Volume 8 — New Jersey Law Reports

This was an action of debt brought against the defendant as a surety on a bond conditioned for the faithful performance of the duties of a Cashier.* The defendant pleaded (after craving oyer and setting out the bond,) several different pleas, viz: 1. Non est factum. 2.

EJECTMENT. This was an action of ejectment for lands in Somerset county. The cause was tried at the Somerset Circuit, and a verdict taken by consent for the defendant, with leave to move for a new trial upon a case stated containing the following facts: Aurie Lane died seized of the premises in question.

<p>1. J. T. by his last will bequeaths as follows:—“ I give unto my wife (Ellen) all the use of my personal estate during her natural life, except, &c. Then, I give unto 'my son, James, after my wife Ellen’s decease, all the remaining part of my personal estate that is left undisposed of. Then, my will further is, that if my son, James, should come to die before he arrives to the age of twenty-one years, or have lawful issue, then it is my will that all my estate, both real and personal, be continued in the hands of my beloved wife, Ellen, during her natural life, and after her decease to be disposed of in the following manner.” Then he gives to his brother, George Taylor’s son, James Taylor, certain real estate, &c., charged with certain legacies, and then says ■. “ Item. I give unto my brother Taylor’s children all the remaining of my personal estate, after my wife's decease, to be equally divided among them, boys and girls, share and share alike.” After the death of the testator, Ellen, the widow, took into her possession the personal estate. James, the son, arrived at the age of twenty-one years, and soon after died without leaving lawful issue of his body, then the widow died. Under this will James, the son, took the personal estate, subject to the use of Ellen, his mother, during her natural life, and subject to an executory disposition thereof, over to the children of George, if he, James, should come to die before he attained the age of twenty-one years, and before he had lawful issue of 1lis body, and though James, the son, did die without lawful issue of his body, yet as he did not die before he attained the age of twenty-one years, the double contingency never did happen so that the property became absolute in James the son, at his death it went to his mother, and on her death to the next of kin.</p> <p>2. The word or in'a will may be construed to mean and, to effectuate the intention of the testator.</p>

<p>Where a statute prohibits an act and imposes a penalty of ten dollars upon persons committing the same, to be recovered by action of debt by any person who will sue for the same, and a subsequent statute makes the offence indictable and the offender- liable to a fine of twenty dollars, the - latter statute repeals the former.</p>

CERTIORARI. This was a certiorari, directed to the Hon. Gabriel H. Ford, one of the Justices of this Court, to remove the proceedings had before him on the application of Jacob Oollyer, assignee of one of thq heirs of Israel Bickey, deceased, for the appointment of commissioners (under the act of 11th of November, 1789 (entitled “ an act for the more easy partition of lands, held by co-parceners, joint tenants, and tenants in common ”) to divide the real estate of said…

CERTIORARI. This was a certiorari brought to reverse the judgment of a justice obtained by Hull, the plaintiff below, against Swayze, upon the following state of demand. “ The plaintiff demands of the defendant, $59 due the plaintiff on a note of hand given to him by the defendant for 50j bearing date the 24th February, 1816, which note according to a condition contained therein, became due in the fall of the year 1816, after the fall’s election, provided the said Swayze…

<p>This was an action of debt brought upon a bond, dated the 29th of March,' 1799, conditioned for the payment of one hundred pounds in ten equal annual installments, the first installment, of ten pounds with interest, to be paid on the 31st day of June, 1800. The declaration was in the usual form l'or the penalty of the bond. The defendants craved oyer of the bond and condition, and then pleaded, First, non est factum. Second, “that the said David Rich-man, deceased, in Ms life time, did not make, execute and deliver unto the said Thomas Ricliman, deceased, any such writing obligatory as is mentioned in the declaration of the said plaintiffs, within sixteen yeqrs next before the commencement of this suit.” Third, payment. The plaintiffs, by their replication, joined issue upon the first and third pleas ; and as to the second plea, they replied specially, set-’ ting out the condition of the bond, and then stating that by reason thereof the defendants “ became liable to pay to the plaintiffs the said sum of one hundred pounds, equal in value to two hundred and sixty-six dollars and sixty-six cents, with lawful interest in 'the manner and at the times in the said condition mentioned, the last payment to be made on the thirty-first day of June, eighteen hundred and nine, by the non-payment of which said sum with lawful interest thereon or any part thereof on the days and in the manner specified in the said condition a cause of .action accrued, &c.</p> <p>To this replication the defendants filed a special demurrer, assigning for cause of demurrer, that the replication was a departure from the declaration, that it was argumentative, and that it did not answer the pleas.</p>

CERTIORARI. This was a certiorari brought to reverse the judgment of a justice.

This cause came before the Court on a writ of error to the Inferior Court of Common Pleas of the county of Morris, and was argued by Miller for the plaintiff in error, and by Ghelwood for the defendant. Several errors were assigned and discussed at the bar, but so much only of the case will bo here presented as to shew the ground on which the opinion of the Court ivas rendered.

<p>Where a justice of the peace renders a judgment in the absence of the parties, it must appear by his record, that the cause was regularly adjourned until the day on which the judgihenl was rendered, or that the parties had notice of the time when such judgment would be rendered.</p>

<p>The plaintilf lias no right to recover for the use and occupation of premises for a period subsequent to the commencement of the suit : and if the state of demand claims for a period after the commencement of the suit, the judgment must be regarded in reference to the state of demand and will be reversed.</p>

<p>Where the matters to be proved are distinct, though component parts of a demand or defence, the order of their production is wholly immaterial. Therefore in an action of tresspass for taking away goods and chatties, where the defendant justifies under a distress .for rent, the landlord’s warrant under which the distress was made, may be given in evidence before the production of the written agreement under which the tenant held the premises, and proof that there was rent due.</p>

<p>II the owner oí a slave, who is of sufficient ability to maintain such slave, remove into another state, the slave does not acquire a legal settlement in the township where the master had his last legal settlement.</p> <p>The act respecting slaves Ucv. Laws 375, fixes the legal settlement of an unmanumitted slave, only in the case of insolvency of the master. But in all other cases the owner or his representatives are bound to maintain such slave.</p>

<p>A book of account is not sufficiently proved to be read in evidence merely by a witness swearing that there are two or three charges in it against him, one or which was charged higher than he understood it ought to be, and when the witness had never seen the book until it was produced before the, Justice, did not know the handwriting in which it was kept, and liad never seen an entry made in it, or settlement by it.</p>

CERTIORARI. The state of demand was as follows:—William Myers demands of Thomas Gordon forty-four dollars and forty-eight cents, being the amount of principal and interest due on printing done in the year 1817.;’ William Myers.

<p>Parol evidence cannot be admitted to abridge the natural import of the terms made use of by devisor in a will.</p> <p>Parol evidence shall not be admitted to explain a devise, when the will can have an effectual operation without such evidence.</p>

CERTIORARI. This was a certiorari to the Court of Common Pleas of the county of Bergen, to bring up the judgment and proceedings of that Court on an appeal from the Court for the trial of Small Causes, and was argued by

<p>if a party neglects to take advantage of tlxe first failure of kis adversary (in going to trial within the time prescribed) he cannot avail himself of a subsequent failure without having previously obtained a rule nisi giving his adversary such time to go to trial as the court shall direct.</p>

<p>In cases of division of real estate by Commissioners appointed by a Justice of the Supreme Court (under the Slat. Rev. Laws, 597) if the report of the Commissioners is objected to, the practice is for the party bringing the report to take a rule of approval nisi, and for the adverse party to take a rule to shew cause why the report should not be set aside, and the parties-may then have leave to take affidavits.</p>

<p>Executions of fieri facias de bonis et terris issued on two judgments obtained in this court by Isaac Mickle against Edmund Brewer, had been placed in the hands of John Baxter, Sheriff of Gloucester, who, having levied the same on the goods, chattels and lands of the defendant, died without a sale of the property levied on. Under orders of this court a special scire facias had issued in each case against the defendant to shew cause why the property levied on should not be sold, Rev. Laws, 303, sec, 3. The defendant had appeared and pleaded in each case and now by White his counsel moved that they should be consolidated. Sloan opposed the motion and insisted that separate writs were regular and lawful, and suggested his belief that the property levied on was not in both cases entirely the same.</p>

The judgment of a justice in favor of Oliver against Jones brought into this court by certiorari returned to - term, 1813, having been affirmed at November term, 1823, William Halsted for Jones now moved that satisfaction of the judgment of affirmance should be entered, and produced a receipt, dated 2d January, 1814, and divers affidavits to prove the handwriting of Oliver to the receipt, and other matters to establish its validity.

<p>A witness who never saw the defendant write nor received any letters from him, and had no other knowledge of liis liand-writing than from having seen writings which were said by other persons, not under oath at the time, to he the writing of the defendant, and comparing it in Ins mind with the instrument produced, is not a competent witness to prove such instrument.</p> <p>The evidence which a particular witness gave before the justice, may, where such evidence can be correctly had, be brought before the Supreme Court by affidavit, for the purpose of shewing that such evidence was incompetent or that the justice erred in admitting it.</p>

<p>Upon partition and sale of land belonging to married women under the statute (_Ke®. Laws 599), the proceeds of the sale of such land will be ordered to be paid to the husband and wife.</p>

<p>A defendant cannot plead specially and give notice of the same subject "matter, but the court will put him to his election either to abide by his plea •or notice.</p>

A state of the case had been agreed upon by the parties .as follows: This cause came on for trial at the Circuit Court for the county of Monmouth, before Gabriel H. Ford, Esq., one of the Justices of the Supreme Court, at the sitting of that Court in the term of October, 1823, by a jury of the same county; and the counsel who opened the cause on the part of the plaintiff, stated to the jury that the object of the suit was to recover about twenty-eight acres of undivided land…

<p>The death of one of several plaintiffs in a cause referred by rule of Court to referees, is not a revocation of the authority of the referees. A suggestion of such death may be entered upon the record.</p>

<p>1. If a person while he is applying for the benefit of the insolvent laws and previous to Iiis liberation, has a judgment rendered against him for a debt contracted previous to his confinement, and after bis discharge as an insolvent debtor, is arrested by virtue of an execution issued upon that judgment, and committed to goal—such arrest and imprisonment is unlawful.</p> <p>The proper remedy for the prisoner to obtain relief is by a Habeas Corpus, upon the return of which before a judge of the Supremo Court at Chambers he may he discharged.</p>

<p>1. Where a judgment is entered against a defendant upon a cognovit actionem, and is afterwards set aside by the court in which the judgment was entered, a certiorari will not lie to ’remove the proceedings into the Supreme Court.</p> <p>2. Where writ of error or certiorari is the proper remedy.</p>

in trespass quake. Clausum fregit. This was an action of trespass brought by Ackerman against Shelp for entering his close and pulling down and removing his fence. The defendant pleaded the general issue, and gave notice with it of the special matter which he intended to offer in evidence. The notices .were in substance as follows: . 1.

<p>1. To a scire facias awarded under the 3d section of the supplement to the act concerning Sheriffs, [Rev. Laws 303] requiring the defendant to shew cause why certain real estate levied on hy the late Sheriff, now deceased, should not be sold, the return of one writ of .scire facias “ that the defendant hath nothing, &c.,” is sufficient.</p> <p>2. A publication of the writ of scire facias in this ease is not necessary.</p>

The notice in this case was that the tenants in possession should appear on the 14th of this month, and was served with the copy of the declaration more than ten days prior to that time, but not ten days prior to the 10 th of the month, being the first day of the term.

<p>1. A state of demand which sets out a contract for the payment of a sum of money is not supported by proof of a contract to pay in articles of merchandize.</p> <p>2. For non-performance of such a contract the action should be case and not debt.</p>

The Court of Common Pleas of the county of Burlington, in February Term, 1825, having refused to allow an amendment to be made by the Justice who was present in Court, dismissed an appeal, because it did not appear in the transcript when and by whom the appeal was demanded.

<p>The omission of a date to the return to a peremptory mandamus directed to B. G. and others, Township Committee, commanding them to 11 assign and appoint in writing to the overseers of the highways of the township, or some of them, tlioir several limits or divisions of the road for opening, clearing out, amendment and repair,” will not vitiate a, notice.</p> <p>2. Though the mandamus is directed to B. G. and others as Township Committee, yet a return made by them as late Township Committee, is sufficient.</p> <p>3. Though the writ commanded the committee to assign “to the overseers or some of them their several limits,” &c., the assignment to one overseer is a substantial compliance with the command of the writ.</p> <p>4. If there is reason to believe that the assignment is fraudulent and evasive and designed to defeat the purpose of the opening and repair of the road, the Court wall allow the party a rule to shew cause why the return should bo quashed on those grounds.</p>

<p>A copy of account containing general charges such as “ amount from day book” without specifying the particulars of which the amount is composed, is defective.</p>

<p>Where a caveat has been filed against the return of a road and freeholders have Keen appointed to review the road, this court will not previous to the term next succeeding that in which the freeholders were appointed, grant a certiorari to remove the proceedings.</p>

This was an action brought by Campbell against the Smiths for prostratipg a dam and thereby diverting water from his mill.

<p>Wall moved to change the venue in this case from Middlesex to Sussex, and in support of his motion offered to' • read an affidavit of one of the directors of the Bank.</p>

This case came before the Court on an application to set aside the verdict, was argued at the last term by White and Armstrong for the plaintiffs, and Elmer for the defendant,, and the opinion of the Court was now delivered by the’ Chief Justice.

<p>1. An action of debt will not lie for the breach of a contract to maintain the poor of the township by reason whereof the township was obliged to pay a sum of money for the maintenance of a pauper. The action should • be case.</p> <p>2. No person is to he considered a pauper to receive support except such •as a justice of the peace has by his order previously declared.</p>

A judgment had been obtained in this Court by the President, Directors and Company of the State Bank at Trenton against Richard Coxe, and execution issued and placed in the hands of the sheriff of the county of Hunterdon, by virtue of which the sheriff had levied upon the property of the defendant in execution.

<p>Notice to the executor or administrator of plaintiffs attorney of a motion to enter satisfaction of a judgment is not sufficient.</p>

certiorari. Among other reasons, Harrison moved for the reversal of the judgment because irregularly and illegally entered by the justice in his docket. “ I therefore give judgment against the defendant in favor of the plaintiff for eighty dollars debt with legal costs—§4:37:”

Scudder moved to make a submission to arbitration a rule of this court and produced an affidavit of one of the subscribing witnesses made before a justice of thejieace.

<p>The application to the court to re-tax a bill of costs must be made at the next term, after the bill is taxed by the clerk and payment thereon demanded. But the re-taxation may be made at that or any subsequent term according to circumstances.</p>

<p>A corporation created by a law of this state, and for purposes to be carried on within its jurisdiction, although it has no property within the state, is not a non-resident, within the meaning of the statute respecting security for costs.</p>

The indictment having been removed into this court by the defendant by certiorari, was carried down to trial at the Circuit Court of Burlington county, in May last, where the defendant withdrew his plea of not guilty and pleaded guilty as appeared by the postea now returned.

<p>1. Wherever it appears by a, proper entry in the justice’s docket, that the judgment has been paid by the plaintiff in certiorari to the justice or the constable, a writ of restitution may be ordered without previous notice; but where it does not so appear, a notice of the application for the writ or a rule to shew cause taken and served must be proved.</p> <p>2. An entry in the justice’s docket that he issued execution for the debt and costs, " which defendants paid in full to the constable,” is not sufficient.</p>

A writ of foreign attachment issued out of the Court of Common Pleas of the county of Burlington, directing the sheriff of that county to attach Dodsworth Peacock, Ralph W. Peacock, G-.

<p>1. An action of assumpsit may bo maintained against a corporation aggregate upon an implied contract.</p> <p>2. Where the name of the corporation is correctly stated at the commencement of the declaration thus, “ The Trustees of the A. B. C. of &c.” and in the subsequent part of the declaration it is alleged that “being indebted” they “ the said Trustees undertook and promised," this is a sufficient allegation that the promise was made by the corporation, and not by the trustees individually.</p> <p>3. It is not necessary to repeat the full name of the corporation at every recurrence in the declaration; reference in a clear -manner to the name already given is sufficient.</p>

<p>1. Though an award should not in terms decide all the matters submitted to the arbitrators, yet if the thing awarded necessarily includes the other things and matters mentioned in the submission, it is sufficient.</p> <p>2. When the submission gave to the arbitrators power to order and award that the parties should execute mutual releases, such power is fully satisfied. and fairly pursued by an award of several releases.</p>

<p>An appeal cannot legally be demanded by tbe party or granted by ibo justice after the first day of the court next after the rendition of tbe judgment.</p> <p>A plaintiff may appeal from a judgment in his favor; but if the judgment 1ms been rendered on tlm verdict of a jury, be must take the affidavit re ¡uired by the ah of Non. 23. 1821, Sec. 8.</p>

<p>A mandamus will be granted against' an overseer of the highway to compel him to open, clear out and make a certain road within the limit and division assigned to him by the township committee.</p> <p>It will be allowed in those cases only, where there is no other specific legal remedy.</p>

This case came before the court upon the following state ■of the facts agreed upon by the parties. “The defendants executed and delivered to the plaintiff .a certain sealed bill, dated the 11th of December, -1821, whereby they promised to pay to James Stryker, agent for ■the creditors of Abraham T. Skillman or assigns, the sum •of $222.13, in six months after the date thereof, upon which this suit is brought.

<p>Where a new a trial is ordered and no mention of costs is made in the rule, or when the costs are ordered “to abide the event of the .suit,” the party ultimately successful shall recover the costs of the former trial.</p>

<p>A recovery in an action of debt before a justice of the peace is not a bar to a subsequent action of debt, by the same plaintiff against the same defendant, for a demand arising prior to said recovery: unless it appear that the eanse of action is the same.</p> <p>2. Where the defendant pleads the general issue and also a plea in bar, and the justice renders judgment in favor of the plaintiff, and the Common Pleas reverse that judgment, and sustain the plea in bar; a reversal of the judgment of the Common Pleas by this Court does not revive the judgment of the justice-</p>

<p>This was an action of trespass on the case brought by Cutter against Moore, to recover the value of a certain slave of the plaintiff, who was carried out of the state by the steam boat of which the defendant was the captain, and afterwards ran away and was lost. The pleadings in the cause, were precisely the same as those in the case of Gibbons and Morse} 2 Halst. Rep. 253. Upon the trial of the cause before the Court of Common Pleas of the county of Middlesex, a verdict was found for the defendant under the charge of the court; to this charge the following bill of exceptions was_ taken and brought up to this court, together with the judgment by a writ of error :</p> <p>“Be it remembered, That on this twelfth day of March in the term of March, 1823, the trial of this cause came on before the Judges of the Court of Common Pleas of the county of Middlesex, upon the issue joined pro ut the pleadings. Whereupon the plaintiff in support of the issue on his part produced a bill of sale from Benjamin Winans to him for the negro in question, pro ut the same marked A, and having proved the execution of the same by a subscribing witness the same was read in evidence to the jury. The plaintiff then called as a witness Joseph Bonnington, who testified he knew the negro man Michael and understood he belonged to the plaintiff; that on a Sunday in the year 1820 or 1821, he came to Amboy and went on board the steam boat Olive Branch; that the witness was employed by Robert M. Livingston, to carry passengers on board the steam boat from Perth Amboy for New York, she lay in the stream, whether the negro went in his boat he does not recollect; the passengers were sometimes taken from Amboy to Staten Island, and were carried from thence to the steam boat; whether the negro went to Staten Island first he does not know, saw him get into the steam boat and saw him some time afterwards in New York; negro had a pass; being asked how he knew it was a pass he answered, he read the paper all but two lines which he could not read, the paper had the plaintiffs name to it but he did not know it was his hand writing, he did not know his hand writing, but he took it to be a pass to go abroad to look a master, he saw the paper in Amboy. Witness did not see defendant on board the steam boat when Michael went on board the steam boat—he was the regular captain of the boat but occasionally did not come to avoid injunctions—whether he was on board at the time witness does not know—the passengers were landed on Staten Island to avoid injunctions.</p> <p>“ I. Coddington was then sworn as a witness for the plaintiff, who testified that he knew the negro man Michael belonging to the plaintiff; that on Sunday, in the year 1821, he saw him go on board the steam boat Olive Branch; she was under way for New Yofk. Michael was put on board from Amboy in a small boat; the steam boat was nearest the Jersey shore at the.time; she slopped her wheels to put him and other passengers on board, and then went immediately on towards New York. The witness was near the Amboy shore at the time; he was near Voorhies’ house, which is about fifty yards from the wharf—about fifty yards from the water; Joseph Bonnington had left the Amboy shore with some passengers in his small boat; the negro-was on the shore and called to him; he came back and took the negro in, and carried them to the steaxn ’ boat, and witness saw Michael get into the Olive Branch, and she went on her way to New York; it was the spring or former part of the summer of 1821.</p> <p>Thomas Bloodgood was swornf and proved that in the year 1821, on Sunday, at Ambqy, he saw the plaintiff’s negro man, Michael; he knew him well and talked with him; he said he was going to New York, but said nothing about a pass, or that he was looking a master; he saw him put on board the steam boat in a row boat, from tvhe Amboy shore; the steamboat was on her way to New York, and she stopped to take the passengers from the Amboy shore in, and then went on immediately for New York; she was near the Amboy shore, and far on this side the middle of the river or sound. Witness saw the negro get into the steam boat—knew by his white trowsers; used to make shoes for him when he lived with the plaintiff; .has never seen him since he went on board the steam boat.</p> <p>Joseph Marsh, Esq., proved that in 1821 the steam boat Olive Branch used to receive passengers from Amboy for New York in the stream; she did not come up'to the wharf; Joseph Bonniixgton was employed'by the owner to-take passengers on board from Amboy; in 1820 and 1821 the defendant was captain, and acted as such and advertised as such in those years; witness lives at Amboy; he never knew or heard of any other captain; was often on board and saw defendant there ; he acted always .as captain.</p> <p>James Parker, Esq., testified that Captain Moore, the-defendant, was the captain of the steam boat Olive Branch about four years ago, and since he first commanded her has always continued to be captain; witness never heard of any other—he always acted as captain. Witness lived at Am-boy,—in 1821 passengers were taken from. Perth Amboy in small boats by Bounington and by a black fellow named Buck, on board the Olive Branch; Captain Moore was then captain as witness understood.</p> <p>“ Daniel Gutter, son of the plaintiff, testified that in 1821 Michael went away from his father, who lives in Wood-bridge ; he went away on Sunday and did not return; his father was uneasy when he found ho was not home on Monday morning; he afterwards understood he had been seen in New York, and sent his brother to look for him, but he did not find him; it was spring or fore part of summer when he ran away.</p> <p>“ Samuel Cutter, another son of the plaintiff, testified that his father sent him to New York to look for Michael, who had run away; he took the bill of sale and an advertisement with him; he looked for him in Now York, and went to Long Island to the races, as it was reported he had been seen on Long Island; could not find him; he has never returned; ho run away in 1821; the bill of sale was left with a man in New York, who used to live at his father’s in Woodbridgo when Michael was home, and knew him, to look out for him, but he could not find him; witness lived at home with his father when Michael ran away, and has Jived there ever since; he never heard that Michael wanted to look for another master, or to bo sold, or that he had a pass for that or any other purpose; his father on Monday morning, after the Sunday that Michael went away, inquired for him and was uneasy he had not come home.</p> <p>“ Lewis Thornton testified he knew Michael, and lived near his master, the plaintiff; thinks he was worth in 1821, when he went away, three hundred dollars; witness gave that sum for a negro man about that time, and if he wanted a negro would give that sum for Michael.</p> <p>“Judge Ford, has seen Michael when he lived with plaintiff; witness does not keep slaves, but should think Michael worth as much as most negro men of his age; he was a strong, sturdy, hearty fellow.</p> <p>“The plaintiff then rested his cause and the defendant thereupon, by his counsel, moved the Court to non-suit the plaintiff, and the court after argument ordered the plaintiff to be non-suited, but to give the plaintiff the benefit of an exception to the opinion of the Court, it was agreed it should be given by way of charge to the jury, the defendant offering no evidence on his part.</p> <p>“ And the Court thereupon charged the jury, that the plaintiff had given no evidence to entitle him to recover, to which opinion and charge of the Court the plaintiff, by his counsel, excepted and prayed that this, his bill of exceptions, might be allowed and sealed accordingly.” ¡</p> <p>Errors assigned for the reversal of the judgment.</p> <p>1st. The Court admitted illegal evidence.</p> <p>2d. The Court mistook the law when they ordered the Plaintiff to be non-suit.</p> <p>3rd. The Court mistook the law in charging the Jury that there was no evidence to entitle the plaintiff to recover.</p>

ON CEBTIOBABI. Dungan had obtained a judgment against Sinnickson, before a Justice of the Peace in an action of trespass on the-case, upon the following state of demand : “ The plaintiff' complains for this, to-wit, that in the afternoon or evening: of Saturday, the 2d day of August, the defendant, Seneca Sinnickson, shot and killed two of his hogs, one of which hogs was killed in the field, the other in the road ; that he,.

<p>A Justice may, on reasonable cause being assigned, grant a second adjournment within the period of thirty days from the return of the process; and is not restricted in granting such adjournment to the single cause of the absence of a material witness shewn by affidavit.</p>

The state of demand is .as follows:—“The plaintiff demands of the defendant $91:38, due to the plaintiff on a note of hand given by Margaret White and Mary Ellis, to Henry Pago or order, by H. P. endorsed over to L. D. the defendant, for the sum of $75, bearing date the 1st September, 1820, payable in 90 days, without defalcation or discount, and by the said defendant endorsed over to the plaintiff, and due diligence being used by the said plaintiff to recover the said debt,…

<p>1. A contract to take for a loan of money, more than legal interest, though no illegal interest is actually taken upon it, is usurious.</p> <p>2. But the lender does not subject himself to the penalty of the statute unless he taken, accepts or receives more than the legal interest.</p> <p>3. If the original agreement is usurious it is immaterial whether the illegal interest is secured by a distinct instrument or is included in the instrument which secures the principal.</p>

<p>A testator devises as follows- “1 give to my son Jolm, all my lands-where I now dwell unto him his heirs and assigns forever, though on this proviso, if he shall again become compos mentis, and of sound mind and understanding, and capable of taking care of a family, or should obtain lawful issue who shall be compos mentis; but for want of that, then my said son Abraham shall have all the lands devised to my son John, to him the said Abraham and his heirs.” John remained during his life time non compos and on the testator’s decease, Abraham took possession of the premises and died seized in the life time of John. Abraham took such an estate of inheritance under this devise as entitled his wife to dower in the premises.</p>

<p>1. The rules of evidence are the same in settlement cases as in ordinary-cases, therefore hearsay evidence which would be excluded in the latter, must be rejected in the_former class of cases also.</p> <p>2. Although in questions of pedigree the declarations of deceased members of a family as to marriages are admitted, yet where the marriage is to-be shown as a substantive, independent fact, it is within none of the exceptions to the general rule, and hearsay evidence cannot be received.</p>

<p>Where the counsel of the parties to an appeal agree that nothing shall be done on the appeal during the term, and leave the Court and afterwards the appellee without notice to the appellant, and without apprising the Court of what had occurred, employs other counsel and procures the dismissal of the appeal, the order for dismissal will be reversed by this Court and the-appeal reinstated.</p>

<p>When a state of facts is duly and regularly brought before this Court, the Court will look into them, to ascertain whether the conclusion drawn from them by the court below is correct in point of law, but will not investigate a variety of evidence to determine whether the inferior tribunal formed a conclusion, correct in point of fact.</p>

<p>A service for one year under a voidable indenture of apprenticeship, is ■sufficient to gain a settlement, although the indenture should afterwards, and previous to the completion of the term of service mentioned therein, be avoided by the apprentice.</p>

CERTIORARI. Woolley the plaintiff in certiorari prosecuted Sergeant, in the court for the trial of small causes in an action of debt and among other items of his state of demand there was one as follows : “ March 24th, 1822.

<p>To the alternative mandamus issued under a rule of this court of November term, 1825, the following return was made : “ I, William Holliday, in the within writ of mandamus mentioned to the Honorable the Justices of the Supreme Court of Judicature of the State of New Jersey, do make return and certify, That I, the said William Holliday, was not at the time when the said writ was delivered to me nor have at any time since been an Overseer of the Highways in and for the said township of Lower Penn’s Neck, in the said county of Salem. And I, the said William Holliday, do further return and certify that at a town mooting held in and for the said township of Lower Penn’s Neck, in the county of Salem, on the second Tuesday, to wit: on the ninth day of March, in the year of-our Lord, one thousand eight hundred and twenty-four, by virtue of an act of the Legislature of the State of NewT Jersey, entitled “An act incorporating the inhabitants of township, designating their powers and regulating their meetings, I was chosen an Overseer of the Highways in and for the said township, and that I served in the said office of Overseer of the Highways in and for the said township for the space of one year, next ensuing my said election.</p> <p>(Signed,) WILLIAM HOLLIDAY."</p> <p>Jeffers having obtained a rule to shew cause, now moved to make the same absolute and to quash the return. The-first clause of the return is evasive and insufficient. The-overseer does not deny the suggestion in the writ that the road was assigned to.him by the township committee. He does not deny that he was overseer when the writ issued, nor should he be permitted to deny it as he appeared in court on the rule to shew cause why the writ should not issue, and resisted the allowance of the writ without questioning the official station imputed to him. Farther, he-should have shewn why he was not overseer. The second' clause is no answer to the writ. He may have been legally overseer in 1825, notwithstanding his having been so im 1824. 2 Term Rep. 456, 4 Bae. 518, 519.</p> <p>Dayton insisted that the return was legal and sufficient.. As to the first clause, the fact returned if true is sufficient.: It was not necessary to shew why he was not overseer in-the return. If in fact he was not so, that is sufficient. Nor can any prejudice result from the. defence made on the rule to shew cause. That was not the time or place to dispute-the fact—questions of law alone were then to be considered, And the defendant was to be -bound by the writ, not when it issued but when it was served upon him. The second clause, he contended, was a good return. because having, served one year in the office the defendant could not be compelled to serve the next year. Rev. Laws 725, see. 4.'</p>

CERTIORARI. This case was submitted without argument. The action below was in trespass for that a stud horse of Wales broke and entered the close of Ford, and bit, kicked and injured his horse and mare. It appeared on the trial that when .and for some time before and after the -injury occurred one Hewet had the horse, taking him about the vicinity in' service, but whether on hire or as the agent of Wales did not appear.

IN EJECTMENT. Judgment of nonpros, having been ordered because the lessor of the plaintiff refused to join in the consent rule, Vanarsclale for the tenant, moved for a rule on the lessor to pay costs. He urged the reasonableness of the claim and read the case of Jackson v. Stiles, 1 Cowen, 166. He admitted that he knew no instance here in which such rule had been made nor did he know any case in which it had been refused .after argument.

<p>A mere entry in a book of accounts unexplained and unsupported by any other evidence is not sufficient to sustain a charge for cash paid to a third: person, not one of the parties in the suit.</p>

<p>Directions received by the Sheriff from any person other than the plaintiff or his attorney to stay proceedings on an execution are not sufficient to excuse him from being amerced ; although the person giving such direction was one of the assignors and a guarantor of the bond on which the action was brought.</p>

<p>A judgment rendered against A. and B. in tlieir individual capacities cannot be offset against A. and B, as administrators.</p> <p>2. In the taxed bill of costs on a-rulo for restitution, Attorney and Counsel’s argument fee allowed. \</p>

A report was made to this court of the sale of certain real estate by commissioners under an order for sale made by one of the justices of this court, founded on an application for division and a report that the same was impracticable, &c.

<p>1. If a witness is incompetent because a slave, his declarations even to shew his condition cannot legally he received as evidence.</p> <p>2. Trior to the act of 1798, a slave might have been manumitted by parol.</p> <p>3. Though, where a confession or declaration is offered in evidence, a court or jury may on sufficient ground believe part and disbelieve another part; yet such parts must bo distinct and relate to different matters of fact.</p> <p>4. The black color is presumptive proof of slavery, which must be overcome before witness can be received.</p> <p>5. That a person was reputed free, and for more than twenty years had been in the full and actual enjoyment of freedom, is sufficient evidence to overcome the presumption of slavery arising from color.</p> <p>6. To let in parol evidence of the contents of a declaration and plea in any case, it is not sufficient to prove by the clerk that he had searched the records of his court and found no judgment in such case.</p> <p>7. An entry by the clerk of a county in a book in his office, of an instrument not previously acknowledged or proved or otherwise authenticated, does not stand in the place of the instrument, and dispense with its production and proof, or with legally accounting for its non-production, unless’ such efficacy is given by the express directions of a statute.</p> <p>8. Therefore, the clerk’s book containing a certificate of manumission, not previously acknowledged or proved, is not evidence of such manumission.</p>

This cause came before the court on the following state of the case agreed upon by the parties at the Sussex circuit, when the cause was carried down for trial. “ On the twenty-first of August, one thousand eight hundred and twenty-one, Lewis Johnston the plaintiff, obtained a judgment in the Inferior Court of Common Pleas of the county of Sussex, against James Johnston, for the sum of five hundred and forty-three dollars and seventy-two cents of debt, and thirty dollars and…

<p>Tho delivery of an execution (out of a justice’s court) to a plaintiff, and no return thereto, or failure to procure satisfaction, shewn, is not prima jade evidence of the payment of the judgment.</p>

This was an action of trespass on tlie case brought by Thomas Gibbons against Aaron Ogden, upon the third section of the act of 25th February, 1820, entitled “a further supplement to the act entitled an act to preserve and support the jurisdiction oí this state,” (Rev. Laws 689,) to recover damages, because the said Thomas Gibbons had been restrained and enjoined from navigating, with his steam boat, the waters between the ancient shores of New York and New Jersey, by an…

<p>A verdict rendered without evidence will be set aside.</p>

ON INDICTMENT. This indictment was found in the Court of Oyer and Terminer of the county of Cumberland, and removed into this court by certiorari.

The oaths of office of three of the persons who were appointed and acted as surveyors of the highways in laying out this road had been taken and filed within the time-prescribed by law, but had not been subscribed by them. On this ground Wall made and Hamilton resisted an application to quash the return.

<p>A general reversal of a judgment of the Court of Common Pleas, rendered on appeal does not restore the judgment of the justice, but leaves the plaintiff at liberty to prosecute anew.</p>

<p>Judgment by default against the casual ejector was entertained at the last term, and an execution of Habere facias possessionem issued and executed, which</p>

<p>Though a statute directs that no certiorari shall issue to remove into this Court any' proceedings had in pursuance of it, a certiorari may he issued to bring up proceedings, which although had under pretence of, are not in pursuance of the act. A certiorari will lie to the Court of General Quarter Sessions of the Peace to remove the proceedings of that Court on an appeal under the act “ respecting apprentices and servants,” (£ev. Laws 364.)</p>

<p>1. The time and place of committing an offence should be so stated in an indictment, that there be no incongruity or repugnancy on the face of it-</p> <p>2. Where an indictment 'charges an offence on the 25th day of August,. 1824, in the county of W., and the law creating the counity of W. did not pass until the November following, the Court will notice the discrepancy and quash the indictment.</p>

<p>Where a bill was filed against an attorney in August, 1825, and at the ensuing term of September, a rule to plead was taken but not served, and, nothing done until February Term, 1826, when another rule to plead was taken and served, under which-rule the defendant pleaded, and at the next ilay Term applied to this Court to withdraw his plea and quash the bill-The Court refused to quash, although they allowed the defendant to withdraw his plea and plead anew.</p>

OB CERTIORARI TO THE COMMON PLEAS OF MORRIS—IN TROVER. In the Court of Common Pleas on tbe trial of tbe appeal, Flowell tbe appellee and plaintiff below, having given evidence of property and conversion, inquired of a witness tbe value of tbe chattels in question, who stated their value in detail at sums which amounted to $102.58, and then rested. ■Skellingei moved for a non-suit, because the demand exceeded the jurisdiction of a justice.

<p>■ A eapias acl respondendum, was issued in this case for penalties under the first section of the act entitled “ an act to prevent the unlawful waste and destruction of timber in this State,” Pev. Laws 700, and marked for bail in a large-sum, upon the filing of an affidavit setting forth the cause-of action, but without an order for bail by the court or a judge.</p>

<p>1. In an action brought by the purchaser of the equity of redemption óf mortgaged premises, to recover the rent from a tenant, it is not competent for the tenant to prove the existence of a mortgage prior to the commencement of his tenancy, the service of-notice thereof on him, demand of such rent by the mortgagee, and actual payment thereof to him.</p> <p>2. A tenant under a lease made prior to the mortgage, maybe sued or distrained upon by the mortgagee for rent, after notice not to pay it to the landlord.</p> <p>3. But where the lease is subsequent to the date of the mortgage, a mortgagee can neither distrain nor bring an action for rent against the tenant.</p>

<p>This was a certiorari to the Quarter Sessions of the county of Hunterdon, to bring up to this Court the order of the Sessions, affirming an order of two j ustices to remove Baltus Pickle, Son., a pauper, from the township of Beadington, to the township of Tewksbury, in the county of Hunterdon.</p> <p>The facts as they appeared by a state of the case agreed upon by the counsel of the parties, were as follows: The pauper, (Baltus Pickle, Sen.,) agreed with one Christopher Bocker for the purchase of á lot in Tewksbury at the price of fourteen dollars, for which he paid the money down, took possession in 1805, and resided on it till 1809, when he obtained a deed. From this time he continued to reside on the lot until the spring of 1810, when he sold and conveyed it for $170, and removed out of the township., Christopher Booker himself had no deed for the lot at the time he agreed to sell it to the pauper; he had only an article of agreement with Walter Rutherford for a greater tract, of which this was a small corner of less than an acre and a half, and .the conditions which Booker was to perform in order to obtain a deed, do not appear. The pauper dwelt on the lot five or six years before he got from Bocker a deed, and only five'or six months afterward.</p> <p>Under these circumstances the Sessions adjudged a settlement to the pauper in Tewksbury where the land lay. Against this order of the Sessions, the overseers of the township of Tewksbury sought to be relieved by prosecuting the present certiorari. And they contended by their counsel, Mr. Wall, that to sustain the order of the Sessions to remove the pauper to the township of Tewksbury, it was necessary that the counsel for the township of Readington .should prove three things—1. Seizin in Baltus Pickle, Sen.-, (the pauper) in the township of Tewksbury. 2. That the pauper being so seized, dwelt on the same, or in the township of Tewksbury, for one full year after he became seized. 3. Not only that the seizin and the dwelling were for one year, but they were for the same year.</p> <p>The words “ seized of an estate of freehold ” made use of in the statute meant a legal seizin, and there could be no legal seizin under a mere contract to purchase. The term seizin had a known, definite and legal meaning, and was ■exclusively applied to estates of freehold and inheritance. ’ Woy’s Max. 319; 1 Co. Lit. see. 320, page 200, b.; 2 LI. Com. 104, 144; 1 Lurr. 107; Lev. Laws 151, see. 9, 10, 11; 12 John. Rep. 73. That a freehold estate could only be created by deed, or by twenty years adverse possession. 2 Picker. Rep. 536; 14 John. Rep. 199; Rev. Laws 566, see. 4; Lurr. Sett, cases, 272, 540, 656; 1 Ualst. Rep. 177. That Baltus Pickle never having been seized of an estate of ■freehold until November, 1809, and having parted with it in January, 1810, gained no settlement in the township of Tewksbury.</p>

<p>1. In an action on the statute, Ren. Laws 369, see. 5, for convoying or assisting to convey away a slave, it is not necessary to aver in the declaration that the defendant “ has been rouBD guilty of conveying away ” such slave.</p> <p>2. But it is necessary to aver that 1-lie defendant was guilty of conveying away such slave, and if this averment is omitted, the declaration will be had on special demurrer.</p> <p>3. It is not necessary to aver in the declaration that the defendant knew ithe slave to be the slave of the plaintiff; if he convey away a slave knowing him to be such, it is sufficient, although he may not know to whom he belongs.</p> <p>4. It is not necessary to state in the declaration the names of the places from and to which the slave was carried away, nor the manner in which it was done.</p> <p>5. It is not necessary to state in the declaration whom it was that the defendant assisted to convey away the slave.</p>

<p>1. An instrument in writing not under seal, whereby M acknowledges to have received of S four bushels of rye, for which he is to return to the said S, four and a half bushels, the said rye to be sowed on shares between said ¡S and M, on the farm of M; said M not to convey or sell to any person •without this restriction, “ that S is to have liis pay out of said M’s part,” is not an assurance within the meaning of the 60th Section of the act for the punishment of crimes, (Rev. Latos 260,) for the unlawfully or maliciously tearing of which a man may be indicted.</p> <p>2. When an instrument ip described by name in the indictment, the instrument set out in the indictment or produced in evidence must correspond therewith.</p>

<p>1. A warrant of attorney given by two persons authorizing an attorney to appear to an action to be brought “ against us," and confess judgment “ against us," will not authorize the confession and entry of a judgment against one of them, even though the other be dead at the time judgment is entered.</p> <p>2. Delegated powers must bo strictly pursued.</p>

<p>IN TRESPASS AND EJECTMENT FOR LANDS IN ESSEX.</p> <p> SPECIAL CASE. </p> <p>This canse came before the court on the following state of the case agreed on by the parties:</p> <p>Nicholas Delaplaine, late of Newark, in the county of Essex, took to wife and was lawfully married to Mary Andruss, the daughter of Nathaniel Andruss, a,nd the said Mary had by her said husband issue lawfully begotten, that is to say, three children the lessors of the plaintiff, who are infants; and the said Mary died on or about the thirteenth day of June, in the year of our Lord one thousand eight hundred and thirteen; leaving her said father, husband and ■children, her surviving. After the death of the said Mary, the said Nicholas Delaplaine took to wife and was lawfully married on or about the twenty-eighth day of April, in the year of our Lord one thousand eight hundred and seventeen, to Lydia Andruss, another daughter of the said Eathaniel Andruss, and sister of the said Mary Delaplaine, deceased, and the said Lydia by her said husband had issue lawfully begotten, that is to say, one daughter named Lydia Austin Delaplaine. The said Nathaniel Andruss, after the marriage of his said daughter Lydia, as aforesaid, on or about the first day of September, in the year of our Lord one thousand eight hundred and eighteen, departed this life-intestate, seized in fee simple of considerable real estate in: the county of Essex, leaving Isaac Andruss, Pamelia Todd, Phebe Colt, Henrietta the wife of Jonathan D. Marvin,. Lydia Delaplaine and,the lessors of the plaintiff, his-heirs at law.</p> <p>After the death of the said Nathaniel Andruss, to wit: on or about the twenty-fifth day of September, in the year of our Lord one thousand eight hundred and twenty, a partition was made of his real estate among his aforesaid heirs at law, and a lot of land with a store house thereon, situate on the north side of Market street in Newark, in the said' county of Essex, and a lot of land containing about five acres, lying on the southwest side of the road leading from Newark, aforesaid, to Orange, in the said county of Essex, being the premises in question in this cause, were allotted to the said Lydia, the wife of the said Nicholas Delaplaine, who thereupon became seized thereof in severalty as the law requires, as one of the heirs at law of the said Nathaniel Andruss, and being so seized in the life time of her said husband on or about the fifth day of February, in the year of our Lord one thousand eight hundred and twenty-one^, died, leaving her said child, Lydia Austin Delaplaine, her heir at law; who thereupon became seized, as the law requires, of the lands so as aforesaid allotted to her said mother, being the said premises in question, and the said Lydia Austin Delaplaine continued so seized thereof until ■on or about the fifteenth day of September, in the year of our Lord one thousand eight hundred and twenty-two, when she died intestate, aged about one year and nine months.</p> <p>And on or about the twenty-fifth day of February, in the year of our Lord one thousand eight hundred and twenty-one, her father, the said Nicholas Lelaplaine, also died.</p> <p>The lessors of the plaintiff claim title to the premises in question as heirs at law of Lydia Austin Delaplaine, the person last seized and who was their sister of the half blood.</p> <p>The defendants claim title under Isaac Andruss, the uncle, and Pamelia Todd, Pliebe Colt and Henrietta Marvin, the aunts of the said Lydia Austin Delaplaine.</p> <p>And if upon the whole matter the court are of opinion that the lessors of the plaintiff have title to the premises in question or to any part or share thereof, then judgment is to be given for the plaintiff accordingly; but if upon the whole matter the court are of opinion that the lessors of the plaintiff are not entitled to the said premises or to any part or share thereof, then judgment shall be given for the defendants.</p> <p>A.nd it is further agreed that either party shall be at liberty to turn this case into a special verdict.</p>

Clietwood, moved for a writ of prohibition to be directed, to the Borough Court of Quarter Sessions of the Borough of Elizabeth; to prohibit them from granting a new trial in-this' case, upon the1 following facts which appeared to the-Court by the record of the Court of the Borough of Elizabeth produced in this Court. The defendant had been indicted in the Borough Court, pleaded not guilty, was tried, convicted, and final judgment entered against him.

<p>1. Tho act entitled “ An act to abolish imprisonment for debt in certain cases,” passed December 11th, 1823, does not authorize a Sheriff to take the' bond mentioned in tho first section of the act, and to discharge a defendant after he lias been confined in gaol upon an execution. Such bond and such discharge are admissible only after an arrest, and prior to a confinement in gaol.</p> <p>2. This statute introduces anew principle in abrogation of the common law and must be strictly complied with.</p> <p>3. Although the bond is delivered to the plaintiff and by him received,' yet the default of the Sheriff in discharging the defendant is not thereby cured; but he is still liable for a voluntary escape.</p>

The plaintiff in this ease had excepted to the bail put in by the defendant; and the defendant gave notice to the plaintiff that he would “ put in and perfect special bail on Friday, the seventh day of-September,” &c.

This was an action of debt upon bond, with condition to perform an award. The plaintiff set out in his declaration the bond, the condition, and the award, and then assigned a single broach. The defendants denied the making of an award and concluded with a verification. The plaintiff replied setting out the award de novo and then assigned a breach different from that set forth in the declaration. To this replication the defendants demurred specially.

<p>Wall moved to set aside the judgment of non-suit entered in this case at the last term, upon the ground that it had been irregularly ordered. He contended that after there had been one trial, the defendant could never have judgment as in case of non-suit, for any subsequent laches upon the part of the plaintiff in not bringing the cause to trial; but if he wish to dispose of the action, he must take it down for trial by proviso; and cited 2 Tidd. Pra. 703; 2 Arch. Pra. 214; Rev. Laws, 422, sec. 84; King v. Pippett, 1 T. Rep. 492; Mewburn v. Langley 3 T. Rep. 1.</p>

<p>1. The maiden settlement which a woman has from her parents is merged, by marriage, in the settlement of her husband.</p> <p>2. The place of birth is the place of every man’s legal settlement until another can be shewn.</p> <p>3. A settlement out of the State is deemed in law no settlement.</p>