Volume 9 — New Jersey Law Reports

<p>The neglect of the plaintiff to file his declaration in time is not a ground to discharge the defendant on common bail.</p>

<p>After a certiorari has been returned to this court, removing an indictment, the court will allow a rule to return the record to the court from which it was removed for the purpose of amending the caption.</p>

<p>This court will grant a rulo for a struck jury to try an indictment pending in the Oyer and Terminer.</p>

<p>The obligee of a bond, for the purpose of having it collected, makes an unconditional assignment of it to B.; and afterwards, fearing that B. will appropriate the money to his own use, files a bill in Chancery to restrain the obligor from paying the money to B., and B. from receiving it. During the continuance of the injunction the obligor is not chargeable with interest.</p>

The Court of Common Pleas of Cumberland, being of opinion that although one of the defendants in the court for the trial of small causes made no defence, the other defendant, who had made defence, could not appeal, dismissed his-appeal; and the case was submitted to this court upon an agreement of the attorneys of the said Edmund Sheppard and Andrew Fenton, that if this court should be of opinion the court of Common Pleas might legally have sustained the appeal, upon…

This case was submitted to the court without argument upon the following state of the case agreed upon by the parties and their attornies. “ David Ewan, late of the county of Burlington, made and published his last will and testament in the words following, to wit: In the name of God, Amen.

This case was submitted to tho court without argument upon the following state of the case agreed upon by the counsel of the parties. ' The plaintiff brought an action of debt before James D. Stryker, Esquire, one of the justices of the peace in and for the county of Somerset, and on the return day of the summons filed his statement of demand, amounting to one dollar and forty-nine cents. The defendants filed no plea or offset.

This was a certiorari to the common pleas of Burlington: to remove the proceedings in a matter of road. The order of the Court of Common Pleas, appointing the surveyors to-lay out the road, directed them to meet at the house of-James U. Coleman in Nottingham.

In matter of road. This was a certiorari to the Court of Common Pleas of the •county of Monmouth, to remove, the proceedings and return of a certain road laid out in that county, and was granted in open court in the term of September, 1825, upon the .application of Robert Woodward, and upon the return of the writ of certiorari in November term following, a rule ■was granted to shew cause why the writ should not be •quashed and leave was given the parties to take affidavits.

This case was argued by Sims and W. Halsted, on the part of the state, and Sloan and Wall, for the defendant. The facts involved in it are sufficiently developed in the opinion of the court.

This was a certiorari brought by Ayres to reverse the judgment of a justice of the peace, rendered against him for tolls demanded of him by the Trenton and New Brunswick Turnpike Company.

<p>ON CERTIORARI.</p> <p>This was an action of forcible entry and detainer, brought by Hunt and Boyd against the plaintiff in certiorari, upon the Hollowing complaint exhibited before the justice : [*38 “Warren county, ss. — James Hunt and Jarret Boyd do hereby complain to George W. King, Esq., one of the justices of the peace in and for the county of Warren, against Garret D. Wall, Esq., for this, to wit: That whereas the said Garret D. Wall, Esq., on or about the thirtieth day of June, in the year of our Lord 1826, in the township of Oxford and county of Warren, entered into the dwelling house and messuage of the said James Hunt and Jarret Boyd, of which said dwelling house and messuage the said James Hunt and Jarret Boyd are seized as tenants for years or lessors of the same, and from the thirtieth clay of June aforesaid, until the day of making this complaint, ho, the said Garret D. Wall, Esq., hath held and kept possession of the said messuage or dwelling house unlawfully, with force and strong hand, &c.” A trial was had before the justice and judgment rendered in favor of the plaintiffs below. To reverse this judgment, the defendant below brought this certiorari, and the following among other reasons was relied upon as cause of reversal, viz: Because the complaint does not conform to the statute in setting forth the estate of the plaintiffs, or the description of the premises.</p>

<p>1. Under the act of 1744 (1 Ne.ve.ll ed. of N. J. Laws, 256, and 1 Allison’s ed. 1 IS), “living one full year at one time, m one house or family gave a settlement.”</p> <p>2. The question of tlie credibility of a witness offered in a pauper ease, belongs exclusively to the Court of Quarter Sessions. The Supreme Court-is not to judge of the fact, but only of the law arising upon the fact.</p>

<p>IN EJECTMENT.</p> <p>This case was argued at the last term by Wall and Wood for plaintiff, and B. Stockton for defendants, upon the following state of the case agreed upon by the parties and their attorneys :</p> <p>This cause was noticed for trial before the Circuit Court held at Freehold, in and for the county of Monmouth, on the third Tuesday of October, 1822, when the parties appeared by their respective attorneys, and thereupon the following state of facts was agreed upon :</p> <p>*47] *Adam Brewer, being seized of the premises in controversy, made and executed his last will and testament in writing, in due form of law, to pass real and personal estate, bearing date the twenty-second day of August, 1768, and therein and thereby devised as follows : “ Item, I give and' bequeath unto my son Eleazarus Brewer, all my lands, and interest in lands, lying on the west side of Mingemihole brook, except one acre, of land, which I reserve for the use of a burial burying yard, where the burying yard now is, which I give and bequeath to him and his heirs forever; and also one-half of my grist-mill, and one-half acre of land about it, which I give to him. and his heirs; and after the decease of my son Eleazarus Brewer, I give and devise to my grandson, Adam Brewer, son of Eleazarus Brewer, all of the above mentioned lands, lying on the west side of Mingemihole brook, and mill and burying yard, and half an acre, and half an acre of, about the mill, which I give to him and his heirs and assigns forever.”</p> <p>Adam Brewer, the testator, died on the thirtieth day of ■January, 1769, so seized, leaving William Brewer, his oldest son, and George Brewer and Eleazarus B., his socond and third sons, and after his death, the said last -will and testament was duly proved and recorded according to law, [pro ut same.]</p> <p>Upon the death of the testator, Adam Brewor, Eleazarus Brewer, the devisee, entered into the possession of the said premises so devised to him, and continued in possession thereof, until the same were sold at sheriff’s sale, in the manner hereinafter stated, and died in February, 1821.</p> <p>Adam Brewer, the grandson of the testator, and son of the said Eleazarus Brewer, and devisee in said will, died in the life time of the said Eleazarus Brewer, under age, intestate, and without issue; to wit, on the thirtieth day of May, 1775.</p> <p>Eleazarus Brewer, the devisee, besides the said Adam, who was his eldest son, had issue the following children, to wit:</p> <p>Aaron Brower, the second son, George Brewer, still living, (third son,) John E. Brewer, still living, (fourth .son,) Deborah, who afterwards intermarried with Amer Cook, still living, Elizabeth, who intermarried with James Van Kirk, still living.</p> <p>Aaron Brewer, the second son of Eleazarus Brewer, and the eldest brother of the whole blood of Adam Brewer, the grandson *of the testator, and son of Eleazarus, the [*48 devisee, removed to Canada, shortly after the commencement of the revolution, where he lived, and died intestate, some time in the year 1802, in the lifetime of Eleazarus Brewer, leaving issue, to wit:</p> <p>Margaret, who was born in Canada, September 14th, 1785, intermarried under age, with Jarvis Worden, who are still living in Canada, and are two of the lessors of the plaintiff.</p> <p>John Brewer, who was born 24th April, 1787, in Canada, and still lives there, and is one of the lessors of the plaintiff.</p> <p>Sarah, who was also born in Canada, and still lives there, intermarried under age with William Spafford, and are two of the lessors of the plaintiff.</p> <p>Aaron Brewer, who was born in Canada, is still living there, and is one of the lessors of the plaintiff.</p> <p>Elizabeth, born in Canada, and still living there, inter- ' married, under age, with William Jackson, who is still living, and are two of the lessors of the plaintiff.</p> <p>Philip Brewer, who was born in Canada, and is still living there, and is one. of the lessors of the plaintiff.</p> <p>At the time of bringing this ejectment, and for some time before, the defendants were and still are in the possession of the premises in controversy, which are the premises contained in said will, by John Hampton, their tenant.</p> <p>The defendants confessed lease, entry and ouster (pro ut lex postulat.)</p> <p>In the term of July, 1786, Kenneth Hankinson recovered a judgment in the Court of Common Pleas of the county of Monmouth, against Eleazarus Brewer, the devisee, in an action .of debt, and sued out thereon a writ of fieri facias against his goods, lands and real estate, upon which the premises in question were taken in execution by David Rhea, then sheriff of Monmouth countv.</p> <p>The sheriff, in due form of law, sold the said premises on the said judgment and execution, in the month of March, 1789, and the same were purchased, at such sale, by one Joel Wooly. On the 27th March, 1790, the said sheriff by his deed duly executed, conveyed the said premises to the said Joel Wooly, in fee simple, (pro ut the deed) who went into possession of the premises under the said deed.</p> <p>On the 17th Eebruary, 1792, Joel Wooly sold the premises unto the present defendants, and by deed of that date con-*49] veyed the *sarne to them, in fee simple, as tenants in common, with covenants of title and general warranty, upon which they the said defendants went into possession, and have remained ever since in possession under the said title.</p> <p>If upon these facts the court shall be of opinion that the plaintiff is entitled to recover, then judgment is to be entered for the plaintiff. If the court arc of opinion that he ought not to recover, then judgment is to be entered for the defendants. Either party is to be at liberty to turn into, or consider this state of facts as, a special verdict so as to make it a part of the record for the purpose of bringing a writ of error if it is judged expedient so to do.</p>

<p>If a. second writ of attachment is sued out between the same parties, in the •same county, during the pendency of a former attachment, the second writ .-of attachment will be quashed.</p>

<p>This was a certiorari to the Quarter Sessions of Sussex,, to bring up the order of the sessions made on an appeal from the order of two justices, removing John Whims and .Mary his wife, and their three children, from the township •of Stillwater to the township of Green, in the county of •Sussex. The following' state of the case was agreed, upon ■by the attorneys of the parties :</p> <p>This cause came on to be heard before the Court of General Quarter Sessions of the Peace, of the county of Sussex, at the term of November, in the year of our Lord one thousand eight hundred and twenty-five. The appellees in sup-*60] port of the order *called and examined John Whims, who upon his oath said : That he was a native of Ireland ; that he landed in the year 1811 or thereabouts, on Staten Island, from thence he went into New York, and remained there about four days; from thence hé went to Newburgh, and was there about two hours; thence to Goshen, and was there about six weeks; thence he came into Hardwick township, in the county of Sussex, and lived with David Gustin ■one month and a half; then lived with John Boyd, in said township, about seven months; then went to Thomas Hunt’s, .and was there about, three months ; then returned to Boyd’s, .and was there about two months; then at Thomas Hunt’s about two months; then at Thomas and Samuel Dildine’s .about one month ; then at Joseph Green’s less than a .month; thence again to Thomas Hunt’s about three month’s ; thence again to John Boyd’s about three months; thence to Imlay Hoy’s, and was there about one month; thence to .Nathaniel Reed’s, and was there about three months; then married one Mary Bolin; thence to Joseph Plunt’s, near the stage road, and rented there for five months ; from there went to the house oí Ralph Hunt, near the grist mill and fulling mill, and was there about three months; thence to to the house of Richard Hunt, near said mill, and there rented said house, and lived one full year, and paid his rent .and tax. Witness further said, that he worked about as a weaver, and had no home pxcept at the places he worked ; that some of the places above mentioned are in that part of .the old .township of Hardwick, which is now the township of Green; others in what is now the township of Stillwater; that until he married and rented as above stated, he did not remain a full year, at any one time, in what is now the present town of Green, or the present town of Stillwater; that the place he rented and lived in for a full year as above mentioned is in the township of Green. Witness further testified, that when the township of Hardwick was divided, in the fall of 1824, he was living under the care of one of the overseers of the poor of the said town of Hardwick, having been farmed out as a pauper of said township; and that the place where he was at the time, fell in what is now the township of Stillwater.</p> <p>It was admitted and agreed that the said John Whims was a healthy person until ten or twelve years ago; that after he rented the tenement and lived on it for one year as aforesaid and was married, he had the misfortune to lose his sight; and has *since been received and taken care [*61 of by the township of Hardwick, as one of their paupers. It was also admitted and agreed that the said pauper had a wife, now living, named Mary, and three children, who at the time of making out the order of removal, were severally of the age and names mentioned in said order.</p>

<p>This case was submitted to the court upon written arguments of Dodd and Vanarsdale for the plaintiff in certiorari, and A. Pennington and W. Pennington for the defendant.</p>

<p>This was a. certiorari to the Orphans’ Court of the county of Salem, brought by Eleazer Mayhew, to remove the record and proceedings of an account stated and passed by the Orphans’ Court of said county, in which the said Eleazer Mayhew, administrator of John Johnson, deceased, was accountant, and in the final settlement *of which the [*71 said accountant- alleged himself to be aggrieved. The material facts in the case were presented to this court in the following state of the case, agreed upon by the counsel of the parties, viz :</p> <p>The inventory made by the accountant, E. Mayliew, of the personal estate of the intestate, bearing date 19th November, A. D. 1819, amounts to $2,714.52!. The estate has finally turned out insolvent. The estate was of considerable amount, consisting of many articles of real and personal estate. An order of the Orphans’ Court, was obtained' in March, 1820, to sell the real estate for the payment of debts. Seven distinct parcels of land, amounting to $3,412 in the whole, were sold between. 6th May, 1820, and 2d January, 1821. It appears from the record, that the debts were numerous, exceeding one hundred different debts to different creditors. The final account states the whole amount at $7,099.96!, and the debts at $7,550.19, making a deficiency of $450.22!-. The final decree of the Orphans’ Court, which is brought up on the •present certiorari, was made in June term, 1824, and is in the following words: Samuel Dare and others, naming several exceptants, against E. Mayliew, administrator of J. Johnson, deceased, on exceptions to accounts, &c. “ This cause came on to be heard in the presence of the exceptors and their counsel, and the accountant and his counsel, and in the presence of Cornelius Johnson and his counsel; and the court having heard the evidence, and examined the papers, and maturely considered the same, do order and direct, that the surrogate alter and re-state the accounts, and on the re-statement of the said accounts the surrogate charge the said Eloazer Mayliew with the sum of $151.48, being moneys received by the said Eleazer Mayhew of the estate of the said John Johnson, deceased, not appraised, and the excess of the sales beyond the appraisement, and with the further sum of $1,343, being the interest on $5,735.96, from and after the third day of January, 1821, and that he strike out of the debts of preference the sum of $29.93, leaving the debt of preference $611.60; and further, that the claim of Cornelias Johnson, amounting to $945.19, be stricken out, and the sum of $486.11 be substituted in the place thereof, being the amount due to the said 'Cornelius Johnson from the said John Johnson, deceased; and further, that the surrogate calculate the interest upon the several other claims and demands against the said estate, from the eleventh day of March, *A. D. 1823, [*72 to the eleventh day of June, 1824, and thereupon strike a dividend of the estate of the said deceased in the hands of the said Eleazer Mayhcw, amongst the several creditors named in the said account.''' In the same term, the surrogate re-stating the account agreeably to the order of tho court, it was then finally decreed that the same be allowed in all things as re-stated by the surrogate. Done in open court, Juno term, 1824, and signed by three judges. The return to the certiorari having been completed, the prosecutor in May, 1825, assigned and filed before tho Supreme Court the following reasons as grounds for reversing and annuling the said final decree of the Orphans’ Court. First reason. The court below charged the said Eleazer Mayliew, the accountant, with a largo sum of interest, amounting to 81,313, -which sum the said Eleazer Mayhew never did receive, nor could he by any diligence have received the same, and therefore was not accountable therefor. Second reason. The said court refused to allow the accountant for clivers sums of money by him actually and lawfully paid and disbursed iu the administration oí the said estate, and for which he produced proper vouchers, which the said court refused to allow. The third reason not being verified or relied on, it is thought unnecessary to copy it. Fourth. Divers other errors, irregularities, &c. Fifth. The general and formal reason.</p>

<p>An affidavit made lie,fore a judicial officer of another State, verifying a plea in abatement, cannot be read in this court,</p> <p>A plea in abatement of another action ponding, for the same cause, in another State, must he verified hy an affidavit, or accompanied by a record of the proceedings in such action, under the seal of the court, and properly authenticated under the act of Congress ; otherwise the plea may be treated as a nullity, or taken advantage of either hy general or special demurrer.</p> <p>if the record of another court he pleaded in abatement, the parly pleading if must accompany the, plea hy an exemplification, to bn hied therewith. Per Ford, Justice.</p>

<p>This was an application for a mandamus on the part of Archibald Sooy, an insolvent debtor, to the Court of Common Pleas of Burlington, to compel tliom to proceed to the hearing of his cause, and was submitted to the decision of this court without argument, upon the following statement of facts agreed upon, viz.</p> <p>The said Archibald S. Sooy presented a petition to the judges of the inferior Court of Common Pleas, in and for the county of Burlington, in the term of February, in the year of our Lord one thousand eight hundred and twenty-six, which petition was received by the court and filed by the clerk; that the said court thereupon appointed to meet at the court house in Mount Holly, on the tenth day of April then next ensuing, to hear what could be alleged for and against the liberation of the .said Archibald from confinement as an insolvent debtor, at which time the said defendants appeared, and said that they were not satisfied with the truth and honesty of the declarations and confessions of the said Archibald Sooy, (he having first submitted himself to an '""examination upon interrogatories) and did then and [*87 there undertake to prove to the. court by the first day of the then next term, that the said Archibald 8. Sooy had concealed and secreted some part of his estate, and had not fairly and fully delivered up all his estate, real and personal, for the use and to the benefit of his creditors; whereupon the court remanded the said Archibald S. Sooy to prison. That the trial (issue having been regularly joined) came on before the said court and a jury, in the term of August, in the year of our Lord one thousand eight hundred and twenty-six, when the said plaintiff did read in evidence before the said court and jury, an affidavit, setting forth the service of notices upon the creditors of the said plaintiff, the interrogatories administered to him and other proceedings founded thereon; whereupon the counsel of the defendants moved to overrule the same because the affidavit did not contain proof of the service of notice upon all the creditors named in the said petition of the said plaintiff, which was sustained by the court, and the affidavit and proceedings thereafter had, were overruled. Whereupon the jury found a verdict against the said plaintiff, upon which verdict the court rendered judgment^ and taxed the costs of the said defendants at the sum of-. That after the said verdict was given, and judgment rendered thereon, and on the same day, another execution was issued by George Haywood, Esq., against the said Archibald Sooy, at the suit of Rachel Iioleman, and lodged with the gaoler of said county; and that the said Archibald Sooy did thereirpon, in the same term of August, and on the same day, present a petition, praying the benefit of the several insolvent laws of the state ofriNew Jersey, which petition was received by the said court and filed by the clerk thereof. That the said court did appoint the --- day of September then next ensuing, to hear the said Archibald Sooy and his creditors, at which time the said defendants, creditors above named, appeared by their counsel, and insisted that the said Archibald Sooy could not legally be heard upon his said petition until he had first paid the said taxed costs, a copy thereof having been served upon him, and notice given him that the payment thereof would he insisted on before the hearing of the said second application, and the court, being of that opinion, refused to hear the said Archibald Sooy, upon his said petition, until the said taxed costs wore by him paid, and did remand the said ^Archibald Sooy to prison, there to [*88 remain until the said costs should bo paid.</p>

<p>This was an application for a mandamus to be directed to the Court of Common Pleas of the county of Hunter-don, to compel them, to restore an appeal which had been dismissed because the fee of one dollar, required by their rule to be paid upon the filing of the appeal papers, had not been paid. And it was submitted to the decision of this court, without argument, upon a state of the case agreed upon by the attorneys of the parties, the substance of which is sufficiently stated in the opinion of the Chief Justice.</p>

<p>On. application for mandamus to the Common Pleas of Essex.</p>

A judgment on a bond and warrant of attorney had been entered against John M. Milnor on the 16th February, 1827, and an execution issued thereon.

<p>STAY OF PROCEEDING UNTIL PAYMENT OF COSTS.</p>

Wall moved that an exoneretur should be entered on the bail piece in this case, because the declaration filed by the plaintiffs set out a different cause of action from that which was disclosed in the affidavit to hold to bail.

<p>A variance between the original rule of reference and the copy presented to the referees, the former submitting “ all matters in difference in the said cause," and the latter submitting “ all matters in difference between the parties in the said cause," will not vitiate the report, if it appear that the referees really wont into an examination only of the matters in difference in the cause.</p>

<p>This case was argued by Wood, for the defendant in certiorari, and Wall for the plaintiff.</p>

<p>If upon a transcript of a justice’s docket, duly certified under hand and seal, the justice, on the day after the certificate hears date, makes an endorsement upon the back of such transcript, “that the defendant appeared and filed an affidavit, and produced bond and demanded an appeal,” such endorsement is not evidence of the demanding of the appeal, and will not be received by the Common Pleas.</p>

<p>1 AYhethef’notices of the application for the appointment of purveyors have been sot up at throe of tlio most public places in tlio township where tlie road is to be laid out, is a point upon wlucli the judgment of the Court of Common Pleas is final and conclusivo.</p> <p>2. The return made by the surveyors will not be considered vague and uncertain because tlio several courses of the road set forth in the return, are said to be as the magnetic noedle of the practical serveyor eugaged'm laying out the road, pointed on a particular day ; nor because’ilie route had been run on a subsequent day by two other surveyors, who found a small difference of course on the first lino, and at tlio termination of the road a departure of about four chains; a fourth surveyor agreeing with tlio first.</p> <p>3. That the surveyors met on one day at the house of one person, and that the return is dated and signed on a different, day, and at the house of a different person, and no adjournment of time or place shewn in the return, is not sufficient to vitiate tlio return.</p> <p>4. After the return of a road is recorded, the applicants cease to have, alone, the control over it.</p>

IN REPLEVIN. Tt is agreed between the parties in the above cause, and their attorneys, that the same bo submitted to the judgment of the Supreme Court of Judicature of New Jersey, upon the following facts and state of the case; and if thereupon the said court should be of opinion that judgment ought to be for the plaintiffs, that the same be entered accordingly ■ or if for-the defendants, that judgment be entered for the *111] defendants accordingly, with costs, in…

A writ of attachment had been sued out by the executors of Abner Woodward, deceased, against Horace N. Woodward, for a debt due to the deceased in his life time, by virtue of which writ the sheriff of Monmouth attached a legacy of four thousand dollars, bequeathed by Abner Woodward, deceased, to the said Horace N. Woodward, and ordered by the testator to be paid by his son Apollo Woodward, to whom the testator had devised a plantation, subject to the payment of this legacy.

This was an application for a peremptory mandamus, to be directed to the Court of Common Pleas of the county of Sussex, to compel them to restore an appeal; and came before this court upon the following state of the case, agreed upon by the counsel of the parties, viz : The plaintiff below, the appellee in the Court of Common Pleas, filed before the justice a state of *119] demand for one hundred dollars, * (which contained-several items of book account, in the usual form,…

This was an action of assumpsit, brought by Francis R. *122] Tillou, *a§ endorsee of a promissory note drawn by Samuel Britton, the defendant, payable to Paul M. Provost or bearer, at the State Bank at Trenton, without defalcation or discount. This note had been endorsed by Provost and discounted by the State Bank at Trenton, and after the failure of the bank, and before it became due, passed over by delivery (without any other endorsement except that of Provost) to Tillou.

<p>1. If there is a subsisting mortgage on the premises at the time of the execution of the deed of conveyance, the covenant m the deed that the premises are free from incumbrances, is broken as soon as made.</p> <p>2. To constitute a breach of covenants for quiet enjoyment and warranty, there must be a disturbance in, or deprivation or cessation of, the possession by the prosecution and operation of legal measures.</p> <p>3. Whore, by reason of an antecedent mortgage, the grantee is evicted, or the whole of tiro premises is absorbed in tlie discharge of the mortgage debt,' the rule of damages for breach of a covenant against incumbrances, or for quiet enjoyment and warranty, is the same as if the grantee bad been evicted by reason of a total want or failure of title in the grantor : that is, the amount of the consideration money, with interest.</p> <p>4. If a covenant against incumbrances has been broken previous to the grantor’s making an assignment under the insolvent law, though the amount of such claim is not ascertained until after said assignment, yet if the amount, of the claim is fixed in season to enable the grantee to exhibit it within the time limited by the statute, it must be received.</p>

<p>in error to common pleas.</p>

This was an application for a peremptory mandamus, to be directed to the court of Common Pleas of Sussex, and came before this court upon the following state of the case, agreed upon by the counsel of the partios, vix : An appeal was taken from the judgment of a justice, rendered upon the verdict of a jury, and it carne on to be tried before the Court of Common Pleas of the county of Sussex, in the term of February, 1826, when the appellee professing himself ready for trial,…

<p>L In ejectment the oldest possession, even for less than twenty years, carries ■with it a presumption of title that is sufficient to put the defendant upon his defence, and will overcome the later possession of a mere trespasser.</p> <p>2. Whether the possession is adverse or not, is a question for the jury.</p> <p>3. Outstanding titles are not to be favored. Whoever sets them up should prove them strictly, arid shew them to be subsisting and available.</p> <p>4. Mere omissions in the charge of a court can afford no ground for a new trial, unless it shall be manifest that the jury erred through want of instruction, and have feund a verdict contrary to law.</p>

IN ERROR. This was an action of trover, brought by Peter Vantuyl and his wife, against William Folly, in the Court of Common Pleas of Bergen. A verdict was found and judgment rendered in favor of the plaintiffs. Folly took a bill of exceptions to the charge of the Court of Common Pleas, and brought a writ of error to this court.

<p>1. If a justice of the peace refuses an adjournment to which a party is legally entitled, relief may be had on appeal to the Court of Common Pleas, and if the party aggrieved omit'or neglect to seek such relief on the trial of the appeal, he cannot obtain it in this court.</p> <p>2. A judgment of the Court of Common Pleas, rendered on an appeal, will he reversed if the state of demand is defective.</p> <p>3. In an action of trespass m et armis for taking away goods, &c., an omission to allege the value of the goods in the state of demand is not a fatal defect.</p>

CERTIORARI. This was a certiorari brought to reverse a judgment of a justice *of the peace, obtained by the defendants in [*168 certiorari against Ogden, the plaintiff, for harboring a black girl named Betty, alleged to be the property of the defendants, the plaintiffs below.

The writ of error in this case brought into this court the record of a judgment in the inferior Court of Common Pleas of the county of Essex, in favor of the defendant in error, against the plaintiffs in error. The action was in case on assumpsit. The declaration contained the common counts. The plea was the general issue, with the following special notice.

<p>In an action on a promissory note, made payable at a particular place, brought by tbe payee, against the drawer, a special averment of presentment at that place is not necessary to the formality or validity of the declaration ; nor is proof of it requisite on the, trial, on a plea of non-assumpsit.</p>

<p>The omission to record a deed within fifteen days after it is executed, does not render it invalid against an attachment creditor having notice thereof before the j udgment in attachment is obtained.</p>

<p>CERTIORARI TO COMMON PLEAS OF ESSEX.</p>

<p>IN ERROR.</p> <p>This case came before the court upon a writ of error directed to the Common Pleas of the county of Hunterdon. The abstract of a record sent up to this court from the Court of Common Pleas, is as follows :</p> <p>abstract oe the record.</p> <p>Pleas before the Inferior Court of Common Pleas of the county of Hunterdon, A. D. 1825; term of August.</p> <p>Blackwell, Clk.</p> <p>Hunterdon Inferior Court of Common Pleas, of August term, 1823.</p> <p>Hunterdon, ss. Elizabeth Craig puts in her place, P. I. Clark, &c.</p> <p>Hunterdon, ss. William Craig puts in his place, P. D. Vroom, Jr. &c.</p> <p>Hunterdon, ss. William Craig was summoned to answer Elizabeth Craig, of a plea that he render unto her §356.00, lawful *monoy, &c. (Common declaration in debt on [*199 a sealed bill given by said William Craig to Elizabeth Craig, dated 18th February, 1812, for §178).</p> <p>Hunterdon Pleas, of May term, A. D. 1824.</p> <p>Elizabeth Craig 1 v. V In Trover. William Craig, j</p> <p>Hunterdon, ss. Elizabeth Craig puts in her place, P. I. Clark, &c.</p> <p>Hunterdon, ss. William Craig puts in his place, P. D. Vroom, Jr., &c.</p> <p>Hunterdon Pleas, of May term, A. D. 1824.</p> <p>Elizabeth Craig ] v. In Case. William Craig, J</p> <p>Hunterdon, ss. Elizabeth Craig puts in her place, P. I. Clark, &c.</p> <p>Hunterdon, ss. William Craig puts in his place, P. D. Vroom, Jr., &c.</p> <p>Afterwards, to wit, on the first Tuesday of February, 1825, before our said court came the parties, &c., and hereupon — “ It is ordered by the court and by consent of the parties in these causes, that all matters in difference in these causes between the parties respectively be submitted to the award, order, arbitrament, final end and determination of Nathaniel Saxton, William Demun and Jacob Kline, referees mutually chosen between the said parties, whose report, or the report of any two of them, and returned to the next or any subsequent term of this court, shall be final and conclusive between the said parties, made a judgment of the court, and execution issued thereon if need be. And it is further ordered that the referees do meet, &c., &o.," and day is given, &c.</p> <p>At which day, &c., came the parties, and the referees bring in their report as follows :</p> <p>“ Elizabeth Craig ) 'v. V In Debt, in Case, and in Trover. William Craig, )</p> <p>“ To the Honorable the Judges of the Inferior Court of Common Pleas of the County of Hunterdon :</p> <p>“We, the subscribers, referees to whom all matters in difference in the above causes between the said parties were submitted by rule of said court of the term of February last, having met and been duly sworn, and having heard and considered the proofs and allegations of the said parties, touching all the matters in difference between them in said suits, which have been brought *before us for our [*200 consideration, do make this our report of and concerning the same, that is to say, we do report that the said William Oraig do pay to the said Elizabeth Oraig two hundred and eighty-seven dollars, in full satisfaction of all the said matters so submitted to our consideration. Given under our hands this 14th April, 1825.</p> <p>“ Nathaniel Saxton,</p> <p>William Demun,</p> <p>Jacob Kline.”</p> <p>Curia advisari vult.</p> <p>August term, 1825. It is considered by this court here that the said Elizabeth Craig do recover against the said William Craig the said sum of $287 mentioned in the said report; and also - for her costs and charges by her about her said suits in this behalf laid out and expended, by the court here adj udged to the said Elizabeth and with her assent, &c., and the said William in mercy, &c.</p> <p>Judgment signed this 6th day of August, 1825.</p> <p>George Rea.</p>

This was a certiorari to the Court of Common Pleas of the county of Somerset.

<p>1. The hearsay declaration of the father is not competent evidence to prove thaplace of the child’s birth.</p> <p>2. This court on certiorari in settlement cases lias no jurisdiction or control over the sessions in matters of fact, or the credibility of witnesses.</p> <p>3. A state of tlie case made in the sessions to be sent here for the revision of this court should contain the facts on which the question of law as to the place of settlement arises and not the mere evidence of those facts.</p>

<p>1. An agent who has sold personal property belonging to bis principal is not a competent witness for the vendee, to prove that he was not agent, and that the property was sold on liis own account, and thereby to establish the validity of the sale.</p> <p>2. If the liability of the witness remains the same whichever way the verdict may be, he is indifferent. If in one event his liability is diminished he is not a competent witness to produce that event.</p>

<p>1. The recorder of a city, borough or town corporate, is authorized to try civil suits, under the small cause act; and his jurisdiction is not restricted to causes arising between corporators or members of the city. Nor is it necessary for the plaintiff to aver or shew the cause of action to have arisen within the city or borough, or that the defendant is a resident there.</p> <p>2. The legislature may, consistently with the constitution, confer the . powers and authorities of justices of the peace on the mayor, recorder and aldermen of a city or borough.</p>

CERTIORABI.* Langstrotli sued Hunt before a justice of the peace. After the warrant was returned, the cause was adjourned to a future day. On the adjourned day the defendant appeared, and.the plaintiff failing to appear, the defendant insisted that the suit ought to be dismissed, and the justice accordingly dismissed it.

EJECTMENT. This was an action of ejectment which had been tried before his honor the Chief Justice at the Esses Circuit, and a verdict rendered in favor of the plaintiff. A rule was taken upon the part of the defendant to shew cause why this verdict should not be set aside and a new trial bad. Upon the argument of the rule at May term, Frelinghuysen, for the defendant, offered to read an affidavit to prove that the defendant had discovered new evidence since the trial.

This was a certiorari to the Orphans’ Court of the county of Burlington, to remove a division of real estate made on the application of the heirs of George Parker.

<p>When an indictment purports to be on the affirmation of some of die grand jurors, it must appear that they alleged themselves conscientiously scrupulous of taking ail oath.</p>

<p>1. It is not necessary that the Court of Common Pleas should state upon the record their reason for dismissing an appeal.</p> <p>*245] *2. When the Court of Common Pleas have dismissed an appeal» this court on certiorari cannot'look into the proceedings of the justice.</p> <p>3. After argument and decision on a motion to reverse a judgment, it is too late to move a rule upon the Court of Common Pleas to shew the ground of their decision.</p>

<p>It is not necessary to enter an appearance in order to move to quash a ■writ, but the motion to quash must be made on the part of the defendant.</p>

<p>A certain road, commonly called the Hook road, was laid out in the townships of Upper and Lower Penn’s Heck, in the county of Salem, on the 24th day of July, A. D. 1822, and recorded in the month of December following. Application in writing was made to the Inferior Court of Common Pleas of the said county, at the term of June, A. D. 1824, by more than ten persons, who were freeholders and residents in the said county, for the appointment of surveyors of the highways to view the said road, for the purpose of vacating the same, should they see fit so to do; of which application notice was duly given and proved.</p> <p>In opposition it was made to appear, that the road, although laid out, had never been opened, notwithstanding that the time appointed for opening the same had passed; and further, that an alternative mandamus had been issued out of the Supreme Court *at the May term next [*247 previous, directing the township committee of the township of Lower Penn’s Neck, to district and assign the said road to an overseer or overseers, for opening, amendment and repair, or to shew cause, &c. The application for the appointment of surveyors was refused.</p> <p>It was agreed by the parties that if this court, upon this statement of the case, should be of opinion that the Court of Common Pleas had a right to refuse the appointment of surveyors, then all proceedings against them to compel such appointment at present subsisting in this court, should be discharged; but if it be the opinion of this court that the Common Pleas had not such right, then a peremptory mandamus, directed to the judges of the said Inferior Court of Common Pleas, commanding the appointment of surveyors, should immediately issue.</p>

<p>Wallace sued Weaver before a justice of the peace, in an action of trespass on the case, upon the following state of demand: “ The plaintiff complains of the defendant, for that the plaintiff, on or about the month of January, 1822 bargained with the said defendant to purchase of the said defendant a certain-lot of wood standing on land, which he, the defendant, pretended to be the owner of, for the number of about fifty’cords of wood, for the sum of twelve and^a half cents per cord of wood, standing in the trees; and afterwards, to wit, the said lot of wood being on a mountain called and known by the name of the Eaven mountain, in the township of Jefferson, county of Morris, and near to the house of the defendant, and the said plaintiff did then and there cut the said wood into coal wood, and hauled and set the same, and the said defendant, well knowing that he the said defendant had no right to sell the said wood to the plaintiff, and falsely and fraudulently sold the said wood to him the said plaintiff for the aforesaid sum of six dollars and twenty-five cents then paid to the defendant, falsely and fraudulently deceived him the said plaintiff to his damage sixty dollars.”</p> <p>The justice, after hearing the proofs and allegations of the parties, rendered a judgment in favor of Wallace. From this judgment Weaver appealed to the Court of Common Pleas of the county of Bergen, and upon the trial of the *252] appeal, the Court of Common *Pleas affirmed the judgment of the justice. Weaver then brought this certiorari.</p>

This was a certiorari to a justice of the peace, to reverse a judgment rendered by him against Clayton, the plaintiff in certiorari, in favor of the defendants, as executors of Samuel Tonkin, deceased.

<p>This was a certiorari brought by Camman to reverse a judgment obtained by Perrine against him before a justice of tlie peace.</p> <p>The reasons relied upon for the reversal of the judgment by Vroom, for the plaintiff in certiorari, were—</p> <p>1. Because the summons issued in this cause by the justice is irregular, uncertain and void. In support of this reason he read the original summons, which was in the usual form except that it commanded the constable to summon the defendant to appear on the fourth of November, at two o’clock in the — noon of that day.</p> <p>2. Because the justice adjourned the cause in the absence of the defendant, and gave no notice to the defendant of such adjournment, and tried the cause in his absence. To verify this reason he referred to the transcript of the justice, which stated “ that the ^plaintiff appeared, filed 1ns state of [*254 demand, and adjourned until Friday, the 10th instant. The defendant did not appear. Friday, 10th, plaintiff appeared, went on to prove his account; after hearing the evidence, I gave judgment,'' &c.</p>

<p>The notice at the end of the declaration in ejectment may be amended after service, by striking out one day and inserting another.</p>

<p>If, after the jury are sworn in a criminal case and depart from the har, one of the jurors separate from his fellows, whereby the court are compelled to discharge the jury, without the consent of the defendant, he may he again put upon his trial on the same indictment.</p>

<p>Where no rate of interest is fixed by contract, the law permits the creditor to demand at the rate of six per centum per annum, and forbids him to take more, but allows him to take at any lower rale he may deem proper.</p> <p>When a creditor sues, although the principal and interest calculated at six per cent, would exceed one hundred dollars, yet if in his state of demand he actually demands for interest no more than that sum, a court for the trial of small causes has jurisdiction.</p>

<p>This was a certiorari to the Court of Common Pleas of Middlesex, to reverse a judgment of said court, on appeal affirming the judgment of a justice, rendered against Prest, the plaintiff in certiorari. Upon the return of the certiorari, the following rule was obtained on the part of. the plaintiff. “ It being suggested that the court below, on the trial of this cause, admitted the defendant, David Mercereau, to give in evidence his open account, and that he totally failed to prove his stated account, it is ordered that the plaintiff, Matthias. Prest, be allowed to take affidavits upon the above points.” In pursuance of this rule the plaintiff took the affidavit of Charles Francis, -who swore that he- was a witness on the trial of the cause before Aaron Gulick, justice, and also on the trial-of the appeal; that the same evidence was given on the trial of the appeal as in the court below, and no other. James Conover, .on the part of Prest, proved his books of account, from which his account was taken. Those books were admitted and read in evidence in both courts. Uo witness was offered before the justice, on the part of Mercereau, to prove the books of Prest incorrect; nor were .the books or any^of the items in Prest’s account impeached or disputed by Mercereau. A short *269] *time-before this suit was commenced, witness was present when an attempt was made by the parties to settle their accounts. The account and the books of Mr. Prest were then gone over. Don’t recollect that Mercereau found any fault with Prest’s account. At that time Mercereau had his books of account there, and witness saw the parties examine them. Prest found fault with those books, and said there was something mysterious about them which he did not understand. He found fault with one note in particular, charged by Mercereau against Prest, and also with a charge of some interest. Mr. Prest expressed doubts about a number of the items, and enquired about them. The parties at that time broke up without coming to settlement. Was never present at any other attempt to settle by the parties. Witness saw no memorandum of a settlement made by either of the parlies at the time above spoken of. lie sat close by them during the time, aud thinks if any had been made he should have seen it. Mercereau cast up the accounts as he considered them to be at that time, and made a balance of six dollars in his own favor, which Prest did not agree to. What witness has now testified to is in substance the same as sworn to by him on the trial of this cause below. Samuel S. Cain was also present when this attempt at a settlement was made. Adam Smith was called by Mercereau to prove his books. Proved nothing else by Adam Smith except his books of account.</p> <p>The affidavit of Samuel S. Cain, was also taken who swore that he was a witness on part of Mercereau at the trial of this cause before the justice, and also on the appeal. Charles Francis and Adam Smith were also witnesses on said trials on the part of Mercereau. James Conover was a witness for Prest, called to prove his books, and did prove them by him. The books of Prest were read in evidence in both courts. Mercereau offered no witness to prove tho books of Prest false or incorrect. Was present at an attempt between Prest and Mercereau to settle their accounts a short time before this suit was commenced. They did not settle at that time. Witness’ recollection of the facts that took place at the time this attempt was made, is the same as stated above by Charles Francis, and so testified on the trials of this cause. Adam Smith was called by Mercereau to prove his books, and proved nothing else by him. Mercereau did not attempt on the trials of this cause to prove any other settlement than the one above testified to by ["*270 witness and Frencis. On the above occasion witness saw no writing of a settlement made by either of the parties. Was present during the whole time till they parted.</p> <p>The state of demand filed by Prest, and the set off by' Mercereau, were both mere copies of their books of account; and in the set off there was one item in these words : “ Nov. 5. To balance on settlement of book account, $6.42.”</p>

This was a certiorari directed to a justice of the peace, requiring him to send to this court “ a certain return list of delinquents of the first battalion of the third regiment of the Burlington brigade of militia, and of the fines imposed by the company court of the first company of the said battalion, on certain delinquents in the said return list of delinquents named, and the execution issued by him against the persons named in the said return list.” *272] *In obedience…

<p>"When an order is made for the removal of a pauper from one township to another in the same comity, where no poor house is erected, it is not necessary to transmit and deliver with the order a copy of the evidence on which the adjudication was made.</p>

This was an action of ejectment between the parties above named brought down for trial to the Middlesex Circuit, December, eighteen hundred and twenty-six, and came on for trial before the chief justice and a jury. The plaintiff having rested his cause, the defendant moved that the plaintiff be non-suited.

A summons was issued in this case against Arrowsmith, and another person named Wilson. The summons was served .upon Arrowsmith alone, and the plaintiff filed his declaration against Arrowsmith alone (and states that he was impleaded with Wijson). The defendant prays oyer of the writ, and pleads this variance between the summons and the declaration in abatement. The plaintiff demurs to the plea.

This was an application for a peremptory mandamus to the Court of Common Pleas of Warren, to compel them to restore an appeal, and came before this court upon the following statement of facts, agreed upon by the counsel, viz : In the transcript of the justice below are the following notices concerning the appeal. December, 16, 1826.

This was an indictment presented by the grand jury of the county of Hunterdon, to the Court of Quarter Sessions of said county, in the term of February, 1827, against Lambert Rickey and others, charging that “ Lambert Rickey, J. S., J. II., J. D., and J. A., being evil disposed persons, wickedly designing and intending to injure and defraud the president, directors and company, of the State Bank at Trenton, on the first day of May, in the year of our Lord one thousand eight…

This was a certiorari to the Common Pleas of Cumberland, to reverse a judgment rendered on an appeal against Mulford, the plaintiff in certiorari, in favor of Bowen, in an action of debt upon the following state of demand, viz: Smith Bowen demands of John S. Mulford, thirty dollars and fifty cents, for that whereas heretofore, viz : on the first day of April, 1823, at Bridgeton, in the county aforesaid, and within the jurisdiction of this court, plaintiff and defendant made…

<p>If it be a question whether the abandonment of a prosecution for perjury was the consideration of a certain act, or whether the consideration of the act was a general adjustment of disputed claims of property and indemnity, and the abandonment of the criminal prosecution the consequence only, and not the cause, of the arrangement agreed upon, it is a question of fact which should be submitted to the jury with proper instructions.</p> <p>When parts of the testimony of a witness are overruled, the parts overruled should he distinctly' stated by the court to the jury.</p>

This was a writ of error to the Court of Common Pleas of the county, of Somerset. The following is the statement of the case agreed upon by the counsel of the parties, viz: This cause was tried at the Somerset Pleas, in the term of January, 1824, upon the following pleadings : — The declaration contained several counts.

EJECTMENT. These were several actions of ejectment brought by the lessor of the plaintiff upon a mortgage against a number of defendants.

This was a certiorari to the Orphans’ Court of the county of Monmouth, to remove the proceedings and decree of said court, on the application of John Stillwell, acting executor of John Lyell, deceased.

<p>1. If a plaintiff appeals from a judgment rendered against him in favor of the defendant, he cannot, on the appeal, move the court for a judgment of non suit, and thereby get rid of the judgment against him.</p> <p>2. A charge in a state of demand, which, in a manner plain, intelligible, and not liable to misapprehension, sets forth the nature of the claim, will be sufficient.</p> <p>3. The admission of a party made in the progress of the trial of the canso before the justice, may be proved on the appeal by one of the witnesses examined before the justice, who heard the admission.</p>

<p>A note given by an insolvent debtor to two of his creditors, in consideration of their withdrawing their opposition to his discharge under the insolvent act, is void, it being against the policy of the insolvent law.</p> <p>An attempt to contravene the policy of a public statute is illegal, though the statute contains no express prohibition of such attempt.</p>

This was an indictment removed into this court by writ of certiorari returned to February term, 1827, and was in the words following: Wa.rren, to wit: Be it remembered, that at a Court of Oyer and Terminer and General Jail Delivery, holden at the house formerly occupied as a Moravian church, in the village of Hope, in and for the said county of Warren, on the first Tuesday of June, in the year of our Lord one thousand eight hundred and twenty-six, before the Honorable…

<p>An indictment for an assault and battery will not be. quashed because it does not conclude “ contrary to tbe form of tbe statutes in such case made and provided.”</p> <p>Tbe second statute relative to assaults and batteries simply abridges or limits the discretion of the court with respect to the amount of the fine and the duration of the imprisonment, but in no wise attaches the penalty or punishment to the offence.</p>

<p>To support an action founded on a devastavit, where the judgment and execution are available for that purpose, it is indispensably necessary for the plaintiff to produce a judgment and execution against the executor or administrator, as such. A judgment against them in their individual, and not in their representative capacity, is not competent evidence to support such an action. „</p>

This was a certiorari to the Court of Common Pleas of the county of Essex, to reverse a judgment rendered on an appeal from the judgment of a justice. The facts of the case are clearly and fully stated in the opinion of the court, delivered by Ewing, C. J.

<p>Tlie party obtaining the taxation of a bill of costs, must, upon a re-taxation, prove the items objected to.</p> <p>But the party moving for a re-taxation must give liis adversary notice, and state the particulars of the bill of costs to which lie objects, and the nature of bis objection.</p>

This was an action of trespass quaro clausum fregit, brought *before a justice of the peace, by Thomas Robbins, [*385 against James Ooxe. The state of demand filed before the justice was in the usual form, setting forth that the cattle of Ooxe had broke and entered the close of Robbins, and trod down and destroyed his potatoes.

QUO WARRANTO. This was an information filed by the attorney-general, at the relation of John Patrick and Benjamin Maurice, against William… Held: and at the said election the said James Harriot, Daniel Latourette, John Patrick, Charles Eord, Oliver W. Ogden, Benjamin Maurice and Alexander Semple, were by a majority of such of the said members of the said religious society as did then and there attend for that purpose, elected trustees of the said corporation, yet the said…

<p>This was an information filed by the attorney-general, at the relation of Aaron Ogden, Esquire, against Jabez Parkhurst, charging-that the-said- Jabez Parkhurst had unlawfully usurped, intruded into, held and executed, the office of clerk of the Inferior Court of Common Pleas of the county of Essex, and the office of clerk of the General Quarter Sessions of the said county.</p> <p>To this information the defendant pleaded as follows :</p> <p>That by an act of the legislature of the State of New Jersey, passed on the first day of December, 1801, entitled “ an act to repeal an act entitled ‘ an act partially to repeal part of an act therein named,’ ” it was enacted that an act entitled “ an act partially to repeal part of an act therein named,” passed the seventeenth day of November, in the year of our Lord eighteen hundred, be and the same was thereby repealed. And it was further enacted, that in every case where any person or persons holding a commission or appointment to any civil office under the authority of the said state, and who had been elected a member to represent the said state either in the Senate or House of Representatives of the United States, since the passing of the act entitled “An act to provent the holding of appointments *and commissions in certain cases under this [*428 state and the United States at the same time,” passed the seventeenth day of March, in the year of our Lord seventeen hundred and ninety-five, and who had taken his seat or accepted of such appointment under the general government, the commission or appointment of such person or persons under the authority of the said state, should be considered as vacated, unless he or they should within twenty days after the passing of the said act, notify in writing the governor of the said state of the resignation of his or their seat or appointment as a member of the Senate or House of Representatives in the congress of the United States. And the said Jabez further saith, that since the passing of the said act of the legislature, entitled “ an act to prevent the holding of appointments and commissions in certain cases under this state and the United States at the same time,” passed the seventeenth day of March, in the year of our Lord seventeen hundred and ninety-five, and before the passing of the said act of the legislature, entitled “ an act to repeal an act entitled ‘ an act partially to repeal part of an act therein named,’ ” passed the first day of December, in the year of our Lord one thousand eight hundred and one, to wit, on the thirtieth day of November, in the year of our Lord one thousand eight hundred and one, at Newark, in the county of Essex aforesaid, one Aaron Ogden, esquire," claimed to have, use and enjoy, and did claim, have, use and enjoy, the office of clerk of the inferior Oourt of Common Pleas for the county of Essex, and clerk of the General Quarter Sessions of the Peace, for the said county of Essex, which said offices the said Jabez doth aver to be civil offices, held by commission or appointment under the authority of the said state of New Jersey, according to the intent and meaning of the said act of the legislature before recited. And the said Jabez further saith, that at a joint meeting of the council and assembly of the said state of New Jersey, held at Trenton aforesaid, on the twenty-sixth day of February, in the year of our Lord one thousand eight hundred and one, the said Aaron Ogden, esquire, was duly elected a member of the Senate of the United States, to represent the said state of New Jersey in the said Senate, to which joint meeting the right to appoint such senator did of right' belong and appertain. And the said Jabez further saith, that the said Aaron Ogden, esquire, afterwards, to wit, on the fourth day of March, in the year last aforesaid, at the city of Washington, to wit, at Newark aforesaid, did accept of the *429] Commission or appointment of a senator to represent-the state of New Jersey in the Senate of the United States, and took his seat accordingly as a member thereof; and so the said Jabez says that afterwards, to wit, on the said thirtieth day of November, in the year aforesaid, at Newark aforesaid, the said Aaron Ogden, esquire, held the civil offices-of clerk of the inferior Oourt of Common Pleas for the county of Essex, and clerk of the General Quarter Sessions-of the Peace for the said county of Essex, under the authority .of-the said state of New Jersey, and had been elected a member to represent the said state in the Senate-of the United States, and had taken his seat and accepted of such appointment under the general government at the same time. And the-said Jabez further saith, that the said Aaron Ogden, esquire, did not, within twenty days from the passing of the said act of the legislature before recited, to wit, from the said first day of December, in the year of our Lord one thousand eight hundred and one, notify in writing the governor of the said state of New Jersey, of the resignation of his seat or appointment as a member of the Senate in the Congress of the United States; by reason whereof, and by force of the statute aforesaid, the commission or appointment of the said Aaron Ogden, esquire, to the offices of clerk of the inferior Court of Common Pleas for the county of Essex, and clerk of the General Quarter Sessions of the Peace for the said county of Essex, held under the authority of the said state of New Jersey, afterwards, to wit, on the twenty-second day of December, in the year of our Lord one thousand eight hundred and one, at Newark aforesaid, became vacated. And the said Jabez further saith, that the said Aaron Ogden, esquire, being duly removed from the said offices of clerk of the inferior Court of Common Pleas for the county of Essex, and clerk of the Court of the General Quarter Sessions of the Peace for the said county of Essex, and the said offices being vacant as aforesaid, Joseph Bloomfield, esquire, governor, captain-general and commander-in-chief, in and over the state of New Jersey and territories thereunto belonging, chancellor and ordinary in the same, to whom of right did belong the filling of such vacancies and the appointment to such offices during the recess or adjournment of the legislature of the said state of New Jersey, by his appointment or commission in writing, bearing date at Trenton the twenty-third day of December, in the year of our Lord eighteen hundred and one, and of American independence the twenty-sixth, directed to *him, the said Jabez Parkliurst, reciting whereas [*430 in and by an act of the council and general assembly of Now Jersey, entitled “an act to repeal an act entitled ‘an act partially to repeal part of an act therein named,’ ” passed the first day of December, in the year of our Lord eighteen hundred and one, among other things it was enacted, that in every case where any person or persons holding a commission or appointment to any civil office under the authority of the said state, and who had been elected a member to represent the said state, either in the Senate or House of Representatives of the United States since the passing of the act entitled “ an act to prevent the holding of appointments and commissions in certain cases under this state and the United States at the same time,” passed the seventeenth day of March, in the year of our Lord seventeen hundred and ninety-five, and. who had taken his seat or accepted of such appointment under the general government, the commission or appointment of such person or persons under the authority of the said state should be considered as vacated, unless he or they should, within twenty days after the passing of that act, notify, in writing, the governor of the said state, of the resignation of his or their seat or appointment as a member of the Senate or House of. Representatives in the Congress of the United States, as in and by the said recited act fully and at large would appear; and did further recite, that whereas Aaron Ogden, esq., theretofore clerk of the Courts of General Quarter Sessions of the Peace and inferior Court of Common Pleas for the county of Essex in the said state, had been elected a member to represent the said state in the Senate of the United States, by which and the above recited law the commission or appointment of the said Aaron Ogden, under the authority of the said state, as clerk of the Court of General Quarter Sessions of the Peace, and inferior Court of Common Pleas, for the county of Essex, was declared to be vacated; and did further recite, that whereas the supreme executive power in the said state was vested by the constitution of the said state in the governor thereof, therefore the said Joseph Bloomfield, esquire, governor, &c., as aforesaid, reposing special trust and confidence in the integrity, prudence and- ability of him the said Jabez Parkhurst, thought fit to constitute and appoint, and did by the said commission or appointment constitute and appoint him, the said Jabez Parkhurst, clerk of the Court of General Quarter Sessions of tho Peace, and inferior Court of Common Pleas for the *county of Essex in the said state, and him the said [*431 Jabez Parkhurst was by that commission or appointment commissioned to be clerk of the said Court of General Quarter Sessions of the Peace and inferior Court of Common Pleas for the said county of Essex, to have, hold and enjoy the said office, with all powers, privileges, fees, perquisites, rights and advantages to the same belonging or appertaining, until the next meeting of the council and assembly of the said state in joint-meeting, or until the council and assembly of the said state in joint-meeting should think proper to make an appointment of clerk of General Quarter Sessions of the Peace, and inferior Court of Common Pleas, for the said county of Essex, as by the said commission or appointment, duly issued under the hand of the said Joseph Bloomfield, esquire, governor, &c., as aforesaid, and the great seal of the said state of New Jersey, and countersigned by his excellency’s command by John Beatty, secretary to the said state of New Jersey, and now in the custody and possession of the said Jabez Parkhurst and ready to be produced, reference thereunto being had will more fully and at large appear. And the said Jabez further saitli, that after-wards, to wit, on the thirtieth day of December in the year of our Lord one thousand eight hundred and one, at Newark aforesaid, in the county of Essex aforesaid, he the said Jabez assented to and accepted of the said commission or appointment of clerk of the Court of General Quarter Sessions of the Peace and inferior Court of Common Pleas for the county of Essex aforesaid; and did afterwards, to wit, on the same day and year last aforesaid, at Newark aforesaid, take and subscribe the oath of office required of him by law, before James Hedden, esquire, one of the judges of the inferior Court of Common Pleas in and for the said county of Essex, who then and there had lawful and competent authority to administer the same in that behalf'; and did then and there before tho said James Hedden, take all oaths usual and necessary to be taken upon being sworn into the said offices; and the said Jatez did then and there also enter into bond untó the said state of New Jersey, with Caleb Parkhurst and Uzal Pierson, two good and sufficient freeholders, who were then and there approved of by the said James Hedden, esquire, judge as aforesaid, who had lawful and competent authority to approve of the sufficiency of the said securities in that behalf, in the sum of two thousand dollars, with condition for the delivery of the records, books and other writ-*432] ings, entire and *undefaced, to his successor in office, and for the faithful performance of those duties required by an act of the legislature of the said state of New Jersey entitled “an act respecting conveyances,” and which said bond was duly executed„and contained a penalty and condition according to the act of the legislature in such case lately made and provided. And the said Jabez further saith, that he hath done all and everything required by law of him to be done before executing the duties of the said offices. And the said Jabez further saith; that by virtue of the premises he the said Jabez, on the same day and year last aforesaid, at Newark in the county of Essex aforesaid, and from thence continually afterwards to the time of exhibiting the said information, and by virtue of the commission or appointment aforesaid, he the said Jabez Parkhurst, during the time in the information in that behalf specified, at Newark aforesaid, in the county of Essex aforesaid, hath there used, exercised and claimed, and still there doth use, exercise and claim, the said offices of clerk of the Courts of General Quarter Sessions of the Peace and' inferior Court of Common Pleas in and for the county of Essex, and to have, use and enjoy, all the powers, privileges, fees, perquisites, rights and advantages to the same belonging or appertaining, until the council and assembly of the said state of New Jersey shall think proper at a joint meeting to make an appointment of a clerk of General Quarter Sessions of the Peace and inferior Court of Common Pleas for the said county of Essex, as it was and is lawful for him the said Jabez to do.</p> <p>To this pica the attorney-general replied: That the said Aaron Ogden, esquire, by the council and general assembly of the said state, at a joint meeting holden at Trenton on the thirtieth day of October, in the year of our Lord eighteen hundred, was appointed clerk of the inferior Court of Common Pleas for the said county of Essex, and also clerk of the Quarter Sessions of the Peace for the said county of Essex ; and on the said thirtieth day of October, in the year of our Lord eighteen hundred, was duly commissioned by his ■excellency Richard Howell, esquire, then being governor of the said state, as clerk of the said inferior Court of Common Pleas, and clerk of the Quarter Sessions of the Peace of the said county, for the term of five years; and to which said office of clerk of the said inferior Court of Common Pleas, and office of clerk of the Quarter Sessions of the Peace of the said county, he was duly qualified and inducted, and was in the due execution thereof at the time in the *said information specified, when he the said Jabez [*433 Parkhurst did usurp and intrude into the said offices aforesaid, and unlawfully oust the said Aaron Ogden from the said offices aforesaid, the said term of five years not being, then expired, without any warrant or lawful authority for that purpose so to do; and that he, the said Jabez Parkhurst, at the time, as by his said plea he hath alleged, when he was commissioned and appointed by Joseph Bloomfield, esquire, governor, captain-general and commander in chief, in and over the state of New Jersey and territories thereunto belonging, chancellor and ordinary in the same, to the office of clerk of the inferior Court of Common Pleas of the said county of Essex, and of clerk of the Quarter Sessions of the Peace of the said county of Essex, to wit: on the twenty-third day of December, in the year of our Lord eighteen hundred and one, was a member of the general assembly of the said state of New Jersey for the said county of Essex; and this the said attorney-general for the said state is ready to verify, &c., wherefore he prays judgment, and that the aforesaid Jabez Parkhurst, to the said information aforesaid, do answer, &c.</p> <p>The defendant rejoined as follows :</p> <p>And the said-Jabez Parkhurst, protesting that the plea of the said state of New Jersey, by the said attorney-general, in manner and form above made and pleaded in reply, and the matters .therein contained, are not sufficient in law to convict him the said Jabez of the premises above charged upon him by the said information, nor to forejudge and exclude .him from his offices aforesaid; and that he need not, nor is he obliged by the law of.the land to answer thereto; and protesting also, that the said Aaron Ogden, esquire, was not appointed, commissioned and qualified, to be clerk of the said inferior Court of Common Pleas, and clerk of the Quarter Sessions of the Peace for the said county of Essex, at the time, in the manner, and for the term, as above is pleaded in reply; and that he, the said Jabez, did not usurp, and intrude into, the said offices, and unlawfully oust the said Aaron Ogden therefrom, while in the due execution thereof, his term not being ended, without lawful authority; and also protesting that the said Jabez was not a member of the general assembly of the said state of New Jersey, for the said county of Essex, at the time when he, the said Jabez, was by the said Joseph Bloomfield, esquire, governor, &c., appointed and commissioned to be clerk of the courts of *434] General Quarter Sessions of *the Peace and inferior Court of Common Pleas for the said county of Essex, to wit: on the said twenty-third day of November, in the year of our Lord one thousand eight hundred and one, as by the replication is above supposed; yet for plea in this behalf he the said Jabez saith, that the said general assembly of the state of New Jersey, of which the said Jabez above is supposed to be a membex", before the said twenty-third day of December in the year aforesaid, to wit: on the third day of December in the year aforesaid, having finished their business, adjourned, and the house rose without day; and that the said general assembly have not since their said adjournment, been convened or assembled for any purpose whatsoever; and this the said Jabez is ready to verify. Wherefore the said Jabez, for want of a sufficient replication in this behalf, prayeth judgment; and that the said offices of clerk of the inferior Court of Common Pleas, and clerk of the General Quarter Sessions of the Peace, for the said county of Essex, may bo adjudged and allowed to him, as in and by the said plea he hath above already prayed; and that he may be dismissed and discharged by the court hereof and from the premises above charged upon him.</p> <p>To this rejoinder the attorney-general filed a general demurrer.</p> <p>Joinder in demurrer.</p> <p>The cause was very ably and fully argued by the attorney-general, Woodruff, I H. Williamson and R. Stockton, for the state, and JE. Vanarsdale for the defendant, and two of the justices of the Supreme Court at that time, viz: Smith and Boudinot, delivered opinions in favor of the state, and rendered judgment against the defendant. Justice Kirkpatrick differed on some of the points from his brethren, and delivered the following opinion, which appears to have been sanctioned by the Court of Appeals, as that court, upon a writ of error brought, reversed the judgment of the Supreme Court and rendered judgment in favor of the defendant.</p>