Volume 7 — New Jersey Law Reports

<p>IN ERROR.</p> <p>This was an action of assumpsit, commenced in the Common Pleas of Morris county. On the return of the writ, and before any pleadings had been filed by the parties, a rule of reference was entered into by consent, and all matters in difference referred to the final end and determination of three referees. The referees reported to the Court of Common Pleas, that there was due from the defendant (Samuel .Stephens) to the plaintiffs (John Bacon and Hannah, his wife) the sum of $-. A rule to shew cause 'why the report of the referees should not be set aside, was then obtained by Stephens, the defendant; and a statement of the case was agreed upon by the attorneys of the respective parties. The Court of Common Pleas, after argument, dismissed the rule to shew cause, and ordered judgment final on the report. The defendant, Stephens, then brought his writ of error, returnable to this court, -in the term of May, 1820; and the statement of the case, brought up with the writ of error, and agreed on by the counsel, was as follows :</p> <p>* The plaintiffs below (Bacon and wife, in support of their claim before the referees,) proved, “ That Hannah Bacon, one of the plaintiffs, was the daughter of Robert Culver, late of Morris county, deceased. That the decedent had in his hands, previous to his death, a large sum of money, which he said was for the plaintiffs, who lived in Canada; and that he managed the same for them. That a part of this money was put out by said decedent, RobertCulver,, to one Joseph Culver, who gave his note for the same to the said Robert. That the decedent had told the said Joseph, at the time, that the money must be paid whenever the plaintiffs came for it. It was further proved, that the said Robert Culver left a will, which was regularly proved by Martha Culver, his widow, who was appointed the sole executrix; and to whom the whole of the personal property of said testator was bequeathed, during her life or widowhood. That the executrix afterwards brought a suit against said Joseph Culver, for the recovery of the money due on the said note. That the said Samuel Stephens, the defendant, received the said money to his own use, by giving up to said Joseph Culver the said note, so sued on as aforesaid, on his (the said Joseph’s) paying off a certain debt of the said defendant, to the same amount or thereabout. The plaintiffs proved a demand on the defendant, before suit brought, for this and other money, which they alleged to be due to them from defendant.</p> <p>“ The defendant proved, that the executrix was an aged woman, incapable of transacting the business of the estate; and that she had appointed him, the defendant, her agent and attorney in fact, to manage her business, as executrix aforesaid; and produced before the referees a regular letter of attorney, proving the appointment; which was previous to the receipt of the said money, by the said defendant, from, the said Joseph Culver. It appeared, that the defendant was son-in-law of the executrix, and that they resided in the same house.</p> <p>“ If the court have power, by law, to examine into the report, with reference to the facts, as here stated; and should be of opinion that the evidence was properly received by the referees, and that an action can legally be maintained by the plaintiffs against the defendants, under the evidence aforesaid, then the report is to be confirmed, and judgment entered thereon, with costs. If the court should be of a different opinion, then the said * report is to be set aside, and for nothing holden; and costs to be paid by the plaintiffs to the defendant, to be taxed, in either case, according to law.”</p>

The order of removal of the justices and of the Court of Quarter Sessions, were quashed by this court at the last term. (See 1 Hals. 169.) The attorney for Hopewell made out his bill of costs, and inserted therein the same charges for attorney’s fees in the Sessions and in the Supreme Court, as are allowed, in all civil cases, by the statute regulating fees, {Bem.

IN EJECTMENT. This was an action of ejectment, and came before the court upon a rule to shew cause why the non-suit which had been granted by the judge, at the circuit, should not be set aside and a new trial granted. It was argued in the term of February, and decided in September, 1820, previous to the appointment of the present reporter.

This was an action of ejectment for lands in Sussex county. The plaintiff had obtained the common rule for a view of the lines in dispute; but the shewer who attended the jury of view on the part of the plaintiff under this rule, had been obstructed in running one of the lines, which he considered necessary to a full and proper shew of the premises, by a Mr. Youman, who said he owned the land over wh'ich the shewer was about to run the line, and threatened to break the…

<p>1. An action upon tho eleventh section of the act concerning distresses {llsv. Laws 202,) to recover double the value of goods distrained, can only be maintained by the tenant, and not by a stranger, whose goods have been distrained instead of the tenant’s.</p> <p>2. In this action, it must appear upon the record of the justice what tho single damages were.</p>

Plornblower moved, on a petition of ton freeholders of the county of Morris, for the appointment of surveyors to lay out a road in the counties of Morris and Bergen. The court said they inclined to think the law required that the petition should be signed by ten freeholders from each county. Ilornblower cited 2 Pen. Pep. 665-6, whore the Chief Justice said, it had been adjudged that ten freeholders in all were sufficient.

<p>The petition for the appointment of surveyors to lay out a road, ought not to designate two particular routes, on one or the other of which it is desired that the road should be laid out, but ought to designate only the points or places from and to which the road is proposed to be laid out.</p>

ON CEKTIOEABI. Wall, moved to quash this certiorari, because the allocatur had been made by a judge at chambers. He said, that in all cases where certioraris were directed to tribunals which were of an extraordinary and special character, in contradistinction to the ordinary and common courts, they could be allowed only at bar, and relied upon the case of Ludlow v. Executors of Ludlow, (1 South. 387, 392.) as governing this.

<p>IN EJECTMENT.</p> <p>This cause was tried at the Salem Circuit, in December, 1817, before his honor Justice Rossell, and the plaintiff non-suited because the lessors in the plaintiff did not shew in themselves any title, by deed or other conveyance, or a possession in themselves, or those under whom they claim, for the term of twenty years. The plaintiff obtained a rule for new trial, which was argued by Coxe and Wall, for the plaintiff, and L. H. Stockton and Ewing, for defendant, upon a state of the case * agreed upon by the parties; * and in September term. 1821, the following opinion was delivered by</p>

IN EJECTMENT. This cause came on to be tried in the county of Salem, at the December circuit, in 1821, before the Honorable Justice Eord, and a special jury, and the defendant having confessed case, lease, entry and ouster.

<p>1. A book of account containing charges in several successive years, all written from oral direction, and all against one person, without any intervening charge, not sufficient evidence to go to the jury.</p> <p>2. Charges in a book, which are not in their nature liquidated sums, or prices, or values, but damages, which can be rendered certain only by convention or judicial decision, are not matters of book account.</p> <p>3. In an action of replevin, where the complaint is for unjustly taking and detaining property — jilea, that it was taken for rent arrear, and replica-cation that there was no rent in arrear, a book account cannot be set-off under these pleadings.</p> <p>4. But if the book account could be set-off in this action, it was lawful for the defendant to shew that it had been allowed and settled on the former lease, and for this purpose the lease ivas competent evidence.</p>

<p>This was an action of assumpsit, brought by the board of •chosen freeholders of the county of Essex against George O. Barber, clerk of the borough of Elizabeth, to recover certain .sums of money which he, as the clerk of the said borough, had received for the granting of tavern licenses by the Court • of Quarter Sessions of the borough, and which had been retained by him as the clerk of the borough, and appropriated to its use.</p> <p>The cause was tried before his honor the Chief Justice, at the Essex circuit, and a special verdict found, which • contained the following facts : G. C. Barber was, and still is, the clerk of *the borough of Elizabeth and clerk ■ of the General Sessions of the Peace in and for the said borough, and that, by a certain act of the legislature of the .state jof New Jersey entitled, “an act to establish and confirm the chartered rights and privileges of the borough of Elizabeth,” passed the 28th of November, 1789, the Court •of General Sessions of the Peace in and for the said borough, have the sole, only, and exclusive right and power of licensing all and every innkeeper, tavernkeeper, and retailer ’of strong liquors inhabiting within the said borough, as to the said Court of General Sessions of the Peace shall seem convenient, and from them and every of them, so to be licensed, to require and take recognizance agreeably to the laws of this state. That the said Court of General Sessions of the Peace in and for the said borough of Elizabeth, at the several terms of the said court, held between the 1st of Juno, 1797, and the 1st of May, 1814, did license divers persons, to the jurors unknown, to keep inns and taverns within the said borough, and did assess and impose upon the said persons, so licensed, certain sums of money, which sums of money were paid by the persons so licensed to the said G. O. Barber, then being clerk of the said Court of General ¡Sessions of the Peace as aforesaid, and that the same moneys have been from time to time accounted for and paid over by the said G. O. Barber, clerk, to the collector of the county of Essex, to and for the use of the said county. And that the said G. C. .Barber, since the said 1st of May, 1814, and before the commencement of this action, has received for licenses to keep inns and taverns, granted by the said Court of General Sessions of the Peace in and for the borough of Elizabeth aforesaid, sundry sums of money, amounting in the whole to the sum of $834, which has not been paid over by him, the said G. O. Barber, to the county collector, to and for the use of the said county of Essex. But whether, upon the whole matter aforesaid, by the jury aforesaid, in form aforesaid found, the plaintiff is entitled to recover against the said G. O. Barber, clerk as aforesaid, the said sum of $834, or any part thereof, the jurors aforesaid are wholly ignorant, and pray the advice of the court.</p>

IN ERROR. This was an action of assumpsit, brought by William Boyle upon a promissory note, and a book account against the testatrix, for medicine.

<p>IN ERROR TO THE COMMON PLEAS OF SUSSEX.</p> <p>This was an action of assumpsit, brought by Osborne against Darrah, and the facts of the case, as they appeared upon the bill of exceptions taken at the trial, were these : Osborne wms indebted to a Mrs. Arnet in the sum of $250, for which sum she * had his promissory note. A Mr. Edsall was indebted to Osborne in the same amount, and, to secure the payment of this sum, proposed to give his note to Osborne, with William Darrah, the defendant below, as surety. Osborne, for the purpose of paying his note to Mrs. Arnet, got Edsall and Darrah, instead of giving their note to him for $250, to draw it payable to Mrs. Arnet, and then took the note thus drawm to Mrs. Arnet, to exchange it for his note. Mrs. Arnet refused to make the exchange, unless Osborne w'ould also put his name upon the note drawn by Edsall and Darrah; he accordingly, without the knowledge or consent of Edsall and Darrah, signed his name to the note, under theirs, and delivered it to Mrs. Arnet, and she delivered Osborne his note. Mrs. Arnet afterwards obtained a judgment against Edsall, Darrah and Osborne, on their note. But Edsall being insolvent, the whole of the money was collected by the sheriff of Osborne and Darrah, one-half from each. To recover the money thus paid by Osborne upon this judgment, this action was brought. After the plaintiff had proved these facts, and rested his case, the defendant moved the court to non-suit the plaintiff; but this the court refused.</p> <p>The defendant’s counsel then called upon the court to charge the jury, that by the facts and circumstances proved in evidence the plaintiff was not entitled to recover. This charge, also, the court refused to give, but did charge the jury, “ that if they considered the note in question, before delivered to Mrs. Arnet, or signed by Osborne, to be Osborne’s property, so that he could do as he pleased with it, and make use of it for other purposes than to pay Mrs. Arnet, then the plaintiff was entitled to recover.” To which refusal of the court to non-suit, and to the aforesaid charge of the court, a bill of exceptions was taken, and a writ of error brought by Darrah, the defendant below, to reverse the judgment which had been rendered against him, and the errors assigned were—</p> <p>1. That the court refused to non-suit the plaintiff.</p> <p>2. That the charge of court was contrary to law.</p>

ON CERTIORARI. This was a certiorari to the Common Pleas of Middlesex, to bring up the proceedings on an appeal from the judgment of a justice. On the trial of the appeal before the Court of Common *.Pleas, the defendant called R. M. Boggs as a witness, and stated that he was a material witness, whom .he had discovered since the trial of the cause before the justice.

<p>1. If, in an action of trespass, tlie defendant, by liis plea, admits tlie thing charged to have been a trespass in its nature, but sets up certain concomitant circumstances which the law considers as an excuse or justification, there the plaintiff may reply, “ de, injuria sua propria,” &c.; but where tlie defendant denies the thing charged to have been a trespass at all, for that, the close broken and goods taken were the property of himself, or of another, hy whose authority he acted, there the plaintiff cannot reply, deinjuria. &c., hut must, in his replication, traverse the right or interest set up in the plea, otherwise it will be bad on demurrer.</p> <p>2. A replication which puts in issue several distinct facts, not tending to prove the same point, is bad on demurrer.</p>

<p>If the name of the person suing out a writ of certiorari is not stated, either on the back of the writ, or in tiie rule for granting the certiorari, it will be quashed.</p>

This was an action of trespass, brought by Woolley against Garter, for taking away goods, and was tried before his Honor Justice Rossell, at the Essex circuit.

<p>1. An award directing a party to deliver “ a certain bond, bearing date February 17, 1821,” without stating by whom the bond was made, or to whom given, for what penalty, or upon what condition, is void for uncertainty.</p> <p>2. In an action on an arbitration bond, under a plea of payment and notice of set-off, the defendant may sot off sealed bills, drawn by the plaintiff, payable to A. B., and assigned to the defendant before the action is brought, although the bills contain neither the words “ assigns ” or “ order.”</p> <p>3. Bonds and hills obligatory are assignable without the word “ assigns.”'</p>

<p>The nature of this case fully appears in the opinion of the Chief Justice.</p>

QUO WARRANTO. This was ail information in the nature of a quo wa,rranto, filed by the Attorney-General at the relation of Ephraim. .Miller, Esquire, against Jeremiah J. Foster, charging, that the said Jeremiah J. Foster had used and enjoyed, without any warrant or lawful authority, the office of clerk of tho county of Gloucester, and had usurped, intruded into, and unlawfully hold the same.

<p>1. A common carrier lias a lien on goods in his possession, only for the transportation of those particular goods, and not for the transportation of other goods also, which do not remain m his possession.</p> <p>2. Whenever a matter comes to lie tried m a collateral way, the judgment of a court having competent jurisdiction will he received as conclusive ■evidence of the matter so determined, and the validity of the judgment will not be questioned.</p>

This was an action of debt on bond. The declaration contained three counts. The first was upon a bond dated June 5, 1795, in the usual form.

<p>If, upon the trial before the justice, a party permits a witness to be called,, without making any objection to him, he cannot, on the trial of the appeal, introduce witnesses not examined before the justice, to prove such witness-interested, or to discredit his testimony.</p>

<p>1. Where the makers of a negotiable note reside in New York, the holder at Elizabethtown, and the endorser in the neighborhood of Kahway, ami the notary who protests the note in New York transmits notice of protest by the next mail, to the holder at Elizabeth, who sends the notice by the next mail to the endorser; held, that the notice to the endorser is in flue time.</p> <p>2. Where the evidence to prove that the notice was sent to the post office nearest the endorser’s residence, was the testimony of the cashier of the bank, that he sent the notice, and that it was his custom to send them to the post office nearest the endorser’s residence, and the jury, find a verdict for the plaintiff, the court will not set it aside.</p> <p>3. Where a bank discounts a note at the usual rate of interest, upon condition that the person offering the note for discount shall receive post notes •payable at forty-five, sixty, and ninety days, as cash, and the said post notes are paid and received as cash for the said note thus discounted, the note discounted is usurious. But if the defendant pay a part of the usurious pote, and give a new note for the residue, the new note is not infected with the usury.</p>

<p>PRACTICE.</p> <p>A demurrer had been filed to the plaintiff’s replication, and, upon argument, the demurrer was sustained. Ante 77. The plaintiff’ amended his replication, and Vanarsdale, for the defendant, now applied for time, until the first clay of the next term, to file a rejoinder.</p>

IN ERROR. The facts in this cause are sufficiently stated in the opinion delivered. This cause was submitted without argument.

<p>1. If the parties “agree to come to trial,” it is a sufficient agreement-(under the eighteenth section of the act for the trial of small causes, Rev. Laws, 634), “to enter, without process, an action before a justice,” in order to give such justice jurisdiction.</p> <p>2. A general acknowledgment, that the defendant is indebted, will not authorize the justice in entering judgment for a specific sum.</p>

in DEBT. This was an action of debt brought by William Emery, administrator with the testament annexed of Else Flock, against Leonard Neighbour and Nicholas Neighbour. The declaration consisted of two counts. The first count charged that the defendants were indebted to Else Flock, in her lifetime, in the sum of $1,900, for so much money by them received in her lifetime to her use, — and concludes with the usual breach. The second count is for interest.

<p>This was an action of ejectment, tried at the Hunterdon circuit, in October, 1823, before Justice Ford. The plaintiff deduced title under a sheriff’s sale of the premises in question, and offered in evidence an exemplification of a judgment in the Common Pleas of Hunterdon, at the suit of Jacob Lininger against Conrad Zellers, (the present defendant) in debt on bond and warrant'of attorney, (signed by a judge, in vacation, under the statute) and the execution thereupon; to which evidence the defendant’s counsel took sjveral exceptions, which the court overruled, reserving the points to be considered at bar, on a motion for new trial. The plaintiff then offered in evidence a deed from the sheriff of Hunterdon to the lessor of the plaintiff for the premises in question, on a sale made upon the said execution ; to which the defendant’s counsel excepted, on account of irregularity in the sale, and gave in evidence — 1. That the premises in question (which in the deed were described, by metes and bounds, as four separate tracts containing altogether 116 acres, but which in reality comprised two tracts, one of woodland, consisting of two‘adjoining lots or surveys, containing together *71 acres, on which the improvements were; the other of two adjoining lots of woodland, containing together 46 acres, and lying about half a mile distant from the former, were sold by the sheriff altogether, and not by the lot or by the acre.</p> <p>2. That the wood lots were described in the advertisement as adjoining lands of Elomerfelt, Hildebrandt and Zoul, when in fact they did not adjoin Zoul’s land.</p> <p>3. That at the sale, one John Zellers bid for the premises $700; that the sheriff called him out and conversed with him, and after he came in did not take liis bid, but sold it for a less sum, to the lessor of the plaintiff.</p> <p>The plaintiff proved, by persons present at the sale, that, from the description, they fully understood what property was to be sold, and at the time of sale also understood that it was all selling together; that John Zellers, who bid the $700, was a single man and transient person, having little- or no visible property, and was not supposed to be able to pay the purchase money. The plaintiff also gave in evidence a mortgage, by defendant, of the premises in question, assigned to him a few days after the date of the demise laid in the declaration.</p> <p>The judge charged the jury, that, the judgment having-been admitted in evidence, it was proper for thorn to consider it as valid, and sufficient to justify the sale; that the objections to its validity were mere questions of law, which had been reserved by the court, of which, if there was any thing in them, the defendant would have the benefit hereafter; that the sheriff', being a public officer, was to be presumed to have done his duty, and that the deed was prima facie evidence of all the facts therein certified to have been done in the discharge of that duty, such as, that the premises wore duly advertised, sold to the highest bidder, &c.; that a small variance or inaccuracy in the description of the premises could not impeach the sale, when if appeared that, from the description, it was fully understood what property was to be sold; that there was no law obliging-the sheriff to sell by the lot or by the acre — he was to exercise a reasonable discretion in selling the property to the best advantage, and in this case it did not appear that it would have sold better in any other way; that he-was to sell what would be sufficient to satisfy the execution, as near as might be, if it could bo so done without injury to the property; but as he could’not ascertain *bcforehand precisely how much of the property would satisfy the execution, he was to set up what he-might reasonably suppose to be sufficient, and if the sale should exceed the demand in a small proportion, it would be no objection to the sale; but in this case the amount of the sale fell short of the demand ; that the sheriff was not obliged to attend to the bid of an insufficient purchaser, else sheriffs might be imposed on, and sales defeated; that it was no objection to a sheriff’s sale, that the premises did mot sell for full value; that the sheriff was commanded to make the money of the property, and must sell for the best' price he could get; that if there was no fraud or collusion in it, the sale was unexceptionable on any other grounds. 'The jury found a verdict for the plaintiff. Upon the coming in of the postea, a rule was taken to shew cause why a new trial should not be granted.</p>

White applied to the court for a mandamus, to be directed to the Common Pleas of Cumberland, to compel them to receive the defendant’s plea of justification; and stated, as the ground of his application, that an action of trespass had been commenced against the defendant, to-which he had pleaded — 1. The general issue; and — 2. A justification.

<p>The attorney for the plaintiff had signed judgment hy default, in November term last, against the casual ejector, and issued a habere faeias possessionem, in the vacation, which had been executed.</p>

This was an application to the court by J. W. Scott, Esq., (in behalf of the members of the bar) for a rule upon ono of tho attorneys of this court, to shew cause why his name should not be struck from the roll. *En this caso, Mr. Scott observed, ho bad ho personal knowledge of the circumstances, ho acted only upon the public rumors aud reports relative to the conduct of this young man.

A judgment on a bond and warrant of attorney had been entered as of the-'term of May last, in the usual form, under the “act directing the mode of entering judgments upon bonds with warrants of attorney to confess judgments, (Rev. Latos 685) by William Warwick against Abraham Matlack. The bond upon which the judgment had been entered was dated the 22d of January, 1821, and conditioned for the payment of $1,400, in three years from the date thereof, with interest annually.

An order had been made at the last term, that the defendants should cause their appearance to be entered to the action on or before the first day of this term.

A rule had been taken upon the defendant, at the November term, 1823, to plead in thirty days. At February term following (the defendant failing to plead) a motion was made-for judgment by default. This motion was refused, because the rule had not been served on the defendant. After the-February term, viz. on the 6th of March, 1824, the rule to-plead was served on the defendant, and now

This was an indictment, found in the Sessions of the borough of Elizabeth against the defendant,-for encroaching upon a public highway. It was brought'into this court by habeas, taken down to the circuit in Essex, for trial, and a verdict found for the defendant.

<p>The statement of the facts in this case sufficiently appears in the opinion delivered.</p>

IN EJECTMENT. This cause being noticed for trial at the Hunterdon Circuit, at October term, 1820, the defendant confessed lease entry and ouster, (pro ut lex postulat.) the parties agreed to the following state of the case : John Rickey, being seized of the premises in question,-by his last will and testament; executed in due form of law, bearing date the 11th March, 1794, devised the same as follows : “ I give to Mary, my wife, the house and lot where I now live, together…

This was a writ of error, brought to reverse a judgment which had been rendered by the Court of Common Pleas of the county of Middlesex against the plaintiff in error, who thereupon brought this writ, and the following errors were assigned: 1.

. Jeffers, in pursuance of a rule to shew cause, taken at the last term, applied for a mandamus, to be directed to the township committee of Lower Penn’s Heck, in the county of Salem, to compel them to assign and appoint, in writing, to the overseers of the highways, respectively, their several limits and divisions of the highways within such township, for opening, clearing out, working and amending the same, as by law they were bound to do under the act (Dev.

This was an action of assumpsit, and the declaration contained several counts against defendant, as endorser on several promissory notes, amounting in the whole to the sum of $3,000.

A judgment on a bond and warrant of attorney had been entered against Alderman, Bateman and Bateman, in favor of Diament, at the last term.

Fwing, in behalf of the defendant, moved to change the venue in this cause from the county of Morris to the county of Sussex, and read an affidavit of Ezekiel Dennis, one of the defendants, stating that the cause of action (if any) arose wholly in the county of Sussex, and notin the'county of Morris or elsewhere, and that the deponent was, at the time of committing the supposed trespass for which this action was brought, one of the deputies of the. sheriff of the county of…

MATTES OF ROAD. A petition, in the usual form, and signed by John Buck, John H. Smock, and others, freeholders, &c., was presented to the Court of Common Pleas of the county of Monmouth,, in the term of January, 1822, for the appointment of surveyors to lay out a public road of three rods wide in the townships of Freehold and Middletown, in the county of Monmouth.

The defendant was indicted in the Hunterdon Sessions in August, 1823, for the murder of one Zachariah Flommerfelt, Esq. At the Court of Oyer and Terminer, in October following, he was arraigned upon the indictment, and pleaded not guilty. And a copy of the indictment and of the panel of the jury having been delivered to him on Tuesday, his -trial was set down for the Friday following. On Friday morning, before the jury were sworn,

The defendant, Job Powell, was indicted for manslaughter at tbe Burlington Oyer and Terminer, in May, 1823, for killing one Adam Enghard.

IN ERROR* This was an action of covenant, brought by Broadwell and Baldwin, as survivors of Hezekiah Broadwell, deceased, against Matthias Denman, to recover damages for the nonperformance of the covenant contained' in certain articles of' agreement, which articles bore date on the 18th day of October, 1809; and after reciting, that whereas the said Hezekiah, Jacob, and Jabez were seized in fee of three-fourth parts and one-sixteonth of the remaining fourth part of a certain…

This was an ejectment for lands in the county of Morris. On the trial of the cause at the Nisi Prius, in September 1796, a verdict was taken, by consent, for the plaintiff, subject to the opinion of the court, and open to a bill of exceptions ; with liberty to the defendant to move for a non-suit, if the court should think the evidence insufficient on a case stated, to be argued at bar, in the same manner as if the motion had been made at the trial. 'By the case agreed upon,…

<p>Where the justice administers to the jury the form of oath usually administered in courts of justice, it is sufficient, though he has not pursued the precise form prescribed by the statute for juries in justices’ courts.</p> <p>In an action of trover, where an actual conversion is proved, there is no necessity to prove an actual demand and refusal.</p>

ON CERTIORARI. The exception taken to the judgment below was, that the justice permitted the plaintiff to prove, by his day-book, the various items of his account, the principal of which was one for money lent.

<p>ON CERTIORARI.</p> <p>The exception taken to the judgment in this case, was, that part of the account of the plaintiff below was for articles furnished to the children of Randolph’s deceased wife, by a former husband.</p>

This was an action of trespass for burning a vessel. The causo was tried at the Monmouth circuit, in April, 1799, before his Honor Mr. Justice Kirkpatrick. This was a motion for a new trial, on the ground, that his honor had refused to admit one of the members of the grand jury to prove that ---, who had boon examined as a witness on the trial, had sworn differently on his examination before the grand jury, in relation to the same transaction.

<p>No trial at bar to be allowed in any case where the amount in controversy, on the property in dispute, is not worth three thousand dollars.</p>

<p>ON CERTIORARI.</p>

<p>ON CERTIORARI.</p>

This was an action of debt, brought against the sheriff for an escape. The venue was laid in Essex county, and, on a motion for the defendant to change the venue,

This was an action of ejectment for lands in Bergen county. On the trial before Mr. Justice Kirkpatrick, in October, 1798, his honor non-suited the plaintiff, and, on a motion to set the non-suit aside, it appeared, that in the course of the trial it became necessary for the plaintiff to prove title under a lease from the ministers, elders and deacons of the Reformed Bergen Church to Tours.

IN ERROR. The action in the court below was brought on a sealed bill, given by Ruecastle to Smith, for £25 8s. 2d., dated 27 th December, 1788. The defendant pleaded — 1. Non-assumpsit. 2. Payment. 3. The statute of limitations; — and gave notice, that, under the plea of payment, he would give in evidence, that the plaintiff was indebted to him in the sum of £50, for goods sold, money paid, work done, and money due on an account stated.

<p>An indictment was found at Cumberland, June, 1798, against the defendant, for the forgery and publishing of a lease. The indictment was removed by certiorari, and, on a rule to shew cause why the indictment should not be quashed,</p>

Two ejectments depended on the same title, and a verdict was taken by consent, at .Bergen, subject to the opinion of the court, on a case which stated that Frederick Wortendyk the elder, seized in fee of the premises in controversy, and possessed of a considerable personal estate, by his last will .and testament, dated November, 25, 1747, devised and bequeathed as follows : He first orders his debts and funeral expenses to be paid, and then devises his lands to his wife for…

This was an action of debt, on an award. At the trial of the cause, a general verdict passed for the plaintiff, subject to the opinion of the court, on the following case.

This was an action for dower, imde nihil habet, brought for lands in the county of Gloucester. The defendant pleaded specially, in bar of the action, that William Harrison, the husband of the said demandant, was, in his 1'ifetime, and during the coverture of the demandant, indebted unto one Thomas Learning in the sum of two hundred pounds; unto one William Smith in the sum of three hundred and ten pounds, and unto one Joseph Fox in the sum of five hundred and fifty pounds.

<p>This was an action of debt, brought by the plaintiff to recover a legacy, and the following statement of the case was agreed upon by the counsel.</p> <p>Thomas Houghton, late of Hopewell, in the county of Hunterdon, deceased, on the 23d of December, 1784, having then in his possession a certain bond or obligation executed by Peter Phillips, as principal, and John Phillips, Jun., as surety, to the said Thomas Iioughtou, dated the 1st oí May, 1782, conditioned for the payment of £119 18s. 6d., with interest, at the expiration of one year from the date of the bond, duly made and published his last will and testament, and in it appointed the defendants his executors; and, in and by the said will, he bequeathed to the plaintiff as follows, viz. “Item. I give and bequeath to my nephew, Joab Stout, <fec., &c-., all the money due on a bond against Peter Phillips and John Phillips.”</p> <p>After the making and publishing the last will and testament, as aforesaid, to wit, in or about the month of February, 1786, the testator, at the request of John Phillips, the surety in the bond above mentioned, and for the accommodation of John Phillips, and to enable him to secure -and indemnify himself, as surety in the said bond, did agree to accept from John Phillips a bond, to be executed by one Jesse Titus,, as principal, and John Phillips, as surety, to the said Thomas Houghton, conditioned for the payment of a sum of money equal to the principal money and interest which had accrued on the first mentioned bond, and thereupon to deliver up the first bond to the obligors in the second. This agreement was carried into effect, and the first bond delivered up to Titus or Phillips.</p> <p>On this charge or transfer, no money was paid on the first bond to Houghton.</p> <p>After the delivery of the first bond, Jesse Titus caused a writ *to be issued' against Peter Phillips and John Phillips, Jun., on the said first bond, but proceeded no farther in the suit than the serving of the writ.</p> <p>After this transfer of bonds, Peter Phillips died intestate, and administration of his estate was regularly granted to John Phillips and Lott Phillips.</p> <p>The administrators of Peter Phillips, after his death, and John Phillips,'Jun., on the 1st of May, 1792, adjusted and settled between themselves the shares or proportions which each party agreed to pay of the original debt to Thomas Houghton, secured by.the first bond; and in pursuance of an agreement between them, the administrators of Peter Phillips, on the said 1st of May, 1792, executed to Thomas Houghton, the testator, a bond conditioned for the payment of £118 3 7s., being their proportion of the original debt, with interest, at the expiration of one year ; and John Phillips, Jun., and Jesse Titus, on the same day, executed to the said Thomas Houghton their bond, conditioned for the payment of .672 2s. 6d., with interest, at the expiration of one year from date. The sum mentioned in the condition of this last bond, together with .£6 in money then paid by John Phillips, Jim., to Houghton, being the residue of the amount of the original debt.</p> <p>On the delivery of these two last mentioned bonds to the testator, the two first mentioned were cancelled and delivered up. On the 5th of May, 1792, the administrators of Peter Phillips paid the sum of .£14 5s. in part payment of their bond. On the 1st of May, 1793, they made a further payment of .£1 19s., and on tho 1st of May, 1794, paid the whole interest then due on their bond above mentioned, all which payments are endorsed on the obligation.</p> <p>Thomas Houghton, the testator, died on the 13th of March, 1795, unmarried and without issuo, not having revoked or altered his said will.</p> <p>On the 6th of April, 1796, tho administrators of Peter Phillips paid to the defendants, as executors of Houghton, £118 2s. 6d., in full discharge of their bond, which was then delivered up and cancelled.</p> <p>The last bond given by John Phillips, Jun., and Jesse Titus is yet unpaid to the defendants.</p> <p>*The will of Thomas Houghton contains a residuary bequest to the children of his two brothers, Joab and John Houghton.</p> <p>After the death of Thomas Houghton, the testator, assets sufficient to pay and discharge all the debts and legacies came to the hands of the said defendants, and a small surplus will remain for the residuary legatees.</p> <p>Upon the foregoing case, Joab Stout, the legatee in the said will named, has commenced an action in tho Supreme Court against the said executors, to recover the legacy aforesaid, and. it is agreed by and between the parties and their attorneys, that judgment be entered for the plaintiff for the amount of the said legacy, with interest, subject to the opinion of the court on a motion for a non-suit on the case as above stated ; each party to have the same advantage as he would have had on a motion for a non-suit, had the same been made at the trial, with liberty to make this state of the case a part of the record, and bring a writ of error thereon, if either party please.</p> <p>The case was argued at November term, 1800, by F. Stockton for the defendant, and Johnson and Frelinghuysen for the plaintiff.</p>

An indictment was found against Burroughs, at the Gloucester sessions, in June, 1800, for that “with force and arms, &c., a certain corner-stone erected and placed in the boundary line between the lands of Robert Rowan and Charles Collins, situate, lying and being in the township of Waterford, in the county, and within the jurisdiction aforesaid, wilfully, maliciously and unlawfully, then and there did take up, remove and carry away from the boundary line aforesaid, with…

<p>In an action of debt on a bond conditioned for the performance of an award, tbe defendant pleaded, that the arbitrators had refused to hear or investigate a certain claim which he set forth, and which he averred was within the submission; this plea on demurrer was adjudged good.</p>

IN ERROR. This was an action of debt, brought in the Common Pleas of Burlington, by Budd against Shreve, as overseer of the poor for the township of New Hanover.

A writ or error was brought and returned in this case, to remove an order of the Court of Common Pleas of the county of Sussex, setting aside an amercement against the defendant in error, (as sheriff of Sussex) and the fieri facias issued thereon.