Volume 31 — New Jersey Law Reports

<p>1. The certificate of acknowledgment of an old deed, made and recorded before 1799, which stated that the grantor signed, sealed and delivered the deed in the presence of the judge, is sufficient to entitle a copy of the record to be received in evidence.</p> <p>2. Where a deed bounds the land on a public highway, the presumption is that it passes the title to the middle of the highway, but if the deed commences at a comer on the side of the road, and does not afterwards refer to it, and the courses and distances given will not hound the land on the highway, the presumption does not arise.</p>

<p>On rule to show cause.</p>

<p>1. A certificate of acknowledgment, made after January 1st, 1821, which does not state that the person taking it first made known to the grantor the contents thereof, and was satisfied that he was the grantor mentioned in the deed, will not entitle the deed to be given in evidence without other proof.</p> <p>2. The act of 1820, directing these things, is compulsory, and not merely directory.</p> <p>3. The second section of the act of 1787, for the limitation of suits respecting title to lands, does not begin to run against a reversioner or remainderman until after the estate for life is terminated.</p>

<p>On certiorari to Passaic Pleas. In matter of appeal from a justice of the peace.</p>

<p>A will was as follows: “ I give and bequeath all the residue of my real and personal estate unto my daughter Mary, to her, her heirs and assigns for ever, excepting my double barrelled gun and its equipments —those I give and bequeath unto my nephew, Joseph Cook, his heirs and assigns for ever; also excepting about two acres of land, including the buildings which my mother and sister Mary now live in, on the south side thereof, extending to the line of Charles Elwell’s land; all of which I give and bequeath unto my sister Mary, for and in lieu of a bond she holds against me for the sum of five hundred dollars, for and during her nafural life.” Held, that the testator’s sister Mary took only a life estate in the two acres of land mentioned.</p>

<p>Certiorari to set aside the consolidation of three incorporated school districts in Orange, Essex county.</p> <p>Certiorari to set aside school tax.</p>

<p>1. In an action brought against two defendants as joint owners of a horse for services in keeping him, the defendants, to show they were not jointly liable, offered to prove that the shoeing of the horse was charged to one of the defendants. Held, that the evidence offered did not show there was no joint liability, and was therefore inadmissible.</p> <p>2. In an action brought for services, it is not competent for the defendants to prove, by cross-examination of the plaintiffs’ witnesses, that the plaintiff had an interest in the business or in the profits of it. That is a part of the defendant’s case and should be shown by way of defence.</p> <p>3. If a question is improperly overruled on cross-examination, and the party is afterwards permitted to put the same question on his own direct examination, the error is cured.</p> <p>4. Matters of defence should not be proved by cross-examination.</p> <p>5. Where it is shown that a party, whose name appears to a printed handbill, admitted that he got the handbill printed, it is sufficient proof of the handbill to allow its admission in evidence.</p>

<p>A justice of the peace is not disqualified from executing the functions Of his office because the township or ward in which he was elected and where he resides, has been changed and thrown into a new municipality.</p>

<p>Error to Hudson Circuit.</p>

<p>On rule to show cause why verdict should not be set aside.</p>

<p>In error to Ocean County Circuit Court.</p>

<p>On indictment.</p>

<p>A coroner may appoint a special deputy to execute a writ of replevin.</p>

By an act of the legislature, approved 25th March, 1852,* in case of disagreement between the Water Commissioners of Jersey City and the owner of lands required for the purposes of the act, the Circuit Court of the county of Hudson, on the application of either party, is directed to nominate and appoint three disinterested persons to estimate the value of such lands and the damages.

<p>The defendants were jointly indicted for adultery. Henrietta Wagner, one of the defendants, being tried separately, was acquitted. On the trial of the other defendant at a subsequent term of the Oyer and Terminer of the county of Mercer, the husband of the female defendant who had been acquitted, was called as a witness to prove that he saw the parties in the criminal act. The court below, for the purposes of the trial, admitted the witness, but reserved the question for this court, whether such evidence was competent.</p>

This was a case reserved by the Court of Oyer and Terminer of the county of Middlesex. The facts were these: The' defendant stole a horse, wagon, and harness, in the county of Philadelphia, state of Pennsylvania, and brought them into-the county of Middlesex, in this state. Having been indicted and found guilty in the latter county, the sentence was suspended to obtain the opinion of this court as to the legality of such conviction.

On demurrer to plea. On the 4th December, 1861, the plaintiffs, who had their domicil in New York, executed in that state an assignment of all their property, real and personal, for the benefit of their creditors; such assignment creating preferences in favor of creditors of a certain class, and in this respect being repugnant to the statute of this state regulating assignments by debtors for the benefit of their creditors, although it was valid by the laws of New York.

On certiorari. The certiorari in this case was sued out to remove into this court certain proceedings instituted before a justice of the peace, under the act of 4th March, 1847, entitled, “ Á. supplement to an .act concerning landlords and tenants.” On the return of the writ, the defendant moved that the writ be quashed, as having been irregularly issued and because the court had no jurisdiction, the 7th section of the act having provided that the proceedings had by virtue…

A writ of mandamus was, upon due application, ordered to issue out of this court, directed to the defendant in this cause, and returnable to the first Tuesday of November, 1863, which writ is in the following words : New Jersey, ss. — The state of New Jersey to William Ferguson, jun., one of the overseers of the highways of the township of Upper Alloways Creek, in the county of Salem— greeting: Whereas, certain of the surveyors of the highways óf tlie county of Salem, duly…

On a rule to show why a mandamus should, not issue, commanding the common council of Orange to open a certain Street laid out by them within the bounds of the corporation.

<p>1. An act of the legislature legalizing the proceedings of a township meeting directing money to lie borrowed to pay volunteers, and of a town committee imposing and assessing- a tax to pay such loan, and which provides that no suit or proceeding shall bo commenced or prosecuted to set aside any assessment that may have been made, is not an ex post facto law and is valid.</p> <p>2. The act applies as well to proceedings commenced before its passage as to those commenced afterwards.</p> <p>3. Costs will not be adjudged against a party who had commenced proceedings before the act was passed.</p>

<p>On certiorari to the Hudson Pleas.</p>

<p>On motion to vacate rule for costs.</p>

In case. On demurrer. The declaration contained five counts. 1st count, was for money paid for certain lands sold by defendants to plaintiffs on the 23d December, 1858, for an assessment by them alleged to have been lawfully imposed thereon, for the improvement of Palisade avenue.

In debt. On'demurrer. The defendant was bound by deed as surety of the tenant of the plaintiff for the payment of the rent, as it should accrue, upon the lease.

<p>1. The statute of limitations applies to a set-off.</p> <p>2. The eighth section of the limitation act saves a set-off from the operation of the fifth section, in a case where the plaintiff resided out of the state where the cause of action accrued and up to the time he commenced his action here, and the defendant became a resident of this state within six years after it accrued, and continued to reside here until (he action was commenced.</p>

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

<p>When, in the assessment of damages for lands taken for the purpose of a railroad, it appears to the court that injustice has been done through some mistake or misapprehension of the jury, the verdict should be set aside.</p>

These cases came' before the court on motions for new trials and were argued together. The circumstances in which the suits originated were these: The defendant, for several years, permitted his wife to carry on a certain business in his name, in the course of which she, with his knowledge and consent, was in the habit of drawing checks and notes in his name.

<p>To authorize a prosecution in the name of the state on the official bond of a sheriff for a voluntary escape, it is not necessary that the liability of the sheriff should have been first fixed by suit and judgment against, him.</p>

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

<p>On certiorari, to set aside award of commissioners.</p>

A motion for an attachment against the prosecutor was made in this case by A. V. Van Fleet, for the defendant, and by G. A. Allen, with whom was F. Kingman, for a re-taxation of the costs, before Haines and Elmer, Justices.

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

On certiorari to remove into this court the decree and proceedings of the Orphans Court of the county of Cumberland, in matter of partition.

This suit was brought to enforce a promissory note drawn by the defendants to the plaintiff the consideration being a loan of money. The note bore date on a Saturday, but it was proved on the trial that the date of the note was filled in, and the note and the money actually delivered on the Sunday following.

Jn trespass. On motion for a new trial. This action came on to be tried at the circuit. The plaintiff claims damages of the defendants for the loss of two horses killed by a locomotive of the defendants.

In case. On rule to show cause, &c. On the trial of the issue in this case in the Circuit Court of the county of Salem, the jury rendered a verdict for the plaintiff A rule to show cause why the verdict should not ■be set aside was allowed, and the case was then certified to this court for its advisory opinion. The material question involved was, whether a guardian, -appointed under the act relative to habitual drunkards, can be sued for the debts of the drunkard.

In ejectment. On verdict for plaintiff and case certified. The defendants were in possession of a tract of land which had been conveyed to the wife after the marriage. Subsequently the husband applied for the benefit of the insolvent laws as an insolvent debtor, and assigned all his estate and interest in the land to an assignee, duly appointed by the proper court, who afterwards, in 1863, conveyed the same to the plaintiffs. Suit was brought to recover the possession.

In case. On lien claim against defendants as owners of' certain buildings and lands. This action was tried at the Mercer Circuit Court, and & verdict having boon rendered for the plaintiffs, the case was certified into this court for its advico upon certain points, which are particularly specified by the court, in their opinion..

The defendant was tried in the Court of Oyer and Terminer of the county of Morris, on an indictment for murder, and found guilty of murder in the first degree. A rule to show cause why the verdict should not be set aside and a new trial granted, was applied for on the part ■of the prisoner and having been allowed, the hearing of the rule was referred to this court for its advisory opinion.

The issue in this case was tried in the Mercer Circuit Court, and a verdict found for the plaintiff. No bill of exceptions was taken on the trial, but after judgment on the Verdict, a writ of error was brought to remove the record into this court.

On certiorari. This was a certiorari to the Hunterdon Pleas. The suit before the justice was in debt.

<p>1. A judgement entered by virtue of a warrant of attorney in this state, will not be set aside, on the ground that the principal debtor resides in Philadelphia and is there the administrator of the obligee, and alleges nothing is due on the bond.</p> <p>2. A mistake in the plaintiff’s affidavit, as to the amount due on a bond, is not a sufficient reason for setting aside the judgment; the execution will he amended.</p>

<p>Certiorari to bring up assessment of taxes.</p>

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

In this case the only question was as to the appropriation of money raised by sale and brought into court for distribution between execution creditors, upon the facts stated in the-, opinion of the court.

Upon an issue tried in this case at the Salem Circuit, as to whether the defendant was or was not at the time stated, &c., an overseer of the highways in the township of Upper Alloways Creek, in said county, the jury found against the defendant, and that he was, at the time mentioned, such overseer, but was silent as to damages and costs. Upon the postea as returned, it appeared that the jury had assessed damages against the defendant at six cents, in the usual form.

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

<p>On motion for retaxation of costs.</p>

The declaration in this case contained three counts. The first was to the effect following, viz., that the defendants were the owners and proprietors of a railroad bridge in the township of Greenwich, in the county of Warren, the same being apart of their railroad; that Philip Harrison, deceased, in his lifetime, was in the service and employ of the defendants in the capacity of brakemau.

In matter of taxation. On case certified into this court by the Circuit Court of the county of Morris, for an advisory opinion upon the question, whether the Circuit Courts of this state have power to superintend and correct proceedings in matters of taxation within their respective counties, by means of the writ of certiorari.

The plaintiff brought suit against the defendants for an injury sustained on their railroad.

The proceedings in this case are under the act for the collection of claims against vessels, steamboats, &c. The declaration sets out that, in August, 1864, the plaintiffs did certain work and furnished materials towards building and repairing a steamboat, at the special request of the owners of said boat, the New Jersey Lighterage Company, a body corporate in this stale, and thereby became indebted to the plaintiffs in $934.68; that the said debt being a subsisting lien…

In assumpsit. On demurrer to plea. This was a case certified upon the following facts: On 12th July, 1864, the plaintiffs sued the defendants in the Supreme Court of New York, for certain moneys which it was alleged they had collected. Judgment was entered in that suit in favor of the plaintiffs, on 24th January, 1865.

On case certified for opinion of this court. The plaintiff brought an action on the case against the defendant, for an alleged abuse of legal process in issuing an execution on a judgment, on which payments had been made, for a larger amount than remained due, and by virtue thereof selling the goods and chattels of the plaintiff.

In ejectment. On motion for now trial. This was an action of ejectment. The premises in dispute were originally owned by the defendant, Daniel Smith, who, while he was the owner thereof, together with his wife, Nancy, executed two mortgages thereon to Oliver S. Strong and Daniel Henderson.

The defendant in the court below, Jacob C. Van Pelt and one Sarah B. Van Pelt, his mother, who was a married woman, were the owners in fee, as tenants in common, of a certain house and lot situate in the county of Middlesex. They made a contract with one Robinson, a master painter, to do the whole of the painting on the said house, and they paid him the contract price in full.

<p>In a conflict of testimony, when the facts found by the jury will sustain the verdict, the court will not set it aside, although in their opinion the jury might, upon the evidence, have found otherwise.</p>

In this case a steamboat, the property of the defendants, was seized under the act to facilitate the collection of demands against ships, steamboats, and other vessels, and bond having been given according to the statute, the plaintiffs brought suit against the defendants, and claimed the contract price of a steam engine, which they alleged was built by them and after-wards placed in the defendants’ steamboat. The contract for the engine was in writing, but not under seal.

Augustus O. Evans, one of the defendants, as clerk of the city of Hoboken, entered into a bond to the plaintiffs with the other defendants as sureties, with condition that he would “well and truly, faithfully, firmly, and impartially execute and perform the duties of his said office during his continuance therein.” This suit is brought on the bond to recover damages for the non-performance of duty on the part of said Evans.

The action was brought by a father against the defendants, to recover damages for the loss of his son, who was killed on tlie New Jersey Central Railroad, at the time and under the circumstances set forth in the case of Harrison, adm’r, &c., v. The same defend,ants, see ante, p. 293. A demurrer was filed, and the question raised was, whether the action was maintainable, and whether it could be maintained by the father of the deceased as next of kin.

This action was brought for diverting a watercourse from its bed into the lands of the plaintiff. The circumstances as they appeared on the trial were these, viz.: there was a pond on the side of a hill, and below this pond was the stable lot of the defendant, and still lower down was the lot and dwelling-house of the plaintiff.

On certiorari to trustees of a school district in the township of Howell, Monmouth county.

<p>1. Since the act of 1862, the person taxed is hound, if required, to state to the assessor the particulars of his property under oath or affirmation, and if lie declines to do so, he is not entitled to appeal or to relief by certiorari.</p> <p>2. Where a tax was illegally assessed for bounty money, and afterwards, ratified and confirmed by a special law, the writ of certiorari was dismissed.</p>

<p>1. An assessment of land for benefits acquired by an owner from the opening of a new street in the city of Newark, held good, although the common council made no previous designation of what land was intended to be benefited.</p> <p>2. The advertisement required to be published by the commissioners, that their report had been deposited with the clerk, &c., must set forth so much of that report as will show what land was assessed and who are the owners.</p> <p>3. An assessment of the land, as if it was all unimproved, held correct.</p>

<p>The court will not amend an assessment of taxes on the ground that the value of the taxable property is stated at too great a sum, unless it appears that an erroneous principle of valuation was adopted, or it is clearly shown that the valuation was too high.</p>

<p>On certiorari to the Court of Quarter Sessions of Hunter-don.</p>

Two out of six plaintiffs in the court for the trial of small causes, appealed from a judgment against them to the Court of .Common Pleas. When this appeal came on for trial, a motion was made to dismiss the same, on the ground that all the plaintiffs below had not appealed, and there had been no summons and severance. The court yielded to this motion and dismissed the appeal, although the appellants offered to enter a rule immediately for a severance.

<p>1. Wkere it is charged in a declaration that the defendant sold certain peach trees to the plaintiff as sound and healthy trees, knowing at the time they were not sound, it is the duty of the justice, when requested, to charge the jury that the plaintiff is bound to prove a scienter as-charged.</p> <p>2. If he refuses to do so, and charge that the defendant is liable upon his representations, whether he knew them to be false or not, it is erroneous.</p> <p>S. It is the duty of the justice to declare the law upon every point fairly involved in the Gause, if required.</p>

<p>Where a younger execution creditor claims to have money in court, applied to the payment of his execution in preference to older ones, on the ground of fraud in the older judgments, and the question involves disputed and material facts, properly triable by a jury, the court, if a proper ease is presented, will direct an issue to try the charge of fraud.</p>

<p>Tlie holder of an annuity bond made in the penalty of 53000, conditioned for the payment to the obligee of the annual sum of 5166.66, in semiannual payments, can be taxed only on the sum actually due and payable at the time of the assessment.</p>

On certiorari. In matter of taxation. In 1864 the prosecutors were owners of a bridge over the Delaware river, between Easton, in the state of Pennsylvania, and Phillipsburgh, in this state; part of the structure, with its abutments, being in one state, and part in the other.

In case. On demurrer. The plaintiff purchased a commutation ticket from the defendants for $80, to be good from the 1st of January, 1865, to the 1st of January, 1866. A receipt was given for the money, to which is added the following note: “ The commutation ticket is to be shown to the conductors and ferry masters each trip, whenever required, and returned to some office of the company when the time for which it issued has expired.

<p>1. Depositions of non-resident witnesses taken before a commissioner of this state, under the act of March 17th, 1862, may be used in court on the trial of the cause in which they are taken, and require only to be satisfactorily identified. They need not be certified under the official seal of the commissioner.</p> <p>2. To allow a witness to testify to an offer of a specific sum by way of compromise, in which no facts material to the issue were admitted, hut which may have had a very improper influence on the jury, is erroneous.</p> <p>3. Where no rent has been paid for twenty years before action brought, the jury have a right to presume that the relation of landlord and tenant had ceased, and no notice to quit was necessary.</p>

On certiorari. In matter of taxation. The state of the case agreed upon exhibited the following facts, viz., that the First National Bank of Jersey City, the First National Bank of Hoboken, and the National City Bank of Newark, were duly organized under the act of congress approved June Sd, 1864.

<p>1. In a suit against joint debtors, where one only has been served with process, the declaration need not state why process was not served on all.</p> <p>2. If one count be in debt and another in assumpsit, it is a misjoinder of actions, for which demurrer will lie.</p>

Action on the case. Issue having been joined upon the pleadings in this cause, and the same having been called on for trial at the Burlington Circuit, in the term of September, 1865, the parties agree to the following statement of facts, which should be deemed and taken as a special verdict, with power to the court to make all legal presumptions therefrom, and to enter final judgment thereon.

<p>An action to recover damages claimed to have been sustained by water being flowed back upon plaintiff’s land from the mill-dam of the defendant, does not abate by the death of the defendant after issue joined, but may be continued against his executor.</p>

<p>1. In a proceeding by a landlord to obtain possession of leased premise,, under the act of 4th March, 1847, it is not sufficient to aver in the complaint that the term of the tenancy expired on a certain day past, and that the tenant held over, although notice to quit had been given him. The statement that it expired on such a day is not a fact, but a conclusion of law, and is insufficient.</p> <p>2. The proceedings should be summary; and if the plaintiff in certiorari, upon the return of the writ or the perfecting of the record, does not bring on the hearing of the case, the defendant may move to quash; the writ, on the ground that this court has no jurisdiction.</p>

On certiorari. In matter of taxation. The following statement of facts was agreed to by the counsel of the parties : “ In the personal property of the prosecutor taxed in this case, is included seventeen shares of the capital stock of the Firs i National Bank of Trenton, New Jersey, of one hundred dollars each, making seventeen hundred dollars, on which the tax is $32^. This amount is unpaid. The residue of the prosecutor’s tax is paid.

<p>In case. On motion to discharge defendant from arrest.</p>

<p>Certiorari to set aside an order of the Court of Common Pleas of the county of Warren, dismissing an appeal.</p>

On application for a writ of mandamus. This case came before the court upon a statement of facts agreed on, of which the following is an abstract: On the 15th of March last, the superintendent of public schools of the city of Trenton presented his annual account to the board of trustees, who thereupon resolved that the sum of $16,500 would be desired and needed for the support of public schools of the city for the year 1865-66.

In error.* The action was instituted to recover possession of certain premises in the county of Passaic, formerly owned and possessed by the plaintiff. On the trial, the defendant claimed title under a purchase at an auditor’s sale, upon a judgment in attachment against the plaintiff.

In case. Error to the Hudson circuit. This action was brought in the Circuit Court of the county of Hudson, by Israel Coddington & Co., plaintiffs, agaiust Nathan J. Beebe, builder, and the Hudson County Dry Dock and Wet Dock Company, owners, to recover for lumber, materials, and labor furnished to Beebe, and for the amount of which, it was averred that the said company were liable under the mechanics lien law, the same having been applied to a certain building and fixture…

In this case a submission to arbitrate had been made a rule of court by agreement of the parties, according to the statute. On producing the same before the court with the award, a motion was made to set the award aside, which was denied, and the award confirmed.

<p>Error to the Supreme Court.</p>

In error. At the last term of this court a motion was made in open court in behalf of the defendant in error, for a rule upon the-opposite party to bring this cause to argument at the present term on pain of dismissal. The attorney of the plaintiff in-error was present in court at the time of the motion. The-rule was granted and was entered on the minutes, but no copy has been served.

In case. The declaration in this case stated that a mill-dam, of which the plaintiffs were the owners, had been erected, in connection with a bridge over the race and flood-gates; that afterwards a public road was laid over this dam across the said race and flood-gates, whereby it became the duty of the defendants, by force of the statute, to maintain said bridge, which they neglected to do, and in consequence thereof the bridge fell down and injured the dam and gates so…

<p>1. Under the supplement to the tax laws, approved March 28th, 1862, private corporations must be assessed on the full amount of their capital stock paid in without deduction for losses, and not according to the market value of the stock at the time of the assessment.</p> <p>2. The provisions of several apparently conflicting provisions of the act discussed.</p>

<p>In error to the Supreme Court. In matter of taxation.</p>

<p>Error to the Supreme Court.</p>

<p>On writ of error to the Supreme Court.</p>

Citarles Bodine and Peter Gulick, being the lessees of defendant’s farm for one year from the 1st April, 1860, entered, into a verbal agreement with the plaintiff, to the effect that he should work the farm on shares. Gulick was to occupy a part of the house and the plaintiff the residue, and the latter was to furnish the seed and team, and gather and thresh the grain, and was to have one-half the grain, to be divided by the bushel. The straw was to be left on the place.

<p>1. It is the duty of a court to expound the law to the jury for its guidance, when requested to do so on the trial of a cause.</p> <p>Ü. When the court, being- requested to charge upon the law touching the existence of a by-road, (such existence being an issue in the cause,) read to the jury an extract from an opinion of the court in another case, which, standing alone, was calculated to mislead the jury, it was an insufficient charge.</p>

<p>1. A check drawn to the order of plaintiffs upon the defendants, was deposited in the Bank of Commerce in the city of New York, and,, by that bank transmitted to the Ocean Bank to be sent to the defendants for payment. It was received by defendants on the 31st October, between 12 and 1 o’clock A. M., and retained by them until 12 o’clock noon, the following day, when, it was returned to the Ocean Bank, marked “ not good.” On the following morning about 10 o’clock, the Ocean Bank returned the check to the Bank of Commerce, which immediately notified the plaintiff of its dishonor.</p> <p>Held, that the mere retention of the check by the defendants did not constitute an acceptance on their part, upon the ordinary principles of the law merchant.</p> <p>2. Customs and special usages of trade which narrow and confuse the operations of the general rules of law, should he construed strictly, and should not be extended to persons who are not clearly proved to have acted under them.</p> <p>3. Proof of usage by banks, which are members of the clearing-house in the city of New York, in regard to the return of cheeks drawn on banks in the city, is not applicable to cheeks drawn on banks at a distance.</p>

<p>A bequest in tlie following words: “ I give and bequeath unto my sister, M. G., wife of J. B. G., the interest of 51000, the principal to be put out at use on safe security, and the interest thereof to be annually paid to her, for her own private use, during her natural life; and after her decease I give and bequeath the said 51000 to her two daughters, vis., Deborah and Sarah, equally to be divided,” held to give vested legacies to the two daughters.</p>

In matter of taxation. The assessor of Jersey City assessed the Jersey City and Bergen Railroad Company upon the amount of their capital stock, estimated at $150,000. The assessment was removed to the Supreme Court, where the prosecutors contended— 1. That by the provisions of their charter they were not liable to such assessment; and 2. If liable, the amount on which they were assessed was too large.