <p>The record is in this Court, brought here by the certiorari; the dismissing for want of prosecution, is the same as non-prossing a writ of error for want of prosecution; in which case, the execution issues out of the court where the non-pros is had, provided it is a court from which process of execution issue. 5 Comy. Dig. 726, 2 Saund. 101, x. note. In Lilly’s entries 545, there is a precedent of such a writ; great inconvenience would arise from issuing two executions, one out of the justice’s court for the debt, and the other out of this Court for the costs.</p>

<p>ON CERTIORARI.</p> <p>If a testator direct all his land to be sold after his wife’s death, and the proceeds of the sale divided among his children; and one of them dies before the widow; hers is a vested legacy, and goes to her husband as her administrator.</p> <p>This was an action brought by Fairly, administrator to liis wife, Mary Catharine, who was the daughter of Jacob Kline, dec’d, against John William Kline, executor of the said Jacob Kline, for one eighth part of the amount of the money arising on the sale of the real estate of the said Jacob Kline; bequeathed to the said Mary Catharine, in the will of her father. Jacob Kline, by his will, bearing date the 10th June, 1785, after disposing of his personal estatetoand among his wife and children, in which he repeated the names of all his children, among whom was Mary Catharine, disposed of his real estate by the following clause: — “And as to the homestead or plantation I now live [*] on, together with the tan-yard, and all and singular the appurtenances thereunto belonging, or in any wise appertaining, I give unto my wife Frsenica Gertraut during her natural life, or while she remains my widow, she making no waste or destruction thereon; and also my negro boy and negro wench; and after the death of my said wife, or when she ceases to be my widow by marrying again, whichsoever may first happen, I do hereby authorize, empower and order my son, John William Kline, to make sale of all my real estate, heretofore given to my wife, in such manner as will be to the most advantage of my estate, and to give a good and absolute title for the same; and also, my negro boy and negro wench, if they shall be then living, and the money arising from such sale, after all necessary charges for selling and conveying are paid, I give and bequeath to my eight children as above mentioned, to be equally divided amongst them, share and share alike.” The testator then appoints his wife and his son, John William Kline, his executors. On the 14th September, 1785, the testator made a codicil to his will, in which he says, “That whereas I have heretofore, by my last will and testament, ordered and empowered my executor therein named, to sell the homestead or plantation I now live on, after my wife Frsencia Gertraut’s decease, or when she ceases to be my widow, in such manner as will be to the most advantage of my estate, but having since considered that it might be more satisfactory to my children, to have it sold in another manner, my will therefore now is, and I do hereby authorize, empower, and order my said executor, John William Kline, named in my said last will and testament, that after the decease of my wife, or when she ceases to be my widow, by marrying again, whichsoever may first happen, to sell the said real estate among my children, at public vendue, to the highest bidder of them, and not to strangers.” Soon after making this will and codicil, the testator [*] died. Mary Catharine, one of the eight children named in the will, intermarried with the plaintiff, and died in August, 1792, intestate, leaving five children. The plaintiff, her husband, took out letters of administration to her in March, 1798.</p> <p>In May, 1797, John William Kline, the executor in the will of Jacob Kline, sold the real estate for the sum of £3,590, the widow being yet living; this was done by her consent. Seven of the children paid the widow during her life, five pounds each annually, for her right to the real estate under the will, and the defendant, the executor, paid over the proceeds of the sale of the real estate, to the seven surviving children of the testator, including the share of the said Mary Catharine, which he refused to pay to the husband.</p> <p>The widow died in October, 1801; the personal estate was out of the question, being exhausted in the payment of debts, and this suit was'brought solely for the purpose of recovering the money arising on the sale of the real estate. A case stating in substance the foregoing facts, was made by the parties, and submitted to the consideration of the court.</p> <p>contended that this was a vested personal legacy; that land devised to he sold, is to be considered as money, that even if the will had ordered the land to have been divided, it would be considered as a vested legacy, and not contingent; that in case it should be said that this is a charge on the land, a distinction had been taken in those cases where the time of payment is postponed from the circumstances of the person of the legatee, or from the situation and convenience of the fund ; for the plaintiff was cited 1 Dal. 8, 3 Coke, 19, 8 Vin. 377, 1 Ves. 321, 4 Bac. 394, & Equity Cases, ab. 548, Cases Tem, Tal. 116, 2 Atk. 127, 3 Atk. 319, Brown Ch. Rep. 120 note.</p> <p>The counsel for the defendant, contended, that it was not a personal legacy, but, even if it was to be considered [*] as arising out of a personal fund, yet it was a lapsed legacy ; that in case the time of payment is certain, the legacy vests; hut if the time, is uncertain, and the legatee dies before the time, the legacy lapses; that the time of payment was uncertain, when the widow would die was uncertain; that John William Kline might have died before the widow, and before her inter-marriage, when the land could not be sold at all; that the children might not have bid on the sale at vendue as directed by the codicil, in which case no sale could have been made; that, in fact, it was a charge on the real estate, and on the death of Mary Catharine, before her mother, it sunk into the inheritance for the benefit of the heir at law; that if this construction should not be correct, yet that the reversion of the land being vested in Mary Catharine, at her death, it descended to her children, who then had a vested right, and on the land being sold had a lien on the money, which could not go to the personal representative of their mother. In favor of the defendant was cited, 2 Salk, 415, Dyer 59, 2 Vent. 347, Swinb. 311, 2 Comyn. Dig. 563, 2 Blac. Com. 513. 2 Eq. Ca. ab. 295, 1 Bur. 227, 3 P. Wil. 20, 2 Vern. 92 417, 2 P. Wil. 601, 610, 1 Vern. 204, 321, Cases Tern. Tal. 193, Pre. in Chan. 290, 318.</p> <p>In reply, it was said, that there was no contingency *, that if the executor had died before the time for selling the land, yet the chancellor would have compelled the execution of the trust; that the general intent of the testator was to divide his estate equally among his children; this would not be done if it was to be considered as land, and descend in unequal parts to his children, under our act changing the law of descent.</p>

ON CERTIORARI. If a teátator direct all his land to be sold after his wife’s death, and the proceeds of the sale divided among his children, and one of them dies before the widow; hers is a vested legacy, and goes to her husband as her administrator.

<p>Dower is not barred by an inquest and judgment against the husband, under the Revolutionary Confiscation Acts; the proceedings thereon, do not attaint of treason.</p> <p>This was an action of Dower, brought by Elizabeth Cozens, widow of Daniel Cozens, deceased, for lands in Gloucester county. The tenant, Alice Long and her husband, (who was living at the time of the action brought,)</p> <p>Plead, that an inquisition had been found under our Revolutionary. Confiscation Acts, and judgment entered thereon by default, against Daniel Cozens, tlie husband of the demandant, in the Common Pleas of the county of Gloucester, in the term of December, 1778, in a certain complaint, that the said Daniel Cozens had joined the army of the King of Great Britain, and had otherwise attended against the form of his allegiance to the State of New-Jersey, whereby the lands and tenements were forfeited to, and vested in the State of New Jersey; that the [*] lands for which the action was brought, were sold by the commissioners of forfeited estates to one Francis Robinson, the father of the tenant, Alice Long, under whom she claimed title.</p> <p>To this plea, the demandant demurred. Between the time of filing the demurrer, and the joinder in demurrer, the husband of Alice Long died, on which, she suggested the death of her husband on the record, and then joined in demurrer.</p> <p>This cause was argued at great length in November term last, by Leake and Ewing for the tenant, and the Attorney-General for the demandant. Two points were made by the counsel for the tenant.</p> <p>1st. That by the matter found by the inquisition, against the husband, the widow was disabled to demand dower.</p> <p>2d. That the action abated by the death of the husband of Alice Long, one of the tenants to the precipe, pending the suit.</p> <p>It was said by the counsel for the demandant, and assented to at the bar, that the first point had been decided in this Court soon after the war, in favor of the widow; hutas the ground on which that case was decided, was not distinctly recollected, the Court took time to consider the whole case, and at this time, delivered the following opinions.</p>

This was an action of dower, brought by Elizabeth Cozens, widow of Daniel Cozens, deceased, for lands in Gloucester county.

<p>Debtor stepping by mistake, a few feet over the prison limits, and instantly returning, is not an escape, forfeiting a bond for keeping within the limits.</p> <p>This was an action brought by the assignees of the sheriff of the county of Essex, on a bond given by the defendants, for the limits of the prison, to Kendrick, one of the defendants. The condition of the bond was, that Walter Kendrick should well and truly keep within the bounds of the prison limited and prescribed by the judges of the Court of Common Pleas, until discharged from said prison by due course of law. The breach assigned was, that the said Walter Kendrick did not keep within the bounds of the said prison, as marked and laid out by the Inferior Court of Common Pleas, according to the form and effect of the said condition of the said bond; but afterwards, to wit: on the 26th day of February, 1808, walked out of and beyond the said bounds of the said prison, &c. To this declaration, the defendants pleaded five pleas: — On the second and third pleas, issue is [*] taken. To the 1st, 4th, and 5th, the plaintiffs demurred, to which there was a rejoinder. The first plea of nil debet, was abandoned on the argument.</p> <p>The fourth plea alleged, that before the issuing the capias ad respondendum in this cause, and while the said Walter was in custody, &c. at the suit of the plaintiffs, the said Walter was walking within the bounds of the said prison of the said county of Essex, as laid out and prescribed by the inferior court of Common Pleas, which said limits were not designated or defined by any visible objects or marks, but were in many parts thereof terminated by an imaginary line ; and being so walking within the said limits next and adjoining to thebounds of the said gaol or prison, which was so terminated by an imaginary line as aforesaid, be the said "Walter in walking as aforesaid casually, accidentally, and by mistake, walked over and beyond the bounds of the said prison, a little way, to wit, the distance of five feet and no more, and thereupon and immediately thereafter, and without any pursuit or retaking, Ac. and before the commencement of this action, he the said Walter voluntarily and of his own accord instantly returned within the bounds of the said prison, and within the custody of the said sheriff, Ac. and continued after such return within the bounds of the said prison until the commencement of this action and long after-wards, and until discharged by due course of law; which ia the same walking out of the prison limits as declared on: And avers that the said return as aforesaid, was before any action brought by the plaintiff against the sheriff for any escape of the said Walter; and further avers that the said Walter was not a prisoner in the custody, Ac. by virtue of auy commitment on any writ of capias ad satisfaciendum, at the suit of the said plaintiffs &c.</p> <p>The fifth plea states, that Kendrick was in custody at the time on mesne process, and not charged in execution; [*] and that the bond was taken for more than double the sum for which Kendrick was committed, and therefore not taken in conformity to tho statute,</p> <p>The defendants, by their bond, are estopped from excusing themselves by saying that the prison limits are not defined by any visible marks, Ac. 3 Com. Dig. 121. The bond was forfeited on Kendrick’s going over the limits, and his return makes no difference. The whole depends on tho positive provisions of the statute; that the penalty of the bond exceeds double the sum for which the prisoner was committed, does not vitiate the bond : the act is only directory to the sheriff', and does not conclude the rights of the plaintiffs. The case of hail bonds is applicable to this case; hail bonds are held good though taken in a larger sum than the statute directs: 2 Wil. 69.* The bond was not obtained by duress, but voluntarily given.</p> <p>first contended, that the declaration was defective. The declaration ought to have set out the issuing of the writ on which the prisoner was in custody ; that it was marked for bail, that it was delivered to the sheriff, and that the sheriff on the authority of the writ, arrested the prisoner ; that the fourth plea set up a sufficient defence to the action, as wrell on the reason and propriety of the thing as on the common law doctrine of voluntary return before action brought, in cases of actions against the sheriff for an escape; that the limits or rules of the prison must be considered as the four walls of the prison, and the common law doctrine of escapes on mesne process as applicable to the case, 4 Johns. Rep. 45, 2 Johns. 433. They also cited a manuscript case of Dole, v. Moulton, from New-York,* and 3 Mass. Hep, 80 ; that if the .act was to have the rigid construction given to it as was contended for by the counsel for the plaintiffs, the bond [*] would be forfeited in case the prisoner was taken a few feet by force over the limits, or should be run against by some mischievous person, and thereby forced over the limits ; that the reasoning of the court in the case of Dole v. Moulton, was in point; and in their opinion, conclusive on this plea. On the fifth plea they contended,- that by a liberal construction of the two statutes on the subject, Pat„ 203 and 363, the first making a provision for bail bonds, and the last for prison limit bonds, would confine the operation of the last act, to prisoners committed on execution only; the acts in that case taken together would have a reasonable and beneficial operation; the one affording ease to prisoners confined on mesne process ; and the other to those on execution. That the construction contended for by the plaintiffs’ counsel, would render the acts variant and repugnant to each other. They also contended, that as the bond was taken for more than double the sum for which the.prisoner was committed, it was void, and that no action could be maintained on it; that as it might be contended that if the bond was not good under the statute, yet that it was good at common law. They considered a reasoning of this kind subject to this answer; that at common law, an assignee of a bond could not bring an action in his own name; that this action was bottomed wholely on the statute; and, therefore, that the statute must be pursued, and that strictly, as it was penal.</p> <p>— it was not necessary to set out the issuing the writ, &c. The commitment of the prisoner, and his being actually confined in a civil action, was sufficiently set out, and that was all the act required; it is not necessary, even in actions on bail bonds, to set out the arrest, 1 Burr. 330: 1 Stra. 444. That there was no repugnance in the two acts; that the first act was confined to prisoners arrested on mesne process; and therefore admitting the correctness of the argument of the defendants’ counsel, it does not apply to this case; the prisoner in this [*] case having been committed on the surrender of his bail. If their doctrine is true, after commitment or surrender by bail, or otherwise after the return of the writ, and before execution is actually taken out, the prisoner must remain in close confinement, which does not accord with the spirit, and is at variance with the letter of the act. It does not appear in the declaration, that the bond was taken for more than double the sum for which the prisoner was committed; but even if it did, and admitting the fact to be so, yet it does not destroy the validity of the bond. 2 Wil. 69, before cited.</p> <p>The statute of Ncw-York on the subject of the prison limits, is materially different from our own; therefore the adjudications under it can form no rule for us. The bond in this case is forfeited by the express provisions of the statute. It is no excuse for the breach of the condition of a bond, that the obligor did it casually, accidentally, and by mistake.— This is the case of a contract, and the doctrine of escape does not only apply. The action is not brought against the sheriff, but against the prisoner and his sureties, and that for violating the indulgent provisions of the law.</p> <p>This cause not only important in principle, but considerable in amount, was learnedly argued two different terms; when the court took time to advise thereon; and at this term, the following opinions were delivered by the judges.</p>

The payee, indorser of a promissory note, is a legal witness to prove nothing is due on it. The action in this case, was brought on a promissory note, by Rosevelt the indorsee, against Gardner, the maker. The note was dated 20th May, 1808, and made in favor of Enos AlIy, for g592 48, payable in ninety days, and by him indorsed to Rosevelt. The note was made and indorsed in New-York.

<p>The payee, indorser of a promissory note, is a legal witness to prove nothing is due on it.</p>

In ejectment by purchaser at Sheriff’s sale a tenant who was the defendant in the execution, may prove that he had no title at time of sale. Tins was an ejectment for lands in Cape-May, and [*} tried before Rossell, J., at the Cape-May Circuit, in May, 1810.

<p>In ejectment by purchaser at sheriff’s sale a tenant who was the defendant in the execution, may prove that he had no title at the time of sale.</p>

Costs in Common Pleas, and of reversal of their judgment of nonsuit, refused to defendant upon a judgment in his favor, on venire de novo. This was a question of costs, submitted to the Court without argument.

<p>ON CERTIORARI.</p> <p>Justices cannot order an overseer of the poor to maintain a pauper, qyi'thout an application made by the overseers for that purpose.</p> <p>A pauper may not sue an overseer for his support, per Pennington, J.</p> <p>This was an action of debt, brought by M’Collister against Yan Nuis, an overseer of the poor of the town of North Brunswick, on the following state of demand:—</p> <p>The plaintiff demands of the defendant, the sum pf eight dollars, it being the allowance of one dollar per week, for eight weeks, to wit, from the"29th day of May, to the 12th day of July, 1810, ordered and directed by Thomas Hance and Asa Runyan, Esquires, two1 of the justices of the peace in and for the county of Middlesex, to be allowed and paid by thp said defendant, as overseer of the poor of the township of North-Bfunswick, to the plaintiff) a poor person, belonging to the said township, and standing in need of relief, and which the said defendant (although often requested,) hath refused, and still 'doth refuse to pay the same to him, whereupon he brings this suit, &c.</p> <p>This demand was grounded on the following order:—</p> <p>State of- Neyy-Jersey, Middlesex county: — To John Van Nuis, overseer óf the poor of the township of North-Brunswick, in the county of Middlesex; you are' hereby requested and directed to make the allowance of one dollar per Week to John M’Collister, (a poor person belonging to your township, and standing in need of relief,) and to grant him the aforesaid allowance weekly, until the first: Monday in April next, if he should live to stand in need to that time.</p> <p>’’ Given under our hands, See., 9th May, 1810.</p> <p>Judgment was rendered by the justice, in favor [*] of M’Collister; and Van Nuis brings this certiorari to reverse the judgment.</p> <p>This action cannot be supported. It was brought by the pauper himself, in 1ns own name, against the overseer. A right of action did not vest in the pauper, by the order and a refusal to obey it. Besides, the order is defective in several respects; particularly, that it was made by the justices of their own accord, without the application of the overseers of the poor, which the statute, Vat. SO, requires. The justices have not any authority to make an order, unless on the application of the overseers of the poor.</p> <p>The overseers refused, on application made to them, to apply to the justices for an order. The justices, on this refusal, did perfectly right in making the order, otherwise, the pauper might starve. On the order being made, and the overseer refusing to execute it, a right of action vested in the pauper.</p>

ON CERTIORARI. Justices cannot order an overseer of the poor to maintain a pauper, without an application made by the overseers for that purpose. A pauper may not sue an overseer for his support.

ON CERTIORARI. A discharge under the insolvent law of New-York, is abar to anaction for aprior debt, contracted by parties residing in Pennsylvania. A printed copy of the Laws of N. Y. sufficient evidence, per Pennington, J. The action below, was brought on a sealed bill, made in Pennsylvania, in April, 1799.

OS CERTIORARI. A discharge under the insolvent law of Hew York, is a bar to an action for a prior debt, contracted by parties residing in Pennsylvania. A printed copy of the Laws of N. Y., sufficient evidence. Per Pennington, J. The action below, was brought on a sealed bill, made in Pennsylvania, in April, 1799.

<p>OKÍ CERTIORARI.</p> <p>No road can be recorded after chosen freeholders are appointed* until approved and certified by them. But see note at the end of this case.</p> <p>The action below* was brought by Addis, as overseer of the Highway, against the defendant, for obstructing the Highway, in which action, he recovered a penalty of tert dollars. On the trial, it Was proved that the Highway iii question, had been laid out by the Surveyors of the Highway ; the return ordered to be recorded by the Court, the road opened for public use, and that the defendant, Priest, had obstructed it by setting a fence across it.</p> <p>The defendant offered to prove by the public records of the coprt, that on the return of the Surveyors, the court had, on due application, appointed six Freeholders to review the road; that these Freeholders had certified; but that the certificate of the Freeholders had been set aside by the court for irregularity; and that the court had appointed a second set of Freeholders ; [*] but that the applicants for the road did not produce in court any certificate from the second set of Freeholders; on which the court, without any certificate of the Freeholders, ordered the road to be recorded. This evidence was rejected by the justice, and the record of the road considered as conclusive evidence of a lawful road.</p>

OH CERTIORARI. No road can be recorded after chosen freeholders are appointed, until approved and certified by them. But see note at the end of this case. The action below was brought by Addis, an overseer of the highway, against the defendant, for obstructing the highway, in which action, he recovered a penalty of ten dollars.

<p>Second new trial refused. Damages should be outrageously excessive for torts, to justii'y a new trial,</p> <p>This cause having been once tried, and a new trial ordered, State llep. 578, was tried again at tlni Monmouth Circuit, and a verdict for the plaintiff for $>500.</p> <p>It was now moved by the counsel for the defendant, for a rule to shew cause why a new trial should not be had, on the ground that the damages were excessive; and also, that a juryman had given evidence to his fellow jurymen, after they had retired from the bar.</p> <p>[*] This was opposed by the counsel for the plaintiff. The misbehaviour of the jury ought to be substantiated by affidavit; that the court having once exercised authority in setting aside a former verdict, ought not now, that the defendant had failed a second time, to interfere; that he very much questioned the constitutional powers of the court to award a new trial, in a case circumstanced like the present; which is a case of tort, where the court had already set aside one verdict, on the score of excessive damages.</p> <p>In reply, the counsel for the defendant said, that the course of the court did not require an affidavit of the facts, on a motion for a rule to shew cause; that the damages in this case, were not only excessive, hut vindictive; that the first decision, instead of being against the application, furnished an argument in favor of it. It showed that it was the opinion of the court that the damages were excessive; that the power of courts over verdicts, was so firmly established, that this court would not suffer it to be debated, whether or not it had power to set aside verdicts for excessive damages.</p> <p>The counsel for the plaintiff explained. — -Efe said he did pot deny the right of the court to award new trials; hut he did say, and was still qf opinion, that the court had not a pight to substitute its opinion, in the place of the jury, in the assessment of damages in actions arising on torts.</p>

This cause having been once tried, and a new trial ordered, State -Bep. 578, was tried again at the Monmouth circuit, and a verdict for the plaintiff for $500. It was now moved by the counsel for the defendant, for a rule to show cause why a new trial should not be had, on the ground that the damages were excessive; and also that, a juryman had given evidence to his fellow jurymen, after they had retired from the bar. [*] This was opposed by the counsel for the plaintiff.

<p>OR CERTIORARI.</p> <p>Action on the case, lies not on a sealed instrument. Breadles of a povénant must be specified.</p> <p>The action below, was pn action on the pase, brought on pn ipstrumept under seal, containing agreements respecting fhe hiréing a pjaptation for pnp year. This instrument was set out at' jepgth ip the state" of depmnd, wherein Eng, lisli, the defendant below, agreed tp perform several distinct matters, respecting the plantation, and the manner of treat, ing it during the year. ' The state qf demand then concludes in this maimer: tt-</p> <p>Wherefore, the said George Horner, jup, saijh, tjiatby the non-com, pliance and non-performance of the above said article of agreement, so. as aforesaid set forth by the said John English, he, the said George Hornor, juidr, pas received' damage jo t}ie amount of '$100, arid thereof he prays judgment.</p> <p>It was p§’sjgned for error, first, that the action was mis - ppneeived. It ought to have been covenant, and not case. Apd second, that the breaches pf the covenant were not properly assigned.</p>

ON CERTIORARI. The action before the justice, was an action on the case, brought by Armstrong against George Katts and Son, and founded on the following state of demand:;— George Katts, and Sor, to damage, $100, by taking avay a line fence.

ON CERTIORARI. Action on the case, lies not on a sealed instrument. Breaches of a covenant must be specified. The action below was an action on the case, brought on an instrument under seal, containing agreements respecting the hiring a plantation for one year. This instrument was set out at length in the state of demand, wherein English, the defendant below, agreed to perform several distinct matters, respecting the plantation, and.the manner of treating it during the year.

A devise to I. and J., and heirs of their body, and if they die without issue, to W. and his male heirs. W. takes on default of issue of I. and ,1., as devisee in remainder in tail male. And on his failure of male issue, the land devised reverts to the right heirs of the testator. This was an action of ejectment, for a farm in Salem county, tried at the Salem Circuit, in December, 1810, before Rossell, justice.

IN ERROR, Husband alone may sue on a bond to him and his wife. The action below, is an action of debt, brought by Steward against Chance, on a bond given by Chance to Steward and wife.

<p>ON CERTIORARI.</p> <p>Judgment for costs of both parties, is error. In what cases judgment may be reversed in part, and affirmed as to the residue.</p> <p>Hay was the defendant below, and brought this writ to reverse the judgment of the justice. The error assigned by his counsel was, that the justice rendered judgment against him, as well for the defendant’s (that is, his own) costs, as for the plaintiff's. The justice certified that part of the defendant’s costs [*] were included in the judgment which he rendered for costs.</p> <p>When this cause was opened the last term, the counsel for the plaintiff in certiorari, expressed doubts as to the correctness of the Court in reversing the judgment of justices for this error; but felt himself bound to claim it, on the part of his client, if it had become a rule of decision.</p> <p>Several counsel, some concerned in this cause, and others concerned in other causes, involving the same principle, expressed a strong disapprobation of the decisions of the Court heretofore made on this subject; and contended that it was not warranted by authority, and was particularly wrong as it respected judgments of justice’s courts; that a court of error never examined into the subject of the taxation of costs below, that the granting of rules on justices to send up the items of costs, to discover this error, was inconvenient and vexatious; that this Court ought not to investigate this subject; but if it did, the principal judgment could not be reversed for error in costs; but that the judgment ought to be affirmed for the debt, and only reversed for the costs, in caso there should be error found therein; for which, 2 Stra. 808, was cited.</p>

OS CERTIORARI. Judgment for cOBts of both parties is error. In what oases judgment may be reversed in part, and affirmed as to the residue. Hay was the defendant below, and brought this writ to reverse the judgment of the justice.

<p>ERROR FROM ESSEX COMMON PLF.AS.</p> <p>Parol evidence of a witness’ interest, admitted on his cross-examination, although written evidence of it, exist.</p> <p>The action below, was brought by Gray against Mayo, to recover a balance of freight to and from Richmond, in Virginia. The declaration contained several counts, on a general indebitatus assumpsit for work and labor, care and diligence, done in and about the business of the defendant, for freight and transportation of the goods of the defendant, &c. One count was for freight of sundry articles, from New-York to Richmond, and other articles from Richmond to Elizabeth-town, in New-Jersey, particularly specifying the articles. On the trial below, the plaintiff, Gray, proved by a respectable witness, the brother of Mayo, who was called as a witness to the agreement between Gray and Mayo, relative to the freight, that Gray agreed to send the Schooner Jefferson, which then lay at Elizabeth-town, to New-York, to take a freight of slate for Mayo, from New-York to Richmond, at the customary price; and that Mayo was to find a return cargo of coal at ten and a half cents per bushel, and that Gray was to take five hundred bushels of coal at the market price in New-York, in part payment of [*] freight. The master of the Schooner was then called, who proved the performance of the voyage, and that Gray took the stipulated quantity of coal in part payment of the freight. The defendant below, Mayo, then offered to prove by the same witness, on his cross-examination, that Gray was not the sole owner of the Schooner; but that he had partners concerned with him in the Schooner, and that the witness was one of the partners. The witness said that he had obtained a bill of sale for part, since the voyage, and and that he was one for whom the Schooner was built. At the instance of the plaintiff’s counsel, the court over-ruled this testimony, on the ground that the bill of sale was the best evidence of the ownership of the Schooner, and therefore refused parol proof. The defendant’s counsel then asked the witness, if he did not sail as master and part owner of the Schooner, at the time? This was also overruled by the court, on the same ground. This witness then testified, that he considered himself entitled to part of the freight of a box of shorts, and four slioats, which had been transported in the Schooner for the defendant; but that his right to such part, arose from his supposed right in the said Schooner. This testimony was also overruled by the court, at the instance of the plaintiff’s counsel, on the ground that the bill of sale ought to be produced.— The counsel for defendant, moved the Court to over-rule all the testimony given on the part of the plaintiff, respecting the freight, on the ground,</p> <p>1st. That there was a special agreement entered into between the parties respecting the slate and coal, which ought to have been specially declared on.</p> <p>2d. That there was another joint owner or owners, of the Schooner Jefferson, that were entitled to their proportions of the freight, who ought to have been joined in the action. This the court refused, but declared the evidence proper to be left to the consideration of the jury. The defendant’s counsel offered in evidence, an examined copy of an enrollment of the [*] Schooner Jefferson, offering to prove the same, in order to shew that there were other owners besides the plaintiff. This evidence was objected to, because it was not certified under the seal of the collector, and the court sustained the opinion. The defendant’s counsel called upon the court to charge the jury, that if they believed the first witness, that there was a special agreement on which the plaintiff ought to have declared, and that as he had not done it, he was not entitled to recover in this action. But the court charged the jury, that in its opinion the agreement was sufficiently stated in the declaration. On those several matters, bills of exception were taken. The jury found a verdict for the plaintiff below.</p> <p>The following points were taken by counsel for the plaintiff in error.</p> <p>1st. That the court below over-ruled proper evidence, in not suffering the defendant below, to prove other persons part owners of the schooner Jefferson with the plaintiff below.</p> <p>2d. That the agreement was special, and ought to have been specially declared on. 2 Mod. 279, Bul. 139, Ep. 138, 139, Gilbert L. E. 190, Swift’s L. E. 159.</p> <p>3d. That they ought to have been permitted to prove by parol evidence, that Bonne], the master, was interested in the freight, and of course in the suit; and that his testimony ought to have been overruled on the ground of interest.</p>

The action below was brought by Gray against Mayo, to recover a balance of freight to and from Richmond, in Virginia. The declaration contained several counts, on a general indebitatus assumpsit for work and labor, care and diligence, done in and about the business of the defendant, for freight and [614] transportation of the goods of the defendant. Ac.

ON CERTIORARI. This action was brought before the justice, by Whit-more against Lyon, on a state of demand in substance as follows:— That on the first day of October, 1807, the defendant agreed and contracted with the plaintiff, that the defendant’s son Isaac^about 17 years of age, should stay with, and work lor the plaintiff for three years next ensuing ; during which time the plaintiff agreed to teach the said Isaac, and employ him m and about the trade of a blacksmith;…

OH CERTIORARI. This action was brought before the justice, by Whitmore against Lyon, on a state of demand in substance as follows: — ■ That on the first day of October, 1807, the defendant agreed and contracted with the plaintiff, that the defendant’s son Isaac, about 17 years of age, should stay with, and work for the plaintiff for three years, next ensuing; during which time the plaintiff agreed to teach the said Isaac, and employ him in and about the trade of a…

<p>ON CERTIORARI.</p> <p>The state of demand delivered the justice, was as follows:—</p> <p>Joseph Cranmer,</p> <p>To merchandize, $11 69</p> <p>Cash from Carter, 13 00</p> <p>Balance, 26 81</p> <p>$51 50</p> <p>By 51¿ days work on Schooner, $51 50</p> <p>Cr. by balance, 26 81</p> <p>[*] The justice certifies under the above; a true copy of the plaintiff’s balance, filed in my office, given by the defendant’s clerk, and no ways disputed on trial.</p>

ON CERTIORARI. “I give judgment with the jury,” is no judgment.

<p>ON CERTIORARI,</p> <p>The state of demand delivered to the justice was as follows :—</p> <p> </p> <p>[*] The justice certifies under the above. A true copy of the plaintiff’s balance, filed in my office, given by the defendant’s clerk, and no ways disputed on trial.</p>

<p>ON CERTIORARI.</p> <p>This case is sufficiently stated in the opinions delivered.</p>

<p>ON CERTIORARI.</p> <p>“ I give judgment with the jury,” is no judgment.</p> <p>The state of demand on which the action below was founded, was as follows:—</p> <p>Thé plaintiff, Alexander Lawrence, demands from the defendant, Thomas [*] Green the sum of fifty dollars and fifty cents, for stopping and detaining me out of one cable and anchor, and water cask, &c. which I bought of Allison Learning with the sloop Sally, of Cape May, and paid for, to which I can make it appear on trial, to which the same Thomas Green stops the cable and anchor, because he says that Allison Learning owes him money ; hot stoppage is no payment; but nevertheless Thomas Green knew of Allison Learning selling the above property to me, while Allison Learning was in his place, and so therefore I pray judgment, &c.</p> <p>There was a verdict and judgment for £15. The judgment was in this form: — “ I give judgment with the jury.” Several reasons were assigned for the reversal of the judgment ; the one principally relied on was the insufficiency of the above state of demand.</p>

<p>ON CERTIORAKI.</p> <p>This cause is sufficiently stated in the opinions delivered.</p>

<p>ON CERTIORARI.</p> <p>This case is sufficiently stated in the opinions delivered.</p>

ON CERTIORARI. Judgment in absence of the defendant, without proof, is error, but not so, if he be present. On the return day of the summons, the justice makes the following entry in his docket: — The parties appeared, and the plaintiff filed a state of his demand, to the amount of ¡§38 93; and after examining the cause, I gave judgment on a certain order and two notes, in favor of the plaintiff, for the sum of thirty-eight dollars and sixty-nine cents debt, &c.

<p>OH CERTIORARI.</p> <p>This cause is sufficiently stated in the opinions delivered.</p>

ON CERTIORARI. The principal objection relied on for the reversal of the judgment of the justice, was, the insufficiency of the state of demand, which was as follows:— The plaintiff complains of the defendant, for that he, the plaintiff, did on the 20th day of June, 1806, execute a note to the defendant for $60, in three different payments, conditioned for a certain lot of land which the said defendant said he had sold at sheriff’s sale, to Capt, Thomas Hill, by virtue of an…

<p>OS CEETIOEAEI.</p> <p>Judgment in absence of the defendant, without proof, is error, but not so, if he be present.</p> <p>On the return day of the summons, the justice makes the following entry in his docket: — The parties appeared, and the plaintiff filed a state of his demand, to the amount of $38.93; and after examining the cause, I gave judgment on a certain order and two notes, in favor of the plaintiff, for the sum of thirty-eight dollars and sixty-nine cents debt. &c.</p>

ON CERTIORAR'r. The principal objection relied on for the reversal of the judgment of the justice, was the insufficiency of the state of demand, which was as follows:— The plaintiff complains of the defendant, for that he, the plaintiff, did on the 20th day of June, 1806, execute a note to the defendant for $60, in three different payments, conditioned for a certain lot of land which the said defendant said he had sold at sheriff’s sale, to Capt. Thomas Hill, by virtue of an…

<p>ON CERTIORARI.</p> <p>The action below, was brought by Vanderveer, against Crocket. The account rendered to the justice, was as follows:—</p> <p>To an order on Samuel Haines, $3 75</p> <p>To a Bay Horse, 15 00</p> <p>To keeping Horse on hay, • 3 50</p> <p>$22 25</p> <p>The defendant had a small account, which was admitted by the plaintiff, which reduced the amount of the plaintiff’s demand to §13 20, for which the judgment was rendered below. It appears by the record of the justice, that on the trial, the defendant moved for a nonsuit on two grounds.</p> <p>1st. That the contract for the horse was made on a Sunday, which fact the justice certified, was proved by one of the plaintiff's witnesses.</p> <p>2d. That because the horse was to be paid for in turning, which the justice also certifies was proved by one of the the plaintiff’s witnesses. The justice over-ruled the motion for a nonsuit.</p> <p>It appeared by the plaintiff’s own witness, that the contract was made on the Sabbath, which being an unlawful transaction, rendered it void. — 3 Term Rep. 455. A saleof goods in market overt on Sunday, is not valid. Jacob’s L. D. title Sunday. Again, it was proved by the plaintiff’s witness, that it was a part of the contract, that the horse should be paid for in turning; that is, the mechanical labor of the defendant. This could not be demanded in money, until the defendant had refused or neglected to perform the contract on notice or request. In this case, the action was commenced within a few days after the contract was made, which [#] shews, that that part of the contract was wholly disregarded in the court below.</p> <p>A contract made on a Sunday is binding, notwithstanding the parties to the contract may be liable to be punished for a breach of Sabbath. 12 Vin. A. 1. Cro. Eliz. 485. The matter cited from Jacob’s L. D. grew out of the statute of 29 Car. 2, and is inapplicable to us.</p> <p>As to the contract stipulating that the horse was to be paid for in turning, if so, it ought to have been set out in the pleadings, and the fact put in issue and tried. — This Court, on certiorari, cannot take notice of it.</p>

ON CERTIORARI. It appeared from the state of demand and set-off filed below, that the controversy between the parties, respected a considerable dealing in a variety of ways; that the plaintiff below, who is also the plaintiff in this Court, demanded a balance of g90; that on the trial, the defendant obtained a verdict for $47 60, in his favor. The points raised will sufficiently appear from the opinions delivered.

OX CERTIORARI. It appeared from the state of demand and set-off filed below, that the controversy between the parties respected a considerable dealing in a variety of ways; that the plaintiff below, who is also the plaintiff in this court, demanded a balance of $90; that on the trial, the defendant obtained a verdict for $47.60 in his favor. The points raised will sufficiently appear from the opinions delivered.

<p>ON CERTIORARI.</p> <p>The action below, was brought on the following state of demand:—</p> <p>Jacob Rush, Dr. To Isaac Hance, assignee of Daniel Backhouse, an insolvent debtor, 1809.</p> <p>[*] 1st. 8th month, called August, to a pair of forge bellows, $40 00</p> <p>Interest on the same, 2 10</p> <p>$42 10</p> <p>The action was brought as assignee of Backhouse. On the return day of the summons, the justice made this entry in his docket: plaintiff attended, filed a copy of his account; Isaac Williams affirmed; I gave judgment against the defendant for book account by default, for $42 10. In answer to a rule taken on the justice for a more particular return, the justice certifies, that “the record of the appointment of Isaac Hance, assignee of Daniel Backhouse, insolvent debtor, and the assignment of Daniel Backhouse of his lands and tenements, goods and chattels, were produced on the trial. The evidence produced on the trial, was the proof of Isaac Hance’s book, by isaac Williams ; no other witness, and I believe no other writing, were produced.”</p>

<p>OK CERTIORARI.</p> <p>The action below was brought on the following state of demand:</p> <p>Jacob Rush, Dr. To Isaac Ilance, assignee of Daniel Backhouse, an insolvent debtor, 1809.</p> <p>[#] 1st. 8th month, called August, to a pair of forge bellows, $40 00</p> <p>Interest on the same, 2 10</p> <p>$42 10</p> <p>The action was brought as assignee of Backhouse. On the return day of the summons, the justice made this entry in his docket: Plaintiff attended, filed a copy of his account; Isaac Williams affirmed; I gave judgment against the defendant for book account by default for $42.10. In answer to a rule taken on the justice for a more particular return, the justice certifies that “ the record of the appointment of Isaac Hance, assignee of Daniel Backhouse, insolvent debtor, and the assignment of Daniel Backhouse of his lands and tenements, goods and chattels, were produced on the trial. The evidence produced on the trial was the proof of Isaac Hance’s book, by Isaac Williams; no other witness, and I believe no other writing, were produced.”</p>

ON CERTIORARI. Suit lies for maliciously attaching property, by writ from a court without jurisdiction. This case will sufficiently appear from the opinions delivered.

Off CERTIORARI. Suit lies for maliciously attaching property, by writ from a court without jurisdiction. This case will sufficiently appear from the opinions delivered.

ON CERTIOEABJ. The action below, was brought by Newman against Fleming, on the following state of demand:— “Jeremiah.

<p>ON CERTIORARI.</p> <p>The action below was brought by Newman against Fleming, on the following state of demand:</p> <p>“Jeremiah Newman, junior, the plaintiff in the above cause, comes into court, and demands of the said James Fleming, senior, the sum of thirty-seven dollars and seventy-one cents, being for damage done to the said Jeremiah Newman, jun’r, by the said James Fleming, senior, selling a yoke of steers out [j-j of my custody, which the said Fleming had put to me, the said Jeremiah Newman, junior, to work for four years, and upwards, and for attending to settle the same.”</p> <p>On this state of demand, Newman recovered $22.39, damages.</p> <p>To the proceeding below, it was objected — [633]</p> <p>1st. That matter of debt and matter in damages were joined.</p> <p>2d. That the justice admitted improper evidence.</p> <p>That the action was misconceived; that for the matter complained of, the plaintiff below was not entitled to recover by a special action on the case.</p>

ON CKHTIOHAKI; A promissory note by an infant, is invalid. The action was brought by Cooper against Houston, on a note. The defence set up below was, that the defendant was an infant at the time the note was given. The plaintiff below recovered.

<p>O~ CERT~Q~ARI.</p> <p>TRE casc will sufficiently appear by the opinions, defivered.</p>

<p>OK OEBTIOKABI.</p> <p>The case will sufficiently appear by the opinions delivered.</p>

<p>No order against putative father of a bastard, may be made, before application to overseers of the poor, for its support.</p> <p>An order had been mpde on a putative father of a bastard child, to pay a gross sum of $27; and also to pay to the overeecrs of the poor, four shillings per week. This order yvas appealed froni, and confirmed by the Sessiops; and then moved to this Court by certiorari. It was admitted in a stated case agreed on by the parties, that at the Sessions, op hearing of'the appeal, that neither the inhabitants of the township, nor the overseers, had ever paid any thing for or towards the maintenance of the said bastard child, or entered into any contract to pay any thing for the past or future support of the said child; nor the mother of the said child, nor the said child, had ever been supported by the town, as paupers. But that the said mother, and the said child, had hitherto been maintained by the father of the mother of the child. But that the order was made on the application of the overseers of the poor.</p> <p>in behalf of the putative father, took several objections to the proceedings below. [*] From the course the cause took, it is unnecessary to take notice of but one, which was, that it was evident from the facts in the the case, that the child was not either chargeable to the town, nor likely to become chargeable; that it was on that ground alone that the order could be made; that the parents of the mother were respectable, and in good circumstances, and disdained to put their daughter or the child on the town; that the order was made to favor the mother, and not to indemnify the town, which wras contrary to the spirit and policy of the law', 1 Burn. J. 205, 1 Vent. 37.</p> <p>By our statute, Pat. 152, it is made the duty of the justice ex-officio, to inquire into all cases of bastard children, and to make provision for their maintenance ; that every bastard child is likely to become chargeable. 1 Burn. J. 212, 2 Salk. 475; that jf the order for $27 was erroneous, yet the remainder of the order w'as valid, and ought to be affirmed; that 1 Burns J. 205, cited by Mr. Halsey, was contradictory to the statute; that the town was under a moral obligation to maintain the bastard child; the father of the mother doing it, the town was under an obligation to remunerate him. It has been determined that a Physician, administering relief to a poor person whom the parish was liable to maintain, could maintain an action against the overseers for his bill, although he had not been employed by them to do the service; and although no order had been made for the maintenance of the poor person, on the ground that the parish was under a moral obligation to. maintain him.</p>

<p>An order had been made on a putative father of a bastard child, to pay a gross sum of $27; and also to pay to the overseers of the poor, four shillings per week. This order was appealed from, and confirmed by the sessions; and then moved to this court by certiorari. It was admitted in a stated case agreed on by the parties, that at the sessions, on hearing of the appeal, that neither the inhabitants of the township, nor the overseers, had ever paid any thing for [637] or towards the maintenance of the said bastard child, or entered into any contract to pay any thing for the past or future support of the said child; nor the mother of the said child, nor the said child, had ever been supported by the town as paupers. But that the said mother, and said child, had hitherto been maintained by the father of the mother of the child. But that the order was made on the application of the overseers of the poor.</p>

This was an action of assumpsit, brought to recover S3 per week for the board and care, as a Physician, of one Samuel Willet, at the request of the defendant.

<p>Defendant in ejectment may recover a sum of money on report of Referees, as damages for leaving the premises let to him.</p> <p>This was an action of ejectment, brought to recover lands in the county of Burlington. After the [*J cause was at issue, a rule of refei'ence was entered into by consent, referring all matters in difference between the parties in this cause, to certain referees, whose report, or the report of any two of them, made in writing to the next or any subsequent term of the court, should be final and conclusive between the parties. The referrees reported, that Caleb Cranmer, the plaintiff, do pay unto George Taylor, the sum of eight hundred and four dollars, exclusive of cost, on or befox’e the 10th day of June next ensuing, at which time the said George Taylor is to leave the premises, which he now occupies.</p> <p>A rule had been obtained to shew cause why the import of referees should not be set aside.</p> <p>Thewoi’ds of the inference are broad enough to comprehend all disputes between the parties, whether in this suit or not. 2 Term Rep. 545.</p>

This was an action of ejectment, brought to recover lands in tire county of Burlington. After the [*] cause was at issue, a rule of reference was entered into by consent, referring all matters in difference between the parties in this cause, to certain referees, whose report, or the report of any two of them, made in writing to the next or any subsequent term of the court, should be final and conclusive between the parties.

<p>IN EJECTMENT.</p> <p>This cause was tried in June term, 1810, before Bosscll, J. at the Salem Circuit. It appeared in evidence, that William Dickiuson, the father of Hannah Cozens, one of the lessors of the plaintiff, died intestate, some time previous to the year 1797; that [*] he left two sons, viz: Smith and David, and one daughter, the said Hannah, now Hannah Cozens. It also appeared in evidence, that since the death of William Dickinson, his two sons, Smith and David, procured an order of the Orphan’s Court of Salem county, to divide the lands of the father; that commissioners were appointed, and the lands divided between the two sons, Smith and David; that no part of the lands had been allotted under this partition to Hannah; that Hannah Dickinson, widow of William Dickinson, and mother of the said Smith, David and Hannah, died in 1797, before which, she by will, dated in March, 1797, devised to the said Hannah in fee, her lands in Salem county, in lieu of the said Hannah’s share in her father’s estate; which will contained this clause: — But if the said Hannah Dickinson, shall, when she arrives at the age of 21 years, refuse to convey to her brothers, David and Smith, her right to her father’s ¡’and, then the plantation so left her, shall be divided as the law would direct, had no will been made. On the death of the mother, the guardian of Hannah took possession of the plantation thus devised to her, and kept possession until she married Henry Cozens, the other lessor; that after the marriage, Cozens took possession, rented part, cut and sold wood, &c. There was also evidence given of the sale of the lands thus devised to Hannah by the mother, by order of the Orphan’s court, for the payment of the debts of the mother. It was, however contended, on the part of the defendants, that these sales were collusive, and some evidence given to that effect. The counsel for the defendants, offered to prove that Smith Dickinson, since the partition between him and his brother David, had died, and devised to the lessors of the plaintiff, his whole estate, real and personal, including the share allotted to him of Ills father’s estate; and that they were in the actual possession thereof at the time of the trial, except such part as had been lawfully aliened; and that the [*] said Henry Cozens is an executor named in tíre will, and had proved the same. This will and evidence was objected to by the counsel for the plaintiff, and rejected by the judge, it being, in his opinion, inadmissible. That the other defendants are the children and heirs at law of David Dickinson, who had died since the partition of the estate between him and Smith, and were in the possession of the part allotted to their father, the said David Dickinson, by the commissioners appointed by the Orphan’s Court. Tills ejectment was brought to recover one fifth of this part of the real estate of William Dickinson, the father of the lessor, Hannah, as heir at law to her father. There was a general verdict for the plaintiff. A rule had been obtained to shew cause why the verdict should not be set aside, and a new trial awarded.</p> <p>— The verdict is against evidence. The partition made under the order of the Orphan’s Court is conclusive of the right of the defendants. The order being a judicial act, is not void, but at most voidable. 7 Bac. 67, 2 Salk. 674, Coke Lit. 170. C. The Orphan’s Court had jurisdiction of the subject matter. Pat. 77. Besides, the lessors of the plaintiff have concluded themselves by accepting the devise of the mother, entering upon it, occupying and cutting the wood off of it, they have made their election; again, the eventual inheritance is notin controversy; Henry Cozens has a freehold in the premises in question; if he has concluded himself it is immaterial what the rights of the wife may eventually be; whatever they are they may be hereafter asserted, notwithstanding a judgment for the defendants in this action, Lit. 256, Pat. 289, 1 Bac. 495 ; the will of Smith Dickinson, with the accompanying testimony, ought to have been admitted by the Judge, to have shewn that Henry Cozens entered on the lands of Smith Dickinson, devised to him and wife, part of which land being Smith’s dividend of his father’s estate, allotted him by the partition made under the direction of the Orphan’s Court; he acquiesced in [*] that partition, by entering on the land, and is now precluded from denying its legality, 4 John. Rep. 142.</p> <p>— Even if equitable considerations could have weight in an action of ejectment, which we deny, yet the equity is with us. The estate of the mother was swallowed up in the payment of her debts. The division, by order of the Orphan’s Court, was between David and Smith. Hannah was no party to it. The right we pursue is unquestionably in Hannah; nor has she, or her husband, the other lessor of the plaintiff, done any act to estoppe them from recovery. It is not a case of election, but of condition; yet if it is to be considex-ed as a case of election, the maimer of election is pointed out in the devise of the mother; it is by a specific release.</p>

The cause was tried in Juné Term, 1810, before Eossell, J., at the Salem circuit. It appeared in evidence that William Dickinson, the father of Hannah Cozens, one of the lessors of the plaintiff, died intestate, some time previous to the year 1797; that [*] he left two sons, viz.: Smith and David, and one daughter, the said Hannah, now Plannah Cozens.

<p>An appointment had been made by this Court, of Surveyors of the Highway, to lay out a road running into two counties. The Surveyors had met and laid out the road, and made return.</p>

<p>Court will not stay execution, to give time to file bailón a writ of error. Such bail must be in double the rent of the lands, and of the costs.</p> <p>A writ of error having been presented by the defendants, this term, Leake and Ewing applied to the Court to stay or suspend the execution, on the judgment rendered in the cause, to give time to the plaintiffs in error, to enter into recognizance in compliance with the statute.</p> <p>— This would be in direct violation of the act of Assembly, both as to the letter and spirit of the act; which contains an express prohibition to the court, restraining it from staying execution in this case, unless the recognizance shall be entered into. Pat. 346.</p> <p>— The act contains no positive injunction, but leaves the discretion of the Court over its own process as before. Barne’s N. 212, 2 Impey, C. P.691.</p>

Rule to stay proceedings till security for costs are filed, refused when some of the plaintiffs are non-residents. Ewing in this case, being an action of ejectment, moved that the proceedings be stayed until the lessors of the plaintiff file security for costs, on an affidavit stating that part of the lessors lived out of the State.

Action lies not for prize money ©f a foreign lottery ticket. This was an action of assumpsit, for money had and received to the plaintiff’s use.

<p>This was an action brought on an arbitration bond. The defendant prayed oyer of the condition, and pleaded no award. The plaintiff replied, setting out an award, and assigned a breach; to this declaration the defendant demurred specially, and assigned as cause of demurrer that it did not appear on the award that the arbitrators had been sworn. This fact had been averred in the replication. •</p> <p>cited State lleports, 144, 27T.</p> <p>The act of Assembly does not require the oath of the arbitrators to appear in the award; it is sufficient if the fact is averred and proved.</p>

This was an action of dower, tried before the Chief Justice at the Hunterdon Circuit.

<p>This was an action brought on an arbitration bond. The defendant .prayed oyer of the condition, and pleaded no award. The plaintiff replied, setting out an award, and assigned a breach; to this declaration the defendant demurred specially, and assigned as cause of demurrer that it did not appear on the award that the arbitrators had been sworn. This fact had been averred in the replication.</p>

This was an action of dower, tried before the Chief Justice at the Hunterdon Circuit. The defendant relied on a release of dower from the demandant, to one of her sons, Philip Young, who had assigned it to one Hogland, of whom the defendant had purchased the land.

<p>Full costs allowed on judgment for §44 86, in a cause removed by Habeas Corpus, as the affidavit for bail, exceeded §100.</p> <p>This action was commenced in the Burlington Common Pleas, by capias, on an affidavit to hold to bail in a sum exceeding one hundred dollars, and removed by defendants, to this Court by habeas corpus. The plaintiff recovered in this Court, $44 86. The question submitted to the Court, was, whether the [*] plaintiff was to recover any, or what costs? The affidavit on which the capias was issued, was in the usual form to hold to bail, and marked as such. It was admitted that it set out the facts required by the 40 th section of the justices act; that is, that the plaintiff believed that the sum due, exceeded one hundred dollars. For the plaintiff was cited, Pat. 149, 258, 320.</p>

<p>This action was commenced in the Burlington Common Pleas by capias, on an affidavit to hold to bail in a sum exceeding one hundred dollars, and removed by defendants to this court by habeas corpus. The plaintiff recovered in this court, $44.86. The question submitted to this court, was whether the [*] plaintiff was to recover any, or what costs ? The affidavit on which the capias was issued, was in the usual form to hold to bail, and marked as such. It was admitted that it set out the facts required by the 40th section of the justice’s act; that is, that the plaintiff believed that the sum due, exceeded one hundred dollars. Eor the plaintiff was cited, Pat. llf.9, 258, 820.</p>

<p>ON CERTIORARI.</p> <p>Judgment on Sunday, error. But misentry as to tlie day, amendable,</p>

<p>ON CERTIORARI.</p> <p>The state of the case will sufficiently appear from the opinion delivered.</p>

<p>ON CERTIORARI.</p>

<p>OJÍ CERTIORARI.</p> <p>This state of the case will sufficiently appear from the opinion delivered.</p>

<p>ON CERTIORARI.</p> <p>The action below, was an action on the case, and the following state of demand delivered the justice:—</p> <p>Trespass on the case, For trover and conversion. — The plaintiff' demands of the defendant, $100 for this, that on the 9th day of February last past, the defendant did take and carry away, two horses, late the property of John B. Drake, and did sell and dispose of [#] them, which two horses, the plaintiff being one of the constables of the township of _Wantage, in said county, had made a previous levy, and taken said horses into possession, by virtue of an execution issued out from Robert Cari’, Esquire, in favor of Bowdwine Decker and others, to the damage of the plaintiff; &c.</p> <p>There was a verdict and judgment below for $55, in favor of the plaintiff.</p>

ON CERTIORARI. The action beloAv was an action on the case, and the following state of demand delivered the justice: Trespass on the case, for trover and conversion.

<p>ON CERTIORARI.</p>

<p>OS OEKTIOBABI.</p>

<p>ON CERTIORARI.</p> <p>The state of demand will sufficiently appear by the opinion delivered.</p>

<p>OK CERTIORARI.</p> <p>The state of demand will sufficiently appear by the opinion delivered.</p>

<p>ON CERTIORARI,</p> <p>Docket amended after certiorari presented.</p> <p>The counsel for the plaintiff in certiorari, moved the reversal of the judgment below,</p> <p>1st. On the ground of the state of demand exceeding the justice’s jurisdiction. But on examining the record, it appeared that the cause had been submitted to referees; and that it did not appear by the record, that any state of demand had been filed before the justice.</p> <p>2d. Because, after the writ of certiorari was served upon the justice, he altered his record, with a view to cure a palpable error, which appeared in it. The alteration complained of, was the entering the choice of a third referee, and his affirmance. Á rule having been taken on the justice, to certify as to this fact, he [*] returned, that he omitted to enter the choice of a third referee at the time he made up the record in his docket; that after the certiorari was presented, he believes he discovered the omission, and then made the correction in the margin.</p>

OS OEETIOBAEI. Docket amended after-certiorari presented. The counsel for the plaintiff in certiorari, ipoved the reversal of the judgment below, 1st. On the ground of the state of demand exceeding the justice’s jurisdiction.

<p>ON CERTIORARI.</p> <p>A easels discontinued by the expiration of the justice’s commission.</p> <p>This cause was instituted before the justice, in September, 1807, and referred to three referees, who [*] heard the parties, biit they could not agree; and the justice, after recording the facts, says, here the business stopped. In the meanwhile, the justice’s commission expired, and he was some time out of office, but afterwards re-appointed; when, in August, 1810, the parties met before the justice, and chose two new referees in addition to those formerly chosen. The five referees heard the cause, and made a report in favor of the plaintiff, for g23 26, on which, judgment was entered.</p> <p>It was how moved by Mr. Boggs, for the plaintiff in this Court, who was the defendant below, to reverse this judgment, on the ground,</p> <p>1st. That the justice’s commission having run out, the court was at an end, and the cognizancce of the court over the cause, was wholly destroyed.</p> <p>2d. That the cause could not be continued in this way, even if the justice’s commission had continued.</p>

<p>ON CERTIORARI.</p> <p>State of demand may exceed the sum contained in a summons.</p> <p>The first objection to the judgment below, was, that the summons was issued for a smaller sum than the state of demand set out, or the judgment was rendered for. The summons was for g99 99, and the state of demand and judgment was for glOO.</p>

OH CERTIORARI. State of demand may exceed the sum contained in a summons. The first objection to the judgment below, was, that the summons was issued for a smaller sum than the state of demand set out, or the judgment was rendered for. The summons was for $99.99, and the state of demand and judgment was for $100.

<p>ON CERTIORARI,</p> <p>Affidavit allowed on certiorari, to prove the summons was served on a person not living with the defendant.</p> <p>The defendant below, Vigers, did not appear before the justice, whereupon a judgment was rendered against him by default.</p> <p>It was now contended by Van Jlrsdale, for the plaintiff in certiorari, that the summons was not duly served; that Vigers had no notice of the institution of the suit against him until execution was issued. The return of the constable, as to the service of the summons, was as follows: — “ Summons served by leaving a copy with the defendant’s wife, informing her of its contents.”</p> <p>offered to read affidavits taken under a rule of court, to prove that the person whom the constable supposed, or pretended was the wife of the defendant below, was not his wife; and that although she had lived with him under circumstances disreputable to her, yet that at the time of the service of the summons, she did not even live in the house of the defendant, but in another family; and that the defendant resided at that time in New-York, although he had a house in Essex.</p> <p>Chetwood opposed the reading of these affidavits, on the ground that it was contradicting the record of the justice, by affidavits. That the return of the constable was entered according to law, on the justice’s docket, and thereby became part of the record, and could not be contradicted or added to by. affidavits, according to former decisions made by this Court.</p>

ON CERTIORARI. Judgment may not be entered jointly against defendant, and his surety to appear, &c. The action below, was brought by Be Kay against M’Whorter. On the return of the warrant, with the defendant in custody, an adjournment was had on the motion of the defendant, at which time, Collins became security for the defendant, M’Whorter’s appearance, by a verbal promise.

ON CERTIORARI. The action below, was brought by Smock against Mitten. The state of demand was for g20, and a jury of twelve men moved for and ordered, and were duly summoned; when the parties met for the trial of the cause, they consented that it should be tried by six instead of twelve men, which was done, and this was assigned for error.

<p>The action below, was brought by Corley, as assignee of Cyrus Baldwin, against Riker, as maker of a note of hand; the note was given by Riker to Baldwin, and indorsed in blank. It was assigned for error, that it did not appear that Corley had any interest in the note.</p>

A certiorari will remove a cause from the Orphan’s, to this Court, in cases of Account. “ This was a certiorari to the Orphan’s Court, brought by Burrough and Wife, against the Executor, to remove into this Court, the proceeding of the Orphan’s Court, on the settlement of the account of the Executor. The account had been excepted to, and confirmed by the Orphan’s Court. brought up for the consideration of the Court, a preliminary question as to jurisdiction.

<p>OS CERTIORARI.</p> <p>On promissory note, in action against an indorser, the time of notice of of non-payment, must be stated in the declaration.</p> <p>The action below was brought by Salmon as endorsee against Halsey as endorser of a promissory note made by one Beach. The only objection to the proceeding below that had any weight with the court, was the insufficiency of the state of demand. This contains three distinct counts; hut the two last being subject to the same objection as the first, and in other respects more defective, and not having any bearing on the decision of the court, it is unnecessary to state them. The first count set out the note made by Matthias Beach, payable to John Halsey or order, in sixty days, dated the 24th March, 1810; the endorsement by Halsey to Salmon before it became payable; the demand on Beach at the time it became payable, and his refusal to pay, >whereof the defendant had notice, but the time of notice was not set out.</p> <p>It was contended on the part of Halsey, the plaintiff in certiorari,, that it was essentially requisite in a declaration in an action brought by the endorsee against the endorser, to state the time of notice; that the action of the endorsee was incomplete without it; £*] that the fact was, that Halsey had never had notice of the refusal of Beach, the maker of the note, to pay until five months after he ought to have had notice; and in the mean while, Beach became insolvent, and on his insolvency the action below was commenced.</p>

ON CERTIORARI. On promissory note, in action against an indorser, the time of notice of non-payment, must be stated in the declaration. The action below was brought by Salmon as indorsee against Halsey as indorser of a promissory note, made by one Beach. The only objection to the proceeding below that had any weight with the court, was the insufficiency of the state of demand.

<p>OU CERTIORARI.</p> <p>It apppeared by the affidavit of Thomas Armstrong, Esquire, one of the jurors, that while the jury who [*] tried the cause before the justice, were out considering of their verdict, there was a diversity of opinion among the jurymen; that those who were in favor of the plaintiff below, for whom the verdict was found, insulted those who were of a different opinion; that some of the jurors broke out of the room, notwithstanding the exertions of the constable to prevent it; that those of the jury who were for finding a verdict for the plaintiff below, got provisions and publicly cat it in an adjoining room, and refused to let the remainder of the jury have any part of it; that he himself was opposed to finding a verdict for the plaintiff, but being under the apprehension of being starved out, he consented to come in, but should not have found a verdict for the plaintiff, had the jury been polled. These facts were in several respects, confirmed by the affidavit of the constable. The jury were out all night, it was in the morning when the provisions were obtained.</p>

ON CERTIORARI. It appeared by the affidavit of Thomas Armstrong, Esq., one of the jurors, that while the jury who [*] tried the cause before the justice were out considering of their verdict, there was a diversity of opinion among the jurymen ; that those who were in favor of the plaintiff below, for whom the verdict was found, insulted those who were of a different opinion; that some of the jurors broke out of the room, notwithstanding the exertions of the constable to…

<p>ON CERTIORARI.</p> <p>This case appears in the opinion delivered.</p>

<p>ON CERTIORARI.</p> <p>The evidence of the demand of the plaintiff below, Ogden, was his books of account. It appeared that the justice admitted in evidence, the books of account of the plaintiff, on a witness swearing that he never saw the plaintiff’s books before the time of the trial; but that the books were in the hand-writing of the plaintiff, and that in the waste book of the plaintiff, he perceived an entry of a transaction performed by the plaintiff as broker for the witness, which the witness had settled. On this evidence, the justice examined the plaintiff’s books, and rendered judgment in bis favor.</p> <p>the plaintiff in certiorari, contended, that the books of account were not suflicicntly proved to be admitted in evidence.</p>

ON CERTIOEAKI. The evidence of the demand of the plaintiff below, Ogden, was his books of account.

<p>ON CERTIORARI.</p> <p>The state of the case will sufficiently appear by the opinion delivex*ed.</p>

<p>OK CERTIORARI.</p> <p>The state of the case will sufficiently appear by the opinion delivered.</p>

<p>ON CERTIORARI,</p> <p>The state of the case will sufficiently appear in the opinion delivered.</p>

<p>OH CERTIORARI.</p> <p>The state of the case will sufficiently appear in the opinion delivered.</p>

<p>ON CERTIORARI.</p> <p>The first ground taken for the reversal of the judgment in this case, was, that the justice had rendered [*] judgment for more costs than the law allowed. As to this, it was said on the part of the defendant, that the fact was so; but the Court could not reverse the judgment for that cause, but only correct the error, a late act of Assembly having pointed out that mode. In the course of the argument of this cause, Mr. Hunter said that he drew the act alluded to, and with a view to this particular cause, and. that, alter the certiorari was brought.</p> <p>then moved for the reversal of the judgment, on the ground that the action below was to recover penalties under the Tavern Act, for selling liquor by small measure, and that only nine penalties were charged in the state of demand, yet that the jury had found, and the court had rendered judgment for ten penalties.</p> <p>Said that there was a general allegation in the state of demand, charging ten penalties; and although but nine only were enumerated in the specific charges, yet that the specific charges might be rejected as surplusage, and then the general allegation in the state of demand, would support the verdict and judgment.</p>

<p>OH CERTIORARI.</p> <p>The first ground taken for the reversal of the judgment in this case, was, that the justice had rendered [*] judgment for more costs than the law allowed. As to this, it was said on the part of the defendant, that the fact was so; but the court could not reverse the judgment for that cause, but only correct the error, a late act of Assembly having pointed out that mode. In the course of the argument of this cause, Mr. Hunter said that he drew the act alluded to, and with a view to this particular cause, and that after the certiorari was brought.</p>

ON CERTIORARI. The action below, was an action of debt, brought against Merrit, as late constable $ the state of demand charged him with sundry executions put in Ins hands for collection, as follows, to wit:— [*] January 7, 1800, one execution against Wm. Stackhouse.

<p>ON CEKTIOBABI.</p> <p>The action below was an action of debt, brought against Merrit, as late constable; the state of demand [675] charged him with sundry executions put in his hands for collection, as follows, to wit:—</p> <p> </p> <p>It was moved to reverse this judgment, on the ground of the insufficiency of the state of demand; that merely putting an execution into the hands of a constable, was not, of itself, sufficient to authorize an action against him, something ought to be stated, to show the liability of the defendant to the action.</p>

ON CERTIOBABI. A verdict for a part of penalties sued for, should designate wliicli of them are found. The action below was brought by Yamlcrvcr against Bloodgood, for ten penalties for selling spirituous liquors by small measure. The state of demand charged ten several distinct offences. The jury found a general verdict for S40, on which, judgment was rendered.

Pending the first action, Hollingshead had brought the second; and although Steward had exchanged the common rules in the action of Chance, yet at the Circuit he had abandoned the defence. It was admitted that Steward had no title or claim to possession. Elmer now moved the court for a rule to let Chance in to defend the suit against Hollingshead in lieu of Steward ; lie had obtained a rale to shew cause last term.

<p>ON CERTIORARI.</p> <p>It is in the discretion of a magistrate, whether to admit a witness under 14 years of age. It is not necessary’ to ask an affirming petit juror, if he be conscientiously scrupulous of talcing- an oath.</p> <p>moved the reversal of this judgment.</p> <p>1st. The action was in trover. The state of demand set out that the plaintiff below, had lost a steer, and that the defendant had found him, and converted him to ¡¡is own use.</p> <p>that although the allegation of these facts would be sufficient to ground an action on, in the courts of common law, yet it was not sufficient in justice’s courts. That the loss and finding was a fiction, and that the justice could not take cognizance of fictitious actions.</p> <p>[*] 2d. Tiic justice rejected a witness on the trial; as to which it appeared by his return, that the party offering the witness, acknowledged that he was but 13 years of ago; the justice questioned him in order to discover his capacity and understanding, after which, he rejected him as incompetent. The justice, in his return, stated some circumstances which induced him to decide against the capacity of the witness, which Mr. Griffith contended were insufficient.</p> <p>3d. The justice, in his original return to the certiorari, had not stated whether he had asked the jurors who were affirmed in the cause, whether or not they were conscientiously scrupulous of taking an oath, before they were affirmed.</p> <p>took a rule on the justice to return the fact. To this rule, the justice had returned, that he did not ask the jurors who were affirmed in the cause, at the time they were affirmed, whether or not they were conscientiously scrupulous of taking an oath; but that he knew them to be so, having frequently affirmed them before; that at a former time, they had declared to him, that they were conscientiously scrupulous of taking an oath. Mr. Griffith contended, with great earnestness, that the jurors had not been legally qualified. That at common law, all jurors must be sworn, and although this had been dispensed with, by the statute, yet it was only in cases where the jurors were conscientiously scrupulous of taking an oath, and that this fact ought to be made out and appear on the record.</p> <p>was stopped by the Court.</p>

ON (JEETIOBABI. It is in the discretion of a magistrate, whether to admit a witness under 14 years of age. Ifc is not necessary to ask an affirming petit juror, if he be conscientiously scrupulous of taking an oath.

<p>Referees are bound by legal rules of evidence. AnExecutor may not be a witness before them.</p> <p>This was an action brought on a bond given to the Testatrix, Sarah Eyre, in her life-time, by the defendant; plea non est factum, and payment. The cause was referred at Circuit, and the referees reported in favor of the plaintiff.</p> <p>moved to set aside the report of referees, on the ground that the referees, on the hearing of the cause, swore and examined on the part of the plaintiffs, one of the plaintiffs as a witness, although it was objected to at the time, by the defendant. The fact was made out by [*] the affidavit of two or more of the referees, and not denied. The referees, on cross examination, say that the testimony of the plaintiff was only in corroboration of other testimony; and that they would have made the same report, if he had not been examined.</p> <p>said that it was against reason and justice, and at variance with an established principle of lawT, that a party should be a witness in his own cause. That although lie was an Executor, sueing in the right of his Testatrix, yet the money received, vested in him, he was the actual party. Besides, the Executor has an actual interest; he has a commission on all the money he recovers. If the arbitrators err in point of law; the court will set aside the award. 1 Vesey, 12.</p> <p>said that the fact to which the witness testified, made a difference. The referees testify that they admitted the evidence of the Executor, but reserved to themselves afterwards to judge of its legality; and that they would have made the same report had the Executor not been examined; that they resolved to hear all the testimony on both sides, and then judge of its legal consequence. This was perfectly correct. That the referees were not bound down by the strict rules of evidence; that the referees were judges of the parties own choosing, and were supposed to be ignorant of the nice distinctions in law; that no case could be found in the books, where the report of referees was set aside on the ground of the admission of improper evidence; that there must be corruption, or gross partiality in the referees, to justify the court in setting aside their report, or at least, practice made on the arbitrator's, or some palpable irregularity, 1 Salk. 71, 1 Stra. 301, 2 Burr. 701, 1 Atk. 64, 3 Atk. 572, Loft, 554, 2 Ves. jun. 18. That on submitting a cause to reference, the parties withdrew their cause from the court to a tribunal of their own election, 3 Johns. 369, 2 Wash. 14, 1 Day’s Cases, 153. It is no cause to set [*] aside an award or report, because the arbitrators or referees admitted improper evidence, 2 Johns. 117, 1 Dallas 161. But the Executor had no interest in the cause ; he was only a nominal party on the record; his being a party on the record, per se, was no objection to his being a witness, unless ho had an interest in the cause; an Executor may be a witness respecting the estate of the testator, Gil. L. E. 120, 4 Burr. 2254, 1 Mod. 107, 1 Blac. Rep. 367. Den v. Allen, in this Court, State Rep. 43. Again, the Court will never set aside a verdict, much less, a report of referees, for an irregularity in proceeding, if substantial justice has been done, and he contended that it was in this case; and that it was incumbent on the defendant to shew that injustice had been done him, before he could ask the Court to set aside the report.</p>

<p>Referees are bound by legal rules of evidence. An executor may Dot be a witness before them.</p>

Parol evidence to explain a will, inadmissible. Exclusive right to a fishery, questioned by Pennington J. This was an action of trespass. The subject of controversy was a right to a fishery, in the river Delaware, called the Duck Island lower fishery, in the township of Nottingham, in the county of Burlington.

<p>OK CERTIORARI.</p> <p>The cause below, was tried by a jury. After the justice had entered on his docket the verdict, he makes the following entry: " Jhul I do give judgment also.”</p>

Verdict of a jury, one of whom was too sick for deliberation, set aside, the judge also being dissatisfied with it. Tins was an ejectment for two pieces of land in Essex, tried before Pennington, J. at the September Circuit, at Newark, 1811. The lessors of the plaintiff relied on a title derived from a sale by the sheriff, under executions against John E. Baldwin, issued on judgments obtained in June, -1810.

<p>Th-e suit was brought in the Bergen Common Pleas, and moved into this Court by habeas corpus.</p> <p>Campbell, moved for a procedendo, on the ground that no recognizance had been filed.</p> <p>Halsey and A. Ogden, opposed this motion. The defendants being a corporation, no bail was required of them below. It was, therefore, unreasonable to require bail on removing the cause to this Court.</p>

<p>ON CERTIORARI.</p> <p>A writ of certiorari in this case, was allowed by a judgey at his Chamber in vacation, and was now "returned.</p> <p>Scott moved that the writ be' quashed, on the ground that it had been improvidently issued.</p> <p>B. Stockton, contra: — We ought to have notice of this motion.</p> <p>A. Ogden, in reply: — No notice in this case is necessary. The Court will immediately on the return of a writ improperly issued, quash it.</p>

ON CERTIORARI, The action below, was brought by Bloomfield and Marsh against Scudder, on the Timber Act. The state of demand was for cutting 12 trees, 896. The judgment was rendered for 88 41, with costs.

<p>ON CERTIORARI.</p> <p>One of the items in the state of demand, and on which a recovery was had, was as follows, viz:—</p> <p>To [*] half of an execution obtained against me and said defendant, to the amount of $35 his share.</p> <p>The insufficiency of the state of demand was alledged as a ground of reversal.</p>

ON CERTIORARI. One of the items in the state of demand, and on which a recovery was had, was as follows, viz:— To [*] half an execution obtained against me and said defendant, to the amount of $35 his share. The insufficiency of the state of demand was alleged as a ground of reversal.

<p>ON CERTIORARI.</p> <p>The action below, was brought by Hutchinson against Taylor. There was a declaration for meat, drink, washing, lodging, clothing, and other necessaries found and provided by Hutchinson, for one Israel Taylor, the infant son of the defendant below. From the case disclosed on the argument, it appeared that Taylor put his son to Hutchinson as an apprentice to learn the blacksmith’s trade; that the boy stayed with his master five or six years, and learnt his trade; he was not bound, hut the father put him to Hutchinson until he was twenty-one years of age; that the boy left bis master a year or eighteen months before be was of age. The action was brought for board and necessaries furnished the boy, while he lived with Hutchinson.</p>

<p>ON CERTIORARI.</p> <p>The action below, was brought by Hutchinson against Taylor. There was a declaration for meat, [693] drink, washing, lodging, clothing and other necessaries found and provided by Hutchinson, for one Israel Taylor, the infant son of the defendant below. From the case disclosed on the argument, it appeared that Taylor put his son to Hutchinson as an apprentice to learn the blacksmith’s trade; that the boy stayed with his master five or six years, and learnt his trade; he was not bound, but the father put him to Hutchinson until he was twenty-one years of age; that the boy left his master a year or eighteen months before he was of age. The action was brought for board and necessaries furnished the boy, while he lived with Hutchinson.</p>

<p>ON CERTIORARI.</p> <p>Feme covert may not sue in her own name.</p> <p>Sarah Scott, the wife of Alexander Scott, the action below, to recover the value of certain household goods, which she had put into the hands of Tucker, the defendant below, in confidence, to keep for her. Mrs. Scott had had a former husband, by the name of Haviland, who had died and left her in possession of the goods in question : after which she married Scott, who after living with her some time, left her, and had not been heard of for five years. The defence set up below was, the coverture of Mrs. Scott, the plaintiff, which the justice over-ruled.</p>

IN DOWER. Voluntary nonsuit irrevocable. Ox the trial of this cause at the Essex Circuit, before Pexxixgtox, J. the demandant voluntarily suffered a non-suit; a rule nisi had been taken on the part of the demand-ant to set aside this nonsuit, and for a new trial, on the ground that the judge at the Circuit had admitted, on the part of the tenant, illegal evidence.

<p>IN DOWER.</p> <p>Voluntary nonsuit irrevocable.</p> <p>On the trial of this cause at the Essex Circuit, before Pennington, J., the demandant voluntarily suffered a non-suit; a rule nisi had been taken on [696] the part of the demandant to set aside this nonsuit, and for a new trial, on the ground that the judge at the circuit had admitted, on the part of the tenant, illegal evidence. The cause being called in its turn on the paper,</p>

<p>ON CERTIORARI,</p> <p>The action below, was an action on the case; brought by Creator against Castner, for ill using a mare which Creator had let him to ride. The state of demand set out at considerable length, the circumstances; that the marc was obtained by Castner to ride to a particular place, about 12 miles distance, and was to be returned in 24 hours; but that the defendant went to another place, 40 miles distance, and kept her a week, and used her so ill that she died in three days after she was returned; that the plaintiff was at great trouble in sending after the marc, and in doctoring her after she ivas returned; that the case was aggravated by the parties agreeing to leave it to men; and that when the referees met, the defendant refused, by which the plaintiff was put to expense. The plaintiff below, recovered $60 damages.</p> <p>The principal objection to the judgment was, to the sufficiency of the state of demand. It was also objected, [*] that the justice over-ruled legal evidence; but this did not appear on the record.</p>

<p>ON CERTIORARI.</p> <p>The action below, was brought on a warranty in the sale of a mare. The state of demand set out that the plaintiff bargained with the defendant to exchange with him a certain pair of oxen, of the value of $75, for a certain mare of the defendant’s, valued by the sard defendant, at $60, as per defendant’s bill of sale and warranty, together with defendants bill of 815, being the value of the plaintiff’s oxen; that the same was a valuable [*] consideration for a good sound mare. The state of demand then went on and stated the unsoundness of the mare, &c. On the trial, a bill of Sale, in the following words and figures, was given in evidence.</p> <p>C. Bowne' bought of Janies Steward, a grey Mare, 4 years old, and warranted sound, $60.</p> <p>Received payment for the above.</p> <p>JAMES STEWARD.</p> <p>It was objected that there was a Arariance between the state of demand and the proof; that the plaintiff had undertaken' to set out a written agreement, and had given in evideiícé a different agreement than the one which he had set out in the state of demand.</p> <p>On the trial, there was read in evidence, a deposition, on the face of it taken in the usual way, that the Avitness was duly sworn, according to law. The justice states that the witness Avas sick, and unable to attend, and that the deposition was taken according to laAV, and that the defendant had notice in writing, of the time and place of taking the deposition; and that the defendant admitted that he had received due notice.</p> <p>It was objected, that this deposition was not taken according to law. A letter from the plaintiff to the defendant, was given in evidence on the trial. The justice states, that it was proved that a copy of this letter had been delivered the defendant before the marc died; the letter informed the defendant that the mare was diseased, and requested him to come up and see her, and satisfy himself. It also mentioned that he had warranted the mare. It was objected, that the letter was not legal evidence; that it was admitting a party to furnish evidence for himself by his own letters.</p>

OH CERTIORARI. The action below, was brought on a warranty in the sale of a mare.

<p>ON CERTIORARI.</p> <p>This certiorari was handed up for consideration last term.</p>

<p>OH CERTIORARI.</p> <p>This certiorari was handed up for consideration last term.</p>

<p>ON CERTIORARI.</p>

<p>ON CERTIORARI.</p>

<p>OB CERTIORARI.</p>

<p>ON CKRTIORARI.</p> <p>The state of this case will sufficiently appear by the opinions delivered. Bowen and Hildreth brought the action below, and recovered.</p>

<p>OR CERTIORARI.</p> <p>The state of this case will sufficiently appear by the opinions delivered. Bowen and Hildreth brought the action below, and recovered.</p>

<p>ON CERTIORARI,</p> <p>Certiorari dismissed; the return not being called for by the plaintiff'.</p> <p>The writ of cerHorari having been delivered to the justice, he made no return, and a rule was taken the last term, on the justice to make return. At this term,</p> <p>read the following certificate from the justice, and on which, lie moved a dismissal of the certiorari, on the ground that the plaintiff had not followed up Ins writ with due diligence. The justice certified as follow's:—</p> <p>John J. Voorheis v. Samuel Kerns; I do hereby certify that immediately after the receipt and service of the ceitiorari in the above stated action, I made out die transcript and proceedings in the said cause, ready to be delivered to the plaintiff when called for; that I received in a letter a rule of the Supreme Court, requiring me to make return thereof, which I have at all times been ready and willing to do. The plaintiff' in certiorari, nor no other person in his behalf, having at no time called upon me for the same, I do not conceive it my duty to carry the same and deliver it to the Court, or Clerk of the Court. The plaintiff) or any [*] person, on his order, can have the proceedings at any time.</p>

on OEETIOEABI. Certiorari dismissed ; the return not being called for by the plaintiff. The writ of certiorari having been delivered to the justice, he made no return, and a rule was taken the last term, on the justice to make return. At this term,

<p>Devise that M. shall be partaker of the whole estate, provided she leave an issue, male or female; hers is an estate-tail.</p> <p>This ejectment was brought to recover a moiety of a tract of about 300 acres of land, in the county of Hunterdon. The action was an amicable one, brought by one brother against another, in order to take the opinion of this Court on the title. The following facts were agreed on as the state of the case.</p> <p>Isaac Kroom, on the 26th January, 1758, was seized and possessed of the land in question; and on that day executed his last will and testament, in which, after the customary introduction, he says, my will is, that all my debts shall be paid. Secondly, that my daughter Mary shall be partaker of my whole estate, both real and personal, provided, she leaving an issue, male or female; that is to say, my dear and loving wife is to have full possession as long as she live. [*] Item, my will is, that my loving wife Mary, I constitute to be my sole Executrix. Item, my will is, that if my daughter Mary should happen to die, leaving no issue, then my loving wife shall have my whole estate, both real and personal. Item, my will is, that the issue, male or female, from the body of my daughter Mary, shall be next partaker. — The Testator died without altering or revoking this will. Mary, who was the only daughter of the Testator, married John Emans, and had two sons, viz: John Emans, the defendant, and Isaac Emans, the lessor of the plaintiff; John is the eldest son. That Mary, with her husband, lived on the premises until the death of the husband, in 1804, who had done no act to affect the title. That after the death of her husband, Mary lived on the premises until her death, two years after her husband, and died intestate. That John Emans, the eldest son, lived on the premises with Ids parents until their death, and still continues in possession, claiming the whole, under the will of Isaac ICroom. The question arising is, whether John Emans, the defendant, is entitled to the whole of the land, or only one half, and his brother Isaac, the lessor of the plaintiff) entitled to the other moiety.</p> <p>Mary, the daughter of the Testator, and mother of the parties, did not take an estate-tail. The estate given to her, is an estate for life. There are not in the will any words of perpetuity to her and her seed, or children, or son. The defendant, therefore, comes in equal with the lessor of the plaintiff, as heirs at law to their mother, who inherited the estate from her father. The estate devised to her, being an estate for life, she came in by descent. The words of the will are much stronger to carry a fee to Mary, than a fee-tail. 4 Bac. 254.</p> <p>— There is an express estate-tail created in Mary by devise; and also an estate-tail by implication or construction of law. There are words of inheritance; it is to Mary and her issue. If my daughter Mary, should happen to die, leaving no [*] issue, then her mother to have it, creates an estate-tail by implication, Com. Rep. 333, 9 Coke, 127. Even if there was a joint estate for life, to the daughter and mother; after the death of the mother, the daughter took an estate-tail. An original devise to the issue, without a previous devise to the parent, may be good to them, but this is not our case.</p> <p>— The parties are the heirs at law of the Testator, whose intentions must govern in the construction of the will; and this intention is to be taken from the whole will, every word of which, is to have an effect, without adding or rejecting any words. Mary did not take an estate either by express words or implication. The interest that the daughter took, was a joint interest with her mother. She was to be a partaker; that is, she was to enjoy it with her mother. This was a disposition of the personal, as well as the real estate. The last devise to the issue, was a substantial devise to them; issue is a description of the person. 6 Cruise, 185. Therefore, the issue took a substantive estate. The previous estate to the mother, was only a partaking with her mother. If the latter clause was struck out of the will, he admitted that it might be construed an estate-tail. The latter clause makes the difference. The policy of the law is against a construction in favor of creating an estate-tail. The Testator did not mean an indefinite failure of issue; he must have intended issue at her death. The devise over to the issue, is an original devise, and the issue take as purchasers jointly; all the issue shall take, and not one in preference to the other; but all in equal parts.</p>

<p>Devise that M. shall be partaker of the whole estate, provided she leave an issue, male or female; hers is an estate tail.</p>

OST CERTIORARI. The action below, was an action of debt, brought under the Timber Act, for four penalties, for cutting trees. The justice had made an entry of the action in his docket, when the process was first issued; but had not stated that it was brought for penalties under the Timber Act. that it was not such a special entry of the commencement of the. action, as the act respecting common informers, requires.

OH CERTIORARI. The action below, was an action of debt, brought under the timber act, for four penalties, for cutting trees. The justice had made an entry of the action in his docket, when the process was first issued; [708] but had not stated that it was brought for penalties under the timber act.

<p>■In ejectment, judgment opened and habere facias quashed, on reasonable grounds, no trial being lost.</p> <p>The declaration in this case, was served on the tenant in possession, ten or twelve days before tbe last term; and as no appearance was bad, judgment was obtained at the close of the term, and a writ of habere facias possessionem issued, and the tenant turned out of possession.</p> <p>At this term, Mr. Williamson, at the instance and in behalf of G-. D, Brinlterhoff, who was alone concerned in interest, applied to the Court to open the judgment, and to quash the writ of possession, on affidavits of merits; and that the tenant had been surprised, expecting Mr. Brinkerhoff, from whom he had a warranty for the land, to defend the action, and who had been notified some few days before court; but that Mr. Brinkerhoff’s family was in so distressed a situation by sickness, and death óf a daughter at the time, that he could not attend to it. He stated that no tidal had been lost, and that the merits could be tried at the ensuing Essex Circuit. There were counter-affidavits denying merits.</p>

The declaration in this case, was served on the tenant in possession, ten or twelve days before the last term; and as no appearance was had, judgment was obtained at the close of the term, and a writ of habere faoias possessionem issued, and the tenant turned out of possession. At this term, Mr. Williamson, at the instance and in behalf of G. 1).

<p>ON CERTIORARI.</p> <p>No action lies for deceiving a justice in the age of a minor, married by him, and subjecting him to the penalty therefor.</p> <p>The action below, was brought up by Bush against Harvey, on the following state of demand:—</p> <p>George Harvey, to Ard. Bush Dr. For false representation to get married in theyear 1811, the 10th March.</p> <p>T o fine, forty dollars, $40 00</p> <p>Court charges, thirty-five, 35 00</p> <p>To time and expenses, 15 00</p> <p>$90 00</p> <p>The case was tried, and verdict and judgment in favor of the plaintiff’ below, for $50, with costs.</p> <p>It was said at the bar, that the plaintiff below, was a justice of the peace, and that on the defendant’s representing himself of age, the justice had married him, and that the justice had been prosecuted and lined for this act, and brought this action to recover back the fine, costs and expenses, which had been brought on him for this act.</p>

ON CERTIORARI. Ojv the return day of the summons, the plaintiff below, delivered to the justice a state of demand; one item of which, was, “to book account, 89 42.” On the day of ' trial, he filed an account containing a bill of particulars, and recovered the whole demand. It was objected to these proceedings below, that the state of demand as first delivered, was insufficient, and that it could not be helped by the accounts delivered on the day of trial, being out of time.

<p>ON CERTIORARI.</p>

ON CERTIORARI. Action iics for a malicious and false prosecution in a civil suit. The action below, was an action on the case, brought by Burt against Brush.

<p>ON CERTIORARI.</p>

<p>ON CEKTIOBAEI.</p> <p>Action lies for a malicious and false prosecution in a civil suit.</p> <p>The action below was an action on the case, brought by Burt against Brush. The substance of the state of demand delivered the justice was, that Burt lived in Mendham, in the county of Morris, but had sold off his property with intention to move to the western country, and had actually commenced his journey, with his wife and family, when he was taken on his way by a constable, under a warrant from a justice of the peace, at the suit of Brush, and brought to Morristown, in the county of Morris; that Brush, instead of pursuing this action before the justice, never appeared to it, but took out a capias from the common pleas, and had Burt arrested and held to bail; that Burt was acquitted, (as he terms it) from the action in the common pleas; that in consequence of this arrest, Burt was detained a week from pursuing his journey, and put to great expense in maintaining his family and taking care of his team on [713] the road, and that his business suffered greatly by this loss of time; that the warrant and capias were taken out by Brush through malice, with intention to vex the said Burt, and that the suits were utterly without ground, as the plaintiff and defendant never had any dealings together of any kind whatever, and that known to Brush.</p> <p>To this state of demand, Brush pleaded not guilty; on which there was a trial and verdict, and judgment for the plaintiff for $39.50.</p> <p>It was now contended, on the part of Brush, the plaintiff in certiorari, that an action could not be sustained on the state of demand. ' *</p>

OST CERTIORARI. The stale of demand filed with the justice, was for a foil! of expence for the lying in of a woman, .(of the same name with the plaintiff below, hat not stated to he his daughter, or in any way connected with him,) with a child charged on the defendant below: The defendant did not appear at the trial; no evidence was examined before the justice j but the justice admitted in evidence, two examinations of the woman who had borne the child.

ON CERTIORARI. -No action lies on a promise to pay damages caused by defendant’s not paying a dppt.when clue. The action below was founded on the following state of demand, in substance.

<p>OS' CERTIORARI.</p> <p>Reputed insolvency oí the maker of a promissory note, is no excuse for -want of notice to the indorser.</p> <p>The action below was brought by Munday as indorsee, against Oliver as an indorser of a promissory note. It was admitted, that the endorsee had not demanded the money of the maker of the note, nor given any notice to the indorser, of the non payment. But it was also admitted, that the maker of the note was on the limits of the jail of the county of Essex at the time the note became due, and was reputed to be insolvent.</p>

<p>OH CERTIORARI.</p> <p>The state of demand filed with the justice was for a bill of expense for the lying in (of a woman of the same name with the plaintiff below, but not stated to be his daughter, or in any way connected with him), with a child charged on the defendant below. The defendant did not appear at the trial; no evidence was examined before the justice; but the justice admitted in evidence two examinations of the woman who had borne the child. It was objected that’ the state of demand was insufficient; and also, that the depositions admitted in evidence were not legal testimony — that in fact it was a judgment without evidence.</p>

<p>OR CERTIORARI.</p> <p>No action lies on a promise to pay damages caused by defendant’s not paying a debt when due.</p> <p>The action below was founded on the following state of demand, in substance. That the defendants below, John and Andrew Johnson, were indebted to the plaintiff below, Anderson, in the sum of $500; that Anderson was indebted to two other persons in $100 each, and the money would become due on the 1st day of May, 1810; and that in consequence of his being in danger of being prosecuted for this sum, the defendants promised that they would pay the debt due from them to the plaintiff, to enable him to discharge by the said first day of May the said debts he owed — and that in case they should fail to pay by the time, and the plaintiff should be sued for the same, and put to costs, that they would pay the costs and expenses which he should be so put to; that the defendants failed to pay the money at the time, whereupon [*] the plaintiff was sued in two actions, and put to $80 costs, and demands the said $80 costs, which he had been so put to, of the defendants.</p> <p>There was a trial, verdict and judgment, for the plaintiff below, for $65.13.</p>

Mortgage by feme covert, without her husband, does not affect his rights, notwithstanding a marriage agreement states that her property Shall remain at her disposal.

<p>ON CERTIORARI,</p> <p>The action below, was brought on the following state of demand:—</p> <p>Stephen St. John to Edward Adams, Dr.</p> <p>1811, July 5, to cash, $55 00</p> <p>Interest for same, two months, 1 28</p> <p>$56 28</p>

<p>This cause being noticed for the Essex Circuit, in April, 1811, and called on in the paper, the parties agreed to the following state of the case:</p> <p>That Mary Condict, widow, being seized in fee of three several [*] lots of land in the county of Essex, the premises in question, became bound in a certain bond or obligation, together with Simon Tompkins and Joseph Tompkins, to the lessor of the plaintiff, in the penal sum of $574.00, conditioned for the payment of $287.86, bearing date 16th April, 1805. Afterwards, a marriage being contemplated between the said Mary Condict and the defendant, Caleb Quinby, a certain writing, or articles of agreement, was entered into by the said Mary and Caleb, under their respective hands and seals, bearing date the 31st December, 1808. Among other things, the said agreement contained [719] the following: “ That the marriage shall not alter, change, or in any way affect the right of property; but that each of their property shall be at their own disposal, and go to their heirs and assigns in the same manner as though the marriage had not taken place.” Shortly after the execution of the articles of agreement, the marriage was duly had and solemnized. After the marriage, the said Mary alone, not being joined by her husband, executed a certain deed of mortgage. bearing date the 31st October, 1810, for the premises in question, being the three lots before mentioned, to Nathaniel Camp, the lessor of the plaintiff, to secure the payment of the before mentioned bond, which mortgage was duly acknowledged by the said Mary, and regularly recorded.</p> <p>The action is brought to recover the lands contained in the mortgage; the defendant, Caleb Quinby, admits that he was, at the time of bringing this action, in possession of the said mortgaged premises, and that he still is in possession of the same.</p> <p>In September Term this case was submitted to the consideration of the court without argument; and at this term, Pen'XIXGTOX, J., delivered the opinion of the court.</p>

<p>The true time of issuing a writ, may be proved by parol.</p> <p>This was an action for words; pleas, not guilty, and tlie statute of limitations. At the trial before Pennington J. at the Essex April Circuit, 1812, the time of suing out the capias in this cause, became material, the plaintiff offered to prove this fact by the attorney, Mr. Woolley. This was objected to on the part of the defendant, on two grounds:—</p> <p>1st. That the plaintiff was not at liberty to prove the commencement of the action, before the November term last, that is, the term to which the writ was returnable; that the exhibition of the bill was the commencement of the suit.</p> <p>2d. That even if he was, yet that this could not he done by parol proof, but the writ must be produced.</p> <p>The judge over-ruled the objection, reserving the point, and giving leave to the defendant to move at bar for a non-suit. The plaintiff had a verdict; and on the coming in of postea, the defendant moved for a nonsuit.</p> <p>1st. Because the judge, at the Circuit, improperly overruled a motion for a nonsuit.</p> <p>2d. Because the plaintiff did not support his action by legal and proper testimony.</p> <p>3d. Because the judge, on the trial, admitted illegal evidence, on the part of the plaintiff.</p> <p>This case being argued at the September term, by Jl. Ogden, Van Jlrsdale and Hornblotoer, for the defendant; and Halsey and Frelinghuysen for the plaintiff; in this term, Pennington, J. delivered the opinion of the Court.</p>

<p>ON CERTIORARI.</p> <p>The proceeding below, was by summons. There was no appearance of either of the defendants, and in [*] the return of the constable, he did not set out the time of the service of the summons.</p>

ON CERTIORARI. The justice in this case, had included in his judgment for costs, as well the fees for the defendant’s witnesses as plaintiff’s.

<p>OH CERTIORARI.</p> <p>The proceeding below was by summons. There was no appearance of either of the defendants, and in [*] the return of the constable, he did not set out the time of the service of the summons.</p>

ON CERTIORARI. Judgment may be entered on report of Referees, in absence of, and without notice to the losing party. The cause below, had been referred, and the referees made a report within the time limited by the rule; whereupon the justice entered judgment in the absence of the party against whom the report and judgment was rendered.

<p>ON CERTIORARI.</p> <p>The justice in this case had included in his judgment for costs, as well the fees for the defendant’s witnesses as plaintiff’s.</p>

<p>ON CERTIORARI.</p> <p>A judgment confessed is no bar to a suit for an omitted item.</p> <p>The action below, was brought by Bradway against Whiley, to recover back a sum of money which Whiley had received on gn order drawn by Bradway, in his favor, on a third person. The defence was, that the money was received on account of a demand which Whiley had against Bradway, and in part payment thereof; and that Whiley had sued Bradwgy since the giving the order, and that Bradway had confessed a judgment for the balance which had been recovered. But Bradway alledged in his pleading, that on the adjustment of the accounts on which the balance bad been confessed, the money received on this order, had been overlooked, and not brought into the calculation, and this was put in issue, and the jury found a verdict for the amount of this money, with interest, and judgment rendered thereon.</p> <p>It was now contended, on the part of Whiley, who brought this certiorari, that this transaction could not be unravelled in a new action; that Bradway’s confessing a judgment for the balance of Whiley’s demand, had precluded himself from recovering this money; that the judgment confessed, was a bar to this demand, and settled all accounts between the parties.</p>

<p>OB CEKTIOBAEI.</p> <p>The action below was an action of trespass, [*] brought by Wade against Austin, for taking and carrying away the wagon of Wade. On the trial, it appeared that the wagon had been the wagon of one Teller; that Wade had taken out an attachment from Justice Brown, against Teller, and attached the wagon, and had advertised the attachment according to law, and obtained judgment on the attachment; but that the wagon had not been sold under the attachment. Wade, however, got possession of the wagon. In the mean time, Austin, as deputy sheriff, had levied on the wagon, in virtue of an execution against Teller, and took it into his possession ; for which the action below was brought, and judgment rendered against Austin.</p>

ON CERTIORARI. The action below, ivas brought by Kei'r, as indorsee of two notes against Yoorhies, as indorser. The' [*] state of demand is very lengthy, setting out with great particularity and minuteness, the transaction respecting the indorsement of the notes. Although, in describing the notes, they are mentioned as promissory notes, yet the maker of the note is styled obligor, and the notes, obligations.

<p>OÍT CERTIORARI.</p> <p>The action below was brought by Kerr, as indorsee of two notes against Yoorhies, as indorser. The [*] state of demand is very lengthy, setting out with great particularity and minuteness the transaction respecting the indorsement of the notes. Although, in describing the notes, they are mentioned as promissory notes, yet the maker of the note is styled obligor, and the notes, obligations. From this inacuracy in the phraseology of the state of demand, the counsel for the defendant below, Voorhies, who is the plaintiff in error, treated the notes as sealed instruments, and contended that this was the common case of an action brought by the assignee of a bond or sealed bill against the assignor, on failure of the obligor to pay. There were other objections which are taken notice of in the opinion delivered.</p>

OST CERTIORARI. The principal objection in this case, was the insufficiency of the state of demand. The others were contradicted by the record.

<p>ON CERTIORARI.</p> <p>The state of this case appears from the opinions delivered.</p>

<p>ON CERTIORARI.</p> <p>ThE objection to the state of demand below was, that the first item1 was in the following words, viz. “ To balance due.on settlement.”</p>

ON CERTIORARI. The objection to the state of demand was, that the first item was in the following words, viz.: To balance due on settlement.”

<p>ON CERTIORARI.</p> <p>The principal objection to the proceeding below was, that the justice over-ruled legal testimony.</p>

<p>OH CERTIORARI..</p> <p>The principal objection to the proceeding below was, that the justice overruled legal testimony.</p>

<p>ON CERTIORARI.</p> <p>The trial below, was in the absence of the defendant, who had never appeared. It was objected to the judgment below', that the justice had rendered judgment against the defendant below, for a larger sum than appeared to be due the plaintiff from his own state of demand.</p>

CERTIORARI. The trial below was in the absence of the defendant, who had never appeared. It was objected to the judgment below, that the justice had rendered judgment [732] against the defendant below, for a larger sum than appeared to be due the plaintiff from his own state of demand.

<p>ON CERTIORARI.</p> <p>The case sufficiently appears in the opinion delivered.</p>

<p>ON OEETIORARI.</p> <p>The case sufficiently appears in the opinion delivered.</p>

ON CERTIORARI, The action below, was brought by the Wards against Sayres, as a constable in the township of Newark, in the county of Essex. The declaration contained three counts.

ON CERTIORARI. A justice may, for his own convenience, adjourn a trial, not exceeding the legal limitation.

A judgment twenty years old, amended by correcting the Christian name of the plaintilK Garret Pkobasco, Administrator of Christopher Probasco, commenced a suit in this Court, against Abraham Probasco, and obtained a judgment. In entering the judgment in the minutes of the Court, the name of George was used, in lieu of Garret. The writ, declaration and plea, were all in the name of Garret.

<p>ON CERTIORARI.</p> <p>A justice may, for his own convenience, adjourn a trial, not exceeding the legal limitation.</p> <p>It appeared by the record, that the warrant was returned on the 10th December, 1811; that the parties appeared, and on the motion of the defendant, the cause was adjourned to the 17th of the same month; and that on that day, the trial was adjourned by consent to the 21st; that on the 21st, the justice adjourned [737] the cause until the 24th, for his own convenience and this adjournment of the justice is assigned for error.</p>

Garret Probasco, administrator of Christopher Probasco, commenced a suit in this court, against Abraham Probasco, and obtained a judgment. In entering the judgment on the minutes of the court, the name of George was used, in lieu of Garret. The writ, declaration and plea, were all in the name of Garret. This judgment was obtained twenty years ago, but was delayed by injunction out of chancery, until 1806. In 1810, the land of Abraham Probasco was sold under it.

<p>ON CERTIORARI.</p> <p>Order of affiliation tobe made in the native county of bastard, though not the mother’s residence.</p> <p>Ruth Wilson was delivered of a bastard child, in Am-well; but her residence was in a neighboring county. Two justices of the peace of the county of Hunterdon, on the application of the overseers of the poor of Amwell, made an order on Tunis Quick, the reputed father of the child, for a weekly sum for the maintenance of the said child, under the first section of the act for the maintenance of bastard children. This order, on appeal, was confirmed by the Sessions. The two orders being removed by Quick, into this Court, by certiorari.</p> <p>moved this Court to quash these orders, on the ground that as the residence of the mother of the child was pot in Hunterdon [*] county, the justices in that county, liad no jurisdiction of the subject matter; that the justices have no authority to make the order, except the bastard was likely to become chargeable to some town in the county of which they are justices; the language of the act being to take order for the relief of the township. To take order for the relief of a town, can only be where the town is liable to the maintenance of the bastard, and that is where the legal settlement of the bastard is: the legal settlement of this bastard is in the township where the mother’s residence is, and not in Amwell, where it was born. The bastard cannot be likely to become chargeable to Am-well, nor to any township in Hunterdon. An order of bastardy was quashed, because it was not adjudged that the town was chargeable, Comb. 36. In case a bastard is legally settled in another town, the overseers cannot bo made to maintain it. Boot’s Poor Law, 408, 412.</p> <p>The justices of the county, have an express authority by the statute, to make the order of filiation. Pat. 152. The words of the statute are explicit, and clear of all ambiguity. The court has no latitude of construction where the language of the statute is unambiguous. The law is reasonable; the justices on the spot, are the proper officers to take cognizance of the matter. The statute not only gives to justices of the county, within which any bastard shall be born, an authority to take order for the better relief of the township where such bastard shall be born,but also to take order for the keeping such bastard child, by charging the mother or reputed father, with a weekly sum for its sustenance. Again, a pauper is likely to become chargeable where it is likely to require sustenance; settlement and chargeable, are not convertible terms. A pauper may become chargeable where he has not a settlement; chargeable, and being compelled by necessity to ask relief, is the same case.</p>

ON CEKTIOBABI. Order of affiliation to be made in the native county of bastard, though not die mother’s residence. Ruth Wilson was delivered of a bastard child, in Amwell; but her residence was in a neighboring county.

<p>|9,This Court may not decide whether surplus money of sale of land on first fi.- fa. shall be paid to defendant, or to other execution creditors. (a)</p> <p>A rule had been obtained, some terms ago, calling on Isaac Pierson, Es.quire, late Sheriff of Essex, to shew cause why he should not bring into court the surplus money arising on the*sale of a house and lot at. Newark, belonging to the defendant, in payment of the execution of the plaintiff. The facts were, that Thomas Ward, Esquire, in 1807, obtained a judgment in this Court, against Caleb Pierson, the defendant, and took out execution, and put it into the hands of Isaac Pierson, Esq. then Sheriff of Essex, who levied on a house and lot in Newark. This execution lay by in the hands of Sheriff Pierson, until 1811, when several judgments were obtained against the same defendant, one of which, was by the plaintiff in this suit; executions were taken out on these judgments. In the mean time, Sheriff Pierson liad gone out of office; and these executions were put into the hands of Nathan Squier, Esq, the then Sheriff. This drove Sheriff Pierson to sell under the execution in his hands, and the property not being divisible, he sold the whole; on which, there remained in his hands, [*] a surplus of g900. Squier gave notice to Sheriff Pierson of the executions in his hands, and was present at the sale, and cautioned Sheriff Pierson not to pay over the surplus to the defendant’s order; notwihstanding which, Sheriff Pierson paid the surplus over to the order of the defendant; and by that means, shut out the subsequent executions altogether. The defendant was insolvent; on which, this rule on Sheriff Pierson was taken, on the motion of the plaintiff, Thompson.</p> <p>This question being argued by Wall, for the plaintiff, and I II. Williamson, for the Sheriff, the Court took time to consider of it, and at this term,</p>

This court may not decide whether surplus money of sale of land on first fi.fa. shall be paid to defendant, or to other execution creditors 2 A rule had been obtained some years ago, calling on Isaac Pierson, Esq., late sheriff of Essex, to show cause why he should not bring into court the surplus money arising on the sale of a house and lot at Newark, belonging to the defendant, in payment of [743] the execution of the plaintiff.

Tuts ejectment was brought on the following clause in the will of John.Shaw, made in 1772: “Item, 1 give and bequeath unto Joshua Shaw, before mentioned, my nephew, son of my brother Joshua Shaw, my home plantation, with a piece of land adjoining it in Indian Neck; also, apiece adjoining Thomas JRowett’s line, all which land I give to him, the said Joshua Shaw, and to his male heirs forever.

Deed admitted in evidence, on proof of hand-writing of the grantor, and of the subscribing witnesses one of them being dead, and the other out of the State. This was a case of error from the Common Pleas of Somerset. At the trial in the Common Pleas, a deed was offered in evidence by the plaintiff. The deed was witnessed by Robert Blair and ¡James Yoorhees.

This was a case of error from the Common Pleas of Somerset. At the trial in the Common Pleas a deed was offered in evidence by the plaintiff. The deed was witnessed by Robert Blair and James Voorhees.

<p>fn dower, judgment amended by entry of judgment of seizin, after a term, the omission being the Clerk’s error.</p> <p>This was a motion to amend. It was an action of dower. The demandants had obtained a verdict, and the jury had found the annual value, and assessed the damages for the detention of the dower; and on the coming in of the postea, the usual rule for judgment was obtained. But the clerk, in making up judgment, had only entered it for the annual value and the damages; and had omitted to enter the judgment of seizin.</p> <p>now moved for leave to amend the judgment in this respect; and alledged that the omission was a mere misprision of the clei'k, and amendable by the statute.</p> <p>contended, that it was a substantial en’or; that the amendment required, was a distinct independent substantive judgment tobe newly enterod; and could not be introduced into the record after the term.</p>

This was a motion to amend. It was an action of dower. The demandants had obtained a verdict, and the jury had found the annual value, and assessed the damages for the detention of the dower; and on the coming in of the postea, the usual rule for judgment was obtained. But the clerk, in making up judgment, had only entered it for the annual value and damages; and had omitted to enter the judgment of seizin.

<p>Courts of small causes may not set aside verdicts, and award new trials. Mandamus, but not peremptory, to render judgment on verdict delivered.</p> <p>moved for a mandamus to justice M’Chesney, of the county of Middlesex, commanding him to render judgment in a cause which had been tried before him. The cause had been tried before him by a jury, and the jury rendered a verdict in favor of one of the parties, and the justice set aside the verdict of the jury, on the ground, that the jury had rendered a verdict against evidence. Mr. Williamson contended, that a justice could not set aside a verdict on the merits; that this was a power only exercised by superior courts; that a court for the trial of small causes, was, from its nature, an Inferior Court; he cited 1 Bur. 568, 571, 1 Salk. 202, 2 Salk. 650; he also stated that this question had been repeatedly decided in this Court, against the power now exercised by the justice.</p> <p>He had a much higher authority to cite than the hooks cited by Mr. Williamson; that was the statutes of the State, which expressly declared, that courts for the trial of small causes, were courts [*] of record, and vested them with all such powers as is usual in courts of record of this State, Pat. 313; that at the time of passing the act, all courts of record did of right, exercise the authority of granting new trials on the merits of the case.</p> <p>— The granting a new trial, was not incident to a court of record; but was exercised by superior courts, and came in the place of attaints; that it had been settled in the State of New-York, that even the Courts of Common Pleas, could not grant new trials on the merits, they being inferior courts.</p>

<p>Courts of small causes may not set aside verdicts, and award new trials. Mandamus, but not peremptory, to render judgment on verdict delivered.</p>

<p>Certiorari disallowed to renaove rpad page from Common Pleas, on the ground of not appointing a Chosen Freeholder of the township in which the road was laid.</p> <p>for the allowance of a certiorari to the Common Pleas of Middlesex, to remove the proceedings in case of a road. Surveyors had been appointed, and laid the road. The landholders thinking themselves aggrieved, entered a caveat; and made application for the appointment of Chosen Freeholders to view the road. The Court, in the appointment of the Freeholders, passed over one of the Freeholders of the town through whiph the road run, and took one from another town. This‘he contended, was error; that the act required the freeholders to be taken from the town through which the road pun, one case excepted, that of the Freeholders owning land through which the road run. The -words of the act are, “ always having regard to the appointment of the Chosen Freeholders of the township through which the road shall have been laid out, vacated, or altered. Provided, that no Freeholder be appointed through whose land the road may run.” This exception, lie contended, excluded all others, and made it obligatory on the Court, to appoint the Freeholders of the town, unless they came within the exception. He anticipated an objection arising out of the prohibitory clause in the act, to a certiorari. The act says, that the “proceedings of the Freeholders shall be binding and conclusive in all cases, and shall not be subject to an appeal or certiorari, or to be [*] set aside for lack of form, either in the former proceedings, either of the applicants, or of the Surveyors of the Highways, or in that of Chosen Freeholders.” He said that the object of this certiorari was not to meddle with the proceeding of the Freeholders, but to correct an error of the Court in the appointment of them. Supposing the Court had appointed Freeholders of an adjoining county, was there no remedy? The wording of the prohibitory clause in the act, in Pat. 389, is diiferent from this act. But he contended, that the jurisdiction of this Court could not be taken away but by express negative words; that it was intended that the jurisdiction should be taken away, was not sufficient; it must be done directly, and in clear and unequivocal terms, 2 Bur. 1040, 1 Salk. 146, 1 Lord Ray. 850, 1 Blac. Rep. 131.</p> <p>— A certiorari removes the tenor of the whole of the proceedings below7. There could not have been a certiorari to the proceedings of the Surveyors or Freeholders, even if this act did not exist. The certiorari must, in all cases, be directed to the Conrt; and must remove the whole record. Again, there is no mandate in the act against going out of the town for the Freeholders. The court are to have regard to their appointment. It is only recommended to the Court by the Legislature, to consider them while making the appointment. The Court assigns a sufficient reason for its conduct, that the Freeholder rejected, had given his opinion on the question; he had prejudged the cause.</p> <p>— The object oí the certiorari asked for, is to set aside the proceedings of the Surveyors and Chosen Freeholders; and this is prohibited by the act. The bringing up the proceeding, therefore would be nugatory.</p> <p>— The proceedings of the Common Pleas, is not warranted by law. This is the error of the Court, not of the Chosen Freeholders. The [*] Freehold* ers appointed, are not the Freeholders authorized by law, to determine the question put to them; and therefore, the certificate is void, and ought not to be recorded. It is an excess of authority in the Court. The language of the act is not recommendatory, but mandatory, from the sub ject matter,</p>

<p>Certiorari disallowed to remove road case from Common Pleas, on the ground of not appointing a chosen freeholder of the township in which the road was laid.</p>

ON CERTIORARI. The action below was an action of trover, for two hundred bushels of oats. There was a long string of errors assigned in this cause, but was no other way supported by the -record, than that the defendant below had moved the justice to nonsuit the plaintiff below, for those causes: and the justice refused.

ON CERTIORARI. The action below, was an action of trover, for two hundred bushels of oats. There was a long string of errors assigned in this cause, but was no other W’ay supported by the record, than that the defendant below, bad moved the justice to nonsuit the plaintiff below, for those causes ; and the justice refused.

<p>OH OIÍRTIORABI.</p> <p>Action for overflowing land, by a dam, lies in justices’ court.</p> <p>The action below, was brought by Hagerman against Blackwell, for overflowing his land, by erecting a mill-dam. It appeared from the record of the justice, [753] that a witness was offered by the plaintiff, and objected to, on the ground of interest, and was sworn on his voire dire; and while under examination on his voire dire, he was asked whether the removal of the mill-dam would not operate to his disadvantage ? To which question, the plaintiff objected, and the justice sustained the objection.</p> <p>M’Donald and 11. Stoekton, contended,—</p> <p>1st. That the justice had not jurisdiction of the cause, as the title of land came in question; and,</p> <p>2d. That the justice overruled legal testimony.</p>

<p>ON CERTIORARI.</p> <p>Suit may be discontinued'in defendant’s absence. A note is not evidence of a settlement of accounts.(a)</p> <p>1st. That Daniel Sayre, who was the plaintiff below, had commenced a suit against the defendant before the same justice, for the same cause of action, and an adjournment had taken place; and before the time of meeting on the adjournment had come, he had in the absence of the defendant, discontinued his suit, and then commenced a new one. This Mr. Scudder contended, could not be done, but while both parties were in court.</p>

<p>IN ERROR.</p> <p>Bill of particulars being delivered, no proof is requisite, that notice re*quiritig it, -was given.</p> <p>The action below, was an action of assumpsit. The declaration contained a count for work and labor, an account stated, and the usual money counts. At the trial, the defendant produced a paper, purporting to be a bill of particulars, received from the plaintiff’s attorney, in order to confine the evidence to the items contained in the said bill of particulars. The counsel for the plaintiff, denied that the plaintiff’s atttorny had furnished the bill produced; where? upon, the counsel for the defendant, offered to prove by the attorney of the defendant, by parol, that he served the plaintiff’s attorney with a regular notice in writing, requiring a copy of plaintiff’s account and bill of particulars before plea filed; and that he afterwards received from the plaintiffs attorney, the bill of particulars now produced. He did not, however, produce a copy of such notice. This evidence was objected to by counsel for the plaintiff, and the evidence rejected by the {[*] court, and the facts brought up by a bill of exception.</p> <p>contended, that a notice might be proved without producing a copy of such notice; the act did not require a written notice, but only a request, which, if verbally made, and a bill of particulars in consequence of which, furnished, was sufficient. But they offered to prove a written notice delivered; and it was competent for them to do it. Doug, 476, 1 Saund. 316, 17, 1 Chitty on Pleadings, 415. Oyer defectively made, is binding.</p> <p>— He did not deny that oyer defectively made, was binding, but he contended no oyer had been made in this case. Although the act does not say that the notice shall be in writing, yet the general principles of law and the established practice, in similar cases, required it. Our act, on the subject of a bill of particulars, is not a new law, but a confirmation of the common law, manifested by universal practice. A demand of oyer must be in writing; the practice is uniformly so. But the true question is, whether parol evidence can be given of the contents of a potice ; the practice is contrary. A copy of the notice served, is reserved, and proved to be a true copy. The notice may be for a particular paper; therefore, the precise copy of the notice is necessary to shew the extent of the demand. 1 Swift. Evid. 246, Gould’s Esp. 512, 2 Campbell N. P. 110. It is true,that the notice need not be given to produce a notice; the reason is, that the copy is considered as an original.</p>

Settlement gained by taking a deed for land, but never paying for it .(a) [*] The widow and children of one Keliam, had been removed by an order of two justices of Bergen county, from Pompton to Newark. Newark appealed to the Sessions of Bergen county; and the Sessions affirmed the order; and these proceedings were removed by certiorari into this Court.

<p>Certiorari allowed because Surveyors were appointed in less than one year after a former decisiou.</p> <p>Ewing moved for the allowance of a certiorari to the Common Pleas of Burlington, in the case of a road. He contended, that as no Chosen Freeholders had been appointed, the clause in the Road Act prohibiting a certiorari, did not apply. The complaint against the proceeding in the Common Pleas was,</p> <p>1st. That the court had erred in departing from the Surveyor of the township through which the road run, without the cause provided for in the Road Act.</p> <p>But the Court did not incline to allow the writ on that ground.</p>

<p>Certiorari allowed because surveyors were appointed in less than one year after a former decision.</p>

<p>[*] The widow and children of one Kellam, had been removed by an order of two justices of Bergen county, from Pompton to Newark. Newark appealed to the sessions of Bergen county; and the sessions affirmed the order; and these proceedings were removed by certiorari into this court. The ground of the settlement of Kellam, the husband and father of the paupers, was, that Kellam had purchased a house and lot in Newark, of a value exceeding fifty pounds. But the fact was, that although he had purchased the house and lot, and taken a deed for it, yet he had never paid any thing for it, but had, the same day the deed was executed, mortgaged it to the person of whom he bought it, for the whole of the purchase money. And it was afterwards sold for the benefit of the mortgagee.</p>

ON CERTIORARI, Voorheis sued Teller, before the justice, by warrant. Teller, and one Daniel Sayre, as surety, gave a bond for Teller’s appearance on the 25th May, 1812. On that day, the justice made the following entry: — Defendant and Daniel Sayre appeared, confessed judgment in favor of plaintiff on a note for ninety-eight dollars and sixty cents debt. So I enter my judgment with costs, $98 60. Costs, Si 02.

<p>ON CERTIORARI.</p> <p>Jokes sued Bishop before the justice, in an action of trespass, for taking away four loads of hay, and 50 water-melons; but in the same state of demand, he had charged Bishop with one day’s mowing and cocking hay, and with the hire of a boat; and there was a general verdict for the plaintiff below.</p>

<p>ON CERTIORARI.</p> <p>Yoorheis sued Teller, before the justice, by warrant. Teller, and one Daniel Sayre, as surety, gave a bond for Teller's appearance on the 25th May, 1812. On that day, the justice made the following entry: — Defendant and Daniel Sayre appeared, confessed judgment in favor of plaintiff on a. note for ninety-eight dollars, and sixty cents debt. So I enter my judgment with costs, $98.60. Costs, $1.02.</p> <p>It was contended, that “ 8o I enter my judgment," was no judgment; but that it was a judgment, it was entered in figures; and also, that judgment could not be entered against Sayre in this way.</p>

ON CERTIORARI. Hexhricksox and Wyckoff, sued Richard Potts and Stacy Potts, before the justice, and exhibited to the justice, the following state of demand:— Richard Potts and Stacy Potts, to Samuel Wyckoff and Gilbert Hendrickson, overseers of the poor of the township of Upper Freehold, in the county of Monmouth, Dr. for provisions had by Deborah James, for the support of Garret Cunningham, 1812, October 29, to one week’s provisions $1 25; so on for 14 weeks, in all, $17 50.

ON CERTIORARI. Cory and Dixon before the justice, on an account. The principal item in his account delivered the justice, was for lump work. 8. Scudder, moved to reverse this judgment, On the ground that lump work was insensible, and had [*] not any meaning capable of legal interpretation; and at least, was no more than sundries.

<p>ON CERTIORARI.</p> <p>Sears and others, children of Paul Sears deceased, sued Mathis before the justice, on the ground that Paul Sears, their father, paid to one Eli Mathis S80, for a piece of swamp which the said Eli Mathis sold to the said Paul Sears, deceased, in the year 1768; charging that the said Eli Mathis had promised the plaintiff a deed, but had failed in performing his promise. On a state of demand setting out these facts, the plaintiffs below obtained a judgment for $40.</p>

ON CERTIORARI. Him sued Ford before the justice; and set out in his state of demand, an agreement to work for Ford one year, for two hundred dollars; and avers f*] performance on his part; and that the defendant had neglected and refused to fulfil the agreement on his part; by reason whereof, the plaintiff stated that he had a just and fair demand of one hundred dollars, and for which lie brought suit.

on CERTIORARI. .Cory sued Dixon before the justice, on an account. The principal item in his account delivered the justice, was for lump work.

OB' OEETIOBABI. Hill sued Ford before the justice; and set out in his state of demand, an agreement to work for Ford one year, for two hundred dollars; and avers [+] performance on his part; and that the defendant had neglected and refused to fulfil the agreement on his part; by reason whereof, the plaintiff stated that he had a just and fair demand of one hundred dollars, and for which he brought suit.

<p>ON CERTIORARI.</p> <p>The action below, was an action on the case, for taking and impounding the cattle of the plaintiff below, Clark.</p> <p>8. Scudder, moved the reversal of the judgment, on the ground, that the action ought to have been an action of trespass, and not case; and cited Cowp. 414.</p>

<p>ON CERTIORARI.</p> <p>The action below, was brought by the plaintiff below, against the defendant, under the act of Assembly, for glO, given by the act for obstructing the Highway. It was objected against the proceedings below, that neither the township to which the overseer belonged, nor the township in which the Highway was obstructed, was set out in the state of demand.</p>

<p>ON CERTIORARI.</p> <p>Lore sued Jones and wife, before the justice, to recover the expenses in repairing the proportion of the meadow bank, belonging to the defendants, under the Bank Act. It appeared, that the meadow and bank to which the repairs liad been done, belonged formerly, to one Abel Lee, who died, and that bis widow married one Steward; that Steward and wife lived on the place of Lee, and occupied it, and took the profits; that while Steward and wife thus occupied and took the profits of the meadow and farm of Lee, this work was done; that Jone’s wife, and another daughter of Lee, were infants when the repairs were done; that the plaintiff below had laid by for several years, until Steward’s wife had died, and Jones had married the other defendant, and came into possession, and then brought the action against Jones and wife, as owners of the bank and meadow. The other daughter of Lee was not sued.</p>

OH CERTIORARI. Lore sued Jones and wife, before the justice, to recover the expense^ in repairing the proportion of the meadow bank, belonging to the defendants, under the bank act.

<p>ON CERTIORARI.</p> <p>King sued Woolston before the justice, after he came of age, for not learning him his trade. He declared on an agreement on his part to work for Woolston, and on Woolston’s part to learn him a trade; and averred performance on his part, and alledged a breach on the part of Woolston.</p> <p>It was first contended, that there was no consideration for the agreement; that King was an infant when the agreement was made, and his acts void, and of course, no consideration.</p>

A grant may be presumed, without evidence. Courts bound to take notice of cities, chartered, or by prescription. Corporations may acquire a name by reputation. Official return of facts, within officer’s knowledge, is prima facie evidence of the -facts. This was an action of ejectment, brought by the State, for the banking house and lot in the City of Jersey.

OS CERTIORARI. King sued Woolston before the justice, after he came of age, for not learning him liis trade. He declared on an agreement on his part to work for Woolston, and on Woolston’s part to learn him a trade; and averred performance on his part, and alleged a breach' on the part of Woolston. It was first contended that there was no consideration for the agreement; that King was an infant when the agreement was made, and his acts void, and of course, no consideration.

This was an action of ejectment, brought by the State, for the banking house and lot in the city of Jersey.