Volume 4 — New Jersey Law Reports

THIS was an action brought by Ferris as endorsee, against Saxton as endorser of two promissory notes 4459 dollars 78 cents, each, made by one George Holcomb, to Saxton, and by him endorsed to one Gordon, and by Gordon to the plaintiff. The notes were both dated 21st February, 1814, and payable, the one at four, and the other at six months, at the State-Bank in New-Brunswick.

<p>(a) l. JudgSTÍ plead.</p> <p>(b) 2. Change of venue.</p>

<p>Wliat necessary in petition for appointment of surveyors, (a)</p>

<p>(a) Return of ^herc^justice has left the</p>

in DEBT. THIS action was instituted for the recovery of a penalty, for selling foreign merchandise, contrary to the prod J o o y x visions of an act of congress, passed August 2, entitled “An act laying duties on licences to retailers of wines, spirituous liquors, and foreign merchandise.” *The declaration was in the usual form,in penal actions, under a statute.

THE defendant gave a bond to the plaintiff, 'secured by mortgage on real estate. A suit was commenced in this court on the bond, and a bill for foreclosure filed in Chancery.

THE defendant, Thomas Gipbons, was indicted at the sessions of Oyer and Terminer, in the county of Essex, in September 1816, for a misdemeanor in sending a certain writing, intended as a challenge to Colonel Aaron Ogden. The indictment was brought into the Supreme Court, by certiorari, directed to the Oyer and Terminer. Upon the return of the writ, a rule was taken to shew cause, why the indictment should not be Squashed.

ON CERTIORARI. THE reasons relied upon for the reversal of this judgent! are sufficiently detailed in the unanimous opinion of the court, as delivered by the Chief Justice.

<p>ON CERTIORARI.</p> <p>MUNN owned a fishery and net on the Passaiek river ; had employed N. Williams and others to aid him in fishing, by giving them a certain portion of the fish caught, While his net was out in the river, Post who was the owner of a vessel, was navigating in that part, and his vessel run through and injured the net, so as to deprive Munn of the use of it. Post himself was in the when the injury was done; the vessel was hailed by the fishermen, and there was contradictory evidence, as to the manner of the injury, whether accidental or intentional. An additional return of the justice, certifies that there was strong evidence that it was by design or neglect. Williams was sworn as a witness; and the run of the shad in the river, at the time, was proved. Several objections to evidence, and a motion for nonsuit was made; all of which were overruled. There was verdict and judgment for 25 dollars.</p> <p>The reasons relied on for reversal, were.</p> <p>1. That it should have been an action on the case, and not in trespass ; and brought in the name of Williams and the other hands, as well as Munn; and against the sailors, and not the owner and captain of the vessel.</p> <p>2. That Williams was interested; and the run of the shad, inadmissable evidence.</p> <p>•3. That the Passaiclc is a navigable river, and no suit can be supported for injuries resulting from the ordinary navigation of it.</p>

ON CERTIORARI. THIS was an action on the case for Trover and Conversion, for goods which the plaintiff had taken in execution, and delivered to the defendant for safe keeping. At the trial, Hampton required proof that Swisher was a constable, and he produced a certificate in these words. “ This may 1 -.o certify that Jacob Swisher was duly elected constable for the township of Knowlton, in the county of Sussex, and state of New-Jersey, in the year 1816.

<p>Plea insufficient.</p> <p>Number of triors of juror. (b)</p> <p>30ing^evidence court! °TO</p>

ON CERTIORARI. THE following opinion, delivered by the Chief Justice, odyeg a full view of the facts, and of the opinion of the 7 x court.

<p>ON CERTIORARI.</p>

<p>Suit against debtor6111</p> <p>Plea that he had recieved a discharge. (a)</p> <p>recordf</p> <p>Notice to creditors. (b)</p>

<p>on certiorari.</p>

<p>contract.1 Plea of infancy. (a)</p>

<p>on certiorari.</p>

<p>Action for labour, &c. (a)</p> <p>evidence *ent overruled,</p>

<p>ON CERTIORARI.</p>

<p>Service of summons on two or three defendants, fn.(a)</p> <p>, Parol evidence of writing; without &°tic<®tt (b)</p>

<p>ON CERTIORARI.</p>

<p>ON CERTIORARI.</p>

<p>on certiorari.</p>

<p>Admiarioii deuce,'’not ob-to-(a)</p>

<p>Two defendants, and service of summons on one only, (a)</p>

<p>Insufficient demand. (b)</p> <p>Interested witness.</p>

<p>Sealed bill admitted without calling subscribing witness. (a)</p>

<p>on certiorari.</p>

<p>ON CERTIORARI,</p>

<p>ON CERTIORARI.</p>

ON ,CERTIORARI. Three reasons were filed for the reversal of this judgment, in these words. 7 1.

<p>ON CERTIORARI.</p>

<p>ON CERTIORARI.</p>

<p>ON CERTTORARI.</p>

<p>ON CERTIORARI.</p> <p>THIS was an action against a constable for neglect of duty. Several reasons were assigned for reversal; none of which in the opinion of the Chief Justice, and Justice Rossell were sufficient to justify a reversal, and the judgment was affirmed. Justice-Southard dissented upon one of the reasons, and expressed the view which he took of it.</p>

<p>What is sufficient in summons, for return day thereof. (b)</p> <p>What description ofof necSsary.</p> <p>What constitution foreible entry and detainer. (c)</p> <p>Charge of Court. (d)</p>

on submission, &g. ON the eighth day of September, A. D. 1817, the parties executed a writing under their hands and seals, which, after reciting, that “ whereas divers disputes and controversies had arisen between them, touching and concerning the sale of certain lands in the township of Freehold, in the county of Monmouth, bargained and sold by the said Imlay to the said Wikoff, and the price thereof, and other matters relating theretoreferred and submitted “ all matters in…

<p>Attachment against witness. (a)</p> <p>Recognizance to give evidence. (b)</p>

ON CERTIORARI. THE counsel for the plaintiff relied principally on the uncertainty and insufficiency of the state of demand, the reversal of this judgment. The opinion delivered, contains so much of this, as is necessary to understand the force of the objection.

<p>Copy of deed, given in evidence. (b)</p>

ON CERTIORARI. THIS action was brought upon an annuity bond, dated April 8, 1812, in the penalty of 500 dollars, for the payment of an annual sum of 55 dollars, on the 8th April, while the intestate remained a widow. She died on the 1st of April, 1816, and the suit was brought tor annu-Ry due the 8th April, 1816, or á part of it.

<p>Evidence f^ggnce^f the parties, (a)</p> <p>houses^éf. (b)</p>

on certiorari. THIS action was brought upon a bill in the following words, “ On the first day of May next, I promise to to Azariah Hall, or order, the sum of fifty dollars, without defalcation, for value received. Witness my hand and seal, this thirtieth day of December, A. D. eighteen hundred and thirteen.

<p>Assumpsit notin writing (a)</p>

<p>ON CERTIORARI.</p>

<p>Board of whfctfiiTto t°r re-Auctions in tíie Passaick</p>

<p>ON CERTIORARI.</p>

<p>“Balance due on settlement,” sufficient demand. (a)</p> <p>Statute of limitations. (b)</p>

on certiorari. TWO reasons for reversal were filed, which were relied on in the argument of this cause. 1. Because the state of demand contains two counts, one on contract, and the other on a tort, and there was a general verdict. 2. Because there was a discontinuance of the cause, judgment being rendered three days after the trial without any adjournment.

<p>ON CERTIORARI.</p>

ON CERTIORARI. THE suit was. entered below, without process, and the defendant, on the 4th of October 1817, confessed a judgment to the plaintiff for 75 dollars, on a note of hand for that sum, dated the 30th of September 1817, payable ninety days after date. Execution was issued on the same day that judgment was entered, and on the 6th, the constable returned the gaoler’s receipt for the body of the defendant.

ON INDICTMENT. THE Morris Turnpike Company, was indicted at the Sessions in Morris county; for not repairing a bridge, the line of the road in the township of Morris, called the log bridge, which had fallen into great decay, so as impede the travelling.

in TRESPASS. THIS action was originally commenced before a justice of the peace, in the form of debt, under what is ally termed the timber act, Pat. 49, for the sum of 48 dollars, being the penalty for cutting six trees. The fendant, in that court, pleaded title to the land on . _ the trespass was alleged to have been committed; and he filed a bond with the justice, according to the provisions of that act.

AN action of trespass and ejectment had been meneed against the defendant; an issue joined; the cause carried down to the Circuit for trial; after which, parties agreed to refer it to certain referees, and the rule of reference was accordingly entered.

in ERROR. THIS cause was brought by writ of error, from the Common Pleas of the county of Salem. By the record, the following case appeared.

<p>in ejectment.</p> <p>THIS cause was presented to the court, by a state of the case, agreed upon between the parties, by which the following facts appear.</p> <p>Samuel Stretch the elder, was seized in fee of certain lands *in the county of Salem (including the premises in question) and devised them to his three sons, and only issue, viz. Joseph, the eldest, by one venter; and Samuel and Luke, by another venter; to be equally divided between them, and held in fee simple. Joseph, the eldest son, had issue, Jonathan, the defendant, Samuel, John, Sarah, Nathan, David, and William. Samuel died before Aaron, leaving issue a daughter, Sarah Ann, who, with Sarah, Nathan, and David-, are the lessors of the plaintiff. William is yet a minor.</p> <p>Samuel died without issue, in 1804. Luke died in 1810, leaving a son Aaron. Aaron died in March 1814, while yet a minor, and without issue and intestate.</p> <p>Joseph, the eldest son of Samuel, alienated his part of the lands devised by Samuel.</p> <p>Samuel before his death, duly executed his will, devising his real estate, being one half of the premises in question, to Luke in fee simple.</p> <p>Lake died intestate, and all the premises in question, descended to his son Aaron. Upon the death of Aaron, Jonathan, the eldest son of Joseph, and the present defendant, entered and still remains in possession of the premises ; and claims the whole in exclusion of his brothers, sisters, and niece. The lessors of the plaintiff, as well as the defendant, are cousins of the half blood of Aaron, the last tenant in fee of the premises.</p>

on certiorari. AN order was made for the removal of Betty Hitchcock and her children from the township of Orange to the township of Springfield, in the county of Essex. Upon an appeal to the Sessions, this order was quashed. Upon the hearing, Robert Pearson, a taxable and taxed tant of the township of Springfield, was admitted and sworn as a witness; and the only question raised in this court, was the legality of his admission.

<p>Citation by co-executors special cause (a)</p> <p>appointed. (b)</p> <p>Joint account.</p> <p>Allowance by auditors, of claim by creditor.</p>

THIS suit was commenced at September term, 1812, by Vamixem and John L. Clark, against Isaac Hdzlehurst, sen. Samuel Ilazlehurst, Isaac Ilazlehurst, jun. Richard Hazlehurst, and Andrew Hazlehurst. The writ served on Isaac Hazlehurst, sen. and Samuel Ilazlehurst.

<p>jurisdiction of the court. (a)</p>

<p>The jury rendered a special verdict. (a)</p>

<p>ON CERTIORARI.</p> <p>THE principal question raised upon this certiorari, was, the admissibility of Matthias Clintoch as a witness. By the state of demand, it appears that the action was founded upon a note of hand, given by one Parish to the defendant; and by defendañt handed over without assignment to Matthias Clintoch as agent of the plaintiff, and the defendant warranted the note and represented the ability and willingness of Parish to pay the note in such way as induced Clintoch to receive the same in payment of a debt; Ward promising to make good any deficiency arising from the default of Parish; and that Parish, at the time, and ever since, has been insolvent and absent, and not to be found, and Ward knew it, when he transferred the note.</p> <p>When Glintoch was offered as a witness he was objected to, on the ground that he had been a partner of the plaintiff in 1811, (when the note was transferred). He was sworn on his voir dire and examined, and then sworn in chief. In an amended return, the justice states: “ that Glintoch, on his voir dire declared, that he axxd plaintiff were partners at the time the note was left with him, and if he had collected the money on the note, he should have given the defendant credit on their books for the same.”</p>

<p>ON CERTIORARI.</p>

<p>Action, misconceived. Suit for bank-bills and execution. (b)</p> <p>Eight of constable in an execution (c)</p>

<p>Sufficiency mand^faj de" (a)</p>

<p>ON CERTIORARI.</p>

<p>Suit by sureties of constable.</p>

<p>Parol prother. (a)</p>

<p>ON CERTIORARI.</p>

<p>in CASE.</p> <p>THIS cause was tried at the Essex circuit, before the Justice, and a nonsuit directed. By the state of the case, as agreed upon between the parties, the folio wing facts appear.</p> <p>The declaration sets out, that the defendants being engaged m the transportation business, undertook and promised to receive at Washington, in the county of Middlesex, from one hundred and fifty to two hundred tierces 0f sau anj t0 transport and deliver the same, in the city ' 17 of Philadelphia, to the order of the plaintiff, in as good order as they should receive the same, and that without delay, for the sum of 1 dollar, 87.5 cents per tierce ; that on the 12th of November 1814, the plaintiff delivered to the defendants at Washington, one hundred and sixty-six tierces, to be transported and delivered under the agreement ; that the defendants did not transport and deliver the said 166.tierces; nor did they transport and deliver them in good order and without delay, although requested &c.; and that in consequence thereof, the plaintiff lost in the sale of said salt, large sums of money &c. to his damage 3800 dollars. The defendants pleaded that they did no.t undertake and promise in manner, &c.</p> <p>At the trial, the plaintiff proved, that the defendants were engaged, in the summer and fall of 1814, in the transportation of goods from Washington, in the county of Middlesex, to the city of Philadelphia, and having a quantity of salt to transport, he applied, for the purpose) to one Joseph Baldwin, who appeared by advertisements in the public papers, to be the agent of defendants at Washington. Baldwin acknowledged himself to be their agent, and acted as such, and made a contract with the plaintiff to receive-and transport the salt for fifteen shillings a tierce, be*fore other salt then lying upon their wharf; this was one shilling a tierce more than was at first spoken of between them, and was given to secure its immediate transportation. The paper signed by Baldwin, stating the contract, was proved and read in the following words: “We agree to receive at our wharf, one hundred and fifty to two hundred tierces of salt, from Thomas Salter, and to deliver the same to his order in Philadelphia (in good order as when received) without delay, freight through to Philadelphia, fifteen shillings each tierce. Washington, November 12,1814. Jos: Baldwin.” On the 14th and 21st of November, plaintiff delivered at defendants’ wharf, one hundred and sixty-six tierces of salt and one barrel of fruit; receipts for some of which, were given by Baldwin, and for others by John Henry, a clerk in defendants’ store at that place. Teams were almost daily carrying salt and other goods from Washington to Philadelphia, during the latter part of the month of November, in that year, although the roads were extremely bad, and the price of teams higher than in the early part of the fall. Three days were however sufficient, during the bad roads, for teams to reach the Delaware, unless delayed by accident; and two tides to reach Philadelphia, after the boat started. Baldwin sent on other salt, after that of plaintiff was delivered to him, and he did not put it in a store-house, but left it upon the wharf. The plaintiff being informed by his agent in Philadelphia, that the salt for which he had inquired several times, had not arrived, sent, on the 29th of November, and twice afterwards, to inquire why it had not been sent, and Baldwin at one time said, that an agent of defendants’ in New-York, had made a contract to send on a large quantity in fifteen days, and they must send that first. At the time this reason was given, teams were loading with salt at the wharf. Plaintiff’s salt arrived in Philadelphia in small quantities and in sloops, which contained large quantities for other persons. In November, salt sold briskly; in December large quantities had arrived, and sales were dull. On the 21st November, the price current was 3 dollars; on the 24th, 2 dollars, 80 cents; on the 28tb, 2 dollars, 30 cents; on the 6tli December, eight tierces of plaintiff’s salt arrived, and then the price was 2 40 cents; on the 12th, thirty-six arrived, and the price was 2 dollars, 35 cents; on the 20th and 21st, fifty-nine tierces arrived, and the price was 2 dollars, 10 cents; on the 26th, sixty-two tierces, and *lhe price 2 dollars. The-plaintiff also proved, that agreements, in the form of the one in this case, were usually made, and the practice was, to notify an agent in Philadelphia to receive the goods; but it was not customary to give notice to the contractors at Washington, who the agent was, before the goods were sent. Each transporting company had a store-house or ware-house in Philadelphia, and the goods were deposited there, and there called for, by the agent or consignee. The plaintiff also read in evidence, the record of a judgment, in which the defendants had recovered from the plaintiff, the amount of the freight of this salt; and the defendant admitted that that judgment, with the costs, had been paid.</p> <p>After giving evidence of the foregoing state of facts, the plaintiff rested, and the defendants moved for a non-suit on the three following grounds.</p> <p>1. That the contract was made by an agent, in his name as agent, whereas it ought to have been in the name of the principal.</p> <p>2. That there was a variance between the contract set out in the declaration and the one proved ; the contract proved, was for fifteen shillings a tierce, and the one alleged was for 1 dollar 87.5 cents, a tierce.</p> <p>3. That it was incumbent on the plaintiff to have notified the defendants, who his agent or consignee in Philadelphia was, before they were bound to transport the salt there, and that such notice should be proved before the action could be maintained, and there being no proof of such notice, the plaintiff ought to be nonsuited.</p> <p>The plaintiff then tendered himself ready to shew, that fifteen shillings, and 1 dollar, 87.5 cents, were the same sum,, in the common understanding and the common transactions of the country where the contract was made, and were so understood by the persons making it.</p> <p>After argument, the Chief Justice directed a nonsuit for the third reason.</p> <p>Upon the coining in of the postea, a rule was entered for setting aside the nonsuit, and granting a new trial. This rule presented the same reasons which had been the subjects of consideration at the circuit. Upon reading the case agreed upon, the Chief Justice remarked ; that he was not satisfied with that part of it which related to the necessity of appointing an agent oi consignee in Philadelphia and notifying the defendants thereof; that it was by no means, according to his apprehension of the evidence, relating to that part of the contract, and the understanding of the parties. But as the case had been agreed upon, and the parties were willing to rely upon it, the court heard the argument.</p>

<p>on certiorari.</p>

<p>Indictment</p> <p>Tales award-</p> <p>ment of trial, ?fter Part of sworn.</p> <p>Confessions old. (a)</p> <p>nf^”teyCnfCy black, born gradual aboliof ,®lave" ry, as witness.</p>

ON CERTIORARI. By the transcript of the justice, it appears, that the summons was issued on the 6th day of November A. D. 1817, returnable on the 12th of the same month. The constable returned the summons, duly served. On the . 1 n , oí-, lloli, fiie day before the return day, one of the defendants, Nathaniel End'd, appeared and confessed a judgment for 73 dollars, debt, and 53 cents, costs.

<p>in ERROR.</p> <p>WADE sued Scudder in the Common Pleas of Essex county. Upon the trial of the cause, a bill of exceptions to the charge of the court was sealed, and it was brought , , ., „ here by writ of error.</p> <p>The declaration contains thirteen counts. The first count is in the usual form, in assumpsit, for goods, wares, and merchandise, sold and delivered. 2. A quant, val. 3. Paper sold and delivered. 4. Quant, val. 5, 6, and 7. JMonoy counts. 8. In consideration that plaintiff'would sell and deliver to one R. Canfield, on credit, such goods as he should have occasion for as a printer, of the plaintiff, in his trade as a paper maker, defendant undertook to be accountable for them, and avers that he delivered goods to the value of 500 dollars, at four months credit; that day of payment is past; that Canfield did not pay, and defendant had notice. 9. In consideration that plaintiff would sell and deliver to Canfield, all such supply of paper as he should have occasion for, of the plaintiff; the defendant promised to be accountable for the same, at four months credit, and avers sale and delivery to Can-field, of 100 reams for 500 dollars; that time of payment was passed; Canfield had not paid and defendant had notice. 10. That defendant was indebted 500 dollars, for goods &c. bargained and sold to him, and under and by virtue of the bargain delivered to Canfield. 11. In consideration that he had sold other goods to defendant and by virtue of the bargain, delivered the same to Canfield, defendant undertook to pay, what he reasonably deserved to have, viz. 500 dollars, &c. 12 and 13. Like the 11th and 12th, for goods sold to defendant and delivered to Mervin Hale.</p> <p>To all these counts the defendant pleaded non assumpsit.</p> <p>At the trial, the plaintiff, by three of his clerks, proved his books of original entires, viz. his waste-book, day-book, and leger; but these clerks were not those who made the entries against the defendant, except one item by one of them, and he could not recollect by what authority he made it, having no knowledge of any bargain or contract between the parties. E. Stites, the clerk who made all the entries except one, was not called by the plaintiff. The books were then given in evidence ^without objection. By them it appeared that the defendant was regularly charged, at different times, with paper amounting to 350 dollars, 75 cents, and was credited for paper returned, 17 dollars, 60 cents; for cash paid by Canfield, 40 dollars, and cash by defendant, 39 dollars ; in all 96 dollars, 60 cents; a balance of 254 dollars, 15 cents. The plaintiff aiso proved, that in July, 1814, Mervin Hale applied to him for 24 reams of paper, but he refused to let him have it without security. That Hale then called on defendant to assist him in getting it, and defendant said he had no doubt it could be had if he could see the plaintiff; that a few days after, the 24 reams were sent by plaintiff to Hale, and Hale afterwards paid defendant 132 dollars for them. These 2 i reams were a part of the paper charged by plaintiff to defendant, and defendant admitted that the 39 dollars paid by him were for this paper, and that he was accountable to the plaintiff for the balance of the 132 dollars. Plaintiff also produced and read to the jury,a letter written by the defendant to him, in the words following, viz.</p> <p>“Elizabeth-Town, December 11, 1813. Jonas Wade, esq.—Dear sir,</p> <p> The paper which I took from your mill yesterday, proves to be of the right size, and Iivant you,to send to the house of Mr. Canfield, in Elizabeth-Town, by Tuesday or Wednesday next at furthest, twelve reams and one ream of foolscap paper, and charge the same to me. If you should not have as much on hand at this time, a less quantity will do. We shall take our whole supply of paper of you, and make payment after four months credit, andsooner if convenient. </p> <p> Your humble servant, </p> <p>Smith Scudder.”</p> <p>In the plaintiff’s account, one ream of paper at 4 dollars, 25 cents, was charged on the 11th of December, 1813. On the 15th of December, six reams at the same price, and three reams of foolscap at 4 dollars each.</p> <p>The defendant proved, by E. Stites, that he was the clerk who made the entries in plaintiff’s books; that the paper, except the twenty-four reams for Hale, and the ream taken by defendant, were all sent to Canfield, editor of the Essex Patriot in Elizabeth-Town; that it was charged and sent on the faith of the letter before mentioned, the plaintiff considering it sufficient *for that purpose ; that about the 8th of October, 1814, the plaintiff directed him to go and settle the account with Canfield, get his notes for lino balance and carry them to defendant to be endorsed by him; that he did settle the account as he was directed, and took two notes for the balance ; one for 100 dollars, the other for G3 dollars, 13 cents, payable at the State Bank in Elizabeth-Town; took them to defendant, who refused to endorse them, and said he was not liable. Shortly after this, plaintiff sent him (Stites) to the defendant with a copy of the account to demand payment. The plaintiff seemed surprised at the demand and refused to pay it, but offered to pay for the 24 reams had by Hale, if he (Stites) would receive it and discharge him from the account, but Stites would only receive and credit it on the account generally. Stites also proved that Canfield had applied to plaintiff for the paper, before the date of plaintiff’s letter, but plaintiff had refused to trust him.</p> <p>The defendant also read a deposition of Russell Canfield, which stated that the paper in question was delivered to him by plaintiff in virtue of a contract between Canfield and plaintiff, and on the sole credit of Canfield. This deposition was taken' under a commission, Canfield having failed a short time after the delivery of the paper and removed into the state of Connecticut. The two notes mentioned by Stites, as signed by Canfield in favour of Scudder, and which Scudder refused to endorse, were produced by the plaintiff in pursuance of notice, and read to the jury.</p> <p>The defendant then asked the court to charge the jury, that he was not liable on his letter, read in evidence, for any more of the paper than the ream taken by him and charged the 11th of December, 1813, and the six reams charged the 15th of December, 1813, and one ream of foolscap paper charged the 15th of December, 1813.</p> <p>The court charged the jury that if, from the evidence in the cause, they believed that the credit was given originally to the defendant by the plaintiff, that they ought to find for the plaintiff the whole amount of the paper before stated. And the court did further charge that the said letter of the defendant justified plaintiff in charging to defendant the paper delivered to Canfield on the faith and credit of that letter. If therefore, the jury believed the testimony of Stites, that the paper was so it was *their duty to render a verdict for the plaintiff for the amount of the paper in question ; but on the contrary, if they believed the testimony of Can-field, that the paper in question was delivered to him by plaintiff in virtue of a contract between plaintiff and Canfield, and on the sole credit of Canfield; then as no paper would appear to have been delivered by virtue of the authority contained in the letter, (except seven reams of a parcel particularly ordered) the letter could not operate to charge defendant with the paper afterward delivered by plaintiff to Canfield, except the said seven reams; to which charge of the court, in the several aspects thereof, the defendant excepted, and also excepted to the refusal, of the court to charge in the manner by him called for, and bills of exceptions were sealed.</p> <p>The jurj>' found a verdict for the plaintiff for the whole amount of the paper charged to defendant. The case was brought up by writ of error, and argued at May term, 1818.</p> <p>Upon the argument in error, the plaintiff pro se, relied upon the following points:</p> <p>1. No part of the paper having come to the use of the defendant, there could be no implied promise, which lays out of the question, the general counts in the declaration. 1 Blac. C. 162. When the terms of a special agreement are performed, indebitatus assumpsit will lie; but a man cannot be indebted to another for goods sold and delivered, unless the goods came to his use. 2 Wils. 142.</p> <p>2. The paper having been delivered to Canfield for his use, he was liable to Wade, and might have been sued upon an implied promise. 2 Wils. 142. There was no evidence that Canfield knew of the letter ; he got the paper for his own use, and returned some that would not answer. He paid 40 dollars; and drew notes for the balance, after settling the account. He had the whole benefit, the value from which the promise must arise. In the language of the books, he took up goods of a tradesman, and the law concludes that he intended to pay for them.</p> <p>3. Where ever the person to whose use the goods have been delivered, is liable at all, the promise and undertaking of a third person is collateral, within the statute of frauds, and the promise and consideration must both be in writing. 1 Saun. 211 a. 3 John. 210 ; and refering to 5 East. 10, and 1 Com. on Con. 103.</p> <p>*4. When any count in a declaration is bad, and a general verdict is rendered, and damages entire on all the counts, the judgment is bad. 2 Wils. 142.</p> <p>5. The special counts in the declaration are bad, because they do not state the particular circumstances of the promise, or any consideration on which the promise was made. 1 Lil. En. 17, 18, 19, 22. 2 Went. 122. 1 Saun. 211 a. 3 John. 210, 14. 3 Cain. 286. 7 John. 321. A promise includes no consideration. The declaration ought to state the precise quantity and quality of the paper, and agree with the evidence.</p> <p>6. There is a variance between the counts and the evidence. 8 John. 253, 84. 3 Gr. 235. 3 Cain. 286. 7 John. 321. 11 John. 418. 2 Lev. 85. Thos. Ray. 202.</p> <p>7. The court refused to give a proper charge, when called on, but did give an improper charge upon the evidence generally, and particularly upon the letter of the defendant. That letter did not authorise,the sending of more than seven reams, and they only were sent within the time specified. The term “ we ” does not make the defendant and Canfield partners in this transaction. The plaintiff himself has construed it as if it were I, having charged the defendant only, and not Canjield. Now, if it be I, then the words of the letter give no authority to trust Canfield to every extent, nor support the counts -which charge the goods sold to Canfield on the assumpsit of the defendant. The court ought therefore to have charged that this letter did not support those counts.</p> <p>Again—A personal action once suspended is gone forever. Here the action against the defendant, if it ever existed, was suspended by giving the notes at sixty days. Dyer, 140.</p>

TN DOWER. THIS cause was noticed for trial at the Monmouth circuit in October 1817, when a state of the case, containing the following facts, was agreed upon, by the parties. 1. Robert Burnet was seized ill fee, and possessed a tract of land, estimated to contain five hundred acres, in -Upper Freehold, Monmouth county, and conveyed the same to his son-in-law William Montgomery, (the first) by deed, dated 20th May 1706. 2.

<p>Competency of witness.</p>

<p>Demand for cash paid, (a)</p> <p>Jury called, after cause in part heard by justice. (b)</p>

THE return of the surveyors appointed to lay out this road, being made, a caveat was filed against recording the same. Upon the argument, three reasons were relied upon for setting it aside. The reasons, with the facts, as they were presented to the court, sufficiently appear in the opinion delivered. Justice Rossell was absent.

<p>'otodebtorsT joint e tois. (a)</p> <p>Return of C. C. as to one. •</p> <p>baiiaTCr °f</p> <p>Judgment against alL</p> <p>Affidavit of</p> <p>Judgment rulTto pl¿d (b)</p>

THIS was an action for a legacy. The defendant that they had not assetts for the payment of all the debts and legacies; whereupon auditors were appointed under the statute, Pat. 37, to examine, settle, and report on the accounts of said executors.

<p>Public-road.</p> <p>application, (b)</p> <p>veyors. (c)</p> <p> savveyoxs. (d) </p>

IN EJECTMENT. THIS cause was carried down for trial to the Hunterdon circuit, in October 1814, when the following state of the case was agreed upon, viz. “ John Bray, in his life-time and at his decease, was seized in fee-simple and possessed of the premises in question; and being so seized and possessed, on the 27th day of January 1764, he made his last will and testament, which was duly executed to pass real estate and duly proved after his decease; and thereby among other…

<p>"Variancein sum between mentT(&)U (b)</p> <p>ruled, (a)</p>

on certiorari. In August 1812, and April 1813, general orders were issued for a draft from the militia of the county of Somerset, under the act of congress of the 10th April, 1812.

<p>in debt.</p> <p>THIS ease sufficiently appears in the opinion of the Court.</p>

in ejectment. THIS cause was argued upon a ease stated. The facts are set out in the opinion of the Court delivered by the Chief Justice.

<p>on certiorari.</p>

<p>ON CERTIORARI.</p>

on amercement. UPON the rendition of the judgment, a fi. fa. was regulai’ly issued into the county of Burlington, and levied on sundry goods, chattels, &c. of Joseph I. Thompson, one of ^ie defendants, to the value of six cents.

ON CERTIORARI. JACKSON, applied to the Common Pleas of Middlesex ccmirfcy for the benefit of the insolvent laws of the state, The hearing was ordered on the 24th of October, 1815, at which time John R. Hamilton and Robert Davison, two of his creditors, made affidavit according to the statute, that they believed and undertook to shew, that Jackson had not made a fair and honest surrender of all his estate to and for the use of his creditors.

IN ERROR. THIS was an action of slander, in the Common Pleas of Monmouth, for words laid to have been spoken on April 1, 1812. Plea not guilty. There was a trial in April 1813, and verdict for 90 dollars, with costs. The facts sufficiently appear in the opinion of the court.

<p>Rent claim-tenant’s goods</p>

ON CERTIORARI. POTTS commenced a suit against Imlay, in the court for the trial of small causes, on the tenth of June 1813, by summons, which was returnable on the 19th of June. On the 19111 of June, at Potts’ request, the cause was adjourned to the 10th of July ; on which day he did not appear, judgment of nonsuit was entered against him.

<p>Rule for new trial.</p> <p>Excessive damages, (a)</p> <p>Newly discovered evidence. (b)</p>

IN ERROR. THIS case was argued by Scudder for plaintiff in error, and Chetwood for the state. It is supposed that the facts sufficiently appear m the opinion of the Court, delivered by Southard J.

<p>ON CERTIORARI.</p> <p>ON the 16th day of March 1814, surveyors of the highways appointed by the Common Pleas of Hunterdon, at the February term preceding, laid out a public road or highway, in the city of Trenton. Mr. Lealce filed!' a caveat against recording the return of the surveyors, and at May term, freeholders were appointed to view said road, and not making any certificate of approbation or disapprobation, the court, in August term, ordered the return of the surveyors to be recorded in the road book. The proceedings wei;e removed into the Supreme Court by *certiorari, and in the term of November 1815, the return and proceedings were set aside, and made null and void, upon Hit ground, that two of the persons who were appointed by the court, and acted as surveyors of the highways, in laying out the road, had never taken and filed the oath of office prescribed by the statute; and were therefore not surveyors, nor legally authorised to act in the matter. The same freeholders made a second application to the court for the appointment of surveyors, to lay out a road, beginning at the same point and running generally the same direction with the former one, and ending in the same public road; but not at the same point, and varying in some degree in one or more of the courses. The surveyors were appointed at February term 1816, and laid the road, as applied for, on the 12th of March 1816. Their return was ordered to be recorded, and the return and proceedings thereon were removed into the ¡Supreme Court by certiorari: Samuel Leake, who believed himself injured by the laying of the road, being the prosecutor of the certiorari. Three reasons were filed and relied upon by the prosecutor, for setting aside the proceedings.</p> <p>1. That there was not one year between the time of making the first road null and void, and the time of laying out the second road. 2. That the private property of the prosecutor had been taken for public use, without just compensation therefor. 3. That the order of the court, purporting to be an appointment of the surveyors, was illegal and void, because it did not appoint them by name, but by townships, viz. “ the two surveyors of the highways of Trenton,” &e.</p> <p>Upon the 1st reason, Leake read Bloom. 243, section 3, and contended, that the year there mentioned, must be calculated from the ending of the litigation upon the first road, to the application for the second; between which periods, in this ease, one whole year did not intervene. Hanning. 155. 2. That the law under which the surveyors acted, and the road was laid, was unconstitutional and void. Pat. 83, 93. 5th Amendment to Con. US. 1 Bl. Com,. 139. 3. He insisted that the court did not appoint any of the surveyors. The words of the statute are, “ to appoint six of the surveyors of the highways of the said county.” These words can only be satisfied by designating the persons by name. An officer, ministerial or judicial, can be appointed in no *other way. Bac. 753, 758, let. c 760. Cowp. 29. In this case it was peculiarly important that the persons .should be. named; they are responsible for improper conduct, and may be prosecuted for a penalty if they neglect to attend. Bloom. 243, sec. 8. Besides, it cannot otherwise appear that six were appointed. It is not shewn that there were' two surveyors in each township.</p>

<p>BAINBRIDGE, then of the county of Monmouth, in slale> on lhe 12th February 1814, executed a bond in the penalty of 5924 dollars, 50 cents, conditioned for the payment of 2962 dollars, 25 cents, with interest, on or before the 14th of the same month of February 1814. Accompanyjng -¡fog bond, there was a warrant of attorney of the same date, “to appear &c., receive a declaration in / / action of debt, on the bond, or as for so much money borrowed, at the suit of Noble Reed, and thereupon to confess the same action, or else to suffer judgment by nihil dicit, &c. to pass against the said Bainbridge of record, for the said debt, together with costs, and to release the errors of such judgment,” &c. Upon the bond, was endorsed an assignment, under seal, by Noble Heed, for the consideration of 2500 dollars, unto John Thorne of the city of New-York, and dated the 14th day of February 1814. On the 18th day of February 1814, a copy of the bond, warrant of attorney, and assignment, were presented to the Chief Justice, and judgment signed, under “the act directing the mode of entering judgments on bonds, with warrants to confess judgments,” in the name of Noble Reed, and as of the preceding November term. This judgment was filed and recorded on the next day. To revive this judgment, a scire facias was issued returnable to May term 1816. It was served upon Rainbridge in the city of New- York, (a) a rule for appearance taken, and no appearance being entered, judgment was given at the same term. A fieri facias was issued, returnable to September following, and delivered to the sheriff of Monmouth, on the 13th June, with directions to levy on the farm formerly of Rainbridge, then in possession of Denise Schenck, which direction the sheriff obeyed. At September term, Denise Schenck presented to the court his own and other affidavits, which stated, in substance, the following facts.</p> <p>On fhe 15th of April 1814, Schenck entered into an agreement with Rainbridge for the purchase of the before mentioned farm, and in the same month entered into possession of it, and so continued to this time. On the 9th of May 1814, he received from Rainbridge, a deed for it. At the time the agreement was made, and when Schenck paid the full consideration for it; Rainbridge assured him, repeatedly, and in the most solemn manner, that there were no other incumbrances on the farm, except two mortgages, to Iligbee and Holmes, an execution in the hands of the sheriff, and a small claim in the hands of Joseph Phillips, esq. That Rainbridge lived in the county until April 1816, when he removed to the city of New-York, and continued to reside there; that he is the brother-in-law of Noble Reed, who removed from this state to New-York, before Schenck’s purchase, and in September 1815, was discharged as a bankrupt; that Schenck took every means in his power to ascertain what the amount of the incumbrances were, but never received any information, nor had any notice, of Reed’s judgment, until the sheriff levied on the farm. That Bainbridge does not possess correct habits, nor is able to make satisfaction to Schenck for the breach of the covenants in his deed. Certain declarations of Beed and Bainbridge were also proved, which tended to shew that this bond was a contrivance of theirs, to cheat Schenck out of the money.</p> <p>Upon these facts, R. Stockton, on behalf of Denise Schenck, moved to have the judgment and execution set aside and vacated. 1. Because Schenck, the tenant of the freehold) should have been made a party to the scire facias. 2. Because the original judgment was irregularly entered, Beed having then assigned the bond to Thorne, and having no longer any right of action against Bainbridge. Pat. 254. And 3. Because there was fraud in the original bond, warrant and judgment, and the parties should be put to their action, which the court would permit Schenck to defend.</p> <p>The motion was opposed by Hornblower. After argument, the court, (Southard J. absen.) 1. Intimated an opinion against the motion on the first point. 2. Offered the purchaser an issue to be tried in the county of Monmouth, upon the question of fraud. And 3. On motion of R. Stockton, directed asecondargument, upon the second point, as to the regularity of the judgment. This argument was had at November term 1816, by R. Stockton and Wall, for purchaser. Ewing and Vanarsdale, for Thorne.</p> <p>'The counsel for Schenck maintained. 1. That being a purchaser directly interested in the regularity of this judgment, he *had a right both in law and equity, to be heard. 2 Str. 1121. Coxe’s Pep. 3.</p> <p>2. That there was no valid authority by the warrant, to enter up judgment in the name of Noble Beed, but the same was either destroyed or passed' to Thorne by the assignment. Pat. 254. 5 Com. 344. 2 Bl. Com. 442. 1. Bac. Asst. A. Chit, on Bills 111, 112. 12 Mod. 192-3. 1 Bac. 322.</p> <p>3. That this court has full power over the proceedings, and may vacate them when they are shewn to he' illegal and irregular. Pat. 454. Even if the judgment were according to the course of the common law, by declaration, plea, and regular judgment roll, the court whose-authority is used, has full jurisdiction to set it aside, wherever improperly entered or obtained. 1 Str. 20. 2 Str. 1121. 1 Black. Rep. 1097. Doug. 186. Dali. 119. Barnes 277, 52. 9 John. 80.</p> <p>The counsel of Thorne maintained, 1. That this judgment stands in the same situation as a common law judgment, and the court which renders a judgment cannot set it aside on motion, for error apparent upon the face of the record.</p> <p>2. That if there be error in entering up the judgment, the act of assembly cures the error and protects the judgment. Pat. 455, sec. 3. The words of this section completely cover this case.</p> <p>3. If the judgment be irregular, Schenck cannot take advantage of the irregularity. He is not a party or privy, nor injured by the judgment when it was rendered ; nor is it cast upon him by operation of the law; but he is a purchaser, with notice ; a stranger coming in voluntarily and must take cum onere. 2 Bac. tit. Error 195, 196> 198, 199. 2 Str. 1121. 9 John. 80. Ooxe 3. t</p> <p>4. That the judgment was not erroneous. After the assignment of a bond or sealed bill, an action may be maintained either in the name of the assignor or assignee, and judgment may be entered in the same way. Pat. 254, sec. 2. The language of this section leaves it optional with the party whose name to use. Before, he was obliged to sue in -the assignor’s name; by it he may sue in his own. 1 Com. Dig. 322, c. 5 John. 175. 10 Mod. 337. 11 Rep. 64.</p> <p>5. It was necessary, in the present case, to enter the judgment according to the authority which had been given. It could be *entered in no other way. The warrant is, to confess judgment on that bond, to Noble Reed, and not to his assigns. The bond is assignable, the warrant is not. The assignee is authorised to use the warrant to enter up his judgment, but it must be in Reed’s name, and for his own use. Of this Bainbridge could not complain, and Schenck has no higher rights.</p> <p>6. If the question were at all doubtful, the decision be in favour of Thorne. He has pursued his rights fairly, and has no remedy if this fail him. On the other hand, Schenck was negligent, even in ordinary precaution. The judgment was recorded regularly. This was legal and full notice to him, and all others. And this very record of the judgment, is a conclusive answer to all the charge of combination and fraud: a charge which Thorne is ready to meet upon the issue, which the court expressed a willingness to direct to be tried.</p>

ON DEMURRER. THE plaintiff’s declaration was in the usual form in case> f°r a legacy of 600 dollars. The defendants separated *'a Plea(Hng- -S* Stockton, one of them, pleaded, that he had fully administered all the assets which had come ^an an<^ judgment guando acciderint &c. was taken against him. The other defendant, W. Robinson, pleaded, 1. The general issue. 2.

<p>THIS cause had been several times noticed for trial at the circuit, and each time a jury struck, upon the motion of the defendant. Ewing for defendant, and M’Donald for plaintiff, now presented to the court, the question, ■whether the fees of the sheriff, for summoning these juries, should be paid by the plaintiff or the defendant ?</p>

ON CERTIORARI. THIS action was originally brought by Hall, before a justice of the peace, and judgment rendered in his favour. Curtis appealed to the Common Pleas of Hunterdon, where tpe judgment was affirmed, and the cause was removed . ° to this court by certiorari.

<p>Charge to jury.</p>

<p>ON CERTIORARI.</p>

ON CERTIORARI. UPON the return of this certiorari, Elmer for the plaintiff, on allegation of diminution applied for and obtained a rule on the justice to amend his return, by certifying whether the plaintiff below, on the trial did not offer to give in evidence, certain declarations and sayings of a person under whom the defendant below, claimed the goods in dispute, concerning the transfer and sale thereof; which declarations and sayings were not made in the presence or…

<p>Challenge lé11® array. (b)</p>

THE facts in this case are sufficiently detailed in the of the court. The motion was argued by Horn^ower an(^ Chetwood for the defendant, and Vanarsdale and R■ Stockton for the plaintiff. The counsel for defendant read the following cases. 6 Mass. 245. 4 Ball. 387. 2 Sir. 988, 990,1094. 2 Bl. Rep. 1113. 1 Bin. 77. 1 Coxe 142. For the plaintiff were read. ' 2 Bl. 238. 3 Mass. 228. Lilly's Abr. 381, 456. 2 Str. 864. 1 Mod. 8. 7 John. 539.“ 4 Jac. L. *B. 449. 1 Ld. Ray. 1010.

<p>Allocatur certiorari,</p>

on certiorari. THIS action was brought for a physician’s bill. The state of demand contained a regular account of items and their prices. At the trial the plaintiff below offered his book in evidence, which contained the articles without any price added or annexed thereto. To its admission, the defendant objected, but the objection was overruled, the book admitted, and no other or further proof of price or value given, or any admission made on the subject.

<p>Suit by adfo^breach^f 3f" (a)</p> <p>Action on bond with special condi^QtdeJer’ tered for the PenalY- (b)</p>

jn DOWER. A WRIT in dower was issued returnable to May 1817. From the return of the sheriff, accompanied by an affidavit, it appeared; that he had executed the writ, leaving a copy thereof with the wife of the tenant in possession of the premises ; that he had fastened a copy of the writ, upon the door of the house; and that the defendant, Thomas Hurst, lived out of the state of New-Jersey, in the city of Philadelphia.

<p>State of demand.</p> <p>Transcript of docket of deceased justice certified by county clerk, (a)</p> <p>Refunding bond. (b)</p> <p>General judgment against executor. (c)</p>

IN ERROR. THE declaration of the defendant in error, charges the plaintiff with entering his close, situate in the township of of Deptford, county of Gloucester, on the 22nd day August 1813, and taking and carrying away two and twenty cedar logs, and fifteen hundred cedar rails. ° , The defendant below pleaded not guilty. The cause was tried before the Court of Common Pleas of Gloucester at the term of March 1815.

<p>Demand of payment on bank note.</p> <p>Service of process on bank, (a)</p> <p>Jurisdiction of justices in cases of corporations. (b)</p>

<p>IN ERROR.</p> <p>THE declaration of the defendant in error, charges the ■plaintiff with entering his close, situate in the township of Deptford, county of Gloucester, on the third day of November 1814, and taking and carrying away 150 cedar logs and 1000 cedar rails.</p> <p>The defendant below, pleaded not guilty. The cause was tried at the term of March 1815. After the plaintiff below had closed his evidence, the defendant offered to prove that the logs and rails, for the taking of which the present suit was brought, were cut by the plaintiff on a certain tract of cedar swamp in the county of Gloucester, being part ot a tract called Squancum.</p> <p>2. That Savil Wilson and Job Brown were the owners of, and in the quiet and peaceable possession of that part of the said swamp where the said logs and rails were cut, when the plaintiff entered and cut them.</p> <p>3. That the plaiiítiff hauled the said logs and rails from the said swamp, to the place where they were taken by the defendant.</p> <p>4. That the place where the logs and rails were placed by the plaintiff and taken by the defendant, then was in the possession of the said Savil Wilson.</p> <p>5. That the defendant retook the said logs and rails in a quiet and peaceable manner.</p> <p>And to prove the said matters, the counsel for the defendant did offer in evidence a deed from John G. Morgan and others, bearing date August 5,1813, to Job Brown and Savil Wilson, *for the said part of the swamp, which was read, and did further offer to prove, by Job Brown, that he and Savil Wllsm- immediately took possession of tin- said swmup tun lor the said deed. Aim i,hereupon tne oonnsel for i he plaintiff did object to the said Job Brown being affirmed, and the court did refuse to permit the said Job Brown to be affirmed.</p> <p>The plaintiff, afterwards, in further support of the issue, offered Samuel Ladd to prove that the aforesaid Job Brmun had declared that he and the said Savil Wilson had agreed that the said Josiah Clark might cut off all the stuff in the lot of the aforesaid swamp, where the said logs and rails were cut, and to account to them if they got the swamp in controversy with the Jaggards. To which the counsel for the said Savil Wilson did object, and insist that the declaration of the said Job Brown ought not to be given in evidence in this cause, but the court did admit the same.</p> <p>The jury found a verdict for the plaintiff, for one hundred and twenty-four dollars, fifty cents damages.</p>

A SETTLEMENT of the accounts of the executors of John Ludlow, deceased, had been made in the Orphans’ Court of the county of Essex, and a decree of the court Passe(^ thereon. To remove this settlement into the Supreme Court, a certiorari was presented to the Chief Justice at his chambers, and allowed. On the return of the writ, a motion was made to quash it, because it was not allowed on motion at bar. The argument for the motion was sustained by Ewing and Ghetwood.

<p>AT the preceding term, upon proper application to the court, surveyors of the highways had been appointed to lay out a road in the counties of Middlesex and Burlington. They acted under the appointment, and made return to this term.</p>