Volume 32 — New Jersey Law Reports

<p>This suit was brought in the Circuit Court of Essex county, to recover the amount of a promissory note made by Smith, the defendant, to the plaintiff. The defendant set up the statute of limitation in bar of the action, and the jury rendered a verdict for the plaintiff for the amount of the note. On application of the defendant, a rule to show cause why a new trial should not be granted was allowed, and the case was sent to this court for an advisory opinion as to the right to recover upon the ease as shown by the plaintiff.</p> <p>The rule was argued before the Chief Justice, and Justices Elmer, Vrelenburgh, and Belle.</p>

On demurrer to plea. The plaintiff declared in assumpsit. The defendant pleaded to the jurisdiction of the court, setting forth that it was incorporated in Pennsylvania; that it had no office in this state, nor did it transact any business in it, and that the supposed cause of action accrued in the State of Pennsylvania, and not in the State of New Jersey. To this plea the plaintiff demurred.

<p>1. Where plaintiff sues in trespass instead of in case the mistake is amendable under tlie 46th section of the act of 1855, Nix. Dig. 670.*</p> <p>1. The plaintiff’s horses, having escaped from liis pasture field, and being upon the defendants’ road, were run over and killed by a passenger train of ears running at ordinary speed, and without any intent on the part of defendants to injure the horses; the plaintiff is not entitled to recover damages.</p>

In trespass. On demurrer to replication, and joinder in demurrer. The pleadings in this case are of considerable length, and involve several issues of law and fact. The only parts necessary to a proper understanding of the points brought up by the demurrers, are concisely and clearly set forth in, the opinion of the court. The cause was argued before the Chief Justice, and Justices Elmer, Vredenburgh, and Bedle.

On the 23d of March, 1866, the legislature passed an act, entitled, “an act to establish a police district in the county of Hudson, and to provide for the government thereof.” At the time of the passing of this act, one of the defendants above named was the treasurer of Jersey City, and the other one the chief of police, appointed by the municipal authorities of the city, under the then existing organization.

The grounds relied on are fully stated in the opinion of the court. The case was argued in the branch court, before Justices Haines, Dalrimple, and Woodhull.

<p>Certiorari to the Common Pleas of Morris.</p> <p>Argued in the branch court, before Justices Dalrimple and Woodhull.</p>

Action on the case, per quod, &c., and error, to the Circuit Court of Hunterdon county. The action was brought by the father for loss of service, occasioned by the seduction of his daughter. It appeared in evidence that the daughter was about twenty-two years of age when the injury was committed, and was living a part of the time with her brother, who occupied a farm about a mile from her father, and part of the time with her father.

In 1856, John Muttennan and his family became chargeable to the township of Bethlehem, and were duly removed, by the order of two justices, to the township of Alexandria, where ho had formerly owned a freehold estate of the value of more than one hundred and thirty dollars, on which he had resided more than one year. In 1859, a part of Alexandria, in eluding this freehold estate, was by law annexed to Bethlehem.

The action was in trespass, for assault and false imprisonment. Upon the trial at the Essex Circuit, the jury gave a verdict against the defendant for the sum of three thousand dollars. On the coming in of the parties, the court, on application of tlie defendant, granted a rule upon the plaintiff to show cause why the verdict should not be set aside, chiefly on the ground of excessive damages.

Action on the case,- and demurrer to plea. The declaration in this case, set forth in substance, that James D. Rogers, the husband of the plaintiff, died seized of certain real estate, situate in the county of Ocean, upon which were growing a large number of valuable trees; that the plaintiff was the lawful wife of said Rogers, who is now deceased, and that, as his widow, she is entitled to dower in said premises; that the defendant, after the death of her husband, entered…

On case certified. This cause was tried before Mr. Justice Bedle, at the Passaic circuit. Upon the conclusion of the plaintiff’s case, a non-suit was ordered, and the case certified for the advisory opinion of this court. The object of the suit was the recovery of damages alleged to have been sustained by the plaintiff while a passenger in the cars of the defendant.

Action on the case, and rule to show cause, &c. The suit was brought by the plaintiff to recover damages for injuries sustained for being struck on the head by one of defendants’ engines, within the city of Newark.

Where an ordinary bank cheek, drawn payable “ to A B, or bearer,” is endorsed by the holder to a third person for a valuable consideration, and it appears that at the time of endorsement, the abbreviation “ Mem.” was on the face of the check, and that two years and a half had elapsed since it was drawn, the circumstances indicated that the check was not given in the usual course of business, and were sufficient to put the endorsee upon inquiry; and if, for want of proper…

<p>On demurrer to plea.</p> <p>This was an action of trespass, arising out of an alleged assault and false imprisonment of the wife of the plaintiff. The second plea, as a justification, alleges, that at the time in question, “some person, to the defendant then and still unknown, did feloniously steal, take and carry away from the person of the wife of the said defendant, a large sum. of money,” &c., and that the plaintiff’s wife being, at the time when said larceny was discovered to have taken place, “ near by said defendant’s said wife, and being then and there wholly unknown to the said' defendant, and her entire innocence being then and there wholly unknown and unsuspected by him, and her good character being also then and there wholly unknown to and unsuspected by him, and said Lilly C. Spencer being then and there, pointed out to the said defendant by a bystander, then and still unknown to the said defendant, and also by the police officer herein after mentioned, as being a person whom there was then and there probable cause to suspect of having committed said larceny,” &c., and that the defendant, being thus led to believe, and honestly believing, the guilt of the wife of the plaintiff, did “ then and there, without malice or evil intention, give” her into custody of the said police officer, <&c.</p> <p>There was a demurrer to this plea, which was argued before the Chief Justice, and Justices Elmer, Haines and Bedle.</p>

This cause was tried at the Essex circuit, and there was a verdict for the plaintiff. A rule to show cause, &c., having been allowed, it was heard before the Chief Justice, and Justices Haines and Bedle.

In assumpsit. Error to the Circuit Court of Somerset. The action was brought by the plaintiff below against the executors of the estate of his father, to recover compensation for work and labor performed for his father, upon a contract made after he became of age. A verdict was rendered for the plaintiff. On the trial, various exceptions were taken by the defendants to the ruling of the court, and were afterwards brought before this court by writ of error.

In ejectment. Error to the Circuit Court of the county of Morris. This was an action of ejectment, tried before Justice Van Dyke, at the Morris Circuit, in October Term, 1865.

In the matter of taxation. The proceedings in this case were brought up by certiorari to the collector of the town of Belvidere, to set aside an assessment made against the Warren Railroad Company. It was contended, on the part of the company : 1. That in their charter there were no words expressly authorizing its repeal or alteration, and was not subject to the provisions of the act of 1846. 2. That the tax was not properly assessed in the town of Belvidere.

<p>1. When, in ejectment, service of the summons was upon the wife of defendant, “at the dwelling-house on said premises,” without stating it to have been the dwelling-house of the husband, and it was evident by proof that the defendant had notice of the service made by the sheriff at the dwelling-house in question, it will be deemed a sufficient service.</p> <p>2. On a motion to quash the writ, on the ground that the defendant was not in possession of part of the premises at the commencement of the suit, if the affidavit of the sheriff does not contain any direct allegation of the fact, and it appears from evidence taken, to be a case of doubt as to the defendant’s possession, the plaintiff, if no appearance is entered, should be allowed to take judgment by default for the possession, but not for costs. If an action is afterwards brought for mesne profits and costs, the question of possession will be an open one, to be settled by the jury.</p>

A habeas corpus was allowed at chambers, by Mr. Justice Bedle, directed to George Dean, commanding him to bring before the said justice the body of Peter Voorhees, with, &e. In obedience to this writ, Voorhees was brought before the justice, and the officer returned, as the justification of the imprisonment, the following facts, viz.; “ That on the 17th of August, 1866, his excellency, Frederick Smyth, governor of the state of New Hampshire, issued, in writing, under his…

This was a motion to quash an indictment charging a conspiracy, which had been brought into this court by certiorari.

This was a case certified from the Oyer and Terminer of the county of Hunterdon, and was heard before the- Chief Justice, and Justice Bedle. The facts sufficiently appear in the opinion delivered.

<p>1. A deposition taken de bene esse, before a master in chancery of this state, who certified that the witness was duly sworn, held sufficient.</p> <p>2. That the master allowed the witness, who was the plaintiff, during his cross-examination, to converse in private with his counsel, is not such an objection as will require the court to reject the deposition.</p> <p>3. In an action for damages by loss of time, &e., occasioned by a personal injury to an architect, held — -that the plaintiff, as a witness, might he asked, what were the average profits of his business.</p> <p>4. It is not error to refuse a non-suit, because the plaintiff did not positively prove that the injury of which he complained was not, in part, occasioned by his own negligence, where the evidence is doubtful, or the inferences to be drawn from the facts uncertain.</p>

Indictment for manslaughter, and case certified. The indictment was tried at the Essex Oyer and Terminer, and the defendant found guilty. Exceptions having been taken by the defendant to the charge of the court, the case was certified to this court for its advisory opinion, and was argued before the Chief Justice, and Justices Bedle and Dalrimple, by

In case. On demurrer to declaration. By a supplement to the charter of the city of Hoboken, approved February 28lb, 1865, the mayor and council were authorized to borrow money to pay such bounties as they might direct, to every volunteer, drafted man, or volunteer from the city, obtained to fill the quota of the city, under tiny call then made, or to be made, by the president of the United States, and to secure the payment of such indebtedness by bonds.

Information in nature of a quo warranto. The information was tiled in the name of the State of New Jersey, by the relators, against the respondents, as claiming to be trustees of a certain school district;, in the county of Monmouth, charging that they have assumed to themselves and are exercising the office of trustees without legal right. The respondents claim, by plea, that they have been legally elected trustees of the school district.

This was an action for an alieged breach of covenant in a deed of conveyance, made by the defendant to the plaintiff! The covenant in question was, that the defendant, at the date of said deed, was seized in his own right of an absolute and indefeasible estate of inheritance, in fee simple, in the land conveyed. The case was certified to this court from the Circuit Court of the county of Monmouth.

In matter of taxation. From the state of the case agreed upon by the parties, the following facts appear: In the assessment of the tax of the year 1865, a certain sum was imposed on the property of the prosecutor, Mr. Beckett, towards raising moneys for bounties granted by the authorities of the township of Bordentown, to volunteers, to encourage their enlistment, in order to fill the quota of men required to be furnished by the said township for the military service of the…

This was a certiorari to the Court of Common Pleas of the county of Mercer, to bring up the proceedings and judgment in a case of appeal, and was argued before Justices Elmer, Vredenburgh, and Woodhull, by T. G. Lytle and P. D Vroom, for the plaintiff, and by J. F. Hageman, for the defendant in certiorari.

<p>1. The Easton Delaware Bridge Company, having been incorporated by tlie concurrent acts of Pennsylvania and New Jersey, has a dual organization, and is capable of acting as one body in either state, and liable to be treated as such. Its capital and surplus are liable to be taxed in both states, on the principle that one-half appertains to each state.</p> <p>2. A portion of the surplus fund, having been invested in United States securities, must be deducted from the amount, not being subject to taxation.</p> <p>3. The fourth section of the supplement of 1863, exempting from taxation property out of the state belonging to residents in this state, does not apply to corporations.</p>

The facts of the case, and the reasons assigned for setting aside the tax warrant, are sufficiently set forth in the opinion of the court. The argument was had before Justices Dalrimple and Woodhull.

<p>Certiorari. In matter of taxation.</p> <p>Argued before Justices Dalkimple and Woodhull.</p>

The reasons assigned for setting aside the return of the surveyors were argued before Justices Woodhull and Dalrimple, and are sufficiently stated in the opinion delivered.

On certiorari to the Circuit Court of the county of Mercer, The plaintiff below sued out an attachment in the Circuit Court against defendant, returnable April 6th, 1866.

This was an indictment for obstructing a public highway. The ease was tried before the Chief Justice, at the Warren Oyer and Terminer, and a formal verdict taken, by consent, in favor of the state, the questions of law being reserved. The charge in the indictment was, that the defendant “ did cut, dig, and excavate, in and across the said Stockton street, the same being such public and common highway, as aforesaid, a wide, long, and deep hole, ditch, and pit,” &c.

This was an action on the case, and was tried in October,. 1864, before the Circuit Court of the county of Morris. It appeared from the evidence, that the defendant agreed, by parol, to purchase a small lot of land, upon which stood a building of the plaintiff; that a deed was prepared, but before it was delivered, the defendant sent to the plaintiff and asked his permission to take down this building. Such consent was given.

In ejectment. Case certified from the Circuit Court of Monmouth. Two questions, arising under the will of William Brinley, deceased, were presented for the consideration and advisement of the court. First. Whether Vincent Brinley took an estate in fee, or a mere estate for life, in the premises devised to him; and Second. What interest or estate was given to the persons taking title under, the residuary clause of the will.

In ejectment. The plaintiffs brought suit to recover possession of a house and lot in the city of New Brunswick. They claimed title as the heirs at law of John D. Outcalt, deceased, who purchased the same in 1836, at sheriff’s sale, as the property of John Outcalt, his father. The judgment under which the sale was made was entered October 12th, 1845.

This cause was tried at the Essex Circuit, at the term of September, 1866, and a verdict rendered for the defendant. On the coming in of the postea, the plaintiff moved to set aside the verdict, and for a new trial. Argued before the Chief Justice, and Justices Bedle, Dalrimple, and Depue, at February Term, 1867.

<p>Where a railroad company adopts all rules and regulations needful for the safety of passengers and employs competent agents, whose duty it is to see that these rules and regulations are observed, the company, in case of injury to a passenger, happening by reason of the failure of an agent to perform his duty, cannot be held liable for punitive damages. ,</p>

The certiorari in this case brings up the proceedings and conviction of the prosecutor, by a “justice of the peace of the county of Hunterdon, residing in the town of Lambertville,” adjudging him to pay a fine of twenty-five dollars. It was 'enacted by the original charter, approved March 1st, 1849, (Pamph.

An information in the nature of a quo warranto was filed in this case, and a statement, of facts agreed upon by the counsel of the parties, the material parts of which are set forth in the opinion of the court. The questions arising thereupon were argued before Justices Elmer, Bedle, and Dalrimple, by J. F. Hageman for the relator, and P. D. Vroom for the defendant.

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

On eertorari to the Middlesex Sessions. In matter of bastardy. l’n this case, ail order had been made by two justices of the county, in which the prosecutor was adjudged to be the putative father of a bastard child, and was ordered to pay to the overseers of the poor of the township of South Amboy the sum of twenty dollars, for lying-in expenses and maintenance of the child, up to the time of making the order, and also one dollar a week for said time, and so long as said…

In matter of mandamus. Upon application to the court, at the November Term of 1866, by the relators in this ease, leave was given them to issue an alternative mamdamus, directed to James E. Goll, the defendant, and commanding him immediately to deliver to the relators certain books, records, and papers in his possession, belonging to the said relators, or show cause at the next term of the court why he has not done so.

<p>In matter of practice.</p>

<p>A recognizance must be entered into with sufficient securities before a certiorari can be allowed in a bastardy case.</p>

. This was an action of dower. The declaration was in the common form. There were two pleas. The first plea set up the following facts: That James W. Wade, the husband of demandant, on February 16th, 1861, and during coverture of demandant, executed a mortgage on said lands, to secure four thousand dollars, which he owed to the State Bank at Elizabeth, and which mortgage was recorded on -the twenty-seventh of May, 1861, but was not executed by demandant.

This case was certified by the Oyer and Terminer of Essex, for the advisory opinion of this court, and was argued before the Chief Justice, and Justices Vredehburgh, Depue, and Woodhull.

In debt. On recognizance, Harmon Kruise, one of the defendants, was brought before a justice of the peace of the county of Passaic, to answer to a criminal charge made against him.

In case. On rule to show cause why a new trial should not be granted. The suit was brought to recover of the defendants the value of two hundred tons of pig iron, which, for a consideration, they undertook to deliver to the plaintiff, at Saugerties, N. Y., and failed to do so. The defence set up was, that the vessel in which the iron was shipped, foundered in a storm on its way up the Hudson river, and the iron was thereby lost.

In ejectment for lands in Burlington county. The verdict in this case was for the plaintiff, and a rule to show causo, &c., having been granted, the same was argued by — -

In trespass. Demurrer to declaration. The plaintiff declared against the defendant for removing and ejecting him, with force and arms, &c., out of one of the ears of the said railroad company, while he was traveling in said car, on the road of said company, and thereby bruised and wounded him, to his great damage, &c. To this declaration the defendants put in a general demurrer, which was argued before the Chief Justice, and Justices Vredenburgh, Woodhull, and Depue.

<p>On demurrer to the declaration. Argued at June Term, 1867, before the Chief Justice, and Justices Vredenburgh, Woodhull, and Depue.</p>

<p>By an act of sixth of February, 1866, the Burlington County Railroad Company, and the Horse Railroad company from Camden to Mount Holly, were consolidated under the name of the Camden and Burlington Railroad Company. The ninth section of the act provides that “ whenever the net earnings of said consolidated company shall, over expenses and interest, amount to six per cent, per annum, the said company shall pay to the treasurer a tax of one-half of one per cent, upon the cost of said road, to be paid annually, and such other state tax as may be assessed from time to time, by a general law,' applicable to all railroads over which the legislature shall have power, for that purpose, at the time of the passage of such law or laws.” The company having been taxed upon its capital stock, amounting to-two hundred and twenty thousand six hundred and four dollars, and upon its real estate, valued at seven thousand dollars, and there having been no such general law passed as contemplated in said section, it was held, that according to a just construction of the said ninth section, the assessment was unconstitutional, and should be set aside.</p>

On certiorari. In matter of taxation. Argued before Justices Elmer, Bedle, and Dalrimple, by Mr. Richey, for the prosecutrix, and Mr. Aitkin, for the city of Trenton.

The certiorari in this case brought up an ordinance of the town of Union, to provide for the improvement of Gardner and Durham streets, and an assessment against the prosecutor and others, to defray the expense. The reasons assigned for setting aside the proceedings were argued before Justices Elmer, Bedle, and Dalrimple, by Mr. Lyons, for the prosecutor, and by Mr. Abbett, for the authorities of the town.

<p>1. A eertiorari to bring up taxes assessed against; the individual stockholders of a bank, upon the prosecution of the bank itself, dismissed as irregular.</p> <p>2. An application to amend, by substituting the names of four of the taxed stockholders, made at the hearing, was denied.</p> <p>S. A tax against a stockholder, resident in the township where the hank is located, and taxed on the same duplicate for other personal property, held to be good, although the valuation was carried out separately.</p> <p>4. A tax against a non-resident stockholder held to he good.</p>

<p>The supplement of 1866 to the attachment act, which exempts the personal property of a non-resident debtor being in this state, from liability to attachment, at the suit of a non-resident creditor, when the property is exempt by the law of the state of which both debtor and creditor are residents, applies only to personal properly of a tangible nature, such as goods and chattels, and not to rights and credits.</p>

<p>Certiorari to remove an ordinance and assessment in laying out and opening a street in the city of Elizabeth.</p> <p>Argued at June Term, 1867, before Justices Bedle and Dalrimple, by—</p>

<p>The supplement to the tax law,' passed.April 10th, 1866, exempts from taxation the endowment or fund of any religious society. Held, that the parsonage belonging to the church, although purchased by the voluntary contributions of the members of the congregation, was liable to taxation as real estate.</p>

<p>Argued before Justices Elmer, Bedle, and Dalrimple, by—</p>

<p>On certiorari to the mayor and common council of the city of Hudson.</p> <p>Argued before Justices Bedle and Dalrimple.</p>

In trespass, and' rule to show cause why the verdict for defendant should not be set aside.. The plaintiff, claiming to be owner of a fresh water lake-without an outlet, called Green’s pond, in the county of Morris, brought trespass against the defendant for breaking his close, and fishing on lands of the plaintiff, covered with water. The defendant pleaded the general issue, denying the exclusive right of fishing in said water, as claimed by the plaintiff.

This case was tried before the Circuit Court of the county of Hudson, and came before this court on a case certified. The suit was for the loss of a horse, which was fatally injured by coming in contact with an obstruction in one of the streets of Jersey City.

On indictment. On case reserved from the Mercer Oyer and Terminer.

On rule to show cause why an attachment should not issue, &c. The defendant was acquitted before the Oyer and Terminer of the county of Monmouth, on an indictment for embracery. A rule was then entered that he show cause why he should not be attached for contempt of court, in holding intercourse with a juryman in charge of a case.

This cause was tried before the Warren Circuit. It was a suit by administrators, founded on the death of their intestate, while in the cars of the defendants, occasioned, as it was alleged, by the negligence of the servants of the railroad company.

This case was certified from the Oyer and Terminer of the county of Camden. The defendants were jointly indicted for conspiracy. •Smith pleaded not guilty, and was put on his trial, and Brien, who had not pleaded, was offered by the state as a witness against him. The court admitted the witness, and the legality, of such admission was argued before this court at bar, by—

<p>Demurrer to declaration.</p>

<p>This case came to this court for its advisory opinion, from the Oyer and Terminer of the county of Monmonth.</p> <p>The defendant was indicted and convicted for a negligent «scape. It appeared upon the trial, that one Jackson, who had been convicted of grand larceny, escaped from the county jail, to which he had been legally committed; that the defendant had been employed by the sheriff to watch this criminal at night; that one Mrs. Smalley was the keeper of the jail, and that she kept the keys of the cell doors in her own room. Another prisoner, Tienny, escaped with Jackson. The cell door of Jackson was found, in the morning, unlocked. The defendant had the keys of the outside door of the jail. The prisoner was locked up by the jailer. The defendant, about twelve o’clock at night, lay down on a bench, near the stove, in the jail, outside of the cells, and there fell asleep. The next morning, just after daylight, it was discovered that Jackson had got out, by unlocking both his cell door and the outside door of the jail. The defendant was not an officer of the prison, being employed, for the occasion, to watch'Jackson at night. It was admitted that ihe evidence showed that the escape was not with his connivance.</p> <p>The case was argued before Beasley, C. J., and Justices Vredenburgh and Depue.</p>

On demurrer to the declaration. The plaintiff’s declaration is founded on a bond made by the defendant, in the penal sum of five thousand dollars,, bearing date on the eleventh day of April, 1865, conditioned for the payment of two thousand five hundred dollars in five years after date, with lawful interest for the same from the date thereof, payable annually, at such rates as then was, or thereafter might be fixed upon as the legal rate of interest in this state, by the…

On certiorari to remove an assessment of taxes, made against the prosecutors, in the Fourth ward in the city of Trenton, for the year 1866. Argued at June Term, 1867, before the Chief Justice, and Justices Vredenburgn, Woodhull, and Depue, upon the following state of the case, agreed on by the parties. “ The Trenton Water Power Company ” is a private corporation of the State of Yew Jersey, and their principal office is in the Fourth Avard of the city of Trenton.

A writ of attachment having been issued out of the Circuit Court of the county of Warren, against Depue S. Miller, by virtue of which the sheriff, on the twenty-second of March, 1866, attached two hundred shares of the Warren Foundry and Machine Company, as the property of defendant, appraised as of the value of ten thousand dollars, such proceedings were subsequently had that a judgment was obtained in favor of the plaintiffs and other applying creditors, including the…

<p>A railroad company against whom taxes were assessed, and the assessments removed into the Supreme Court and affirmed, may be required to pay them by a mandamus, if there is no other adequate remedy for collecting them.</p>

Certiorari. In matter of assessment relating to public schools. The facts are set out sufficiently in the opinion of the court. Argued before Justices Elmer, Belle, and Dalrimple, by-

<p>Error to the Supreme Court.</p> <p>For the facts of the case, and the opinion of the court below, see 1 Vroom 443.</p>

A certain ordinance of the mayor and common council of the city of Newark, laying out a new street, to be called McWhorter street, was passed, tenth of August, 1857, and on the nineteenth-, of same year, another ordinance was passed to grade and curb said new street, and to assess the expense of such improvement in the mode provided in their charter. The assessment was made bn the sixth of May, 1860.

<p>Since the act of 1846, (Nix. Dig. 339,) declaring the running of horses to be a public offence, and subjecting- stakeholders to fine and imprisonment, and which enacts that all promises and agreements of which the whole or any part of the consideration shall be for money betted on any such race, shall be utterly void and of no effect, no action can be maintained by one of the guilty parties against the others to recover back money thus illegally staked, whatever disposition may be made of it by the stakeholder.</p>

Error-to the Supreme Court. Eor the facts of the case, and the opinion of the Supreme Court, see 1 Vroom 329. The case was argued at the last term, by Bedle, for the plaintiff in error, and McLean and Richey, for the defendant, and having been held over for advisement, the opinion of the court, reversing the judgment below, was now, at this term, read by

In replevin. Error to the Circuit Court of the county of Warren. This case was tried before Justice Kan Dyke, and a jury of the county. On the trial, exceptions were taken by the counsel of the defendant to various rulings of the court,’ and also to the charge. A verdict having been given for the defendant, and judgment entered thereon, a writ of error was brought to this court to obtain a reversal.

<p>Error to the Supreme Court.</p> <p>Argued by — ■</p>

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

In. the year 1857, the council of the town of Bergen passed an ordinance, directing the grading, regulating, and flagging of Washington avenue, between the Communipaw road and the Bergen plaukroad.

The defendant was arrested 'on a capias ad respondendum from the Supreme Court, in an action founded on a contract, by virtue of a judge’s order to hold him to bail, and which order was grounded on affidavits to the effect that the debt had been fraudulently contracted. By force of the act of 1861, (Nix. Dig. 684,) and on application of the defendant in the mode therein prescribed, counter testimony was taken touching the question of fraud.

Suit was brought by Brown, the plaintiff below, against the Water Commissioners of Jersey City, to recover damages against them for an alleged refusal on their part to carry out and perform a contract entered into between the parties, for laying down and carrying across the Hackensack river, a submerged pipe, for the conducting of water to Jersey City, and providing the materials necessary for such work. On the trial, the jury rendered a verdict for the plaintiff.

The action below was to recover under the lien law for work ■and labor done and materials furnished. A verdict having been found for the plaintiff, and the Circuit Court having certified certain points to the Supreme Court for their advisory opinion, that court advised that judgment be rendered for the defendants, which was accordingly done. [ Vid. 2 Vroom 247.] And, thereupon, a writ of error was brought to this court.

This was an action of trover and conversion, brought by the Trenton Car Works Company against the West Jersey Railroad Company, and charging them with converting to their use one passenger railway car, lettered Cape May and Millville Railroad, of great value, to wit, of the value of ten thousand dollars. The case was tried at the Mercer Circuit, at the term of January, 1866.

Error fo Supreme Court. In the year 1864, Elisha Ruekman, the prosecutor, was assessed upon his real and personal property, in the township of Harrington, and county of Bergen, to the amount of six hundred and thirty-nine dollars and ten cents. In 1865 the assessment was removed into the Supreme Court by certiorari, and sought to be set aside for the following reasons: 1.

This was a contest between judgment creditors, touching the' appropriation of certain moneys raised on execution. David D. Fairchild, one of the defendants, on the twenty-first December, 1861, obtained a judgment against Isaac D. Hunt; and the other defendant, Joseph E. Allen, on the twenty-fourth December, 1861, likewise took a judgment against the same party.

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

<p>1. Untieing and removing a horse from a hitching post, standing in the highway, to which he had been hitched by the plaintiff, being the owner, and to the use of which post the plaintiff had, if not an exclusive right, as good a right as the defendant, amounts to, at least, a technical trespass, and is sufficient to warrant a recovery for nominal damages, if nothing more, and to prevent a non-suit.</p> <p>2. Evidence offered to show that defendant’s father put the post there, and that defendant assisted him in doing it, without showing that he acted in the matter complained of under the direction or permission of his father, was not material evidence under the general issue, and was properly rejected.</p> <p>3. What is essentially a trespass, cannot become lawful from having been done with good intention; neither can the manner of doing the thing aflect its intrinsic character. If unlawful in its own nature, it must continue to be so.</p> <p>4. When, upon the trial, the defendant applies for leave to amend his plea, by adding to the general issue pleas of justification' to some of the counts of the declaration, it is an application to the discretion of the court, and the decision of the court is not revisable by writ of error.</p> <p>5. A judge has an undoubted right to make such comments upon the testimony as he thinks necessary or proper for the direction of the jury. He may intimate an opinion as to the weight of evidence, or call the attention of the jury to any matter in the cause affecting the credibility of a witness. This is also a matter of judicial discretion, and not subject to review in error.</p>

<p>Error to the Supreme Court. [ Vid. ante 134.]</p>