Volume 6 — New Jersey Law Reports

IN TRESPASS. This was an action of trespass for breaking the close of the plaintiff, situated in Perth Amboy, and taking his oysters, &c. The cause came on to be tried at the Middlesex Circuit, before bis honor the Chief Justice and a special jury, at the December sessions, 1819. On the trial, the plaintiff' deduced title to the oystery— 1.

IN CASE. The nature of this case will fully appear from the opinions delivered. It came before this court upon a rule to shew cause why the verdict, which had been rendered for the plaintiff, should not be set aside.

<p>1. Under the act of November 2d, 1810, to tax bank stock, although tho capital of the bank may have been diminished by losses, yet the tax must be paid on the whole amount of the capital stock subscribed and’ paid in. Neither the Treasurer or the Supreme Court could look into the losses ol’ the bank and make proportional allowances upon the tax to be paid.</p> <p>2. But where the Legislature reduces the shares of the stock two-fifths, it is in effect declaring that the capital is reduced two-fifths, and the bank shall only pay tax on the remaining three-fifths.</p>

IN CASE. This was an action of assumpsit, tried before his honor Justice Rossell, at the Cumberland circuit. The declaration was for the value of one-half of the sloop called the Ann and Betsey, sold to the defendants for $920.

<p>If, after a jury has retired, they require further explanation from the Court, and the Court, after calling upon the counsel of the defendant to go with him, who refuses, and after seeking for the defendant, who cannot bo he found, goes into the jury room and gives them the explanation they require, this is not error.</p>

<p>ON CERTIORARI.</p>

IN ERROR. This case oame before the court on a writ of error from , the Common Pleas of Morris county. The following errors were assigned for the reversing the judgment of the Common Pleas: 1.

<p>1. For a contract made by the overseers of the poor for the maintenance' of a pauper, the inhabitants of the township are liable in their corporate capacity, and not the overseers.</p> <p>2. Although the demand of the plaintiff, if interest be calculated at seven per cent, would exceed $100, yet if he demands no more interest, than, with the principal, amounts to $100, the justice may try the cause.</p>

ON CERTIORARI. This case involved the same point which was determined in the preceding case of the Inhabitants of Saddle River v. Colfax, and Justices Rossell and Ford having determined in that case, that the action would not lie against the overseers of the poor, but ought to be brought against the inhabitants of the township, concurred in reversing this judgment.

<p>ON CERTIORARI.</p>

<p>A. contracts with B. in writing, to convey certain land to him the next Wednesday, when B. is to pay A. §295, and givé a note for §25 more, payable in four months. In an action by B. against A. for not making a deed for the land the state of demand must aver, that the §295 were tenderedby B-</p>

<p>1. Landlord not liable under the statute., (Rev. Laws, 146, sec. 1) for the act of his tenant, who by setting fire to his own woods consumes woods of his neighbors.</p> <p>2. Justice bound to charge the jury upon a point of law, when called upon so to do.</p>

<p>ON CERTIORARI.</p>

<p>If an action, wherein the title to land must come in question, be commenced in the Common Pleas and be removed by the defendant into the Supreme Court, the plaintiff shall recover full costs, although the judgment in his favor should be less than Sp200.</p>

<p>Ill an action against three, the return of the summons must shew on whom it was served, and on whom not; and such return cannot be dispensed with, unless all the defendants appear.</p>

<p>A defendant having been held to bail, and a judgment rendered against him in another state, cannot be held to bail in this state in an action on that judgment.</p>

<p>ON CERTIORARI.</p>

IN ERROR. This was an action on the case, brought in the Common Pleas of the county of Middlesex, by Hannah Perrine, (the widow of Peter Perrine, deceased) against his executors, to recover a legacy bequeathed to her by the will of said Peter Perrine, deceased, which bequest was in the following words : “ I give and bequeath unto my well beloved wife, Hannah Perrine, all the articles, goods and furniture that I received with her after our marriage, likewise the sum of three…

ON CERTIORARI. This was an action of trover and conversion, brought by Hankinson, the plaintiff below, to recover the value of a certain mare. Held: as constable, against the owner of the mare previous to her having been transferred to Wintermute. This claim was resisted by Winter-mute, upon the ground that Hankinson did not prove he had made any levy on the said mare within the time prescribed by law, or at any other time.

ON CERTIORARI. This was a certiorari to bring up to this court the proceedings on a return of delinquents, or persons liable to fines for neglect of military duty. The justice made a return to this certiorari in the following words: “ I do herewith send to the justices of the Supreme Court of judicature the tax warrant by me issued, as within I am commanded.

Parker was indicted for having a counterfeit note in his possession, with intent to pass; and, upon his trial before the Quarter Sessions of the county of Monmouth, the jury found him guilty. The defendant’s counsel moved for a new trial, upon the ground that the prosecutor for the state did not prove that Parker knew the note to be counterfeit, and the Court of Quarter Sessions granted a rule for -a new trial upon that ground.

<p>When a plaintiff moves for judgment upon a postea, which states that the defendant made default at the circuit, and this motion is opposed upon the ground, that notice of trial was not served, proof of due notice may be made, either at the circuit or at bar.</p>

<p>ON CERTIORARI.</p> <p>This action was commenced in the form of an action on, the case, and so styled in the justice’s docket. But the-state of demand complained against the defendant below, Joseph Chumar, “ for that he, on the 13th October, entered the leased premises of Thomas Bedle and Thomas Carhart,. in the township of Middletown and county of Monmouth, and at sundry times, from the said 13th day of October, 1820, until the commencement of this suit, took and carried away 24 cords of oak wood, the property of the plaintiff, to his damage,” &c. The defendant pleaded, that he was not guilty of the trespass charged, and for further plea, that the wood which the said plaintiff had charged him with was the property of the Rev. John Croes, by whose request and order the said Joseph Chumar acted. The jury found a verdict for Wood, the plaintiff below, for §54.</p> <p>Upon the return of the certiorari, a rule was taken upon the justice to certify certain facts. In his return to this rule, the justice certified — 1. That the plaintiff below, Wood, claimed title to 200 cords of wood, the property in dispute, under a bill of sale made by Peter Barber to him,. bearing date 1st July, 1820; that the bill of sale was proved to have been executed on the day it bore date; and that a sum of money was paid for the same, but does not remember that any delivery of said wood was proved to have been made to the plaintiff below. 2. That the defendant below - claimed the property in dispute under a bill of sale from Peter Barber to the Rev. John Croes, duly executed, for a lawful consideration, accompanied by a delivery of a part,, and bearing date the 10th July, 1820.</p> <p>After the execution of both these bills of sale, the wood was levied upon as the property of Peter Barber, and, by 'his direction, sold. Peter B. Wood was present at this sale, .and did not forbid it, but bought the wood at twenty-five .cents per cord.</p>

This cause was originally tried in the court for the trial of small causes, and judgment rendered for the appellees, upon the verdict of a jury. An appeal was then taken to the Common Pleas of the county of Essex, where the cause was again tried before another jury, and a verdict rendered in favor of the appellant.

This cause was noticed for trial at the last Hunterdon circuit. The plaintiff had obtained a rule for a struck jury ; this jury had been summoned, and attended. The defendant put off the cause upon affidavit of the. absence of a material witness.

OK CERTIORARI. This was a certiorari issued out ot the Supreme Court to bring up the proceedings of commissioners appointed by “ An act supplementary to an act passed on the twentieth day of January, eighteen hundred and eighteen, entitled an act to authorize Edmund William Kingsland, Jacob Van Winkle', and others, their heirs and assigns for ever, to erect and maintain a dam, sluices, and floodgates across Kingsland creek, and suck other water works as they may think…

<p>A writ of dower cannot be amended ’ey inserting a place of appearance, wbicii had been omitted.</p>

<p>ON CERTIORARI.</p> <p>This was an action of covenant in which a judgment had been given, upon the verdict of a jury, for William Pierson, the plaintiff below, against Robert H. Pierson.</p>

<p>Rule to plead must be served on defendant’s attorney, though he was in court when the rule was taken.</p>

<p>ON CERTIORARI.</p> <p>This was a certiorari to the Court of Quarter Sessions of the county of Hunterdon. The facts in this cause fully appear by the state of the case sent up to this court by the Quarter Sessions, in return to the certiorari, which is as follows.:</p> <p>“ John Carr and Jacob I. Young, esquires, two of the justices of the peace in and for the county of Hunterdon, made their order for the removal of Christian Brooks, and two children (the one a male, and the other a female, aged about one month and twenty-one days) from the township of Amwell to the township of Hopewell, which order of removal is hereto annexed ; under which order they were removed to the said township of Hopewell, from which the said overseers of the poor of the township of Hopewell appealed to the General Quarter Sessions of the Peace of the county of Hunterdon which appeal came on to be heard before the said court in the sessions of February, in the year of our Lord one thousand eight hundred and twenty; and it was thereupon testified by Mary Stackhouse, a witness produced on the part of Amwell, and sworn, that she is the mother of the said Christian Brooks, who will be twenty-two years old on the fourteenth day of the present month : that she served with Nehemiah Saxton, in Hopewell; that witness, having no husband at the time, herself bound said Christian to said Saxton, in August, eighteen hundred and ten, to serve until she should be eighteen years of age; that witness and said Christian, her daughter, executed an indenture to the said Saxton ; that there was only one indenture, which was kept by said Saxton ; that the said Christian remained with said Saxton until she wa.% fourteen years and six months old, under the indenture; that she was there three years and a half; that it was mentioned in the indenture that she was to serve six years and six months ; that said Saxton is not now living; that said Christian was to learn to do all kinds of work that a girl ought to do; that the indenture was drawn by Joab Saxton, son of said Nehemiah; that the binding of the girl was at the request of the said Nehemiah Saxton, with whom she had lived before she was bound. And being cross-examined on the part of Hopewell, the said Mary testified, that when, she says, she and her daughter executed the said indenture, she means that she and her daughter signed it; that witness lived at Eeadington at the time, and said Christian is a bastard. And being examined again, on the part of Amwell, she testified, that the said Joab Saxton was a witness to the said indenture; that she did not recollect who called on her to execute it; that she acknowledged it to be her hand and seal, and her daughter, the said Christian, did the same; that the said indenture was read over to them, and that she made a mark, but did not write her name. And it was further testified by the said Christian Brooks, a witness produced on the part of Amwell, and sworn, that she served with Hehem-iah Saxton, ■in Hopewell, for three years'after she was bound; that she was bound by her mother, and had lived there about five months before; that she, the witness, signed the indenture; that she does not recollect'to have, seen or signed more than one, which v?as left with the said Hehemiah Saxton; that, by the indenture, she was to serve until she was eighteen years of age; that the said indenture was read to them; that she left said Saxton before her time was out; that he sent her away, and she went to her mother’s, and has not been bound out since; and, being cross-examined by Hopewell, she said she made a cross, and could not read nor write at the time. And it was farther testified by Joab Saxton, a witness produced on the part of Amwell, and sworn, that he was called, bn to write an indenture between these people and his father, the said .Uehemiah Saxton, who is now dead; that the said indenture was delivered to his father, and is now lost; that said Christian was to serve until she became eighteen years of age, and did serve about three years, and had lived with his father some time before, and that his father lived in Hopewell. And, being cross-examined on the part of Hopewell, he testified, that he drew the writing in question, and there was but one; that he was present at the time it was signed, and was a subscribing witness; that there was no seal of wax or wafer to the said writing; that there was a scribble made with a pen; that there was no stipulation in the said -writing, that the said Christian should be taught any thing by his father; that he drew it from an old printed indenture, and left out all that part which relates to teaching any thing; that his father was to give her a quarter’s schooling and a freedom suit. And being again examined on the part of Amwell, he testified, that about seven years ago he had occasion to look at the said indenture, since which he had not seen it; that it was stated in it that she was to serve as an apprentice; and that he thought that the parties to it did not acknowledge their hands and seals; at the time, he did not know much of the manner in which writings should be drawn.”</p> <p>Upon the foregoing evidence, the cause was put to the Court of Quarter Sessions, and, after argument of the counsel of the parties, the said court did affirm the said order of removal, with costs ; whereupon the counsel on the part of the appellants did pray of the court a state of the case, and thereupon the foregoing state of the case is stated, signed and sealed.</p>

ON CERTIORARI. This was a certiorari directed to two justices of the peace of the county of Hunterdon, to bring up the judgment, order and proceedings before them had, upon the complaint of the overseers o.f the poor of the township of Washington, against the overseers of the poor of the township of Tewksbury, in the case of William Blaine, a pauper.

<p>This was an attachment by John A. Berry against James Callet, as an absconding debtor. At the last term of this court, a rule was taken on behalf of G-. Cassedy, Esq., one the judges of the Court of Common Pleas of the county of Bergen, to' shew cause on the first day of this term, why a mandamus should not issue commanding them to render judgment in this cause upon, and according to, the report of the creditors made to them therein. By the return of the Court of Common Pleas to this rule, it appeared that John A. Berry had regularly sued out an attachment against the rights, credits, moneys and effects of James Callet, an absconding debtor. By virtue of this attachment,..property to the amount of $2914 was attached; auditors were appointed in the usual manner, to audit and adjust the accounts of the plaintiff, and of such of the creditors of the absconding debtor as should apply to them for that purpose. On the 12th of January, 1822, the auditors reported to the Court of Common Pleas, that they “ found due from the said James Callet to the said John A. Berry the sum of $6656.25, and that they found due from the said James Callet to Stephen V. Boreland $350.87, and to IP. E. Haight $543.09. And they further reported, that they found nothing due from the said James Callet to the Mechanics’ Bank, J. Delateer, J. B. Maria, E. Millón, Gf. L. Therott, P. E. Ferevall, David Delapier, John L. and Gabriel F. Duflon, and that the said John A. Berry, Stephen Y. Boreland, B. and H. E. Haight, Mechanics’ Bank, J. Delatour, J. B. Maria, E. Millón, G. L. Therott, P. E. Ferevall, D. Delapier, John L. and G. Duflon, are the only creditors of James Callet, who applied to them to audit and adjust their demands.” Upon the coming in of this report, a rule was taken by Samuel Cassedy, Escp, attorney for the claiming creditors, “to shew cause why the report of auditors should not be set aside, and the claims of the Mechanics’ Bank, and John L. and Gabriel Duflon, David Delapier, Peter E. Ferevall, Gabriel Ij. Therott, Etienne Millón, John B. Maria, and of John Delatour be admitted, and that they take their dividend of the property attached, and that the parties interested have leave to take affidavits.” By virtue of this rule, affidavits were taken, by which it appeared that James Oallet, the absconding debtor, was indebted to the Mechanics’ Bank, John Ij. and G. Duflon, and the persons above named, in considerable sums of money. And, at the same term, a motion was made by George Cassedy, Esq., attorney for tho plaintiff in attachment, for judgment on the report of the said auditors, which motion the court denied, and refused to enter judgment on said report.</p> <p>It was in this stage of the cause that, the rule for a mandamus out of this court to the Common Pleas of Bergen, commanding them to enter judgment on the report of auditors, was taken.</p> <p>And now Halsey, in support of the motion for a mandamus, said, that the matter in controversy was between the attaching creditor and other pretended creditors; that, at the third term after the issuing of the attachment, he had applied for judgment on the report of auditors; but the pretended creditors, viz., the Mechanics’ Bank and others, obtained a rule to set aside the report. The question was, whether the Court of Common Pleas had a right to grant the rule, or whether they ought not to have permitted judgment to have been entered' on the auditor’s report? He contended, that the Court of Common Pleas had no discretion upon the subject, but were bound by the statute to enter judgment. Rev. Laws 315, or Pat. edition 298, see. 15. The words of the statute were, “ It shall be the duty of the auditors to ascertain the sum due to the plaintiff and each of the creditors, and to make their report Uiéreof in writing under their hands, which report shall be filed by the clerk, and shall, the third term, be made absolute, and judgment entered thereon.” The statute gave the court no authority to set the report of auditors aside, nor to refuse to enter judgment thereon when applied for, and, therefore, the mandamus ought to be granted.</p>

This was an action on the case, which had been brought by the plaintiffs, who were merchants residing in Philadelphia, against the defendants, for goods and merchandise sold.

<p>This cause had been removed from this court to the Court of Errors, and the judgment was there reversed, and the record ordered to be remitted.</p>

ON CERTIORARI. This was a certiorari to the Common Pleas of the county of Monmouth. The action was originally commenced before a justice of the peace, and the following are the facts upon which it was founded: John Norton, the defendant in certiorari, was the executor of Sarah Lee, deceased, who died in 1791, at which time Norton took upon himself the execution of the will.

<p>This cause came before the court on a writ of error directed to the Common Pleas of Gloucester county. Warwick, tho defendant in error, had prosecuted Cattel in an action of assumpsit for goods sold. Cattel plead the general issue, and -gave notice of offset. Upon the trial before the Common Pleas, a number of questions were raised, and bills of exceptions taken to the opinion of the court. But the question upon which the cause turned in the Supreme Court, and which, alone, it is thought necessary to notice, arose upon the following facts. After the plaintiff had rested his cause, Cattel, the defendant, “ to maintain and prove the issue on his part, offered two certain bonds, executed by Warwick, the plaintiff, to Cattel, the defendant, dated 15th February, 1816, one conditioned for the payment of $500, on or before the 25th March, 1817; the .other conditioned for the payment of $1100, on or before the 25th September, 1818; the execution of which bonds the plaintiff admitted. But to the admission of these bonds in evidence, the counsel for the plaintiff objected, and offered to shew to the court that the said two bonds, together with another bond for the sum of $700, payable on the 1st May, 1816, were given by the plaintiff to the defendant, for the consideration money, or price of a certain tavern-house and plantation, sold by the defendant, Cattel, to the plaintiff, Warwick; and that, to. secure the payment of the said several bonds, Warwick gave to Cattel a mortgage of the same date, on the said tavern-house and plantation; that in the term of October, 1816, Cattel entered up judgment on the first bond, for $700, by virtue of a -warrant thereto annexed; and that on the 9th day of November, 1816, he issued- out an execution of fieri facias de bonis et terris, by' virtue of which the sheriff levied on the equity of redemption of Warwick in .th'e mortgaged premises, and afterwards, oh the 4th August, 1817, sold all the estate of Warwick in the said mortgaged premises, subject to all legal incumbrances, for the sum of $798, and conveyed the said premises to Cattel by deed, executed according to law, and bearing date the 16 th of August, 1817, which said several facts, so offered in evidence on the part of the plaintiff, Warwick, were admitted by Cattel, the defendant; whereupon the counsel for the plaintiff insisted, that inasmuch as the defendant had entered judgment on one of the bonds mentioned in the mortgage, and sued out execution, and caused the equity of redemption of the plaintiff in the mortgaged premises to be levied on and sold, to satisfy part of the mortgage debt, and he himself became the purchaser thereof, subject to the said mortgage ; that the land became debtor to the money, and the said bonds or debts, as between the mortgagor and mortgagee, became extinguished, and, therefore, that the said several bonds, so offered in evidence, were not a subsisting debt due from the plaintiff to the defendant, and could not bo offset in this action; whereupon the counsel for the defendant insisted, that the said several bonds, so offered in evidence, were lawful evidence, and prayed that the same might be admitted as a lawful offset in the cause under his notice. But the court declared 'the said bonds inadmissible evidence, and overruled the same; and the counsel of the defendant took a bill of exceptions to this opinion of the court. The jury found a verdict for $242; and now the error assigned for the reversal of this judgment of the Common Pleas, was the rejection of these two bonds as evidence on the part of the defendant.</p>

<p>The facts of this case sufficiently appear in the opinions delivered.</p>

<p>OH CERTIORARI.</p> <p>This was an action commenced by Joseph Boylan against Joseph Hunt, a constable, for not returning an execution within thirty days, as is required by the 29th section of the “act for the trial of small causes,” Pdt. N. J. Laws 313. Upon the trial below, in order to prove the fact of the delivery of the execution to constable, the transcript of the docket of the justice, before whom the judgment had been obtained on which the said execution issued, was read in evidence. The transcript was dated on the 7th of August, 1820, and stated, “ that on the 3d of May, 1820, execution had been granted and delivered to Joseph Hunt, constable.” There was no mention made of the execution ever being returned.</p> <p>Upon this evidence, judgment was rendered against the constable, Hunt, for the amount of the debt, interest, and costs due upon the former judgment upon which the execution had thus issued.</p>

<p>ON CERTIORARI;</p>

ON CERTIORARI. This cause was originally commenced before a justice of the peace, and a judgment rendered in favor of Thompson, whereupon Sutton appealed to the Court of Common Pleas of the county of Sussex. At the third term, after the coming in of the appeal, a motion was made on behalf of Thompson, the appellee, to dismiss the appeal, because the transcript of the justice’s docket, sent up with the appeal, had no seal affixed thereto.

<p>This was an action of debt; plea, the general issue, with notice of set-off. It was brought before the court upon a case stated, in these words :</p> <p>On the 8th December, 1815, the plaintiff and defendant, together with David Gordon, entered into the agreement set forth in the plaintiff’s declaration, under their respective hands and seals, bearing date as aforesaid, which agreement witnesseth, that William Scott, for and in consideration of the just and full sum of five thousand one hundred and twenty-five dollars, current bank notes of the state of New Jersey and New York, of each an equal proportion, to be paid in manner following : that is to say, two thousand one hundred and twenty-five dollars on the first day of April, in the year eighteen hundred and sixteen; the remaining three thousand dollars to be paid in three equal annual payments; the first to commence on the first day of April, in the year eighteen hundred and seventeen, with interest on the whole, from the first day of April next ensuing; the interest on the whole to be paid annually. For the above consideration, the said William Scott hath granted, bargained and sold, and by these presents doth absolutely grant, bargain and sell all them two lots of land situate, lying, and being in Middletown Point, with all the improvements thereon, eighteen or nineteen acres, together with all the property contained in an inventory dated April 1, 1815, amounting to one hundred and seventy-five dollars and fifty-nine cents. It is further agreed between the parties, that upon the said Garret II. Conover and David Gordon paying the above payments, and securing the payment of the remainder by mortgaging the premises; the said William Scott to give a good and sufficient title for the aforesaid lots of land, and deliver the property mentioned in this agreement to the said Garret H. Conover and David Gordon, on the first day of April ensuing. For the true performance of all and singular the above agreement, the parties bind themselves to each other in the sum of one thousand dollars.</p> <p>At the time of the execution of the said agreement, Garret H. Conover paid to the plaintiff ten dollars, part of the purchase money therein mentioned; and on the first day of April, 1816, entered into the possession of the premises therein mentioned, with the said David Gordon; and the said Garret and David held and enjoyed the same, until the death of the said'David Gordon, since the commencement of this suit, and the said Garret still continues in the possession thereof (except as hereafter excepted).</p> <p>The plaintiff, on the 1st of April, 1816, delivered to the defendants, Garret and David; possession of the property contained in an inventory dated April 1, 1816, amounting to $175.59, pursuant to the article of agreement, and took a. receipt therefor.</p> <p>The defendants, Gordon and Conover, did not pay the sum of $2,125 to the plaintiff on the 1st of April, 1816, pursuant to the said agreement, but did pay to the plaintiff, in part payment thereof, and which was accepted by the plaintiff as part payment thereof, the following sums at the times herein mentioned, viz.:</p> <p>The before mentioned sum of ten dollars on December 8, 1815....................................... $10 10</p> <p>April 8, 1816............................................. 732 50</p> <p>— 22, 1816............................................ 780 00</p> <p>May 14, 1816............................................ 100 00</p> <p>July 10,1816............................................. 220 00</p> <p>November 8, 1816....................................... 80 00</p> <p>September 4,1817....................................... 25 00</p> <p>December 6, 1817....................................... 10 00</p> <p>August 15, 1818.......................................... 63 00</p> <p>September 30,1818..................................... 48 25</p> <p>April 21, 1819........................................... 4 14</p> <p>$2,073 14</p> <p>On the 1st April, 1816, the defendants did not tender to the plaintiff a mortgage on the premises, to secure the payment of the residue of the money mentioned in the agreement, nor did they, or either of them, make any payments thereon other than those specified, nor have they, or either of them, since offered to execute any mortgage on the premises.</p> <p>The plaintiff did not, on the 1st April, 1816, execute any deed to the defendants, conveying to them the premises in fee, nor did he offer to executo or deliver a deed to them, nor was he required so to do, but on the 4th May, 1818, did sign, seal, and acknowledge, in due form of law, a deed for the promises, with full covenants of seizin and warrantee, which said deed he did afterwards, on the same day, tender to the defendants, and request them to pay the sum remaining due on the first payment in the said articles of agreement mentioned, and to mortgage the premises to him to secure the remainder, in performance of the said agreement, which they refused to do.</p> <p>Previous to the said agreement, to wit, on the 27th March, 1807, Zachariah Clevenger, being owner of the premises, did, together with his wife Elsey, mortgage the said premses, amongst others, to Lewis Abrams and Lewis Gordon, to secure the payment of three thousand dollars, which mortgage was duly acknowledged and recorded pursuant to law, which mortgage, together with the securities for the moneys due thereon, were on the 5th of April, 1817, assigned to William Scott, the plaintiff, and the plaintiff hath kept said mortgage on foot ever since, to protect his title.</p> <p>At' the time of the execution of the said articles of agreement, one Matthew Roberts was in possession of three acres-of lot No. 2, in said articles mentioned, holding and claiming title under a deed executed to him by the said Zachariah Clevenger, then being the owner of the equity of redemption thereof, subject to said mortgage and execution, after said mortgage, to wit, on the 13th April, 1808, and con-tinned in possession thereof until the 15th February, 1819, when the plaintiff recovered possession thereof, by virtue of a writ of habere faeias possessionem, issued on a judgment in ejectment founded on the said mortgage, and the said plaintiff has continued in possession of the said lot ever since, but is willing and ready to, deliver the possession thereof to the defendants when they comply with the said contract.</p> <p>It is agreed between the parties, that if the Supreme Court should be of opinion that the plaintiff is entitled to recover in this suit, the whole of the balance of the purchase money, then judgment is to be entered for the plaintiff. And if the court should be of opinion that any deduction is to be made on account of the Roberts lot, or for the rent thereof, then that the sum of --, the value thereof, be deducted, or the interest of the said sum as- rents, as the case may be. And .it is further agreed, that in case the said court should be of opinion that the plaintiff is not entitled to recover, as aforesaid, then judgment to be entered for the defendant, with the costs. And it is further agreed, that either party may turn this case into a special verdict, and bring a writ of error within one term after the entry of the judgment.</p>

<p>1. Where there has been a rule for a struck jury, and, upon the striking before the judge, the sheriff’s book is objected to as incomplete, and the objection overruled, the incompleteness of the book is no ground of challenge to the array upon the trial, unless in cases of imposition or fraud, the decision of the judge who strack the jury is conclusive.</p> <p>2. Two sheriffs cannot, by law, advertise and sell, and convey the property of defendants jointly.</p> <p>Query. Whether their joint deed is absolutely void.</p>

<p>It is necessary that it should appear upon the transcript of the justice’s docket, that the affidavit required by the sixth section of the supplement to small cause act, passed November 23, 1821, was made and filed with the justice at the time of filing the appeal bond.</p>

This was an action of trespass on the case, brought by Gibbons against Livingstone, under the statute passed 25th of Eebruary, 1820, (Rev. Laws 689) entitled “A further supplement to the act entitled an act to preserve and support the jurisdiction of this state,” to recover damages for restraining and enjoining him, under an order of the Court of Chancery of New York, from navigating with his steamboat, the waters on the bay of New York or in the Hudson river, between Staten…

<p>This was an action of trespass on the case, brought by 'Thomas Gibbons against Aaron Ogden, upon the statute of the 25th of February, 1820, (Rev. Laws 689) to recover •damages because the said Thomas Gibbons had been restrained and enjoined from navigating, with his steamboat the waters between the ancient shores of New York .and New Jersey, by an injunction issued out of the Oourt of Chancery of the state of New York, in a suit wherein the said Aaron Ogden was complainant, and Thomas Gibbons defendant. The first count in the declaration was as follows : “ Thomas Gibbons complains of Aaron Ogden for, that heretofore, to wit, on the twenty-first day of October, in the year of our Lord one thousand eight hundred and eighteen, at a Court of Chancery holden for the state of New York, at the city of Albany, to wit, at Newark, in the said county of Essex, a certain rule and order,* by the said Court of Chancery, in a suit wherein the said Aaron Ogden was complainant, and the said Thomas Gibbons was defend.ant, was made at the instance of the said Aaron Ogden, whereby if was then and there ordered, that a writ or writs ■of injunction issue out of and under the seal of the said ■court, to be directed to the said Thomas Gibbons, and to .all and every his confederates, agents, captains, pilots, ■engineers, mariners and servants, commanding them and ■every of them, under a certain penalty to be therein •expressed, absolutely to desist from using, employing and .navigating the two steamboats in the said bill of the said .Aaron Ogden particularly mentioned, the one named the ■Stoudinger, but usally called the Mouse, the other named the Bellona, or either of them, or any other steamboat or steamboats purchased or built by the said Thomas Gibbons, on the waters of the state of New York lying between Elizabethtown, in the state of New Jersey; or any place within the township of Elizabethtown aforesaid and the city of New York, which said waters comprise, in part, the bay of New York, and lie between the ancient shores of the state of New York and the state of New Jersey, until the said Thomas Gibbons should have fully answered the bill of the said Aaron Ogden, and until the further order of the said court in the premises. And the said Thomas avers, that the said order was then and there made by the said Court of Chancery of the state of New York, by virtue of divers acts of the legislature of the said state of 'New York, to wit, an act entitled “An act repealing an act entitled an act for granting and securing to John Fitch the sole right and advantage of making and employing the steamboat by him lately invented, and for other purposesan act entitled, “An act relative to a steamboat;” an act entitled, “ An act to revive an act entitled an act relative to a steamboat;” an act entitled, “An act for the further encouragement of steamboats on the waters of this state, and for other purposes;” an act entitled, “An act for the more effectual enforcement of the provisions contained in an act entitled an act for the further encouragement of steamboats on the waters 'of this state, and for other purposes,” which said acts are mentioned and referred to in the bill of complaint exhibited by the said Aaron Ogden, as complainant in the said suit in chancery. And the said Thomas further saith, that he, the said Thomas, on the said twenty-first day of October, in the year eighteen hundred and eighteen, and for a long time before, and from thence hitherto continually has been, and still is, a citizen of the state of New Jersey, to wit, at Newark, aforesaid, and that during all the time aforesaid he, the said Thomas, had been,-and' still is, the sole owner of a certain steamboat, called the Bellona, mentioned in said order, and moving with steam, and fire, to wit, at Newark aforesaid; and that the said steamboat during all the time aforesaid, continually has been, and still is, a vessel above twenty tons burthen, duly enrolled at the port of Perth Amboy, in the state of New Jersey, in manner and form in such case required by the laws of the United States, and duly licensed to be employed in carrying on the coasting trade, according to the laws of the United States, in such case made and provided, to wit, at Newark aforesaid. And the said Thomas further saith, that afterwards, to wit, on the twenty-fourth day of October, in the year eighteen hundred and eighteen, the said Aaron Ogden, pursuant to, and under, and by virtue of, the said acts of the legislature of the state of New York, to wit, at-Newark aforesaid, caused and procured to be sued and prosecuted out of the said Court of Chancery of the state of New York, a certain writ of injunction under the seal of the said-court, and bearing date on the said twenty-fourth day of October, in the year eighteen hundred and eighteen, directed to the said Thomas Gibbons and his confederates, captains, pilots,- engineers, mariners, servants, counsellors, attorneys, solicitors, and agents, and each and every of them, by which said writ the said Thomas Gibbons and his confederates, captains, pilots, -engineers, mariners, servants, counsellors, attorneys, solicitors, and agents, and each and every of them, under the penalty of ten thousand dollars, to be levied on their and every of their lands, goods, and chattels, were enjoined and commanded absolutely to desist and refrain from using, employing, and navigating the two steamboats in the bill of the said Aaron Ogden particularly mentioned, the one named the Stoudinger, but usually called the. Mouse, and the other named the Bellona, or either of them, or any other steamboat purchased or built by the said Thomas Gibbons, on the waters, of the state of New York, lying between Elizabethtown, in the state of New Jersey, and any place within .the township. of Elizabethtown aforesaid and the city of New York, until the said Thomas Gibbons should have fully answered the bill of the said Aaron Ogden, and until the further order of the said Court of Chancery to the contrary. And the said Thomas further saith,- that afterwards, to wit, on the sixth day of October, in the year eighteen hundred and nineteen, at the said Court of Chancery, holder, for the said state of New York, at the city of Albany, to wit, at Newark aforesaid, a certain other rule and order by the said court in the said suit was made, whereby it was then and there further ordered, that the said injunction, which had theretofore issued in said cause, should be confined in its operation to the whole of the waters in the bay of New York, on the passage or route between the city of New York and Elizabethtown Point, or Elizabethtown, or any part thereof, and that it should be understood not to apply to the waters of the Sound that lie between Staten Island and the state of New Jersey, so long as the boat or boats of the said Thomas Gibbous, the defendant, should not. enter the bay of New York. And the said Thomas further saith, that afterwards, and on the second day of April, in the year eigthteen hundred and twenty, and from thence continually, until the time of commencing this suit, and during all the intervening time between the said second day of April, in the year eighteen hundred and twenty, and the said time of commencing this suit, to wit, at Newark aforesaid, the said Aaron Ogden, under and by virtue of the said orders and the said writ of injunction, sued out and prosecuted by virtue of the said acts •of the legislature of the state of New York, in the said suit in the Court of Chancery of the state of New York, wherein he, the said Aaron Ogden, was complainant, caused the said Thomas Gibbons to be restrained and enjoined from navigating, with his said steamboat, the Rellona," moved with steam .and fire as aforesaid, the waters of the bay of New York, on the passage or route between the city of New York .and Elizabethtown Point, or Elizabethtown, or any part thereof, which said waters lie between the ancient shores of the state of New York and the state of New Jersey, contrary to the form of the act of the legislature of the state of New Jersey, in such case made and provided, and thereby he, the said Aaron Ogden, hindered and prevented the said Thomas Gibbons from navigating with his said steamboat, the Bellon’a, the said waters in the bay of New York, on the passage or route between the city of New York and Elizabethtown Point, or Elizabethtown, or any part thereof, which said waters lie between the ancient shores of the state of New Jersey and the state of New York, during all the time aforesaid. And the said Thomas further saith, that before the said second day of April, in the year eighteen hundred and twenty, to wit, on the twentieth day of October, in the year eighteen hundred and eighteen, at Newark aforesaid, he, the said Thomas, at great expense, procured agents, laborers, mariners and servants, to navigate and run ' his said steamboat, the Bellona, from and to a place in the township of Elizabethtown aforesaid, in the state of New Jersey, called Halsted’s Point, to and from the port of the city of New York, in the state of New York, through and over the waters on the bay of New York, on the passage or route between the city of New York and Elizabethtown aforesaid, lying between the ancient shores of the state of New Jersey and the state of New York, as aforesaid, in running and navigating to and from the said ports or places respectively, for the carrying and transportation of freight and passengers, and then and there had fitted out and equipped his said steamboat with all necessary engines, tackle, apparel and furniture, for plying and running between, and to, and from, the said ports or places respectively, and through and over the waters on the bay of New York, and on the- passage or route aforesaid, and lying-between the ancient shores of the state of New Jersey and the state of-New York,, as aforesaid, and during all the time aforesaid, between the said second day of April, in the year-eighteen hundred and twenty, and the Raid time of commencing this suit, he, the said Thomas, kept and retained the said agents, laborers, mariners and servants, for the purpose aforesaid, and kept and continued his said steamboat, fitted out. and equipped as aforesaid, and for the purpose aforesaid, to wit, at Newark aforesaid, and by means of the restraining and enjoining aforesaid, by the said Aaron Ogden, during the time aforesaid, of the said Thomas from navigating, with his said steamboat, the waters above mentioned, he, the said Thomas, during all that time, lost and was deprived of the use of his said steamboat, and thereby the said steamboat became greatly spoiled and lessened in value, and the said Thomas was put and subjected to groat damages, expenses and charges in paying off the said agents, laborers, mariners and servants, for their hire and wages which accrued during all the time aforesaid, betw'eeu the said second day of April, in the year eighteen hundred and twenty, and the said time of commencing this suit, and in repairing the said steamboat, her engine, tackle, apparel and furniture, during the time aforesaid, amounting, in the whole, to a largo sum of money, to wit, the sum of five thousand dollars, to wit, at Newark aforesaid.</p> <p>The second count in the declaration was precisely the same as the first, only it averred the order of the Court of Chancery for an injunction, issued “ under color of divers acts of the legislature of New York,” instead of by “virtue of several acts of the legislature of New York.”</p> <p>To this declaration, the defendant demurred specially, and assigned for cause a variety of reasons, which are fully stated in the argument of the opening counsel.</p>

This was a writ of error to the Common Pleas of the county of Morris, brought to reverse a judgment which had. been entered'in that court, under the act “directing the mode of entering judgments upon bonds, with warrants of attorney, to confess judgments,” passed the 9th March, 1798. Pat. N. J. L. 454.

<p>Where the Sessions have made a return to a certiorari which was adjudged incomplete, and another return made, the court will not refer to the first in order to settle any ambiguity in the second; but a rule may be taken upon the Sessions to amend their second return.</p>

Fisler in this case, being called upon to answer interrogatories upon an attachment for contempt, a question arose whether he should make his answers ore tenus or in writing.

<p>Greenway brought an action of debt against Dare, in the Inferior Court of Common Pleas, for Cape May county. The defendant pleaded payment, and under the act of assembly, authorizing offsets, (Allison, 66,) had brought forward his account against the plaintiff, and a balance appearing in his favor, a verdict was found for him, and the jury certified the amount as due him. Under the act of assembly a scire facias was brought in the same court for the recovery of this sum, and upon two nihils being returned, judgment was entered by default.</p> <p>A writ of error was sued out by Green way,-to remove the plaint and proceedings in the suit “ wherein Greenway was plaintiff, and Dare defendant.” On the return to this writ, the record in both cases was certified, as well the proceedings in the first action as on Dare’s scire facias. Errors had been assigned on both judgments, and in nullo est erratum was pleaded.</p>

This was an action of debt, brought on a bond dated the ' ■23d day of January, 1793, in the penalty of £1000, conditioned for the performance of an award. Saltar alone was taken. The defendant, after oyer, pleaded that no award was made.

<p>This was an action of trespass vi et armis, assault and battery, and wounding of the plaintiff. The venue was laid in the county of Burlington. The defendant had pleaded not guilty, and the cause was now at issue.</p>

This was an action on the case, for debauching the plaintiff’s daughter.

<p>After an interlocutory judgment by default, in an action for assault and battery, the court have the power, in case of difficulty, or when special circumstances are laid before them, to direct a special jury to be summoned in order to assess the damages, and the inquiry to be held before a judge at Nisi Prius; but the mere eircamsUmce of the battery having been very severe, is not sufficient to take the case out of the ordinary course.</p>

An indictment had been found against the prisoner at the Hunterdon assizes, in February term last, which had been removed into this court by the Attorney General by certiorari. The prisoner being arraigned, tendered in propria persona, the following plea in writing.

<p>This cause had been marked for trial at the Hunterdon Nisi Prius, in October, one thousand seven hundred and ninety-six, by the plaintiff, and regular notice had been served on the attorney of the defendants. Neither of the parties defendant, however, attended the court,- and when the cause was called on for trial, Leake, for the defendants, applied for a postponement, upon the affidavit of one Joseph Ireland, who swore that Gardner, one of the defendants, was sick in Philadelphia at the time; that one James M’Oorkle, was a material witness for the defendants; that he had sailed for the East Indies, in the month of June preceding, and before the cause was at issue, but was expected to return, &c. Notwithstanding this affidavit, however, the court ordered on the trial, and no further opposition being made by the defendants, a verdict passed for the plaintiff for £800. A rule had been obtained upon the plaintiff, to skew cause why a new trial should not be granted, and in support of the rule, Leake, for the defendants, produced the deposition of Olden and Gardner, themselves, from which it appeared, that there had formerly existed a partnership between the two defendants,. which was now dissolved, and that Gardner was the real defendant, who was alone entrusted in the cause. That the attorney for them on the record, was unable to attend at the trial, and in consequence of the short notice of trial, which though regularly transmitted by the plaintiff’s counsel, did not reach the defendants until three or four days before the trial came on, and the sickness of both of them, one at Princeton and the other at Philadelphia, the counsel who appeared for them at the Nisi Prius, was not retained until two days before the trial came on. JNeither of the defendants knew of the incapacity of the other to attend.</p> <p>In addition to these circumstances, it was further stated, that a rule was taken in September term, upon the defendants, for a plea to the action, and that the cause was only then put at issue, 'and there was no expectation that it would come on for trial at so early a period. That M’Oorkle, the witness, whose absence was stated as a ground for postponing the trial, was a clerk in the counting house of the defendants, at the time the transaction occurred, upon which the suit was brought, and was intimately acquainted with all its circumstances. That he had gone to sea in the month of June last, before the cause was at issue, and before there was any expectation that the trial would be brought on during his absence; and that his return was confidently expected in January next. That there was a real and substantial defence to the action, and that the defendants, without any negligence or want of exertion on their part, had beon taken by surprise, and a verdict had passed against them for a large sum, without their having an opportunity of making a defence.</p>

ON CERTIORARI. This was an action of trespass, brought by 'Bergen against Clarkson, before the justice to which the original defendant had pleaded a special justification.

<p>ON CERTIORARI.</p> <p>This action was brought against Boss and wife, on a contract made by the wife before- marriage. Among other testimony which went to the jury, it was proved, that the wife, subsequent to her marriage, had acknowledged the debt, or a part of it.</p>

This tvas an- action of ejectment brought to recover certain lands situated in the county of Essex. The lessor of the plaintiff clainled title, as a purchaser at a sheriff’s sale; and the defendant rested the defence to the action upon a right to dower in the premises in the widow of the former proprietor, tho person last seized. The cause had been argued at the last November term, and now—

<p>IN ERROR.</p> <p>Crea, the defendant in error, brought an action against Budd in the court below, for breach of a promise of marriage. In mitigation of damages, and to shew the ground upon which he had failed to comply with the engagement on his part, Budd offered to prove, that, after the contract was made, Crea had been guilty of the most lewd and improper conduct, in offering to go to bed with one Cook, undressing herself before him, and other wanton and indecent behavior. The evidence being objected to by the counsel for the plaintiff, was overruled by the court: to their opinion exceptions were taken, and the cause removed by writ of error.</p>

This was a habeas corpus, which had issued to bring up the body of Rose, an Indian woman,-claimed by the defendant as a slave. Brown, whose affidavit was read, swore that he knew the .mother of Rose, who was an Indian woman, and lived with one Yangeson. Yangeson, never within his knowledge, claimed her as a slave, but called her a North Caroling squaw.

IN ERROR. The plaintiffs, in error, had commenced this action in the court below. The suit was brought to recover a book debt, and by the account presented and proved, it appeared that the items charged were for medicines and attendance as a physician, some of which, however, at the time of the death of the intestate, were of more than six years’ standing.

This was an action of trover, which had been commenced in the Common Pleas of Salem county : to which defendant pleaded non cul. A habeas corpus had been offered by the defendant, and allowed by the court 'on the 10th of March last; and the causes being accordingly removed into this court, a motion was now made by Leake, for the plaintiff, for a procedendo.

<p>Til an action for the breach of a promise of marriage, the declarations of the plaintiff, that she had promised to marry the defendant, made long before the suit brought, are good evidence for the plaintiff to shew the mutuality of the contract.</p>

OH CERTIORARI. This cause had been referred to arbitrators, and the judgment of the justice entered upon their award. The objections now urged on behalf of the plaintiff in certiorari wore • — 1. That the plaintiff below was admitted to give testimony in bis own cause. 2. That the referees decided upon his testimony alone. 3. That two of the arbitrators were of opinion with the defendant below, but signed the award under a mistake. 4.

<p>It is not necessary that there should be a trial of a cause, in order to •entitle a party to a bill of exceptions; it may lie taken to the opinion of the court, on the sufficiency of objections to an award.</p> <p>The court are not bound to receive reasons filed, or affidavits taken at so late a period that they could not be answered, and the witnesses could not bo cross-examined, unless reasons for the delay are shown.</p> <p>Under the act of December, one thousand seven hundred and ninety-four, it ought to appear upon the l'aco of the proceedings, that the referees wore duly sworn.</p> <p>The act does not. make void every award of arbitrators, who were not duly sworn ; it may he waived by the parties.</p> <p>It does not extend to cases which had been referred previously to its passing.</p>

<p>Unliquidated damages cannot be set off, although they might be recovered in indebitatus asswmút.</p>

<p>OR CERTIORARI.</p> <p>This was an inquisition of forcible entry and detainer, found before Justice Combs, of Middlesex county.</p> <p>The inquisition charged, that Samuel Vantine was lawfully and peaceably seized and in possession of the premises, in the township of South Brunswick, in the-county of Middlesex, and his seizin and possession continued until April 1, 1793, when William Covenhoven, with strong hand, &c., entered, expelled, disseized and keeps out, &c.</p> <p>The defendant comes in his own proper person, and defends, &c., protesting, that the inquisition is insufficient, and protesting, that neither the said Samuel Vantine, nor any under him, has been in possession of the premises at any time within three years next before, &c., nevertheless pleads — 1. As to the coming with force and arms, &o., not guilty> 2. As to the residue of the entry, that from-till --(being a period of eight years) those under whom defendant claims, had been in quiet possession and seizin of the premises; without this, that the said William Oovenhoven, at the time charged, did enter with force and arms, and disseize and expel, &c., and this he is ready to verify; •wherefore he prays j udgmeut, &c.</p> <p>To this plea the state demurred specially, and assigned for causes of demurrer, that it was insufficient, double, insensible, and argumentative, and that the traverse was immaterial, and that no proper issue could thereon be taken.</p> <p>The defendant joined in demurrer.</p>

ON CERTIORARI. Certiorari to the justices of Sessions of Gloucester, to remove an order of two justices, adjudging the settlement of Rebecca Adams, in Gloucestertown, from which Gloucestertown appealed, and the sessions, on hearing, quashed the order of the two justices.

<p>Wlien statute of limitations pleaded, leave given to add a count stating a promise by administrator.</p>

Several questions were involved in this case, hut they were generally questions of fact. The court, however, in their opinion, laid down the following rule in the calculation of interest.

ON CERTIORARI. It appeared, that by an act of assembly, passed 2d of June, 1790, the managers of certain meadows, in the county of Gloucester, called Newton meadows, were authorized to make a suggestion to the Court of Common Pleas, who were empowered to appoint three or more referees to settle the differences, &c., who after hearing the allegations, proofs, &c., were to make an award which should be made a judgment of the said court, and be final between the managers and…

<p>An action will not lie to recover back an unreasonable amount of costs which had been taxed and paid ; the proper remedy is by retaxation.</p>

<p>The court will not undertake to determine the question of priority between’ two executions, on the application of one of the parties interested.</p>

<p>In this case referees had been appointed, who made report to November term, 1797.</p>

<p>In an action of trespass, if plaintiff recovers less than £50 damages, he shall not recover costs.</p> <p>The rule is the same, whether the damages are assessed by a juiy on the trial or on a writ of inquiry.</p>

This was a rule to shew cause why defendant should not be discharged on filing common bail. About the 26th of August, 1797, the defendant, one of the justices of the Supreme Court of the United States, was arrested on a common capias ad respondendum, out of the Inferior Court of Common Pleas, for the county-of Burlington, and held to bail in ^3000.

<p>A covenant, that a bond shall not bo prosecuted until the happening of a certain event, cannot be pleaded in bar to an action on the bond brought before the time, but a special action may be brought and damages recovered for the breach of the covenant.</p>

IN EJECTMENT. The attorney for the plaintiff had signed judgment by default, in November term last, against the casual ejector, and issued a habere facias possessionem, in the vacation, which was executed.

<p>It- is no answer to a plea of the statute of limitations, that the defendant has been discharged under an insolvent law.</p>

This was an action of debt, to Recover the amount of a legacy, which had been bequeathed to the plaintiff, by the testator of the defendant.

This was a rule to shew cause why a new trial should not be had, on the ground that defendant had discovered new and Important evidence since the trial. The case had been tried at Nisi JPrius, in Gloucester county, in June, 1796, before Kinsey, C. J. and Chetwood, J. It was an action of indebitatus assumpsit, and the declaration contained seven counts. 1. Indeb. ass. for goods sold and delivered. 2. Quantum meruit for the same. 3.

This was a motion to set asido a non-suit, and grant a new trial. An action of ejectment had been brought upon a deed of mortgage, dated June 1, 1776, to secure a debt of £200, but the mortgage was not recorded until January 4, 1796. After the execution of the mortgage to Cavalier Jouet, the mortgagee joined the armies of the enemy, and judgment was had against him for treason in January term, 1779, whereby all his property became forfeited to the state of of New Jersey.

This was an ejectment for lands in the county of Essex. At the trial of the cause at the Nisi Prius in April, 1798, before Kirkpatrick and BoudÁnot, justices, it appeared, that the plaintiff claimed under a deed from Eobert Little to his daughter Phcebe Lockyer, for her life remainder in fee to her three children. This deed was dated January 14, 1761.

This was an action of debt on a bond. The defendants had bound themselves under a penalty, to pay the sum of £391 5s. in good merchantable leather, at Albany, on the 15th October, 1796 : the price of the sole leather was to be 2s. Qd. and the upper leather at 4s. Id., three pounds of the former were to be furnished for one pound of the other. ■ The defendants pleaded — -1. Non est faetum. 2.

<p>The interest of the mortgagee is personal estate, and passes under a conveyance of personal property ; but the assignee claiming under the transfer, by the legislature, of the personal estate of the mortgagee, which had been confiscated for treason, may bring ejectment on the mortgage.</p> <p>Query. In whose name must the action be brought?</p>

<p>The defendant in ejectment will not be compelled to enter security for costs, on the ground that he had removed out of the state after entering into the common rule.</p>

<p>The mortgagee may be1' admitted to defend in an action of ejectment, unless the lessor of the plaintiff will discharge the mortgage.</p>