REPORTS OF CASES
ARGUED AND DETERMINED IN THE
SUPREME COURT
OF
JUDICATURE
THE STATE OF NEW JERSEY.
BT
WILLIAM HALSTED, REPOBTEE.
VOLUME IV.
THIRD EDITION, WITH NOTES, BY JOHN LINN, ESQ.
JERSEY CITY:
FREDERICK D. LINN & CO.
1806.
JUSTICES
SUPREME COURT OF JUDICATURE
STATE OF NEW JERSEY,
A. D. 1827-8.
CHAELES EWING, ESQ., - - - CHIEF JUSTICE.
GABRIEL H. FORD, ESQ., - ASSOCIATE JUSTICE.
GEORGE K,. DRAKE, ESQ., - - - ASSOCIATE JUSTICE.
ATTORNEY-GENERAL,
THEODORE FRELINGHTJYSEN, ESQ.
LAW REPORTER,
WILLIAM HALSTED. ESQ.
CLERK OF SUPREME COURT,
ZACHARIAH ROSSELL, ESQ.
(BQ
778566
TABLE OF CASES.
[THE LETTER v. FOLLOWS THE NAME or THE PLAINTIFF.]
PAGE.
Ackerman v. Taylor 65
Anderson, Hawk et al. v 319
Anonymous 2
Anonymous '. .' 25
Anonymous 224
Arrowsmith, Bank of New Bruns-
wick v 284
Atkinson, The State v 271
Ayres v. Turnpike Company 33
Baldwin v. Simmons 196
Bauk of New Brunswick v. Arrow-
smith 284
Bennet v. Kite, Adm'r of Cart-
wright 106
Berry, The State v 374
Bowen, Mulford v 315
Branson v. Shinn 1
Branthwait v. Halsey 3
Bntton, Tillou v 120
Brown, Gould v 165
Bruere Groverv.... .. 319
Camman v. Perrine...:.... 253
Carpenter v. Titus 90
Chandler v. Monrnouth Bank 101
Chew v.Thompson 249
Clayton v. Tonkin, Ex'-r of Tonkin 252
Clute, Griffith v 264
Coleman v. Warne 290
Conover and wife, The State v 338
Cool baugh, Skill man v 246
Cooper et al. Ex'rs of Crane v.
Crane 173
Cooper v. Sheppard 96
Cox v. James 335
Cox, Den ex dem., Ewan v 10
Cox v. Robbins 384
Craig v. Craig 198
Crowell, The State v 390
Cruaer v. Duryea 15
Daucby et al. v. Taylor 96
Decker, De Wit v 148
PAGE.
Den ex dem. Ewan v. Cox 10
Den v. John and Ananiah Gifford. 46
Den ex dem. Penton v. Sinnickson 149
Den, Hadley et al. v. Geiger 225
Den, Vanarsdalen v. Hull 277
Den v. Lanning 254
Den ex dem. Smith v. Kemble 335
Drake, Stewart and Fine v 139
Duryea, Cruser v 15
E
East Windsor v. Montgomery 39
Fenton, Sheppard v 8
Folly v. Vantuyl 153
Fox, The State v 244
G
Gale, Woolstonv 32
Garwood v. Garwood 193
Geiger, Den v 225
Gifford, Den v 46
Gosling, Hann v 24.8
Gould v. Brown 165
Green, Stillwater v 59
Griffith- v. Clute 264
Gulick, Huutv 205
H
ITalsey, Le Branthwait v 3
Hall, The State v 256
Hann v. Gosling 248
Harris v. Leonard and Jennings... 58
Harwood v. Murphy £15
Hawk v. Anderson 319
Hawthorn v. Munn 92
Hillyer, Snowhill v 38
Hoskins et al. Assignees v. Paul... 110
Hull, Den v 277
Hunt, Wall v 37
Hunt y. Gulick 205
Hutchings v. Scott 218
Independence, Knowlton v 276
Independence v. Pompton 209
(v)
VI
TABLE QF CASES.
PAGE
Johnson v. Martinus 144
James, Cox v 335
Jones, The State v
Jones, The State v 357
Kemble, Den.v 335
Kite, Bennetv 106
Klienhans, Wiggins v 249
Lanning, Den v 254
Linnard, Harris v 58
M
Martinus, Johnson v 144
Mayhew, The State v 70
M'Kean et al., Sooy v 88
Mercereau, Prest v 268
Milnor v. Milnor 93
Monmouth Bank, Chandler v 101
Montgomery, Windsor v 39
Mulford v. Bowen 315
Munn, Hawthorn v 92
Murat, The State v 3
Ogden v. Price 167
Patterson v. Tucker 322
Parker, The State v 242
Perrine. Camman v 253
Potts, The State v 26
Pompton, Independence v 209
Prest v. Mercereau 268
Price Ogden v ;.. 167
R
Reed v. Rocap 347
Rickey, The State v 293
Robeson and Parry v. Thompson.. 97
Rocap, Reed v 347
S
Schanck, The State v 107
PAGE.
Scott, The State v 17
Scott, Hatchings v 218
Sheppard et al. v. Fenton 8
Sharp v. Teese 352
Shinn, Branson v 1
Simmons, Baldwin v 196
Sinnickson, Den v 149
Somers, Westcott v 99
Sooy v. Taggert etal 86
State v. Jones 2
State v. Jones 357
State v. Murat.. 3
State v. Scott 17
State v. Woodward 21
State v. Potts 26
State v. Mayhew 70
State v. Schenck 107
State v. Parker 242
State v. Hall 256
State v. Atkinson 271
State v. Rickey 293
State v. Conover and wife 338
State v. Berry 374
Stewart and Fine v. Drake 139
Stillwater v. Green.... , 59
T
Taylor, Dauchy et al. v 96
Teese, Sharp v 352
Thompson, Parry v 97
Thompson, Chew v 249
Thorne v. Wright 115
Tillou v. Britton 120
Tonkin's Executors, Clayton v 252
Trenton Bank v. Wallace 83
Tucker, Patterson v 322
Turnpike Company, Ayres v 33
Vantuyl, Folly v 153
Van Houten, Weed v 189
W
Wallace, Trenton Bank v 83
Wall v. Hunt et al 37
Warne, Coleman v A.. 290
Weed v. Van Houten 189
Westcott v. Somers..-. 99
Wiggins v. Klienhans 249
Windsor, East. v. Montgomery 39
Woodward v. Woodward Ex'r...... 115
Woodward, The State v.. 21
Woolston v. Gale 32
Wright, Thorne v 115
TABLE OF CASES CITED
PAGE.
Abbott v. Plumb 330
Abrahams v. Twigg 12
Ambrose v. Hopgood 196
Andrews v. The Hundred, &c 378
Arnwein v. Polhemus 220
Attorney-General v. Gill 51
Attorney-General v. Hall 57
Baker v. Wall 13
Baldwyn v. Richards 89
Bank of United States v. Smith... 191
Barbery. Prentiss 146
Barrett v. Beckford 13
Bartholomew v. Dighton 382
Batin v. Bigelow 231
Becker v. Becker 117
Bennett v. Jenkins 142
Blackford v. Preston 355
Blackwell v. Patton 282
Blurton v. Toon 329
Boatev. Edwards 287
Bowes v. Howe 190
Brice v. Smith 51
Brown v. Scott 203
Browne v. Jerves 51
Bruce v. Lee 355
Burroughs v. Mickle 76
C
Calbreath v. Gracy .' 157
Callaghan v. Aylett 190
Callaghan v. Hallet 353
Carlisle v. Wilson 37
Carley v. Vance 191
Case of Atkins 53
Case of Carfborus .368
Case of Blackmore 2$0
Case of Faulkner 365
Case of Mid. and Mon. Road 18
Case of Shelton 158
Case of Wild 55
Case of Wood 57
Catlett v. Pacific Insurance Co 267
Chapman v. Eland 288
Chatham v. Middlefield 63
PAGE.
Cherley v. Smith 37
Church v. Wyatt 13
Clerk v. Day 13
Clymer v. Little 237
Cockshott v. Bennet 353
Commonwealth v. Cook 260
Commonwealth v. Duane 208
Commonwealth v. Houten 29
Commonwealth v. Judd 301
Commonwealth v. Purchase 259
Commonwealth v. Snell 30
Conn v. Penn 6
Coryell v. Croxall 130
Cowie v. Halsall '. 190
Cox v, Haines 9
Crumble v. Janes 52
Curwen v. Fletcher 84
Cuyler v. Vanderwerk 89
Darrell v. Eden 77
Dawes v. Ferrers 13
Dayrell v. Glasscock 329
Delancey v. McKeen 231
Delavergne v. Norris 141
Den v. Fogg 13
Den v. Franklin 255, 283
Den y. Shaver 161
Dickinson v. Bowes 190
Dodge v. Lanrnan 191
Doe v. Freeman 337
Doe v. Goff 62
Doe v. Learning 52
Doev. Roe 255
Doe v. Wichelow 51
Doughty v. Read 78
E
Edwards v. Da^jy 180
Eldridge v. Lip'pincott 78
Ewer v. Jones.... 117
F
Farringlon v. Darell 12
Fenton v. Goundry 190
(VII)
VIII
TABLE OF CASES CITED.
PAGE.
Funk v. Voneida 140
Finley v. Jones 67
Fitzgerald v. Caldwell 8
Fitzgerald v. Elsee 330
Fleming v. Naoman 78
Foden v. Sharp 190
Foster v. Bonner 288
Francis v. Wyatt 113
G
Gallagher v. Jackson 10
Gammon v. Schmoll 190
Gilpin v. Consequa 239
Gisbourne v. Hurst 114
Goodright v. Strahan 159
Goodrich v. Walker 159
Goodtitle v. Clayton 330
Goodtitle v. Welford 237
Gray v. Sidneff 288
Green v. New River Company 217
Grinstone v. Burgers 337
Grosvenor v. Cape fc9
Groff v. Musser 203
Haggerty v. Vankirk 267
Hale v. Dean 140
Halhead v. Abrahams 283
Hambly v. Trott 177
Hart v. James 203
Hawkes v. Saunders 117
Head v. Sewall 190
Heermance v. Vannoy 217
Hende v. Longworth 231, 238
Hendricks v. Mount 356
Herrick v. Carman 146
High-more v. Barlow 103
Hill v.Ely 146
Hoare v. Allen 7
Holland v. Hopkins 283
Holland v. Johnson 288
Holland v. Palmer 355
Holland v. Kichards 288
Hollingworth v. Ascue 158
Hopper v. Steelman 266
Horford v. Wilson 237
Howard v. Pollock 282
Hunt v. Boylan 209
Hussey v. Jacob 131
Ide v. Ide 57
PA3E.
Jackson v. Bailey 283
Jackson v. Bull 57
Jackson v. Corley 105
Jackson v. Demont 236
Jackson v. Dutchaire 355
Jackson v. Gumaer 230
Jackson v. Lornas 353
Jackson v. Sherwood 23?
James v. Wahath 281
Jessup v. Cook 240
Jones v. King 209
Keene v. Angel.
Lamhard v. Kingsford 192
La Rue v. Boughaner 120
Leicester v. Rose 355
Lemon v. Dean 330
Leonard v. Ware 78
Livingston v. Livingston 117
Lion v. Burtis 282
Lippincott v. Smith 167
Lowe v. Davis 51
Luffborough v. Parker 230
Lyon v. Sundius 190
M
Martin v. Hendrickson 217
Martin v. Steele 78
Mason v. Evans 131
McCall v. Turner 7
McOiffih-v. Stout 383
McHenry v. Forsvth 270
Mclntire v. Ward" 230
Medford Turnpike v. Torrey 37
Mehelm v. Barnett : 147
Miller v. Martin 292
Moore v. Whitaker 167
Morgan v. Griffiths 51
Moss v. Birch 288
Maxwell v. Levy 267
Murphy v. Marlow 281
Nanfan v. Leigh 13
Newbold v. Lamb 332
Nerot v. Wallace 355
Nicholson v. Shearman 117
Nichols v. Bowes : 189
Nottingham v. Jennings 52
TABLE OF CASES CITED.
IX
Oades v. Woodford.
PAGE.
. 95
Page v. Harwood 378
Paine v. Bustin 281
Parker v. Thatcher 52
Paschell v. Keterick 117
Payne v. Eden 355
Peacock v. Harris 37
Pearson v. Wightmau 331
People v. Denslow 35
People v. Denton 257
People v. Kingsley 29
People v. Olcott 257
Perkins v. Henman 89
Petrie v. White 238
Phipps v. Parker 331
Pike v Badtnarring 329
Powell v. Hord 217
Prescott v. Parker 8
Prescott v. Ti'uman .*..... 140
Preston v. Furnel 53
Price v. Mitchell 189
Price v. Ward.... .. 240
Queen v. Helston 237
Read v. Bainbridge 94
Regina v. Franklyn 365
Rex v. Abergwilly 212
Rex v. Best 301
Rex v. Brandon 365
Rex v. Bray 214
Rex v. Chadderton 64, 212
Rex v.Chatham 64
Rex v. Clifton 214
Rex v. Cope 307
Rex v. Croke 20
Rex v. Darley .'.. 368
Rex v. Eccles 306
Rex v. Edwards 301
Rex v. Erixwell 212
Rex v. Erith 212
Rex v. Ferry Frystone 212
Rex v. Glover 365
Rex v. Henry 307
Rex v. Harrmgworth 330
Rex v. Haughton 45
Rex v. Jones 3(2
Rex v. Lard 302
Rex v. Liverpool 20
Rex v. Long 382
PAGE.
Rex v. Luffington 214
Rex v. Macarty 305
Rex v. Hartley 214
Rex v. Morgan 377
Rex v. Preston 45
Rex v. Roberts '. 306
Rex v. Robinson 306
Rex v. Sprague 30
Rex v. Tarrant 307
Rex v. Tedford 45
Rex v.Turner 306
Rex v. Wheatley 302
Rice v. Oxenius , 120
Richards v. Bergavenny 13
Richards v. Milsington 189
Roberts v. Cook 88
Roe v. Cock 288
Rowe v. Williams 190
Rowe v. Young 190
Ryerson v. Ryerson 382
S
Saddle River v. Colfax 266
Sambern v. Sambern 117
Saunderson v. Bowes 190'
Saunderson v. Judge 189
Saville v. Roberts 307
Seward v. Baker 37
Seward v. Vaudegrift 78
Shallerv. Brand 230'
Sigfried v. Levan 331;
Smith v. Bromley 355
Smith v. Crabb 337
Smith v. Delafontaine... 190
Smock v. Warf'ord 180'
Soule v. Gerr#rd 51
Spaulding v. Mure 288
Squier v. Gale 198
Stannard v. Eldridge 141
State v. Arrowsmith 299 •
State v. Conover 18
State v. Gustin 31, 371
State v. Harris 244
State v.Kirby 275
State v. Nichols 299
State v. Shinn 208
State v.Shreve 18
State v. Vanarsdalen 244
Sterling v. Sinnickson 355
Sullard v. Smalley 76
Swing v. Sparks 180
Talbot T. Hodaon 330
Talbot v. Simpson 231
Taylor v. Rending 444
The King v. Bedwm 68
TABLE OF CASES CITED.
PAGE.
The King v. Davie 68
The King v. Edwards 260
The King v. Gill 68
The King v. Hareby 67
The King v. Hnlcott .* 67
The King v. Inhabitants, Ac 69
The King v. Johnson 68
The King v. Justices, Ac 69
The King v. Reeve 70
The King v. Trelawney 447
The King v. Wooton Rivers 66
The Palmyra 238
Thorn v. Wright 118
Tilbury v. Barbut 52
Turner v. Bank of North America. 20
Turner v. Pearle 238
Taxbury v. Miller 355
Tyte v. Willis 51
United States v. Coolidge 258
United States v. Passmore 208
United States v. Perez 259
Upton v. Bassett 232
Vandoren v. Vandoren 117
Vandyke v. Dodd 167
PAGE.
Van Geisen v. Van Houten 260
Van Houten v. Ellison 9
Vunchv. Whorl.... . 69
w
Waite v. Harper 3(55
Waldo v. Long 142
Washington v. Stanford 64
Webb v. Hearing : 51
Webster v. Hale 230
Westfield v. Warren 45
Westonv. Withers 89
Whiting v. Wilkins 13
Wiggin v. Bush 355
Wild v. Rennard 189
Williams v. Hamilton 120
Willings v. Consequa 8
Wolcott v. Vansantford 191
Wood v. Bulkley 281
Wood v. Hopkins 93
Wood v. Tallman's Executors 76
Woodbridge v. Amboy 44
Wright v. Williams 283
Wyman v. Ballard 140
Yardley v. Burgess 288
Yeomans v. Chatterton... .. 355
CASES DETERMINED
IK THE
SUPREME COURT OF JUDICATURE
OF THE
STATE OF NEW JERSEY.
AT FEBRUARY TERM, 1827.
THOMAS BRANSON against EZRA SHINN.
The neglect of the plaintiff to file his declaration in time is not a ground to
discharge the defendant on common bail.
Ryall, on behalf of the defendant, moved that he might bo
discharged on common bail, because the plaintiff had neglected
for two terms to file his declaration.
Wall opposed the motion, as being unfounded in the practice,
and unsupported by any rule, of this court.
•
Wood replied.
The CHIEF JUSTICE said, that the court were all of opinion the
application could not be sustained. The English practice on this
subject depends upon a rule of court, and has never been adopted
here ; and, we think, ought not to be adopted, for the defendant
has a remedy by the practice act, if the plaintiff neglects to file
his declaration in time
Motion denied.
VOL. iv. A 69
NEW JERSEY SUPREME COURT.
Anonvmous.
THE STATE against JOHN I. JONES
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.
This was an indictment which had been removed into this
court by certiorari.
Vroom moved for a rule to take the record and return back
to the Court of Over and Terminer, for the purpose of having
the caption to the indictment amended, so as to make it conform
to the facts, and to set forth which of the grand jurors were
sworn and which affirmed.
Scudder and W. Hoisted, opposed the motion, because the caption
returned with the indictment was perfect on its face, and the
alteration sought, was either to contradict it or to add something
to it, and therefore differed from the case of The State v. Smith
and others, in which the caption was amended.
Besides, they said, it was usual in some counties for the caption
to be drawn up and signed by the foreman of the grand jury; and
if the-present caption, which was returned with the indictment
and certified by the clerk to be a true copy from the record, was
in reality what it purported to be, then the object sought to be
attained by the present motion was not merely to amend, but to
insert in it facts and statements which had no existence in truth.
CHIEF JUSTICE. — This case is fairly within the principle laid
down in the case of The State v. Smith and others. Therefore,
let the rule to amend be allowed ; as to the signing of the cap
tion by the foreman, I am not aware that it is necessary.
FORD. J. — I think it is not necessary for the foreman to sign
the caption.
Rule to amend granted.*
ANONYMOUS.
A certiorari to remove an indictment may be granted by a judge of the
Supreme Court at chambers.
R. Stockton, stated that he wished to obtain a certiorari to remove
*See the doctrine as to amendments of captions to indictments, 1 Starkie Crim.
Law, 262-267 ; 1 Chitty Crim. Law, (Amer. ed. in 3 vol.) 274 ; 1 Hawk. PI. Or.
•book 2, ch. 25, sec. 97, page 336; 1 Saund. Rep. 249, n. 1, (to Faulkner's case),
The King v. Christopher Atkinson; and The State v. Jones, post. Feb. Term 1828.
FEBRUARY TERM, 1827.
Le Branthwait v. Halsey.
an indictment, but was not prepared to move for it at this time,
and wished to know if it could be granted by a judge at chambers
The CHIEF JUSTICE said the certiorari could be allowed by a
judge at chambers. Such had been the construction given to the
act ; and the court had no doubt it was the proper construction.
THE STATE against LUCIEN MURAT.
This court will grant a rule for a struck jury to try an indictment pending in
the Oyer and Terminer.
This was an indictment in the Oyer and Terminer of Burlington.
Wall, for the defendant said he was extremely anxious to have
this indictment tried at the next Oyer and Terminer, and to have
the benefit of a special jury, and asked if this court could grant a
rule for a special jury to try a cause in the Oyer and Terminer
He had understood that there had been such a practice.
CHIEF JUSTICE. — There are divers instances in which this court
has ordered special juries for the Oyer and Terminer.
Jl. Stockton, as amicus curia, said he recollected many instances
in which it. had been done; but that he had always entertained
doubts as to the propriety of it,
CHIEF JUSTICE. — It has been the practice of the court. There-
fore you may take a rule for a special jury.
ABRAHAM LE BRANTHWAIT and MARY M. LE BRANTHWAIT
against WILLIAM HALSEY.
The obligee of a bond, for the purpose of having it collected, makes an un-
conditional assignment of it to B. ; and afterwards, fearing that B. will appro-
priate the money to his own use, files a bill in chancery to restrain the obligor
from paying the money to B., and B. from receivihg it. During the continu-
ance of the injunction the obligor is not chargeable with interest.
This case came before the court upon the following statement of
facts agreed upon by the parties : William Halsey, the defendant
in this cause, on the 7th of October, A. D. 1819, gave his bond in
the penal sum of eight thousand dollars, conditioned for the pay-
ment of four thousand dollars to Abraham Le Branthwait and Mary
Margaret Le Branthwait, the plaintiffs in this action, which bond
is past due, and this suit is brought to recover the same. The
plaintiffs, residing at Baltimore, in the state of Maryland, on the
NEW JEESEY SUPKEME COUET.
Le Branthwait v. Halsey.
eighteenth day of August, in the year of our Lord one thousand
eight hundred and twenty, assigned the said bond to one Edward
Webb, which assignment is made on the bond, and is absolute and
unconditional upon the face of it. After this assignment to Edward
Webb, and while he held the bond, sundry payments, and to a
considerable amount, were made him or his agent on the said bond,
by William Halsey, the defendant. The plaintiifs in this canse
losing their confidence in Edward Webb, filed a bill of complaint
in the Court of Chancery of this state, charging the assignment
so made by them to Edward Webb, to have been made in trust
for themselves, and as a greater convenience for receiving the
money, as said Webb was coming on to this state, and that they
were of the opinion, from the course of his conduct, that he intend-
ed to collect the money on his own account and to defraud them of
their rights; and such proceedings were had in that suit that an
injunction was obtained restraining Edward Webb from receiving,
and William Halsey, the defendant in this cause, from paying any
more money to the said Edward Webb on the said bond until the
further order of that court. This injunction was served on Wil-
liam Halsey, the defendant, on the eleventh day of September, in
the year of our Lord one thousand eight hundred and twenty-one,
and continued in full force until the tenth day of February, in the
year of our Lord one thousand eight hundred and twenty-four,
when the plaintiffs settled with the said Edward Webb, the bond
•was returned to them, and the bill filed by the present plaintiffs
was dismissed according to the forms in that court, and William
Halsey, the defendant, duly notified of-the dismissal of that suit,
and of the return of the bond to the plaintiffs. The question sub-
mitted to the court, is whether the defendant, William Halsey, in
this action, is bound to pay interest on his said bond to the present
plaintiffs, from the eleventh day of September, in the year of our
Lord one thousand eight hundred and twenty-one, to the tenth
day of February, in the year of our Lord one thousand eight
hundred and twenty-four, the time that he was enjoined from
making any payments to Edward Webb, as before stated.
If the said William Halsey is bound to pay interest during the
time the injunction was upon him, it is admitted that the amount
due on the fifth day of September, in the year of our Lord one thou-
sand eight hundred and twenty-six, on the said bond, will be three
thousand six hundred and seventy-four dollars and sixty-five cents ;
if he is not bound to pay interest during that time, it is admitted
FEBRUARY TERM, 1827.
Le Branthwait v. Halsey.
that the amount due on the said bond on the said fifth day of Sep-
tember one thousand eight hundred and twenty-six, will be three
thousand two'hundred and fifty-one dollars and eighty-three cents.
As the decision of the court shall be upon the above stated
question, the sum due on the said bond is hereby ascertained and
fixed by the parties, for which the plaintiffs are to enter up judg-
ment and issue execution as if a verdict of a jury had been ren-
dered for the same; reserving to each party the right to turn
the case into a special verdict.
WM. PENNINGTON, Attorney for plaintiffs.
WM. HALSEY, pro se.
The CHIEF JUSTICE delivered the opinion of the court.
The defendant on the 7th October, 1819, gave his bond to the
plaintiffs, conditioned for the payment of a sum of money. The
plaintiffs assigned this bond, on the 18th of August, 1820, to Ed-
ward Webb, by an assignment made on the bond and on the face
of it absolute and unconditional. After the assignment, and while
the bond was held by Webb, the defendant made to him and to
his agent, sundry payments, and to a considerable amount. The
plaintiffs afterwards filed a bill in the Court of Chancery, charging
that the assignment to Webb was made in trust for themselves,
and as a greater convenience for receiving the money, as Webb
was coming on from Baltimore, where both he and they resided, to
this state, and that they were of opinion from his course of conduct
he intended to collect the money on his own account and defraud
them of their rights. An injunction was issued restraining Webb
from receiving, and the defendant in this cause from paying any
more money to Webb until the further order of that court. The
injunction was served on the defendant on the llth of September,
1821, and remained in force until the 10th of February, 1824, when
the plaintiffs settled with Webb, the bond was returned to them,
their bill dismissed, and notice given to the defendant.
The single question upon the state of the case, which was sub-
mitted to us, without argument, at the last term, is whether the
defendant is legally chargeable with interest during the pendency
of the injunction.
By the act of the plaintiffs, done for their own benefit, the de-
fendant was restrained, and legally prohibited from paying either
principal or interest during the period in question. To the plain-
tiffs he could not pay, because they had voluntarily and uncondi-
NEW JERSEY SUPEEME COUKT.
. Le Branthwait v. Halsey.
tionally, as appeared by their own act, parted with the bond by
the assignment to Webb. To him the defendant could not pay
because forbidden by the authority of the chancellor. No collu-
sion with Webb, nor any desire or affectation of delay is charged
against the defendant; and on the termination, it appears the
bond was obtained by the plaintiffs, not by a decree of the chan-
cellor, but by an arrangement with Webb. During the pendency
of the injunction the retention of the money by the defendant
was not voluntary but compulsory. Whether it was convenient
to hold it or more convenient to pay it, was not left to his dis-
cretion or choice. But to subserve the purposes of the plaintiffs
he was required and compelled to keep it. It may be said the
defendant might have paid the money into court. Without, how-
ever, stopping to enquire whether the chancellor would allow a
payment into court, in a case where the assignor asked from the
assignee only to return the bond, and account for what he had
actually received, and sought for neither relief nor decree against
the obligor, and only introduced him into the bill for the sake of.
the injunction, it can afford no foundation to support the charge
of interest that the defendant might have adopted a measure,
which, while it would have unequivocally, precluded the plain-
tiffs from obtaining any interest, would at the same time have
subjected them to the costs incident to the payment into court
and to the commission or percentage of the clerk.
No interest ought, in our opinion, to be charged. The loss
and injury sustained by the plaintiffs are the consequence of
their own imprudent act, in placing their confidence in Webb,
an unworthy trustee.
I have searched the chancery books, both English and Ameri-
can, with some care; and somewhat to my surprise, I have not
found a decision in point upon the present question.
Principle, however, and cases bearing strong analogy, are not
wanting.
In the case of Conn v. Penn, I Peters 524, Judge Washington laid
down the general rule on the accrual of interest to be as follows:
Whenever the law prohibits the payment of the principal, interest
during the existence of the prohibition is not demandable. He
applied it to the case of a debt due from an American debtor to
a British creditor during the revolutionary war, and he further
remarked, that a prohibition of all intercourse with an enemy dur-
ing the war, and the legal consequence resulting therefrom, as it
FEBEUAEY TEEM, 1827.
Le Branthwait v. Halsey.
respects debtors on either side, furnish a sound, if not in all
instances a just reason for the abatement of interest until the
return of peace. A similar rule was laid down, and a similar
application of it made by the Supreme Court of Pennsylvania,
in the case of Hoare v. Allen, 2 Doll. 102.
The legislature of our state prohibited the recovery of interest
on certain debts during a portion of the revoluntary period. The
prohibition and the reason of it, will be found in the eighth section
of the act of 8th December, 1784, Patt. 59, by which it was
enacted "That in all debts contracted before or during the late
war, no interest shall be allowed on the demands of any creditors
from the 4th of July, 1776, to the 3d of December, 1783, by
whose conduct the non-payment of such demands has been occa-
sioned, whether the same was owing to their removing or remain-
ing within the lines of the enemy, or places in their possession,
or to any other act of such creditors, by which their debtors
were prevented from discharging their obligations."
InMcCallv.2'urner,I Call 115, the Court of Appeals of Virginia
held, that where a creditor by his own act put it out of the power
of the debtor to make payment, interest was not recoverable. Tur-
ner, the defendant, in January, 1774, had made a bond, conditioned
for the payment of a sum of money in October of that year, which
bond had been assigned to McCall, the plaintiff. In 1793, the
plaintiff brought suit on the bond. On the trial the defendant
proved that the plaintiff went out of Virginia into foreign parts
beyond seas, and was absent until some time in 1783, and had
not during that period any known agent or attorney in the com-
monwealth who could receive payment of the debt and give a
legal discharge. During that period the interest was disallowed.
On appeal the disallowance was unanimously approved by the
Court of Appeals. One of the judges said, the plaintiff by absent-
ing himself from the country put it out of the debtor'** power to
make payment, and therefore it was unreasonable that he should
demand interest during that period. Another judge said "As to
the justice of the case, I do not think that its being a British,
debt or not makes any difference; the same rule would apply in
a case between two citizens."
In all these cases, it will be observed, the money remained in
the hands of the debtor — he used, or might have used it. The trito
adage that money is worth its interest, which is sometimes true
and at other times not, depending always on circumstances, did
NEW JEESEY SUPEEME COUET.
Sheppard v. Fenton.
nor fix the charge. The principle of these cases is, that when
payment is prevented by the interposition of the law, or the act
of the creditor, interest is not recoverable.
In the case of Fitsgerald v. Caldwell, 2 Doll 215, 1 Yeates 274,
the Supreme Court of Pennsylvania decided that a garnishee is
not liable for interest while he is restrained from the payment of
the debt, by the legal operation of a foreign attachment. The
same principle was decided in Willings and Francis v. Consequa,
by the Circuit Court of the United States for the district of
Pennsylvania, 1 Peters 321, and by the Supreme Court of Mas-
sachusetts, in Prescott v. Parker, 4 Mass. Hep. 170.
Interest is not recoverable.
EDMUND SHEPPARD and HENRY WILLIAMS, Appellants, against
ANDREW FENTON, Appellee.
When a judgment has been rendered in a justice's court against two defendants,
one of whom only made defence, he may appeal from the judgment of the
justice, and for that purpose may make use of the name of the other defendant.
It seems that the proper course, upon the filing of the appeal is for the defend-
ant bringing the appeal to take a rule upon the other defendant to shew cause
•why the appellant should not prosecute the appeal alone.
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 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 granting, at the term when the appeal
was filed, a rule that the said Henry "Williams be summoned and
severed, or without such rule, then a mandamus to be ordered and
the appeal reinstated ; otherwise the appeal to stand dismissed.
Lucius Q. C. ELMER, for E. Sheppard,
DANIEL ELMER, for appellee.
The CHIEF JUSTICE delivered the opinion of the court.
FEBEUAEY TEEM, 1827. .9
Sheppard v. Fen ton.
Judgment having been obtained by Fenton against Sheppard
and Williams, before a justice of the peace of the county of
Cumberland in a plea of debt, Sheppard appealed to the Court
of Common Pleas in the name of himself and Williams, who had
appeared but made no defence on the trial before the justice, and
did not join in the appeal. The Court of Common Pleas "being
of opinion that although one of the defendants made no defence,
the other defendant could not appeal," dismissed the appeal. The
case comes before us on an application for a mandamus to rein-
state the appeal, and it is agreed by the parties " that if the Court
of Common Pleas might legally have sustained the appeal upon
granting a rule that the said Henry Williams be summoned and
severed or without such rule, then a mandamus to be ordered."
If judgment in a personal action be rendered against two or
more defendants, one of them, although the others refuse to join,
may bring a writ of error. The writ is sued out in the names
of all, and after its return and before the assignment of errors, a
summons is issued to the others named as plaintiffs in error to shew
cause why he who sues out the writ should not prosecute alone;
and if they fail to shew cause an order is made that he be so per-
mitted to prosecute, or as it is technically termed, there is a sum-
mons and severance. 1 Archb. Pr. 210 and the cases there cited.
This procedure has been held by this court applicable to writs of
certiorari directed to courts for the trial of small causes. Van
Houten and Van Houten v. Ellison, Penn. Rep. 233. vox v. JIaines,
ibid. 687. Its application is equally required and warranted in
cases of appeal. It is true, our statute authorizing the appeal does
not in terms provide this procedure, nor is it provided in cases of
certiorari ; but in many respects it is necessary as well as proper
to apply to their regulation, analogous common law rules. I am
not aware that the process of summons has ever actually been used
in this court or the Court of Appeals, and as in divers particulars
on writs of error we effect, by the more easy and convenient
method of rules, what in the English courts is done by process, it
is probable when occasion requires we should adopt the procedure
by rule instead of summons. It is not necessary however, to ex-
press any opinion on that matter, as the parties have here agreed
that if there may be a severance, a mandamus should issue.
For obvious reasons it would be vain to look into the English
books for a precedent or a case in point. The very question pre-
sented to us has however been decided in the Supreme Court of
10 NEW JEESEY SUPKEME COUKT.
Den v. Cox.
Pennsylvania in the case of Gallagher and another v. Jackson, 1
Sergeant and Rawle, 492.
Let a mandamus be issued.
CITED IN Ballinger v. Sherron, 2 Or. 144. Montgomery's Ex. v. Reynolds, Id. 284.
Pharo v. Parker, 1 Zab. 334, 755. Wilson v. Moore, 2 Dutch. 459. Van
Buskirk v. Hoboken & N. Y. R. R. Co., 2 Vr. 368.
JOHN DEN ex dem. DAVID EWAN against JOHN COX.
A devises as follows : " I give, bequeath and dispose of all and singular the said
lands and plantation unto my wife's son J. E. to him and his lawful begotten heir
forever, and my will further is, that if the said J. E. should die without lawful
begotten heir, that then I give and bequeath the said lands unto my brother A.
E. and to his heirs and assigns forever." J. E. by this devise takes an estate tail.
This case was submitted to the court without argument upon the
following state of the case agreed upon by the parties and their
attorneys. " 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. I, David Ewan of the township
of Northampton, in the county of Burlington and state of West
New Jersey, being at this time in good health, and of perfect sound
disposing mind and memory; therefore calling to mind the mortal-
ity of my body, and knowing that it is appointed for all men once to
die, do make, constitute and ordain this my last will and testament,
in writing, that is to say, Principally and first of all I recommend
my soul unto the hands of God, who gave it, and my body I recom-
mend to the earth to be buried in a Christian, decent burial at the
discretion of my executors hereinafter named, and as touching such
worldly estate wherewith it hath pleased God to bless me with in
this life— I give, devise and dispose of the same in the following form
and manner: Impi-imis, first — I do hereby order that all my just
debts and funeral charges be fully paid and satisfied out of my per-
sonal estate as soon as it can be con venientty done after my decease.
Item. I give, bequeath and devise unto my wife Sarah Ewan all and
singular the residue and remainder of my personal estate what-
soever and wheresoever to be found, after said debts and funeral
charges be fully satisfied, all which I give and bequeath unto my said
wife and to her heirs and assigns forever. Item. I also give,bequeath,
devise and dispose unto my said wife all and singular my lands and
plantation and whatsoever I now possess or that I may possess at
my decease, as long as she shall remain my widow and no longer. * *
Item. My will and mind further is, that if my said wife should marry
again or die, then at, or immediately after her marriage or decease,
I give, bequeath, and dispose of all and singular the said lands, and
FEBEUAEY TEEM, 1827. 11
Den v. Cox.
plantation above said unto my wife's son Jonathan Ewan, as is so
called, to him and his lawful begotten heir forever, and my will
further is that if the said Jonathan Ewan should die without
lawful heir, that then I give and bequeath the said lands unto
my brother Absalom Ewan and to his heirs and assigns forever.
And lastly, 1 do hereby nominate, appoint and ordain my brother
Absalom Ewan executor, and my wife Sarah Ewan executrix,
to this my last will and testament. Eatifying and confirming
this alone to be my last will and testament, and disannuling all
former wills and testaments or executors by me in any wise before
named. In witness whereof the said David Ewan hath hereunto
set his hand and seal this twenty-second day of February, in the
year of our Lord one seven hundred and ninety-two. 1792.
Signed, sealed, published and pronounced ~)
by the said David Ewan, to be his last [• DAVID EWAN, (L. s.)
will and testament in the presence of us j
JONATHAN TAYLOR,
KEZIA EWAN,
JNO. ALLEN.
And having made the said last will and testament, the said
David Ewan, afterwards, to wit: on or about the first day of
May, in the year of our Lord one thousand eight hundred and
six died without altering his said will, and the same was proved
and recorded in due and lawful form. Sarah Ewan, wife of the
testator, died before him. Jonathan Ewan, the devisee named
in the said will upon the decease of the testator, went into the
possession of the premises devised to him in and by the said will,
and occupied the same until his death which took place on or about
the sixteenth day of August, eighteen hundred and twenty-three.
On the twenty-first day of March, seventeen hundred and
ninety-one, Jonathan Ewan the devisee, intermarried with Char-
lotte his wife and had issue by her, David Ewan, the lessor of
the plaintiff, his eldest child, who was born on the twenty-third
day of November, seventeen hundred and ninety-one — After the
birth of David Ewan, the lessor of the plaintiff, the following
named children were born of the same marriage, to wit : Sarah,
Joseph, William, Margaret, Alexander, Levi, Isaac and Eobecca.
David Ewan, the lessor of the plaintiff, now claims to be
entitled to the lands and plantation devised in and by the will
of David Ewan the testator to the said "Jonathan Ewan and
his lawful begotten heir forever."
12 NEW JEKSEY SUPREME COUET.
Den v. Cox.
It is agreed by and between the parties aforesaid, that if the
court should be of opinion that upon the foregoing state of facts
the plaintiff is entitled to recover, then that judgment shall be
entered in favor of the plaintiff against the defendant, with six
cents damages and six cents cost, otherwise for the defendant
with costs. With liberty for either party to turn this state of
the case into a special verdict, and bringa writ of error within two
terms after the judgment of the Supreme Court shall be entered.
ABRAHAM BROWN, Att'y of Plaintiff.
JOHN NEALE, Att'y of Defendant.
The CHIEF JUSTICE delivered the opinion of the court as follows :
This cause was at the last term submitted, without argument,
upon a case stated. David Ewan who died in the year 1806, by
his will bearing date in 'the year 1792, devised as follows — "I
give, bequeath and dispose of all and singular the said lands and
plantation unto my wife's son Jonathan Ewan as is so called, to
him and his lawful begotten heir forever, and my will further is
that if the said Jonathan Ewan should die without lawful heir,
that then I give and bequeath the said lands unto my brother
Absalom Ewan and to his heirs and assigns forever." The nature
of the estate vested in Jonathan Ewan, who on the decease of
the testator entered into possession of the premises, is the ques-
tion presented to us. If it was an estate in fee tail the plaintiff
is entitled to recover.
The objections on the part of the defendant to the creation of
an estate tail by this devise, we may presume, as they have not
been stated to us, are these four, the want of words of procrea-
tion, the word of inheritance being in the singular number, the
generality of the term, " heir," and the use of the word " forever."
1. The devise does not contain the words " of the body " or " of
his bod}7," usually denominated words of procreation. The only
supportl have found for the position that these words are indispen-
sable to the creation of an estate tail by devise is in the expression
attributed to the court in the case of Abraham v. Twigg, Cro. Eliz.
478, and the case of Farrington v. Darrell, Year Book 9 Hen. 6 page
23. In the former case a feoffment was made to the use of fr. D.
and his heirs males lawfully engendered. And the court are re-
ported by Croke to have said "It cannot be an estate tail because
there is not any body from which this heir male should come, and
so it is in cc.se cf a devise as appears 9 Hen. 6, pi. 25." But
FERBUARY TERM, 1827. 13
Den v. Cox.
Sergeant Moore in his report of this case, Moore's Rep. 424, states
that all the justices agreed it was a fee simple and not in tail for
want of mention of heirs of the body in the' limitation of the use,
" Et n'est semble al volunt de terre." It is not like a will of land.
As Moore says he argued the case himself and it was adjudged
against his argument, his report is probably to be preferred to
that of Oroke who was then comparatively a young man, and had
not received the dignity of the coif or been advanced to the bench,
and if so, the sanction of the court, which at best would be but an
obiter dictum is not given to the necessity of those words in a will
but rather to the contrary. In the case of Farrington v. Darrel, 9
Hen. 6, page 23, the devise was " to the next heir male of the said
R." And Paston said "if land be given to a man and to his heirs
males or his heirs females it is a fee simple, quod fuit concessum,
but if it be given to himandtohis heirs males or females of his body,
&c. then he has a good tail, and as in the case at the bar the re-
mainder was to the heirs males of the devisor and not of the body
of the devisor begotten, it is a fee simple." Whatever may have
been the weight of this authority in the reign of Henry the 6th, it
is very certain that at the present day no great difference will be
paid to a case which draws the rule of construction for a will from
that of a deed, or gives a certain effect to words in the former, be-
cause that effect is given to them in the latter. It was not very
long however until the contrary doctrine was established, for in
the Year Book 27, Hen. 8, pi. 11, page 27, it was held that by a de-
vise to a man and his heirs male, the devisee will have an estate
tail without further words, for the law is favorable to all devises
and construes them according to the intent of the devisor, for
which reason the devisee will have an estate tail, but otherwise it
is of a gift made as above. And this doctrine has been since sus-
tained in the English courts by an uninterrupted series of decisions
until the present day. Church v. Wyatt, Moore 637, pi. 877. Baker
v. Wall, 1 Ld. Eaym. 185. Idle v. Cook, per (Powys Justice} 2 Ld.
Eaym. 1146. Whiting v. Wilkins, 1 Bulstr. 219. Clerk v. Day,
Cro. Eliz. 213. Richards v. Bergavenny, 2 Vern. 325. Dawes v.
Ferrers, 2 P. Wms. 3. Barret v. Beckford, 1 Vez. sen. 521. Nanfan v.
Legh, 7 Taunton 85. It is not necessary however to refer to the
multitude of English decisions, for the point has been settled in this
court by tho case of Den v. Fogg, Penn. Hep. 819. A devise " to
my son W. H. and to his male heirs" was held to be an estate tail
and Pennington, Justice, says, " It has been the settled law for two
14 NEW JERSEY SUPREME COURT.
Den v. Cor.
hundred years that where one devises land to a man and his heirs
male that this was construction of law is an estate tail."
2. The devise under consideration is to his lawful begotten heir.
It is nevertheless an estate tail. In Liber Assisarum 39 Ed., 3 pi.
20, page 238, a devise to a man and his wife and to one heir, &c.
was held an estate tail. In Whiting v. Wilkins already cited, the
testator devised unto Robert Whiting his younger son forever, and
after his decease the remainder to his heir male forever, with
divers the like remainders in the same manner limited to the
next eldest son and to bis heir male forever. Dodderidge, Justice,
says "to his heir male in the singular number and heirs male in
the plural number are all one as to the making of an estate tail."
Croke says, " it is all one to limit this to heir male and to heirs male.
This word, heir, is only the manner of gradation and distribu-
tion." In Clerk v. Day, Cro. Eliz. 313, " It was agreed by all
the justices that a devise to one and the heir of his body is an
estate tail " — " for heir is nomen collectivum" In Richards v.
Bergavenny 2 Vern. 325, a devise to a man for life, remainder to
the heir male of his body though in the singular number is an
estate tail.
3. The words of the devise before us are to him "and his lawful
begotten heir ; " — and hence it may be argued as it has been before,
that the words may be satisfied by a descent to any person lawfully
begotten who is his heir, though not of his body, and therefore no
estate tail has been created. But such is not the legal construc-
tion of these words. Most of the cases referred to under the first
head might be arrayed to oppose such a construction, but there are
some expressly in point. Barret v. Beckford, 1 Vez. sen. 521. James
Pope devised to his nephew and his legitimate heirs, and if he
died without legitimate heirs, then to the family of the Popes his
relations. Lord Hardwicke said, the proper construction of legiti-
mate heirs, is heirs of his body lawfully begotten, for if to him and
his heirs lawfully begotten, that would be heirs of his body. In
Dawes v. Ferrers, 2 P. Wms. 3, Lord Chancellor Macclesfield
says "the words heirs male [in a will, of which instrument he
was speaking] must be intended heirs male of the body and would
never extend to an heir male in any collateral line."
4. The clause of the will before us contains the word "forever."
In some positions this word has due effect in the formation of a fee
simple. It is not however technical and its just influence is regu
lated by its connection. In Whiting v. Wilkins, the devise was to
FEBRUARY TERM, 1827. 15
Cruser v. Duryea.
K. W., his younger son, forever, and after his decease the remain-
der to his heir male forever. In Baker v. Wall, 1 Ld. Raym. 185,
the devise was to D. my eldest son, to him and his heirs male for*
ever. In Nanfan v. Legh, the words were to his son J. H. and to
his heirs lawfully begotten forever. Yet in these cases the word
did not prevent -or impede the creation of an estate tail
Under the devise in question I am of opinion that Jonathan
Ewan took an estate in fee tail and that judgment should be ren-
dered for the plaintiff.
Judgment for the plaintiff.
CORNELIUS CRUSER against WILLIAM DURYEA and PETER VOOR-
HEES, Overseers of the Poor, Ac.
An appeal will lie, to the Court of Common Pleas, from the judgment of a
justice of the peace, rendered on the VERDICT OF A JURY in a case where the
debt, demand, or other matter in dispute, does not exceed three dollars.
This case was submitted to the 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 Som-
erset, and on the return day of the summons filed his statement of
demand, amounting to one dollar and forty-nine cents. The defen-
dants filed no plea or offset. The cause was tried before a jury of
six men and a verdict found in favour of the plaintiff for one dol-
lar and forty-nine cents of debt, with six cents costs ; and the jus-
tice gave judgment in favourof the plaintiff against thedefendants
for the sum of one dollar and forty-nine cents of debt, with two dol-
lars and fifty-six cents costs of.suit. The defendants demanded an
appeal, tendered an appeal bond accompanied with the proper affi-
davit, and the justice accepted of the same. The appeal bond, with
the other papers, was sent up by the justice to the Court of Com-
mon Pleas next after rendering the judgment. On motion made
to enter the appeal the Court of Common Pleas refused the mo-
tion, and would not permit the appeal to be entered, on the ground
and for the sole reason, that the debt or demand in dispute between
the plaintiff and the defendants did not exceed three dollars.
Tt is agreed by md between the parties in the suit, and with tho
assent ot the said Court of Common Pleas, that if the Supreme
Court shall be of the opinion, that an appeal will lie to the Court of
16 NEW JEKSEY SUPREME COUET.
Cruser " Duryea.
Common Pleas from the judgment of a justice of the peace ren-
dered on the verdict of a jury in a case where the debt, demand
or other matter in dispute, doss not exceed three dollars, that
then a writ of mandamus shall issue out of the Supreme Court
directed to the said Court of Common Pleas of the count}7 of
Somerset, commanding the said court to enter the appeal afore-
said and to proceed to its hearing and determination.
JAMES S. GREEN, Atfy for defendants.
PETER D. VROOM, jr. for plaintiff.
The CriiEF JUSTICE delivered the opinion of the court as follows:
Cornelius Cruser brought an action against William Duryea
and Peter Voorhees, in the court for the trial of small causes and
demanded the sum of one dollar and fort}T-nine cents. No set off
was claimed, and upon the verdict of a jury he obtained a judg
ment for that sum. An appeal was taken by the defendants and
the Court of Common Pleas being of opinion that there could
be no appeal where the debt or demand in dispute did not exceed
three dollars, overruled an application for the entry of the ap-
peal. A mandamus being here sought, it is agreed by the par-
ties that a peremptory writ be ordered if this court is of opinion
that an appeal may, in such case, be taken.
Prior to the statute of November, 1820, an appeal could not be
made from a judgment given upon a verdict. By that statute it
is enacted that from any judgment obtained before any justice of
the peace, in any of the courts for the trial of small causes, upon
the verdict of a jury, either party may appeal to the Court of Com-
mon Pleas of the county within the same time, in the same manner
and upon the same terms, as in other cases where an appeal is
granted. The language of the statute is of the most broad and
comprehensive, as well as clear and explicit, character. The
right of appeal is made to extend to all judgments upon verdicts.
The reference of time, manner and terms to other cases of ap-
peal is directory of the mode of procedure, and not restrictive of
appealable judgments to any particular class or sum. We have no
warrant to introduce, by constructive interpolation, a limitation
into the statute not sanctioned by its unambiguous phraseology.
The objection to the construction of this statute so plainly indi-
cated by its words, is founded on the 36th section of the act of Feb-
ruary, 1818, which excepts from appeals, judgments founded upon
verdicts, on reports of referees, and where the debt, balance, de-
FEBKUAKY TERM, 1827. 17
The State v. Scott.
raand or other matter in dispute, does not exceed three dollars,
and the argument is that as the present act only authorizes
appeals after verdicts, the restriction as to sum remains. But
the statute of 1820 gives an appeal from any judgment founded
upon a verdict,' including thereby, most evidently, judgments
below, as well as above, three dollars ; and if there be any conflict
between the two statutes, the latter, on common law principles, ab-
rogates the former ; and more plainly to effect such purpose the act
of 1820 repeals all acts and parts of acts inconsistent with its pro-
visions. If any doubt existed as to the operation of these acts, we
ought rather to sustain the right of review, a right so just in itself
and so sedulously cherished in every part of our judicial system.
Whether an appeal ought to be given where the sum in contro-
versy is so small, or after verdict in cases not exceeding three
dollars where, by the undisturbed operation of the act of 1818,
an appeal could not have been taken if there had been no trial by
jury, are subjects of legislative, not of judicial consideration.
Let a mandamus issue.
THE STATE against ISRAEL SCOTT
1. If it appear by the return of the surveyors appointed to lay out a road,
that they met at a place different from that designated by the order of the
court, their proceedings will be set aside.
2. The return of the surveyors should shew that they received proof that
publication had been made of their meeting, and that they decided upon it.
3. An affidavit of a person (not one of the surveyors) will not be sufficient
evidence to contradict their return.
This was a certiorari to the Common Pleas of Burlington to re-
move 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 G. Coleman in
Nottingham. The return of the surveyors was as follows : " We
the subscribers, six of the surveyors of the highways of the
county of Burlington, appointed on the application of EliasBowne
and others, above ten of the freeholders and residents of the said
county, by the Inferior Court of Common Pleas of the said county,
in the term of November, instant, to lay out a public road of
thirty-five feet wide in the township of Nottingham in the said
county, as by the order and appointment of tho said court, a cer-
tified copy whereof is hereunto annexed, more fully appears, do
hereby certify and return, that having met agreeably to the order
VOL. IV. • B
18 NEW JEESEY SUPEEME COUET.
The State v. Scott.
of the said court on this twenty-second day of November, eigh-
teen hundred and twenty-four, at the house of Daniel Ivins, inn-
keeper in Nottingham township in said county, and having viewed
the premises and heard what could be said for .and against the
road, do think and adjudge the said road as applied for and men-
tioned in the annexed copy of the said order of the said court,
to be necessary, and have laid out and do accordingly lay out
the same as follows," (setting out a description of the road.)
Hamilton moved to set aside the return of this road and the
proceedings thereon for the following (among other) reasons.
1. Because the surveyors did not meet at the place appoinled by
the order of the Court of Common Pleas, but at a different place.
2. Because the surveyors proceeded to lay out said road without
any proof of their meeting having been advertised according to law.
Wall opposed the application, and in answer to the first objec-
tion read an affidavit (duly taken) stating "that the surveyors
met to lay out the road in question on the 22d of November 1824,
at the house of James G. Coleman, and from thence went on tho
ground of the road, that they dined at Mr. Coleman's after they
had gone over the ground ; they then agreed to go to Daniel
Ivins's in order to hear the allegations, on account of having there
more room than they had at Mr. Coleman's ; there they heard the
parties and signed their return."
The CHIEF JUSTICE delivered the opinion of the court as follows:
The jurisdiction of this court to enquire into the manner in
which the inferior tribunals have exercised the powers given to
them by our statute relative to the laying out of roads, and the ex-
tent of that jurisdiction, have undergone such repeated examina-
tions, and have been so frequently recognized and so firmly estab-
lished as to render further or renewed investigation at this time
unnecessaiy. It may suffice to refer to the cases of The Middlesex
and Monmouth Road, 1 South. 290, The State v. Shreve, ibid. 297,
and The State v. Conover, 2 Halst. 203. By the writ of certiorari
are brought here the order of the court for recording the return
of a road and all the previous proceedings on which it is founded ;
and if in the orders of the Court of Common Pleas, or in the
proceedings of the applicants or the surveyors, other than those
in which the decision of the court or the survej-ors is declared by
the statute to be final and conclusive, substantial defects are found,
FEBEUAEY TEEM, 1827. 19
The State v. Scott.
the return of the i-oad and the recording of it will be vacated and
Bet aside.
Having premised these remarks by way of shewing our power
to enquire into the exceptiops taken to the proceedings in ques-
tion and in answer to the objection raised in this respect by the
counsel for the road, we proceed to examine them.
"We think it, however, necessary to notice two only, as without
expressing any opinion on the others we hold them to be fatal.
1. The statute directs the court to fix the time and place of the
meeting of the surveyors, requires that all persons concerned have
opportunity to become informed thereof by public advertisements,
and at such time and place the surveyors are bound to meet. The
reasons and importance of a strict compliance are manifest. The
rights of persons interested may be essentially abridged if not
entirely defeated, if while they are patiently waiting at the place
to which they have been called under the sanction of the court, the
surveyors may meet at another, and there lawfully perform their
duties. In the present case the surveyors did not, as appears
from their own certificate and return, comply with the order of
the court. They were directed to meet at the house of James G.
Coleman, and they did meet, as they say, at another place, tho
house of Daniel Ivins. An attempt was made to cure this defect
by the affidavit of a person who deposes that they met at the house
of Coleman and from thence went to the house of Ivins for the
convenience of more room. But this mode of amending the return
of the surveyors is entirely inadmissible. They certify they met at
the house of Ivins ; and to this hour not one of them has so far as
we know contradicted it; but some person is produced to say
they met at Coleman's; who is to be believed? It was asserted
that this affidavit does not contradict the return, because in the
return the surveyors say they met " according to the order of the
court," but they add, " at the house of Daniel Ivins," thereby
shewing where they met and that they did not meet according
to the order of the court. If indeed the words suggested by the
counsel in support of the road were inserted "at the house of
James G. Coleman and adjourned to the house of Daniel Ivins,"
there would be no incongruity; but they are not there ; and we
think they cannot be supposed there because of an affidavit
which directly contradicts what the surveyors have certified.
2d. The return does not shew that the surveyors required and
received proof that public notice had been given of their meeting
20 NEW JERSEY SUPREME COURT.
The State v. Scott.
or that they decided upon it. The statute declares that on due
proof being made to the surveyors when met, that the advertise-
ments of their meeting have been set up according to law, on
which they shall decide and their decision be final and conclusive,
they shall view the premises and may if they think it necessary
lay out the road. — "Without such proof they may not proceed.
Their authority and jurisdiction to view and lay out the road
depends on such proof. That due proof in their opinion was made
ought then to appear on the face of their proceedings. For it is a
clear and certain rule with respect to persons exercising special or
statute authority, that all substantial matters requisite to give
them jurisdiction to exercise such power, must not only have been
performed but must appear to have been performed. The presump-
tion in favor of jurisdiction referred to by the counsel for the road,
extends only to courts, tribunals or officers of general or common
law jurisdiction, but tribunals or officers or persons executing spe-
cial or statutory authority or of limited jurisdiction must shew
their jurisdiction. In Rex v . Liverpool, 4 Burr. 2244, the Court of
King's Bench on certiorari quashed an inquisition and verdict of a
jury taken before a sheriff under an act of parliament for bringing
water into Liverpool, for the want of an averment in the inquisi-
tion that notice had been given to the parties interested, because
it ought to have appeared on the inquisition and also to shew the
jurisdiction, although it was contended that the party was to give
the notice, the sheriff had nothing to do with it, and that it was an
anterior act to be done twenty days before the inquisition. The
case of Rex. v. Croke, Cowp. 26, is strongly to the same point. In
Turner v. The Bank of North America, 4 Dallas 8, Chief Justice
Ellsworth, delivering the opinion of the Supreme Court of the
United States said, "A Circuit Court is of limited jurisdiction" —
"And the fair presumption is (not as with regard to a court of
general jurisdiction, that a cause is within its jurisdiction until
the contrary appears, but rather) thaka cause is without its juris-
diction until the contrary appears. This renders it necessary,
inasmuch as the proceedings of no court can be deemed valid fur-
ther than its jurisdiction appears or can be presumed, to set forth
upon the record of a circuit court the facts or circumstances which
give jurisdiction either expressly or in such a manner as to ren-
der them certain by legal intendment."
The doctrine on which this exception to the road is founded was
fully recognized in the case of the Middlesex and Monmouth road,
FEBRUAKY TBKM, 1827. 21
The State v. Woodward.
1 South. 290. The court say, " The surveyors must adjourn and
meet in the mode there [in the statute] prescribed, and did it
appear that there had been an adjournment it ought also to ap-
pear that the adjournment was in all respects' legal and proper ;
but in this instance it does not certainly appear that any took place.
Where none did take place nothing need be said on the subject."
On these exceptions, we think the return and the record there
of should be vacated and set aside.
CITED IN State v. Hanford, 6 Hal. 74. State v. Allen, Id. 103. Snediker v.
Quick, 1 Or. 308. State v. Burnet, 2 Or. 385. State v. Van Geison,
3 Or, 341. N. J. R. R. & Tr. Co. y. Suydam, 2 Harr. 32, 62. State
• v. Lewis, 2 Zab 565. Overs, of Princeton v. Overs, of So. Brunswick,
3 Zab. 173. Stout v. Freeholders of Hopewell, 1 Dutch. 202. State
v. Vandervere, Id. 233. State v. Vandervere, Id. 671. Oraham v.
Whitely, 2 Dutch 262.
THE STATE against ROBERT WOODWARD.
IN MATTER OF EOAD.
1. On the return of a writ of certiorari, if such matters, other than those
properly inquirable into by the writ, are shewn to the court, by a party whose
rights or interests are affected, as would, if shewn at the moment of application,
have induced the court to refuse the allowance, the writ will be quashed.
2. If it appear that a variation (between the road laid out by the surveyors,
and that described in the petition) alleged as the reason for setting aside the
return of the road, was produced by the prosecutor of the certiorari, he will not
be allowed to take advantage of such variance.
3. Upon a certiorari to remove the proceedings in a matter of road a person
whose land is not touched by the road and who does not bear any part of the expense
of defendingsaid road on the certiorari, is a COMPETENT witness, although he was one
of the persons who petitioned the Court of Common Pleas to lay out the road in
question, and although he may have borne a part of the expense of laying it out.
This was a certiorari to the Court of Common Pleas of the coun ty
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 Sept., 1825, upon the application of Eobcrt Woodward, and
upon the return of the writ of certiorari in November Term fol-
lowing, a rule was granted to shew cause why the writ should not
be quashed and leave was given the parties to take affidavits.
The reasons filed by the prosecutor for setting aside the road were,
1. Because the public road laid out by the surveyors and de-
scribed in the return thereof filed, is different and variant from
the route named and described in the petition of the freeholders
and designated in the appointment and notice.
2. Because there is no map or draft of the said road with the
courses and distances and reference to the most remarkable places,
&c. returned and filed.
22 JNEYV JERSEY SUPREME COURT.
*
The State v. Woodward.
3. Because six of the surveyors of the highways were not
appointed by the court.
Wall now moved to quash this certiorari upon the ground that
the prosecutor of this certiorari had consented to the laying out
of this road in the manner in which it had been done, and him-
self induced the variation, of which he now sought to take
advantage on this writ, and that his conduct was against good
faith. In Support of these objections he read a number of affi-
davits (which it is deemed unnecessary to insert as the substance
of them is fully stated in the opinion of the Chief Justice.)
Hamilton, in behalf of the prosecutor, resisted the application.
The CHIEF JUSTICE delivered the opinion of the court.
Robert Woodward came before this court in September, 1825,
and having shewn that a road had been laid out in part through
his lands, and in part through the lands of other persons, and
that the road as laid out and returned by the surveyors varied
in certain parts from the petition of the applicants and the order
of the Court of Common Pleas, he obtained the allowance of a
•writ of certiorai'i. On the return of the writ, David Mairs and
others, certain of the land owners, made an application to the
court to quash the "writ, and the arguments of the counsel of the
parties were heard at the last term.
Certain principles applicable to this subject are well settled.
The allowance of a writ of certiorari in cases of this kind is in
the discretion of the court, who are discernere per legem quid sit
justum. Core 250. Penn.1026. 1 South.389. On the return of the
•writ, if such matters, other than those properly inquirable into by
the writ, are shewn to the court, by a party whose rights or
interests are affected, as would if shewn at the moment of appli-
cation, have induced the court to refuse the allowance, the writ
will be quashed. This rule results from the fact that the allow-
ance is made ex parte and without notice. Thus, for example,
want of jurisdiction to issue the writ may be shewn on a motion
to quash; but the court would not, on such motion, sustain an
attempt to shew that the reason assigned for the allowance, or
that other reasons, if such there were, on which reliance was
placed to annul the proceeding to be inquired of by the writ,
were untrue in fact or ineffectual in law.
The way is then open to examine the truth and effect of the
FEBRUARY TERM, 1827. 23
The State v. Woodward.
grounds exhibited by David Mairs for quashing this writ. These
grounds are mainly supported, as to matters of fact, by the affida-
vits of Apollo Mairs and Abraham Tilton. But it is objected that
they are incompetent witnesses. It appears they are two of the
persons who petitioned the Court of Common Pleas for the appoint-
ment of surveyors to lay out the road in question, and Tilton says
he lives in the neighborhood, is accommodated by it, bore part
of the expenses of laying it out and " wishes the road to go
through." It also appears that the road was laid out in May
1824, and no caveat having been filed or application for a review
by freeholders made, it became under the order of the court at the
ensuing term a lawful and recorded road. It farther appears by
the deposition of Apollo Mairs that he is "not to bear any part
of the expense of defending the road on this certiorari ;" and by
the deposition of Tilton, that he is not interested in the defence
of the road in the present case, and that he does not know that he
ever said he would bear any part of the expenses. Neither of them
have any land touched by the road. Hence it is manifest that
the interest of these deponents, if they have any, affects their
credibility and not their competency. On the score of credibility
it is to be remarked that these witnesses and their testimony stand
wholly unimpeached and uncontradicted by any other evidence,
and that the facts which their affidavits are produced to prove,
having occurred, if at all, in the presence of a number of persons,
were readily if untrue susceptible of contradiction. Apollo Mairs
deposes that Eobert Woodward " was not present when the sur-
veyors began to view the road, but fell in with them while on
the road and was present at the debate before the surveyors.
He consented to the laying of the road. He told me [the witness]
that the road would not have been laid but for him, that he had
spoken to the surveyors about it. The surveyors had told him,
he said, that they would not have laid it without the consent of
all the land owners, as they had varied from the order of the
court; that it would not be worth while to lay it without the
consent of all the land owners, as if caveated it would have been
set aside, and he (Robert) had told the surveyors that ho had got
his brother Samuel to consent that it should be laid, and that it
AVUS very necessary there should be a road there. Tho survey-
ors had concluded that if all parties were willing it should be a
road, and that upon that principle they had laid it. This was the
discourse between him and the surveyors as he told me." — Tilton
24 NEW JEESEY SUPEEME COURT.
The State v. Woodward.
deposes, that "on the day the surveyors laid out the road in ques-
tion, when they were about half way through the view, Kobert
Woodward said he was glad there was like to be a road, the
neighbors wanted one. After the surveyors decided to Jay out
the road and so informed the persons present, Robert Woodward
said, gentlemen, you may thank me for the road, if it had not
been for me you would not have got it through." Now, upon
these facts, it seems to me not to admit of doubt or argument that
the attempt to set aside the road, because it varies from the route
originally proposed, is against good faith. The variance was pro-
duced by the very person who now complains of it. Without his
interference the road would not have been laid, or would have
been laid on the route at first described. By his advice and
importunity the departure from the order of the court was
effected. Surely then his lips ought to be hermetically sealed.
He cannot be permitted to complain of what may in truth be
called his own act, his deliberate act, done with full knowledge
of its consequences, both in law and fact.
It was insisted by the prosecutor's counsel that these affidavits
only prove the declarations of Eobert Woodward at a time when
he had no interest in the land, he having purchased the farm since
the road was laid out and recorded. And what then ? — Are these
declarations untrue? Do the counsel of Mr. Woodward intend so
to insist? I am sure they do not; because I am persuaded they
are well acquainted with the fair and respectable character he
has always sustained. They mean doubtless that as he had no
interest at the time his acts then done ought not to prejudice him.
But the rule is otherwise ; the objection is a personal one. How-
ever effectively Samuel Woodward, had he remained the owner,
might have availed himself of the alleged variance, if no respon-
sibility for the acts of Eobert could be shewn against him, the case
with Eobert is widely different. Samuel as he himself testifies
took no measures to oppose the road after it was laid, but desiRted
from all opposition. Eobert must stand or fall by his own acts.
And if he had no interest and his inference was gratuitous, and
he has since purchased the farm, cum onere, as it appears he did
Borne six months after the road was laid, the case is made the
stronger against him. It is a fair case for the application of the
maxim, consensus tollit errorem, against those who have given
consent. The damnum sine injuria is fully exemplified.
It is objected, that there are variances in other parts besides the
farm now owned by Eobert Woodward. A full answer is found
FEBRUARY TEEM, 1827. 25
Anonymous.
in the depositions. He told Mairs, the road would not have
been laid out but for him. When the surveyors announced their
determination to lay out the road, he said to the persons present,
"you may thank me for the road, if it had not been for me you
would not have got it through."
It was further contended that no man has a right to make an
agreement for the public. The truth of the position is promptly
yielded : — and if the public are the complainants we will give them,
the full benefit of it. But when we neither see by the writ nor hear
by the suggestion of counsel that any other person complain8,beside
RobertWoodward ; when we see from a written document produced
and proved before us that all the other land owners are satisfied ;
when we learn from the evidence that another tribunal of surveyors
called by him according to law to vacate the road, have refused to do
so; and that the road has been opened, several bridges made, and
hundreds of dollars expended upon it by the public, we do not feel
ourselves at liberty to allow him to personate the public, or to as-
sume its cegis for protection from the consequences of his own acts.
Let the certiorari be quashed.
CITED IN State v. Hanford, 6 Hal. 74. Montgomery v. Sruere, Id. 168. N. J.
R. R. & Tr. Co. v. Suydam, 2 Harr. 25, 62. Haines v. Campion, 3
Harr. 49. State v. Green, Id. 183. State v. Ten Eyck, Id. 374. State
v. Wood, 3 Zab. 562. State v. Water Com'rs Jersey City, 1 Vr. 250.
State v. May. &c. of Newark, Id. 306. State v. Blauvelt, 5 Vr. 263.
ANONYMOUS.
A defendant may be rendered in discharge of his bail notwithstanding ex-
ceptions to them have been entered.
Saxton moved forleave to surrender the defendant in discharge
of his bail, on a capias ad respond, returned to this term.
Wall objected, upon the ground that exceptions had been en-
tered to the bail, and therefore the defendant could not be sur-
rendered until the bail had justified.
Saxton replied and cited Tidd's Prac. 235. Bar. notes, 111, 117. 1
Arch. Prac. 286. 1 New Rep. 138, n. 1 W. Bl. Rep. 462. 1 Taunt A27.
5 T. JR. 633.
, CHIEF JUSTICE. — Special bail may surrender the principal not-
withstanding they are excepted to. The exception to b:iil is
intended to test, for the security of the plaintiff', their responsi-
bility ; but their responsibility is unimportant when an immediate
tun-render is to be made.
26 NEW JEESEY SUPEEME COUET.
The State v. Potts.
THE STATE against THOMAS POTTS
1. Though an indictment for passing counterfeit money purport to set forth
the counterfeit note according to its tenor, and contain no averment of its loss,
or destruction, the production of the note may be dispensed with, upon proof
that the same has been mutilated or destroyed by the defendant, and other evi-
dence of its contents may be admitted.
2. In an indictment for forgery a full description of the forged instrument
must be pet out in the indictment, or the omission excused by proper averments.
3. An indictment does not fail because one witness for the state differs from
another in points more or less material, or even in some directly contradicts him.
4. Where the question of variance between the note set out in the indictment
and that produced in evidence is properly submitted to the jury their verdict ia
conclusive.
This case was argued by Sims and W, Hoisted, 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.
The CHIEF JUSTICE delivered the opinion of the court as follows:
The defendant, Thomas Potts, was convicted at the court of
oyer and terminer of the county of Burlington, upon an indictment
for passing one counterfeit bank note, and for having another in
his possession, with intent to pass it. At the instance of his
counsel judgment was suspended in order that certain points
raised in the progress of the trial might be submitted to the
consideration of this court ; and these points having been fully
argued by counsel on both sides, now stand for our opinion.
1. In the first place, the counsel of the defendant insist that
the first count of the indictment was not sustained, because such
a note as therein described was not produced.
The first count charges the defendant, in the usual form, with
having uttered and published a counterfeit bank note of the Far-
mers' and Mechanics' bank, " the tenor of which false, forged
and counterfeited paper writing is as follows, that is to say;"
and the note is then set out at full length. On the trial three parts
or pieces of the note were produced; the two figured ends with a
portion of the body of the note attached to one of them; and
another portion of the body of the note, containing a part of the vig-
nette, the number, the sum thrice expressed, twice in numbers and
oncein letters, a part of the date of the note and of the nameof tfye
bank, and of Philadelphia, the place of its establishment, and the
whole of the counterfeited signature of the President. The
remainder of the note was wanting. It was proved that while the
defendant was under examination, previous to his commitment,
FEBRUAEY TEEM, 1827. 27
The State v. Potts.
he seized the note then lying on the table before the magistrate,
and threw it into the fire, from which it was promptly rescued,
but not until those parts wanting at the trial had been destroyed.
By the testimony of the magistrate and of another person then
present who had carefully examined it, the contents of the des-
troyed parts were proved. The parts produced were amply suffi-
cient to enable a competent person to judge and give evidence
whether it was a genuin'e or counterfeited instrument.
The counsel of the defendant insisted that as the indictment
set out the note by its tenor and at length, the state was bound
to produce on the trial exactly such a note as is there described ;
and having made no averment of its injury or destruction, the
contents of the wanting parts could not be supplied by other
evidence.*
To sustain their position they rely in the first place on the rule
in civil actions requiring in eases of profert, the actual production
on trial of the instrument declared on and admitting no substitu-
tion of secondary evidence by proof of loss and destruction, unless
an averment to that effect be made in the declaration.
This reasoning cannot prevail. Not the slightest analogy ex-
ists between the cases, and what may be a very sound and safe
rule in the one may be wholly improper in the other. In the first
place. A profert in an indictment is never made. It charges
that the defendant uttered the note, and states it with due partic-
ularity. A declaration alleges that the defendant made the deed,
" which the plaintiff brings here into court," and which, as is
familiarly known, the plaintiff did, especially in the time of the
year books, and of ore tenus pleading, actually produce in court,
before the j udges, where it remained during the term and was then
taken by the plaintiff, unless denied by the plea, when it remained
in the hands of the custos brevium until the trial of the cause.
Secondly. This rule respecting profert and its effect, relates only
to deeds and not even to every kind of deeds ; but it never em-
braced promissory notes or bills of exchange. A declaration may
without the utmost minuteness describe a note or bill without any
suggestion of its loss, yet on the trial, proof of the loss or destruc-
tion and of its execution and contents will maintain the action.
Why then should the rule contended for exist where a note or bill
* A similar objection was made and overruled in the case of The United States
v. Britton, 2 Mason 464, before Justice Story, in the Circuit Court of the U. S.
for the f.rst circuit.
28 NEW JEESEY SUPEEME COUET.
The State v. Potts.
becomes in question in a criminal case? Thirdly. The reasons for
making a profert as given by Lord Coke, 10 Co. 92, are, 1. As to
the composition of the words, to be sufficient and the court shall
judge that. 2d. Thatit be not razed or interlined in material points
or places, and upon that also in ancient time the judges did judge
upon their view; but of late times have left to be tried by the jury.
3d. That it may appear to the court and to the party if it was upon
condition, limitation, or with power of revocation. "And these,
says Coke, are the reasons of the law, that deeds pleaded in.
court shall be shewed forth to the court." But it is most mani-
fest, that the first of these reasons is fully satisfied by the rule
which requires the forged instrument, or so much as may suffice
to shew it to be the subject of forgery, to be set out in the indict-
ment, and that the others can have no possible application.
The making of a profert in a declaration, in a civil action, regu-
lates the kind of evidence to be produced on the trial ; but as a
profert in criminal cases does not exist, either in principle or in
practice, the manner in which the charge is set forth in the in-
dictment does not govern the kind, although it may affect the de-
gree or quantity of evidence requisite to sustain it. Thus if an
indictment charge that the defendant uttered a forged instrument
"of the tenor folio wing," or "in the woi-ds following," the con tents
of the instrument as laid must be strictly and literally proved. A
very slight variance is fatal. But this mode of expression does in
no wise govern the kind of evidence whereby such proof is to be
made, nor require that it be made by written evidence, when if
some other mode of expression had been adopted a different or in-
ferior species of evidence would have sufficed. The indictment sets
forth the facts necessary to constitute the crime of forgery or pub-
lication of forgery. How these facts are to be proved depends on
the general rules of evidence, and these are the same in both civil
and criminal cases. The best practicable is to be produced. The
writing, if in existence and in the power of the state. If lost, des-
troyed, or in the possession of the defendant, a copy, or parol evi-
dence of its contents. It is true that in certain cases, the indict-
ment must contain an averment of the loss or destruction of the
instrument, or some other proper cause for the omission of a full
description ; as where, after the forgery or publication of the in-
strument, it has been lost, destroyed or passed into the hands of the
defendant, and yet sufficient of its contents can be proved to shew
it to be an instrument of which a forgery may be perpetrated. The
FEBRUARY TERM, 1827. 29
The State v. Potts.
want of a more full description must be excused by proper aver-
ments, but this is a rule of pleading not of evidence, to prevent an
exception to the indictment, not to legitimate secondary or
inferior evidence. Commonwealth v. Houten, 8 Mass. 107. The
People v. Kingsley, 2 Cowen, 522.
The counsel of the defendant relied in the next place for the
support of their objection to the conviction under the first count
upon a passage in Archbold's Treatise on Criminal Pleading
and Evidence, page 64, in which he says, where the matter
of a written instrument is introduced, in a pleading, by the
words " according to the tenor following," or " of the tenor
following " &c. any the slightest variance between the instru-
ment set out and that produced, is fatal. And hence it was
inferred that where the instrument is introduced as in the
indictment before us, by the tenor, the instrument itself must
always be produced. But I apprehend this is not a correct
exposition of the passage, nor the meaning of the author. The
rule respects not the necessity of producing the instrument, but its
necessary correspondence, whenever produced, with the recital in
the indictment, or in other words, that the allegata and probata
must strictly agree. For otherwise he mast be understood to
maintain that an indictment for forgery can not be supported with-
out in all cases the actual production of the forged instrument. He
gives no precedents of indictments, he lays down no rules of proof,
such as were stated at the bar, or any others, to be used when the
forged instrument has been mutilated or destroyed, yet he surely
does not intend to say that if the accused can by dexterity possess
himself of the instrument, or by audacity destroy it, he may escape
with impunity and point the finger of scorn at public justice. The
rule is laid down somewhat differently, and certainly with more
accuracy and precision by both Starkie and Chitty. If under
such an allegation, say they, the prosecutor fail in proving the
instrument verbatim as laid, the variance will be fatal. 1 Starkie
Crim. Plead. 190. 1 Chitty Cr. Law 158.
The doctrine applicable to the subject before us appears to be
settled in the English courts and has been expressly ruled in the
Supreme Court of Massachusetts. Chitty in his treatise on crimi-
nal law, 1 vol. 389, says, parol evidence may be given of the con-
tents of a forged bill of exchange upon proof that it is in the
prisoner's possession. And upon the same principle where the
defendant has swallowed the instrument for the forgery of which he
30 NEW JERSEY SUPREME COURT.
The State v. Potts.
is indicted parol evidence may be given of its contents without
any notice to produce it. And these positions are laid down by
him after having stated (pages 155 and 158) that it is necessary to
set forth the instrument in the indictment. In 14 East 276, Lord
Ellenborough cites and approves of the case of Bex v. Spragge,
tried before Justice Buller on an indictment for forging a noto
which he afterwards got possession of and swallowed, and parol
evidence was permitted to be given of the contents of the note. It
is true the report does not say the indictment did not contain an
averment of the destruction, but it is clear there was none, or no
question would have arisen ; and it doubtless conformed to tho
English treatises which require, and the English precedents which
contain, so far as they have come under my research, a recital of
the instrument in the indictment. In the case of The Commonwealth
v. Snell, 3 Mass. Rep. 82, the defendant was convicted of uttering
and passing to one Clement Bunker a promissory note purport-
ing to be subscribed by one Raymond Smith, as a good note know-
ing it to be forged. The report does not say that the indictment
did not aver the loss of the note, but it is manifest from the whole
case that it did not; and in 2 Russell on Crimes 1411, the American
edition by Davis, the Solicitor General of Massachusetts, in a note
containing this case it is expressly stated that nothing was alleged
in the indictment as an excuse for not producing the instrument.
The falsity of the note and the defendant's knowledge, the passing
of it by him and the secreting of it by Bunker and a brother of
the defendant, so that it could not be produced, were shewn. The
contents of the note were proved by a person who had seen and
taken a copy while in the hands of Bunker. The court observed
that "on the trial of an indictment for forging an instrument or
knowingly passing it as genuine, no rule of law required as indis-
pensable the production to the jury of the forged instrument ; that
the instrument alleged to be forged must be so far described in
the indictment that it may appear that forging it is an offence ;
and this description as well as the forgery must be proved by the
best evidence the nature of the case will admit. The produc-
tion therefore of the instrument in evidence must not be dis-
pensed with where it is practicable. But if the instrument canot
be produced, the prosecutor being in no fault, and moi-e espe-
cially if it be secreted to protect the offender, the next best evi-
dence will be admissible and if it satisfy the jury of the defend-
ant's guilt, it is a legal foundation for a verdict against him. It
FEBRUARY TERM, 1827. 31
The State v. Potts.
may often happen that when the instrument is not produced
there may be no other evidence which will satisfactorily prove
the description or the forgery of it, in which case the defendant
must be acquitted."
I have examined this point at some length out of deference to
the arguments of the defendant's counsel, and to the firm reliance
they placed upon it; at greater length perhaps than was requi-
site after what was said by this court in The State v. Chtstin, 2
South. 744, which, though not entitled to the full weight of an
adjudication on the very point, would have sufficed to rule the
present case unless such force of principle or precedent had
been here produced as would have required us to re-examine
the subject. The indictment against Gustin was for forging a
promissory note. Judge Southard, in delivering the opinion of
the court on a motion to quash it says : " The objection to it is
that the tenor of the note is not set out, nor any circumstances
shewing that it was out of the power of the jury to set it out;
and the objection is well taken. The instrument must be shewn
that the court may see whether it be an instrument of which
there can be a forgery by the statute. There is a distinction
between the indictment itself and the proof necessary to sustain
it. If the tenor be set out, proof that the instrument is not within
the power of the prosecutor is sufficient to authorize other proof
as to its contents, and proof which will justify conviction."
The second point raised by the defendant's counsel is founded
on the fact, that on the trial, one of the witnesses on the part of
the state testified that the name of the cashier subscribed to the
counterfeit note, and which had been on one of those parts de-
stroyed by the fire, was written, H. Kuhl, and another testified
that it was written, Henry Kuhl, as charged in the indictment.
It was said the state was bound to prove the note fully and
explicitly and not to require the jury to guess or conjecture; and
hence it was argued as these witnesses differed, the indictment
was not sustained. It is true the note must be proved as charged,
and the jury must be satisfied beyond uncertain surmise. But it
is not less true that an indictment does not fail because one wit-
ness differs from another in points more or less material, or even
in some directly contradicts him. The state was bound to prove
that the name subscribed to the note was, Henry Kuhl. Whether
it was so subscribed, was a question of fact. The jury may have
had ample reasons for preferring and reposing on the evidence
32 NEW JEESEY SUPEEME COUET.
Woolston v. Gale.
of him who testified that it was written Henry ; and as the cause
was properly put to them by the court, the verdict they have ren-
dered stands for proof that the note was proved as laid fully and
explicitly, or at least to their satisfaction, and that they attained
an higher degree of certainty than guess or conjecture.
3. The third count charges the defendant with having in his
possession, with intent to pass, a counterfeit bank note of tho
Philadelphia bank. The note is set out in the indictment, and is
signed lij. Reed" president. The counterfeit note produced on
the trial is as alleged by the defendant's counsel signed "«7.
Read;" and the variance is insisted to be fatal. Upon the note
since the name was written, a stain from some extraneous matter
has rendered it difficult for the keenest eye to discern whether
the third letter of the surname be e or a. What might have
been the proper course on the trial, had the variance been plain,
palpable and undisputed, it is unnecessary to say. The court very
properly referred the fact to the jury, with suitable directions,
and their verdict shews that they found in point of fact no
variance, but the note correctly set forth in the indictment.
On the whole, we find no ground to disturb the verdict.
JOSHUA WOOLSTON against JOHN GALE and ISRAEL BODINE.
ON CEETIOEARI.
Upon a scire facias the only judgment which the justice can render against
the defendant is that a new execution issue.
A judgment had been rendered by a justice of the peace in
favour of Gale and Bodine, against Woolston on the 24th of
June, 1823, for §35.64 debt, and §1.97 costs, and an execution
issued thereon. A year having elapsed after the issuing of the
execution and the same remaining unsatisfied, Gale and Bodine
sued out s^scire facias against Woolston to shew cause why a new
execution should not issue. Upon the return of the scire facias
the proceedings are stated in the transcript of the justice to have
been as follows, viz: "John Gale, one of the plaintiffs appeared
and filed their state of demand, with the old execution, and
prayed a new execution for the whole amount of the former
execution, together with the interest and cost due thereon. The
defendant filed no plea and as the plaintiff brought forward the
FEBEUAEY TERM, 1827. 33
Ayres v. Turnpike Company.
former execution, and no exceptions being filed against their
demand, I therefore have granted a new execution, for the sum
of forty-four dollars and seventy-one cents, with the sum of one
dollar and forty-four cents costs."
Sims, on behalf of the plaintiff in certiorari, moved to reverse
this judgment, because the justice had upon the scire facias ren-
dered a judgment for an amount greater than the original judg-
ment and costs, when by law he had no right to award any
other than that a new execution issue.
CHIEF JUSTICE. — It has been more than once determined that
on scire facias the justice is to render judgment, that execution
issue, and for costs, and cannot render a new judgment for the
amount of the original judgment and interest and costs thereon.
Therefore let the judgment be reversed.
CITED IN Tindall v. Carson, 1 JEfarr. 95.
ENOS AYRES against TURNPIKE COMPANY.
1. An action of debt, in a justice's court, and of assumpsit in the higher
courts, may be maintained by a turnpike company to recover tolls.
2. Where a highway has been laid out to intersect a turnpike road and
terminate at the line thereof, a gate placed laterally upon the turnpike, at the
end of the highway, is not an obstruction to the highway, within the meaning
of the act of the legislature.
3. The fact that a post which is at the end of a fence, extending from the
gate, BO as to prevent carriages passing from the highway to the turnpike road,
stands on the highway, can furnish no defence in an action brought by tho
turnpike company to recover tolls.
This was a certiorari brought by Ayres to reverse the judg-
ment of a justice of the peace, rendered against him for tolls
demanded of him by the* Trenton and New Brunswick Turnpike
Company. "Upon the return of the certiorari, the following state
of tho case was agreed upon by the attorneys of the parties: —
An act of the legislature of New Jersey was passed on or
about the 14th of November, 1804, entitled "An act to incorpor-
ate the Trenton and New Brunswick Turnpike Company," by
which the plaintiffs were incorporated by the name of " The
President and Directors of the Trenton and New Brunswick
Turnpike Company," — [pro ut the said act.]
Within ten y ears after the passing of said act, the said turnpike
road, leading from the head of Warren street, at the northeast
VOL. IV. 0
34 NEW JERSEY SUPREME COURT.
Ayres v. Turnpike Company.
end of the city of Trenton, to the city of New Brunswick, twenty-
five miles in length, was formed and completed. The plaintiffs
being duly organized and having complied with the provisions
of their charter, so as to entitle them to receive tolls, they did,
within the last mentioned period, go into the receipt of tolls for
the passing and repassing on the said turnpike, as their charter
provides, and have continued so to do till this time.
The plaintiffs, on or about the 1st November, 1824, erected on
the said turnpike road, near the twenty-first mile stone from
Trenton, a turnpike gate, called the Intermediate Toll-gate, and
constructed near it a toll-house, and appointed Bike Suydam
the keeper of said gate, and authorized and directed him to
receive the usual and lawful toll for the passing and repassing,
on said road, and through the said gate ; but said Suydam was
directed not to take toll unless said turnpike road should be
used or travelled upon for a mile and upwards and not to stop
any person from passing through said gate, even if he should
refuse to pay the toll. Said Suydam then accepted said office or
appointment, and has continued thence till the commencement
of this suit, to hold the same and perform the duties thereof
under and pursuant to said directions of the plaintiffs.
The defendant, on the 12th of January, 1825, and on divers
days and times between that and the 20th of December, 1825,
with his horses and carriages, passed and repassed over said
turnpike road and through said gate, passing each time, upwards
of a mile upon the said road, a correct statement of which and
charges therefor, amounting to $5.54 is subjoined to the plain-
tiffs' state of demand.
A public highway leading from the Georgetown and Franklin
turnpike road, to the said turnpike road, and terminating at the
westerly line of said turnpike road, was laid out in due form by
the surveyors of the highways and opened in the year 1818.
.Before the laying out of the said highway, there was a private
.driftway with gaies and bars used by the neighbors with the
permission of the respective owners of the land throngh which
.it passed, for fort}' years and upwards, upon, which the said
;pubJie highway was laid out; which said driftway, continued
further than the said westerly line of the turnpike, viz.: The
said driftway passed down over the ground upon which the said
turnpike was laid out, about one or two hundred yards, and
.then.GEQSsed over the same.
FEBKUAKY TEEM, 1827. 35
Ayres v. Turnpike Company.
The eaid turnpike gate is placed on the said turnpike road, and
directly in front of the said public highway, said gate not being
across the turnpike, but parallel with the course thereof, and about
two or three feet from the said westerly line of the said turnpike
road. A fence extends on each side of said gate, and on a line
therewith, so as to prevent carriages from passing from the said
public highway, on to the said turnpike, without passing through
the said gate, and at the end of the said fence 6n one side of the
said gate, a post was put up by the company and a part of their
fence stands about six inches on the said public highway.
Prior to the laying out of the said public road, there was no
fence on the westerly side of the turnpike road where the gate
and fence are now erected.
The cause was argued by Vroom for the plaintiff in certiorari
and Wood for the defendants.
The CHIEF JUSTICE delivered the opinion of the court.
There is nothing in the act incorporating the Trenton and New
Brunswick Turnpike Company, which prescribes where or in what
manner toll-gates shall be erected. No regulation, on this head,
is found in it, except a prohibition to erect a gate on such part of
the road as was then a public highway. In many, perhaps most
of the turnpike acts, the companies are authorized to erect gates
across the road. How far, under those acts, another position
might be taken, it is unnecessary to enquire. In the act in
question, in the present case, there is no restriction, and a lat-
eral gate is therefore as lawful as a transverse one.
It was contended, on the argument at the bar, that the company
have no right to erect a gate at the mouth of a public road. With-
out adverting to the act, which in its phraseology seems to limit
the erecting of obstructions to then existing public highways,
(and the road, near the end of which the gate in question was
erected, has been laid out long since the turnpike) it may suffice
to answer, that if the gate is placed within the bounds of the
turnpike road, it does not obstruct the highway, for the free and
uninterrupted use of it in its whole extent remains to the public.
In the case of- The People v. Denslow, 1 Caines 117, the Supremo
Court of the state of New York held that a turnpike gate might be
placed so as to intercept an old highway, provided it was placed
within the limits authorized by the act of incorporation.
It was further said that a traveller must use the road before ho
36 NEW JERSEY SUPREME COURT.
Ayres v. Turnpike Company.
can bo charged for the accommodation, and that the toll cannot
be demanded in advance. If this position be true, on which we
express no opinion, as the case does not require it, it does not
prove the location of the gate to be illegal ; but that toll cannot be
lawfully exacted at such gate, from persons who there pass from
the highway to the use of the turnpike road. The question can-
not be fairly raised in this case, as it might be if the defendant
had brought suit'to recover back toll illegally exacted. The de-
fendant here is sued for the actual use of the road. And even at
the obnoxious gate, the keeper, as it appears by the state of the
case, was only to receive tolls from those who chose to pay, and
neither to stop nor delay a traveller who resolved to have the
worth of his money before he parted with it. The erection of such
a gate can be no ground to bar a recovery for the actual use of
the road, when no exaction is made from the traveller at such
gate, and when ho finds a person there who neither stops nor
delays him, but merely receives the compensation for so much of
the road as he proposes to travel, if it suits his pleasure or con-
venience at that station to pay it. Moreover, the picture should
be reversed. The traveller may have used the road for miles, and
his destination may require him to leave the turnpike by the
public road in question. As to him, the gate cannot be unlawful,
nor the exaction of toll. A gate which is thus far, and towards
such person rightfully placed, cannot be wrong as to any persons
unless wrongfully used. It may become so only by its abuse. If
employed illegally to exact toll, or to obstruct or delay the
traveller, its abuse would be liable to correction. A man who
had travelled ten miles on the road, could not consistently with
either law or justice, refuse to pay his ten miles tolls, because, at
the commencement of his journey, he had passed through a gate
where the keeper was willing to receive his toll, but neither
required it nor impeded him.
The fact stated in the case and urged at the bar, that about
six inches of a post which is at the end of a fence, extending from
the gate so as to prevent carriages passing from the highway to
the- turnpike road, stands on the highway, can furnish no defence
in this action to the defendant below. It may be liable to be abated
as a nuisance, and may call for the interposition of the overseers
to restrain encroachment, but can give no ground, to a person
who has used the road, for refusal to make payment of toll.
The single question then remains whether the company may
FEBRUARY TERM, 1827. 37
Wall v. Hunt.
maintain an action for tolls. On this point we cannot entertain a
doubt. The act authorizes them to demand toll for the use of the
road, and prescribes no specific form in which this demand may be
enforced. The principles of the common law will give them a
remedy to recover the compensation fixed by the statute, for the
use of their property. In Seward v. Baker, 1 D. & E. 616, it was
held that an action of general indebitatus assiynpsit will lie for
tolls, and Justice Buller says an implied promise will maintain the
action. In 2 C kitty's Pleadings, 13, 15 et seq. will be found prece-
dents of declarations on indebitatus assumpsit for tolls at bridges
and turnpikes. In the case of Cherley v. Smith, Adams Hep. 20,
the Supreme Court of New Hampshire decided that the authority
given to turnpike companies to detain travellers until the tolls are
paid, is a cumulative remedy, a'nd assumpsit may be maintained
for tolls against one who has by mistake been permitted to pass
as a person exempted from toll. The case of The Mayor &c. of
Carlisle v. Wilson, 5 East 3, was an action of indebitatus assumpsit,
for tolls and duties payable for the passage of coaches and car-
riages loaded with goods, in and through the city of Carlisle. In
the case of Peacock v. Harris, 10 East 104, a recovery was had in
an action of assumpsit for tolls payable at a turnpike gate, for
cattle and carriages of the defendant, which had travelled upon
the turnpike road and through the gate. Justice Le Blanc in
delivering his opinion said, "It has also been objected that the
tolls are not the subject of an action, but if refused could only
be levied by distress upon the carriages, &c. when passing. The
act, however, only says that they shall not be compounded for, il
does not say that credit shall not be given for them when there
is no collusion." The case of Medford Turnpike Corporation v. Tor-
rey, 2 Pickering's Mass. Hep. was an action of assumpsit for the
recovery of tolls for travelling on a turnpike road.
Let the judgment be affirmed.
CITED IN Nicholson v. Williamttown & Good Intent Turnp. Co., 4 Hal. 39.
GARRET D. WALL against JAMES HUNT and JARRET BOYD.
CERTIORABI.
In forcible entry and detainer the nature of the estate of the party grieved
must be stated in the complaint.
This was an action of forcible entry and detainer, brought by
Ilunt and Buyd against the plaintiff in cerliorari, upon the follow-
38 NEW JEESEY SUPEEME COTJET.
Snowhill v. Hillyer.
ing complaint exhibited before the justice: "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 Jar-
ret Boyd are seized as tenants for years or lessors of the same,
and from the thirtieth day of June aforesaid, until the day of
making this complaint, be, the said Garret D. Wall, esq. hath
held and kept possession of the said messuage and dwelling-
house unlawfully, with force and strong hand, &c." A trial was
had before the justice and judgment rendered in favour 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.
CHIEF JUSTICE. — The act of the legislature requires that the
nature of the estate which the party grieved has in the prem-
ises, should be set out in the complaint. (Rev. Law, 350, sec. 7.)
Now nothing is more manifest than that the estate of the per-
sons making this complaint is not set out. They say they are
"tenants for years or lessors of the same," that is, either ten-
ants or landlords ; but which does not appear. Therefore,
Let the judgment be reversed.
DANIEL SNOWHILL, qui tarn Plaintiff, against NATHANIEL HILLYER.
CEETIOEAEI TO THE COMMON PLEAS OF MIDDLESEX.
A judgment of nonsuit in a former action between the same parties, is no bar
to a subsequent action by the same plaintiff against the same defendant for the
Bame cause of action.
The plaintiff in certiorari, Snowhill, brought an action qui tarn,
against Hillyer, before a justice of the peace, (for cutting timber on
land to which the defendant had no title). On the trial before the
justice, the defendant offered in evidence, as a bar to this action,
the transcript or record of the proceedings in a former suit brought
FEBKUAEY TERM, 1827. 39
East Windsor v. Montgomery.
by Snowhill plaintiff, against the same defendant for the same
cause of action, in which suit a judgment of nonsuit was entered
against Snowhill. The justice notwithstanding this record, gave
judgment in favour of Snowhill the plaintiff, for $56 debt and
$2.75 costs.
From this judgment Hillyer appealed to the Court of Common
Pleas of Middlesex, and upon the hearing of the appeal the same
record of the former suit was offered in evidence by the appellant,
Hillyer, and relied upon by him as a bar to the suit, and the
Court of Common Pleas being of opinion that the former judg-
ment of nonsuit was a bar, reversed the judgment which had
been rendered in favour of Snowhill the appellee and gave judg-
ment for Hillyer. To set aside this judgment, Snowhill brought
this certiorari, and now, Hamilton for the plaintiff, moved to
reverse the judgment of the Common Pleas and assigned among
others the following reason: "Because the Court of Common
Pleas erred in admitting the said transcript and judgment therein
stated, as a conclusive bar to the present action."
Wood, contra. ,
CHIEF JUSTICE. — We are all of opinion that the Court of Com-
mon Pleas erred in considering the former judgment of the justice
as a bar. Being only a judgment of nonsuit, it was no bar ; and
therefore the judgment of the Common Pleas must be reversed.
EAST WINDSOR against MONTGOMERY.
1. Under the act of 1744 (1 Nevill ed. of N. J. Laws, 256, and 1 Allison 'sed.
118) " living one full year at one time, in one house or family gave a settlement."
2. The question of the credibility of a witness offered in a proper case,
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.
This was a certiorari to the Quarter Sessions of Somerset to
bring up an order of removal, and was argued at the lust Sep-
U'lhU'r Term by Wall and Wood for the overseers of East Windsor,
and J. S. Green, for the overseers of Montgomery, upon the fol-
lowing slate of the case: —
This was an appeal from an order of removal made by John
40 NEW JEKSEY SUPREME COUET.
East Windsor v. Montgomery.
Stout and James Stryker, two of the justices of the peace in and
for the county of Somerset, on the 9th December, 1822, removing
Sarah Eobeson aged seventy-eight years, from the township of
Montgomery, to the township of East Windsor, the place of her
settlement, as they adjudge; which order was confirmed by the
Court of Quarter Sessions of the county of Somerset in the
sessions of June, 1824.
On the hearing of the appeal, the appellees proved by the
deposition of Surah Bobeson, the pauper, that she was told by her
parents that she was born in the county of Monmouth, and the first
place she recollects living at, was at Allento wn in the township of
Upper Freehold, in the county of Monmouth. Her father's name
was John Eiley ; he removed from Allentown to Hightstown, in
the township of EastWindsor, in the said county of Middlesex. He
never owned any real estate in the state of New Jersey. He was an
Irishman, a day labourer, and was married to pauper's mother be-
fore he left Ireland. She was in the 79th year of her age on the 13th
May, 1824, and was eight or nine years of age when she removed to
Hightstown. Shortly after which she went to live with one
Christopher Hoagland, in thp township of East Windsor, in said
county, and continued to live with him until he died, when she
was about thirteen years of age. Is sure that there never was
an indenture of apprenticeship. She never saw one, signed one,
or heard it read. Hoagland was not to teach her any art or trade,
but she was to do the ordinary work about the house. He told
her she was bound to him. After Hoagland's death she worked
about Hightstown wherever she pleased, without any control
from Hoagland's family. When about seventeen years old she
was married to one William Britton, by Joh'n Chamberlin, esq. a
justice of the peace, with whom she lived eight or nine yeai's
at Hightstown, or its neighbourhood, when he died. He was a
carpenter by trade. He rented of one John Cuusman. After
his death she made a vendue and sold her furniture, and in
about six months removed to Princeton, in the township of West
Windsor, and lived with Jacob Berger, two years in West Wind-
sor, and continued to work about. About nine years after the
death of her husband, she was married by Joseph Olden, one of
the justices of the peace of the county of Middlesex, to one John
Eobeson,who resided in the township of Montgomery in the county
of Somerset. He owned a house and lot in said township, for
which he paid fifty pounds, and resided on it at their marriage
FEBRUARY TEEM, 1827. 41
East Windsor v. Montgomery.
and until his death. Her marriage with Robeson was in the
presence of Jacob Berger and wife. Her- father rented a house
with about an acre and a half of land of one David Lee, about a
mile and a half from Hightstown, and lived there until his
death, about eight years after he moved from Allentown. Her
mother died before him and he continued to keep house and
hired some one to work for him. She went to live at Hoag-
land's by the direction of her father. She never went to school
while living at Hoagland's. Ann Jack, the daughter of her
husband, John Robeson, visited her husband once, but does not
recollect the conversation.
The said Appellees did further prove by Ann Jack, that she is
fifty-six years of age in 1824. That she is the daughter of John
Robeson, who lived with the pauper in this case. She does not
know that they were said or considered to be married. John
Robeson died at Princeton in the year 1813. Her mother's name
was Sarah. She never was in this country. Her mother was
born and lived and died in Glencarn, in the county of Antrim,
Ireland. "Witness removed to this country in 1784, but used to
hear from her every year, and had a letter from her in 1817. Her
father came to America in 1774 or 1775, when she was between
five and seven years old. She could run about and go errands
smartly. She visited her father three times at Princeton, at all of
these visits she had conversations with him respecting his leaving
his family and living with the pauper, who was then living with
him. He always denied being married to her. In these conversa-
tions he always said he was sorry for his conduct, for having left
his family, and for living as he was then living ; that ho meant to
sell his property in Princeton. He said that he had raised his
children by the pauper, and had done a great deal for the other
children ; he would go and leave the pauper, and live with wit-
ness at some other place. That he was too old to go back to
Ireland, unless ho could go as he wished. That he was so ashamed
and confounded, he could not think of showing his face in Ireland,
where every one knew him. At her first visit he told the pauper
he would give her a part of what he had, if she would go her ways
and let him go his. The pauper made no reply at first, but said
she would speak to him about it afterwards. At the second visit
witness asked the pauper how she could go on living with her
father so, while she was in this country. This was in the
presence of her father. Witness asked the question two or three
42 NEW JEESEY SUPEEME COUET.
East Windsor v. Montgomery.
times before she could get an answer. At length she said ho
could go and leave her. Eobeson said that all of them could do
for themselves now, both his children by her and her others. He
had worked for them all many }rears and now could not work hard
but few years more. He then said to the pauper, you know I
made you an offer formerly, now let us part in peace. The pau-
per was silent and went out. This was some years before
Eobeson's death. On the third visit her father confessed his
shame at his way of living, and his great regret that he could
do no more for witness. He said that the pauper lived in the
family where he boarded, and she had given him opportunities
to meet her and enticed him to lie with her. She further recol-
lects that on her first visit to her father, he said to her in the
presence and hearing of the pauper, in answer to her rebukes for
living with her as he did, that he never married the pauper,
and she knew it well, pointing at her, and she made no answer.
Witness' mother was alive at these several visits. Never heard
the pauper say that she was married to her father. After her
father's death, she told Eobert, the son of the pauper, in her
presence, how she regretted her father's dj'ing whilst he was
living so. He asked how. Witness answered in adultery with
his mother so many years. He asked her what she would call
his mother. Witness said what the world calls a loose woman —
he then looked at his mother and said then she is a whore. Wit-
ness answered certainly. At which Eobert was very much
troubled, and went away. The pauper said nothing all this
time. Witness said that the said John Eobeson did cohabit and
live with witness' mother at Glencarn aforesaid, as lawful hus-
band and wife, where they were both born and bred. They
were esteemed, reputed, and believed by their neighbors, acquaint-
ances, relation^ and friends, as lawful husband and wife, and as
such visited and received. Her father and mother, as she best
remembers and solemnly believes, did always and upon all occa-
sions, acknowledge and declare each other to be lawful man and
wife. They lived happily together, and must have lived eight
or nine years together after their marriage, before her father
left Ireland, and she was then from five to seven years of age.
The appellants offered a deed from William Whitehead to
John Eobeson, dated the 18th day of March, 1788, and it was
admitted that the premises were worth upwards of fifty pounds
at the time of the purchase.
FEBEUAEY TEEM, 1827. 43
East Windsor v. Montgomery.
Eeasons for reversal.
1. Because the place of the last legal settlement of the pauper was
not in the township of East Windsor, in the county of Middlesex.
2. Because the said Court of General Quarter Sessions of the
Peace, in and for the county of Somserset, ought to have quashed
the said order of removal.
3. Because the order of removal is informal and illegal.
4. Because the Court of General Quarter Sessions of the
Peace of the county of Somerset, gave judgment in favor of the
appellees, whereas by law they ought to have given judgment
for the appellants.
5. Because the court had no evidence before them that the
said Sarah Eobeson was a pauper.
The CHIEF JUSTICE delivered the opinion of the court as follows :
/
In the examination of this case we are first to enquire whether
Sarah Eobeson, the pauper, was ever legally settled in the town-
ship of East Windsor.
At the age of eight or nine years she removed from the town-
ship of Upper Freehold in the county of Monmouth, where, as
she was informed, she had been born, to Hightstown in the town-
ship of East Windsor, and went to live there with Christopher
Hoagland. She continued to live with him, and do the ordinary
work about the house until he died, which occurred when she
was about thirteen years of age. Without control from his
family, she afterwards worked about at her pleasure. From
her statement of her age at the time of her examination, it
appears she was born in the year 1745. She therefore went to
live with Hoagland in 1753 or 1754, and his death was in 1758.
During the intervening period, the act of assembly of 1740
prescribed the terms of settlement, and by that act to live one
lull year at one time, in one house or family, gave a settlement.
Under its operation she lived one full year at one timo in one
family in the township of East Windsor. Such a mode of
acquiring a settlement, may, at the present day, and under the
much more rigid provisions of the act of 1774; seem so extremely
c-iisy and liberal as almost to excite a doubt whether the words
<>t' the act, literally understood, indicate precisely the intention
of the legislature. But the language is very clear and explicit,
and the circumstances of tho country at that day, doubtless
44 NEW JERSEY SUPREME COURT.
East Windsor v. Montgomery.
rendered it politic for the legislature to give great facility to the
acquisition of settlements. We are, however, relieved from
difficulty by the case of Woodbridge v. Amboy, Coxe 213, decided
in this court more than thirty years ago. Patience Longworthy,
the pauper, when quite young, came into the township of Wood-
bridge as one of the family of Richard Carman, who removed
to that place from Long Island, and she lived in that township
several years, in the family of Carman. The court said she came
within the express words of the act of 1740, and adjudged that she
had acquired a settlement in Woodbridge.
From the clear and unequivocal terms of the act, and from this
case so strikingly similar in its circumstances to the present, it
most manifestly appears that Sarah Robeson, the pauper, did
obtain a legal settlement in East Windsor.
It remains to enquire whether a subsequent settlement was
acquired in Montgomery. \
In the year 1779 or 1780, the pauper was married by a justice
of the peace to John Robeson, who had, as is agreed by the counsel
of both parties, a legal settlement in the township of Montgomery.
This marriage, it is said, was illegal and void, because Robeson
had been previously married and his wife was then living. To
establish these facts, became by the prima facie evidence of the
marriage to Robeson, the duty of the township of Montgomery,
and they relied in the sessions on the evidence of Ann Jack. She
testified that she was the daughter of Robeson ; that he was an
Irishman, and came to America in 1774 or 1775, when she was
from five to seven years of age; that her mother remained at
Glencairn, in Ireland, where both her father and mother were
born and bred, and where her mother died in the year 1817 ; that
she came to this country in 1784, after, as it may deserve to be
noticed, the marriage of the pauper with Robeson, and used to
hear every year from her mother from whom she had a letter in
1817. She further testified that the said John Robeson did
cohabit and live with her mother at Glencairn as lawful husband
and wife; that they were esteemed, reputed and believed, by their
neighbors, acquaintances, relations and friends, as lawful husband
and wife, and as such visited and received by them ; that her
father and mother did always and upon all occasions, acknow-
ledge and declare each other to be lawful man and wife ; that
they lived happily together and must have lived eight or nine
years together before her father left Ireland.
FEBEUAEY TEEM, 1827. 45
East Windsor v. Montgomery.
If this evidence of Ann Jack were admissible and true, the
prior marriage of Eobeson is established, and the settlement of
the pauper in Montgomery is repelled.
Upon the competency of cohabitation and reputation, as evi-
dence of marriage in a settlement case, the opinion of this court
was fully expressed in the case of Westfield v. Warren, 3 Halst.
249. We denied, on the one hand, the competency of mere hear-
say; and on the other, expressly stated and recognized the well
established adrnissibility of facts and circumstances, among which
are cohabitation and reputation, in proof of marriage.
This point was not indeed drawn in question by the counsel
of East Windsor. The purpose of their argument was to demon-
strate and to convince us that Ann Jack was not credible. They
insisted she was too young to have a knowledge of the facts of
which she undertook to testify, and laboured under a strong bias
from her own situation, as the daughter of Eobeson and his
alleged former wife.
It is, however, a conclusive answer to the objections raised on
this head, that with the sessions and not with this court rests the
question of credibility. This court, on certiorari, in a settlement
case, has no jurisdiction or authority to enquire into or weigh the
credibility of a witness examined in the sessions. In support of
this position it might suffice to refer to the general and well
known doctrine applicable to this writ, but a reference to cases
may be perhaps more satisfactory. In the case of Rex v. Preston,
Burr. sett, cases 77, Lord Hardwicke said " The observation made
by the counsel for supporting the orders ' that the justices at ses-
sions are judges of fact as well as of law; that they are jury as
well as judges, and that it is in their breast only whether to be-
lieve or disbelieve the evidence," is very material." — Probyn, jus-
tice, said, "The proceedings of the justices are in a summary
way. They are judges of the credibility of the evidence." " We
can only judge upon the law admitting the fact to be one way or
the other." "These summary jurisdictions are given to gentle-
men of the neighborhood, who are supposed capable of knowing
the facts and the credibility of the witnesses. Their determina-
tion is certainly final as to facts." — In the case of Rex v. Tedford,
Burr. sett, cases 60, Lord Hardwicke said, " The justices arc judges
of the fact; we are judges of the law upon the facts, though
not of the facts themselves." And by Probyn, justice: "The
justices were judges of the facts that appeared before them, of
46 NEW JEESEY SUPREME COURT.
Den v. Gifford.
which we cannot enquire or determine so as to take it out of their
hands into our own." And in the case of Rex v. Ifaughton, 1
Strange 83, the court said, " We cannot judge of the fact, but the
law upon the fact."
In the case before us, the sessions of Somerset having disal-
lowed the alleged statement in Montgomery, have sustained the
credibility of Ann Jack; for we are not at liberty to suppose
they disbelieved and rejected her evidence in this respect, and
reposed on the conversations with her father and the pauper.
The competency of the evidence then being established, and
the question of credibility being fixed as it respects the case
before us by the decision of the sessions, it follows that the set-
tlement in Montgomery is not sustained.
The settlement in East Windsor remains unchanged, and the
order of the sessions and of the justices should be affirmed.
POOR.— Reversed by Court of Ap. 1830. Sal Dig. 725, 790.
JOHN DEN againti JOHN and ANANIAH GIFFORD.
IS EJECTMENT.
A. devises as follows : " I give and bequeath unto my son Eleazarus Brewer,
all my lands and interests in lands lying on the west side of Mingeinihole 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 rny son
Eleaearus Brewer, I give and devise to my grandson Adam Brewer, son of Eleaz-
arus Brewer, all of the above mentioned lands, lying on the west side of Ming-
emihole brook, and mill, and burying yard, and half an acre, and half an
an acre of about the mill, which I give to him and his heirs and assigns for-
ever." Eleazarus Brewer, by this devise, takes an estate in fee simple, and not
an estate for life in the devised premises.
This case was argued at the last term by Wall and Wood for
plaintiff, and R. Stockton for defendants, upon the following state
of the case agreed upon by the parties and their attorneys :
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 : —
FEBRUAKY TEBM, 1827. 47
Den v. Gifford.
Adaio 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 Mingemi-
hole 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."
Adam Brewer the testator, died on the thirtieth day of Jan-
uary, 1769, so seized, leaving William Brewer, his oldest son, and
George Brewer and Eleazarus B., his second and third sons, and
after his death, the said last will and testament was duly proved
and recorded according to law [pro ut same.]
Upon the death of the testator Adam Brewer, 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 herein-
after stated, and died in February, 1821.
Adarn 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.
Eleazarus Brewer the devisee, besides the said Adam, who
was his eldest son, had issue the following children, to wit :
Aaron Brewer, the second son, GedVge 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.
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 devisee, removed to
Canada, shortly after the commencement of the revolution,
48 NEW JERSEY SUPREME COURT.
Den v. Gifford.
where be Jived, and died intestate, some time in the year 1802,
in the life time of Eleuzarus Brewer, leaving issue, to wit :
Margaret, who was born in Canada, September 14th, 1785,
intermarried under age, with Jarvis Worden, who are still liv-
ing in Canada, and are two of the lessors of the plaintiff.
John Brewer who was born 24th April, 1787, in Canada, and
still lives there, and is one of the lessors of the plaintiff.
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.
Aaron Brewer who was born in Canada, is still living there,
and is one of the lessors of the plaintiff.
Elizabeth, born in Canada, and still living there, intermarried,
under age, with William Jackson, who is still living, and are two
of the lessors of the plaintiff.
Philip Brewer, who was born in Canada, and is still living
there, and is one of the lessors of the plaintiff.
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.
The defendants confessed lease, entry and ouster (pro ut lex
postulat.^)
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 ques-
tion were taken in execution by David Rbea, then sheriff of
Monmouth county.
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.
On the 17th February, 1792, Joel Wooly sold the premises unto
the present defendants, and by deed of that date conveyed the
same to them, in fee simple, as tenants in common with covenants
of title and general warranty, upon which they the said defend-
FEBRUAKY TEEM, 1827. 49
Den v. Gifford.
ants went into possession, and have remained ever since in pos-
session under the said title.
If upon these facts the court shall be of opinion that the plain-
tiff is entitled to recover, then judgment is to be entered for the
plaintiff. If the court are of opinion that he ought not to recover,
then judgment is to be entered for the defendants. Either party ia
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 pur-
pose of bringing a writ of error if it is judged expedient so to do.
The CHIEF JUSTICE delivered the opinion of the court as follows :
Adam Brewer being seized in fee simple of certain real estate
in the county of Monmouth, made his will in the year 1768, which
after his death, was proved and recorded in the year 1769, and
thereby, among other things, he 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 Mingemiholc brook,,
except one acre of ground which I reserve for the use of a burial!
burying j'ard, 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 Mingcmiholo brook, and mill and burying yard,
and half an acre, and half an acre o/, about the mill, which I givo
to him and his heirs and assigns forever." • '
The question in this cause is, what estate was devised to Eleaz-
arus Brewer, who on the decease of his father, Adam, the testator,
entered upon and took possession of the premises in controversy.
If an estate for life with a vested remainder in fee simple to hia
eon Adam, as is said by the plaintiff's counsel, the plaintiff ia.
entitled to recover. If an estate in fee simple, as is said by the
defendants' counsel, judgment should be for the defendant.
It was agreed by the counsel on both sides, upon the argu-
ment at the bar, that the words "to him and has heirs" are con-
nected with the lands lying on the west side of the brook as well1
as with the grist mill and half an acre of land about it. Such
would bo the palpaple construction if the exception of the bury-
ing yard had not been expressed ; and it is not the less so on
VOL. IV. D
50 • NEW JERSEY SUPREME COURT.
Den v. Qifford.
that account; for the object of the testator in the introduction
of that exception was clearly, to preserve the burying yard for
the use of the family, although giving the ownership of it to his
gon Eleazarus in the same manner he meant to give him the
other real estate. Moreover, he includes all in the devise to
Adam, supposing obviously that all stood on the same footing as
far as respected the devise to Eleazarus.
The devise under consideration, stripped of local description
is, to Eleazarus and his heirs, and after his decease, to his son.
Adam and to his heirs and assigns forever.
It is not unworthy of remark, that filled as our books are with
reports on wills, no case has been found presenting a Similar
devise and shewing its just construction. The fact furnishes
another illustration of the never ending variety of litigation
with which the wit and wisdom, or the ignorance and folly of
mankind, are likely to supply the tribunals of justice. Having
made the remark, it is proper to add that the want of precedent
will be deemed unimportant, if the light of principle can be
found to guide us.
The first member of the devise, to Eleazarus and his heirs, is
clearly a fee simple. The obscurity wholly arises from the sub-
sequent words, after his decease to his son Adam and his heirs
and assigns forever. These words, it is contended, however fully
the former might give Eleazarus a fee simple, leave him only an.
estate for life. And they produce this effect, it is said either, 1st,
by reducing to an estate for life the legal operation of the pre-
ceding words; or 2d, by being the last of two inconsistent and
irreconcilable clauses, and therefore, in a will, to prevail, as being
the last expression of the mind of the testator. On one of these
grounds, the claim of the plaintiff, if a valid one, must be sus-
tained. Let us then proceed to examine them.
1. The effect of the subsequent words to reduce the estate
plainly designated by the previous words.
A qualifying, limiting, restraining power is often times due and
justly given to subsequent words or clauses.
There is a numerous class of cases in which the estate in fee
simple naturally imported by a devise to a man and his heirs is
reduced to an estate tail, or rather in which on the whole will,
•other parts taken .in conjunction with these words, an estate tail
only is said to be created. Thus where a devise is to A. and his
.heirs, and if he die without heirs, to his brother B. and his heirs.
FEBEUAKY TERM, 1827. 51
Den v. Giflbrd.
Webb v. Hearing, Cro. Jac. 415. Tyte v. Willis, Co.. temp. Talbot L
Attorney- General v. Gill, 2 P. Wins. 369. Morgan v. Griffiths,
Cowp. 234. In such cases inasmuch as A. cannot die without heir,
living B. it is manifest the testator did not use the word heirs, in
its general and comprehensive signification, nor intend by it the
whole class of persons within the range of its technical extent,
but employed it in a limited sense. The intent of the testator is
pursued, his meaning of the word is adopted, and it signifies as
the testator designed, heirs of the body, and as such is held to
create an estate tail. •
So when a devise is made to a person and his heirs, and in the
same, .or some other clause, a. devise over is made, if the first
devisee shall die without issue. To A. and his heirs, and if he die
without issue, to B. and his heirs. Soule v. Gerrard, Cro. Eliz. 525.
Browne v. Jerves, Cro. Jac. 290. Brice v. Smith, Willes 1. Doe v.
Wichelo, 8 Term .Rep. 211. The subsequent words or clause, if he
die without issue, are held to shew that the testator did not use
the word, heirs, in its broad, technical signification, but as equi-
pollent with the word issue, and embracing the same limited
class of heirs. Hence the intent of the testator in the expres-
sions he has used is followed; the word, heirs, is not rejected;
its just operation and extent are given to it; and the first devisee
is held to receive an estate tail.
There is another numerous class of cases, where a devise to a
man and to the heirs of his body, is held not to vest an estate tail,
the natural import of the words ; but an estate for life only, in
the first devisee ; because by reason of words or phrases con-
nected with the term, heirs of the body, it abundantly appears
that the testator did -not use those words as words of limitation,
or words designed to shew the nature and quantity of the estate
given to the first devisee, but as words of purchase, or words
designed to shew who should take the premises on the determi-
nation of the estate of the first devisee. And hence in such
cases to carry into effect the intention of the testator, the first
devisee is held to take an estate for life only. In the case of
Lowe v. Davis and others, 2 Ld Raym. 1561, the devise was to
the testator's wifo for life, and after her decease to his son
Benjamin and his heirs lawfully to be begotten, that is to say, to
his first, second, third and every son and sons successively law-
fully to bo begotten of the body of the said Benjamin, and the
heirs of the body of such first, second, third and every other
52 NEW JERSEY SUPREME COURT.
Den v. Gifford.
eon and sons successively lawfully issuing as they shall be in
seniority of age, &c., and in default of such issue, to his right heirs
forever. It was held that B. did not take an estate tail but an
estate for life. The case of Doe v. Laming, 2 J3urr, 1100, was a
devise of gavelkind lands "to A. C. and to the heirs of her body
lawfully begotten or to be begotten, as well females as males, and
to their heirs and assigns forever, to be divided equally share and
share alike, as tenants in common and not as joint-tenants."
The court held that the other words connected with the term,
heirs of the body, clearly evinced that the testator did not thereby
mean to shew the quantity of estate given to A. C. but to desig-
nate the persons who should take the. property after her decease ;
and it was adjudged that she took an estate for life, and her chil
dren an estate in fee as purchasers. In the case of Doe v. Goff,
11 East 668, the devise was " unto my daughter Mary and to the
heirs of her body lawfully begotten or to be begotten, as tenants
in common and not as joint-tenants." The court said, "the
words, heirs of the body, are undoubtedly prima facie words of
limitation, but they may be construed to be words of purchase
where it is clearly so intended, and we think that in this case
Buch intention is clear. The provision that they should take as
tenants in common and not as joint-tenants shows very dis-
tinctly that the testator was contemplating something very
different from an estate tail. The obvious intention is to give
Mary Goff an estate for life and her children a distinct, inde-
pendent interest as tenants in common."
It will be observed that the governing principle in all these
cases is the intention of the testator.
There is another train of cases, where such intention not being
foundror the intention appearing doubtful, the words, heirsorheirs
of the bod}T, are allowed their full, broad, technical operation.
Thus in the cases of Parker v. Thatcher, 3 Lev. 70; Nottingham
v. Jennings, 1 Salk. 233 ; 1 Ld. Raym. 568 ; 1 P. Wms. 23 ; Crumble
v. Jones, 2 Eq. ca. abr. 300 ; 11 Mod. 207 ; Tilbury v. Barbut, 3 Atk.
617 ; 1 Vez. sen. 89, and many others, where the devise has been
to a man and his heirs, and in case he die without heirs, to another
and his heirs, such other not being capable of taking by descent
from the first devisee, he has been held to take an estate in fee
simple. In Sendloe 207 pi. 244, 14 Eliz. it is said that by the
opinion of all the justices of the common bench, if a man seized of
lands held in socage in fee, by his last will in writing devise those
FEBEUAEY TERM, 1827. 53
Den v. Gifford.
lands to one B. and the heirs of bis body begotten, and he wills,
besides by the same will that if the said.B. die, the said lands
remain to another in fee, that still the said devisee has an estate
in tail by the said first words of the said devise, and not an estate
for life by the last words thereof. In Atkins1 case, Moore's Reports,
593, reported somewhat more fully in Croke Eliz. 248, I. S.
devised lands to S. and the heirs of his body, and after his
decease to B. the eldest son of S. and to the heirs of his body,
the remainder over to three other sons of S. in the same manner.
The question was what estate S. had. On the one side it was
argued he had an estate for life, with remainder to his sons as
purchasers. On the other hand that he had an estate tail, for
by the first words an express estate tail was given to him, and
there are no special words to correct or alter them ; and it was
adjudged that S. had an estate tail. In Preston v. Furnel, Willes
164, the devise was " unto my brother Thomas Eagle for and
during his life, and then the houses and lands to the nearest of
my relations, that is to say, to Thomas Eagle my brother's son
to him and his heirs forever — and after their deceases, to the
next of kindred to me, first male and then* female, which said
lands and houses are never to be sold and to be kept up in good
repair, and this house wherein I now dwell is to descend to the
name of the Eagles and to be kept up as long as the world shall
endure and never to be sold." The question was whether
Thomas Eagle, the testator's brother's son, took an estate in feo
or in tail by the devise: And the court was of opinion, that
the devise to Thomas, the son of the testator's brother, must
be taken in its legal and natural construction, and that conse-
quently he took an estate in fee.
From this examination of the cases, and there are a multitude of
others, two points are shown, 1st. the power of the court to
abridge, limit or restrain the general operation of the words.
2d. the grdund on which this power may be exercised. It is to
subserve the intention of the testator. Whenever it clearly and
to demonstration plain appears that the words used by the tes-
tator were not used in their technical sense, but according to a
vocabulary of his own, they are to have the signification he
designed for them if consistent with the rules of law, that is to
say. if the nature of the estate which he meant to create is not
prohibited by law. It further appears from the cases that
whenever the general extent of the words has been restrained
54 NEW JEESEY SUPEEME COUET.
Den v. Gifford.
U
or abridged, some effect, some influence, some meaning, is never-
theless always attached to them, not precisely what, standing
alone, the law would attach to them, but precisely that which is
clearly shown to comport with the intention of the testator.
Here, then, an extremly important question presents. How is
this intention to be ascertained? From the words of the will.
Ex visceribus testamenti. And the rules, founded in good sense,
sound logic and indisputable law, are thus laid down, by Lord
Kenyon in 2 D. and E. 490, " there is no doubt but that formal
words may be controlled by the context of the will, but we
ought not to neglect the legal meaning of those words unless
we are clear that in so doing we give effect to the devisor's
intention." — And by Justice Buller, in Doug. 341, " if a testator
make use of legal phrases or technical words only, the court are
bound to understand them in the legal sense. They have no
right or power to say the testator did not understand
the meaning of the words he has used, or to put a con-
struction upon them different from what has long been
received or what is affixed to them by the law. But if a
testator use other words which manifestly indicate what his
intention was and shew to a demonstration that he did not
mean what the technical words import in the sense which
the law has imposed on them, that intention must prevail,
notwithstanding he has used such technical words in other parts
of the will."
Now the words in the clause which has been stated, of the will
of Adam Brewer, are all purely technical, to Eleazarus and his
heirs, and after his decease to Adam and his heirs. There are no
words in the will which- shew to a demonstration that the testa-
tor did not mean what the technical words import, and if we have
no right or power to say the testator did not understand their mean-
ing, or to put a construction on them different from what has been
long received and affixed by law, we must say, the intention of the
testator was to give an absolute fee simple to Eleazarus, and after
his decease a fee simple in the same premises to Adam, a disposi-
tion utterly illegal, impracticable and irreconcilable; for having
given a fee simple, the whole estate, in the first instance, in the
premises, he had nothing further to give, he had no further power
of disposal, unless, which was expressly and rightly disavowed at
the bar, he had attached some legal contingency to the first estate
whereby it might be terminated and a fee simple given over by
FEBRUAKY TEEM, 1827. 55
Den v. Qifford.
way of executory devise, or unless by a direct or implied revoca-
tion; and how far that may be effected by subsequent words will
be hereafter examined.
The intention of the testator then to use the word, heirs, in
the devise to Eleazarus, in a sense different from its legal signi-
fication, is not shown, and of course the power of the court in
certain cases to abridge or restrain its general, legal and techni-
cal operation, cannot be exercised.
Another insuperable obstacle exists. The operation the court
are called on to perform is not to reduce, limit, restrain or
pare down the word, heirs, to its just extent and to the signifi
cation designed in its use by the testator, but to deny it any
operation, to reject it altogether, to say the testator used it
absurdly, ignorantly, without meaning, purpose or iatent. The
plaintiff claims that by reason of the subsequent words, the
devise to Eleazarus and his heirs should be reduced to an estate
for his life. Such an estate would have been created if the
words "and his heirs" had been omitted, and if the intention
of the testator had been to create such estate, those words
ought to have been omitted. If then you reduce or abridge the
estate of Eleazarus to an estate for life you must do it by reject-
ing totally those words, and not by modifying, qualifying or
abridging their natural import and meaning.
On the argument at the bar it was contended by the plaintiff's
counsel that the words "his heirs," attached to the devise to
Eleazarus were to be considered words of purchase, as words
designating the persons of Adam and his heirs, in order thei-eby
to sustain an inference that the estate to Eleazarus was only for
life. But there is nothing in the will to show clearly and con-
clusively that the words, in themselves words of limitation, are
used as words of purchase, without which they can never so ope-
rate. Moreover, if Adam should have taken as a purchaser he
must have taken a joint estate with his father, 6 Co. 17, Wild's
case, which most manifestly was never intended, and was on the
argument expressly disavowed. Again, the subsequent express
devise to Adam, nominatim, most conclusively proves that he
was not designated by the term, heirs.
2. The second ground relied on by the plaintiff's counsel is
that if the devise in fee simple to Eleazarus, and the devise in feo
simple to Adam, after the decease of Eleazarus, cannot bo recon-
ciled BO as to reduce the. former to an estate for life, the latter
56 NEW JERSEY SUPREME COURT.
Den v. Gifford.
must prevail, because in wills where there are different devises of
the same thing a subsequent revokes and supersedes a former one.
This doctrine however does not appear to be well setlled. It is
indeed thus laid down by Lord Coke, Co. Lit. 112, b. But Har-
grave in his note on this passage (Note 144) says, there is a great
contrariety in the books on the effect of two inconsistent devises
in the same will. Some hold with Lord Coke that the second de-
vise revokes the first; others think that both devises are void on
account of the repugnancy. But the opinion supported by the
greatest number of authorities is that the two devisees shall take
in moieties. In 3 Atkyns 493, Lord Hardwicko says, The law pre-
sumes that a testator even in making his will may vary his inten-
tion, as suppose a man gives a farm in Dale to A. and his heirs,
in one part of the will, and in another to B. and his heirs, it has
been held by the old books to be a revocation, but latterly con-
strued either a joint tenancy or tenancy in common according to
the limitation. The remark of the Lord Chancellor as to the old
books may be generally but is not universally true, for in 3 Buls-
trode 105, it is laid down, " If a man in the first part of his will doth
devise his land to I. S. and in the latter part of his will he doth de-
vise the same to I. N. the only way to make all the words in the
will to stand is to make them both have a joint estate in the land."
It is not however necessary on the present occasion to examine
which is right, the rule of the old books, or the rule of later times
and of the greatest number of authorities, for it is manifest from
the will before us there could be no joint estate, since Adam was
not to take until the decease of Eleazarus. Nor does the rule,
whatever it may be, extend as was suggested at the bar, to per-
sonal estate only. The cases in 5 and 6 Vezey rela'te it is true to
the personalty. But Bulstrode and Plowden and Coke and Hard-
wicke all apply the rule to real estate. Taking then the rule to
have existence, and it surely has existence where a joint estate
• cannot be raised, and that it is a rule applicable to real estate, let
us understand the terms of the rule and we shall then see whether
.it can fasten itself on the will before us. What is meant by different
-devises, clashing clauses, inconsistent intents? Lord Hardwicke
;as we have seen, exemplifies them by the giving of a farm to A.
.and his heirs in one part of the will, and in another to B. and his
heirs. — Plowden, thus — -If in the premises of the will A. devise
his land to B. in fee and in the end of the will he devise it to C.
in fee Plowd. 541. Godolphin, thus, "If a man devise long acre
FEBRUARY TERM, 1827. 67
"Den v. Gifford..
in fee or bis white horse (having but one of each) to A. B. and
after by the same will or another will doth devise the same to
C. D." Godolph. Or. Leg. 461. Now these cases, it is evident
are different devises of the same premises, and of the same estate,
to exist and take effect in those premises at the same time, and
are wholly variant from different limitations of the estate in the
premises. In the former cases there is a first and last intent, on
which the rule can operate. In the latter there exists but a sin-
gle intent. Now the case before us does not come within the
terms of the rule respecting different devises. It is a limitation
over after a previous limitation. And here the rule of all the
books is very different. If the limitation over be repugnant to
the preceding estate,. or if it be a limitation over after an estate
in fee simple, unless such estate bo determinate on some legal
and timely contingency, the limitation over is void. A number
of cases have already been cited in which the limitations over
were held void. In Wood's case, 1 Bulstrode 61, a man having
three sons devised one parcel of his lands to each of his sons, and
further, that if any of his sons do die, then the one of them to be
heir unto the other; the question was who should have the land
devised to the eldest son ; his heir, or bis two brothers. The court
held that the will was good for the eldest son, and that his issue
should have the land, and that the subsequent clause in the will
after the particular devises, viz., that the one shall be heir to the'
other, is repugnant in itself to the other part of the will, and so
the same clause is merely void in law. The following cases also
sustain the same principle: Year Booh, 19 Hen. 8. fol. 8, pi. 6.
The Attorney- General v. Hall. Fitsg. 314. Ide v. Ide, 5 Mass. Rep.
500. Jackson v. Bull, 10 John. 19.
Upon the whole I am of opinion that Eleazarus took an estate
in fee simple and not an estate for life in the premises in question,
and therefore judgment should be rendered for the defendant.
Judgment for the defendant.
58 NEW JERSEY SUPREME COURT.
Harris v. Linnard.
HARRIS against LINNARD and JENNINGS.
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.
A writ of attachment had been issued in> this case to the
sheriff of the county of Salem, and returned to the term of May
last, and a second writ of attachment was sued out by the samo
plaintiff against the same defendant, placed in the hands of the
sheriff of the same county and returned to the term of September.
D. Elmer now moved to quash the second writ of attachment,
and contended that there could not be two attachments against
the same person in the same county at the same time.
PER CURIAM. — The second writ of attachment must be quashed.
There is no reason that there should be, at the same time, two
attachments between the same parties in the same county. When
they are issued into different counties, upon the return of the
writ, they proceed as one suit. But it is not so here ; and the
court have no authority to consolidate them as in other cases.
Second writ of attachment quashed.
CITED is Cummins v. Blair. 3 Harr. 151. Brown v. Bissett, 1 Zab. 51. Duffin
v. Wolf, Id. 479.
CASES DETERMINED
IK THE
SUPREME COURT OF JUDICATURE
OF THE
STATE OF NEW JERSEY.
AT MAY TERM, 1827.
STILL WATER against GREEN.
1. A healthy person coming from Europe to a sister state, and from thence
into this state, does not gain a residence in the township in which he shall first
settle and reside for one year.
2. For such person to gain a settlement under the act of 1774, (" for the set-
tlement and relief of the poor") he must come DIRECTLY from Europe into this
state.
3. Though a township may have for a number of years maintained a person
as a pauper, it will not thereby be estopped from denying his legal settlement
to be in said township.
4. If a pauper has obtained no legal settlement by residence or otherwise, he
must be maintained by the township where he becomes chargeable.
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 Still water 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:
This cause came on to bo 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 support of the order
(59)
60 NEW JERSEY SUPREME COURT.
Stillwater v. Green.
called and examined John Whims, who upon his oath said : That
lie 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 ho went
to Newburgh, and was there about two hours; thence to Goshen,
and was there about six weeks; thence he came into Hard wick
township in the county of Sussex, and lived with David Gustin
one month and a half ; then lived with John Boj'd in said town-
ship 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 months; thence again to John Boyd's about three
months ; thence to Imlay Koy '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 Hunt's, near the
stage road, and rented there for five months; from there went
to the house of Ralph Hunt, near the grist-mill and fulling-mill,
and was there about three months; thence to the house of Richard
Hunt, near said mill, and there rented said house, and lived one
full year, and paid his rent and lax. Witness further said, that
he worked about as a weaver, and had no home except 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 Still-
water; 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, ho 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.
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 of by the township of Hard-
MAY TEEM, 1827. 61
Stillwater v. Green.
wick 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 re-
moval were severally of the age and names mentioned in said
order.
WILLIAM T. ANDERSON, Atfy for the township of Green.
P. D. V ROOM, jr. /or Stillwater.
Halsey, for the township of Green, contended,
1. The pauper did not come directly from Europe fnto New
Jersey, but into New York. To give him a settlement here he
should have landed in this state : if not, come directly here after
landing.
2. If any settlement was gained by the pauper by a year's resi-
dence, it was in Hardwick, in the then county of Sussex; and
the pauper had been for several years a pauper chargeable upon
that town, and was living under the care of one of the overseers of
the poor of Hardwick, and had been farmed out as a pauper and
the place where was in what is now the township of Stillwater.
3. By the act dividing the county of Sussex, no provision is
made for the- division of the poor between the two counties; nor
in the act dividing or creating new townships.
4. Provision is made in the twelfth section of the act regulating
the boundaries and incorporating the townships, passed December
27th, 1824, for the division of the money on hand in the old county
between the old and new; but the new towns not being organ-
ized could get no share, no provision being made for them.
5. As the pauper in question was not a resident in Green, nor
had become chargeable to Stillwater after the division, but was a
pauper of Hardwick, on the town, and maintained by that town,
and was with a farmer of the poor, or at board in Stillwater, the
person having him in care should have returned him to Hardwick,
and left that township to have removed him. Stillwater should
not have removed him to Green, but have left the controversy to
be settled, if any should arise, between Green and Hardwick.
Vroom on the part of Stillwater, contended,
1. The pauper had long been received and acknowledged as a
pauper by the township of Hardwick, before the division of the
county of Sussex : — That township, by the act dividing the county
of Sussex, is divided into three parts, Hardwick, which is now
62 NEW JERSEY SUPREME COURT.
Stillwater v. Green.
in Warren, and Green and Stillwater, which are now in Sussex.
It is therefore contended that neither of these three towns can
at this time dispute the settlement as heretofore acknowledged
by all of them when united in one township.
2. The fact that the pauper, at the time of the division, hap-
pened to be living under the direction of the overseers of Hard-
wick, in that part of the township of Hard wick which is now
Stillwater, can have no effect in relation to the settlement. The
statute is silent on the subject, and there is no principle of law
to warrant such a conclusion.
3. By the division of the old township the three townships ac-
quired equal rights, and are subject to equal obligations. It is cer-
tainly untenable that the present township of Hardwick should be
burdened with all the poor simply because she retains the old name.
In apportioning the obligations of these townships in relation to
the poor, we must enquire in what part of the territory the pau-
per first became chargeable or gained a settlement. The case of
Washington v. Stanford, 3 Johns. Rep. 193, bears some analogy.
By the case it appears that the settlement, acknowledged by
the old township to be a valid settlement, was first gained in
that part of the township which is now Green.
And therefore it is contended that the order is correct.
The CHIEF JUSTICE delivered the opinion of the court as follows:
In the division of the county of Sussex and the erection of the
new county of Warren, thetownshipof Hardwick wasdivided into
three parts, one of which, retaining the ancient name, is in the
county of Warren, the other two parts remain in the county of
Sussex, and are called Green and Stillwater. In the acts passed
for these purposes no provision was made relative to the main-
tenance or settlement or division of the poor. John Whims, one
of the paupers now in question, was born in Ireland and emi-
grated to this country in the year 1811. He landed on Staten
Island, went thence to the city of New York, where he remained
four days; to Newburgh and was there about two hours; to
Goshen where he staid about six weeks; and thence went into
the township of Hardwick, in the county of Sussex. At different
places in that township, some in the part now Green, others in
what is now Stillwater, sometimes during several months, some-
times more and at others less than a month, but in no instance a
MAY TEEM, 1827. 63
Stillwater v. Green.
full year, ho lived for about three years. Having married a
woman whose maiden settlement does not appear, he then
rented a house and lived in it a full year and paid his rent and
tax, in what is now called the township of Green. Where he
resided when he became chargeable does not appear. Having
become blind and unable to maintain himself and family, he was
received by the overseers of the poor of Hardwick and sup-
ported by them as a pauper. At the time of the division of
Hardwick, in the year 1824, he was living in that part of the
township called Stillwater, having been, as it is called, farmed
out there, by the overseers of Hardwick. From Stillwater he
was sent by an order of removal to Green. On appeal to the
sessions the order of removal was quashed.
The first subject of enquiry is, whether by the year's residence
the pauper obtained a settlement. Under. the act of 1774 an
healthy person coming directly from Europe into this state shall
be legally settled in the township in which he shall first settle and
reside for one year. The pauper however did not come into this
state directly from Europe. He came here directly from the state
of New York, and nearly two months after he landed. It would
be a perversion of language and a denial of any signification or
force to the word directly, to say the case is within that term of
settlement. In Chatham^. Middlefield, 19 John. 56, the Supreme
Court of New York, on the construction of their act, substantially
similar to our own, said, "The coming directly from some for-
eign port or place into this state" means coming from some
port or place out of the United States, without passing through
either of the sister states into this state.
No actual settlement was acquired, then, by the pauper, in the
old township of Hardwick.
But it is said, the township and every part of it have admitted
the pauper to have been settled by bis residence in the part now
called Green, having received and for a number of yeai-s pro-
vided for him as a pauper j in other words, that by these acts
they are estopped from denying the legality and validity of his
settlement. These facts are however entirely too equivocal to
produce such effect. It may be that the overseers supposed the
residence gave him a settlement; but it is more probable that they
maintained him, as they were bound to do, because they could
find no place whither they could legally send him. A fulfilment
of their duty in this way ought never to conclude them on *
64 NEW JERSEY SUPREME COURT.
Stillwater v. Green.
question of settlement. Rex v. Chadderton, 2 East 28. Rex v.
Chatham, 8 East 498.
By what rule then is the township to be charged with the
maintenance. of 1 he pauper and his family now to be ascertained?
From the principles adopted in relation to the sustenance of the
poor, and from analogy to the well settled rules of settlement
cases, it is clear that he ought to be maintained by the new
township in which he resided when he became chargeable.
Whether this be Green or Stillwater, as I have already ob-
served, does not appear. If Green, the fact of his being farmed
out in Stillwater at the division can produce no difference. He
was then in the hands of the overseers, who might keep him
where they found most convenient, and under such circum-
stances the liability to his support would not undergo a change.
We were referred by the counsel of one of the parties to the
case of Washington v. Stanford, 3 John. 193. It is not, however, in
point; nor are the essential facts like those before us; but the
reasoning adopted and the principles laid down by the court sus-
tain the rule we have stated. There the pauper was actually set-
tled by birth in the township before the division; and the court
held him to belong to the part of the township in which he was
born, and not to the other part in which he resided at the time
of the division; but one of the judges said, "The provisions of
the general law for the maintenance and relief of the poor at-
tach on the new township the moment it is erected." Another
said, "They" [the two new townships] "stood in the same situ-
ation in respect to each other as any other towns in the state,
and as though they had always been distinct towns." On such
principles the part where the pauper became chargeable would
doubtless be obliged to maintain him until his necessities ceased
or they could find a legal settlement elsewhere.
We are of opinion therefore, the paupers now in question are to
be supported by the township in which they originally became
chargeable. If the counsel know or can agree on that fact, judg-
ment ought to be given accordingly. If not, the case should be
sent back to the sessions in order that the fact may be stated.
CITED ITS Overseers of Bethlehem v. Overseers of Alexandria, 3 Vr. 69. Over-
seers of New Barbadoes v. Overseers of Paterson, 3 Dutch. 549.
MAY TERM, 1827. 65
Ackerman v. Taylor.
LAWRENCE ACKERMAN against JOHN TAYLOR.*
1. An order of two justices discharging an apprentice, made upon the com-
plaint of the FATHER of the apprentice will be quashed.
2. A complaint from the APPRENTICE or the MASTER is the very foundation
of the authority of the justice. If such complaint does not appear the proceed-
ings are vicious and detective ab origine.
3. The Courts of Quarter Sessions have no original jurisdiction to discharge
an apprentice, therefore an order made by them in affirmance of proceedings
brought before them by an appeal, must necessarily be erroneous if those pre-
vious proceedings are essentially defective.
4. If the proceedings of inferior tribunals are declared by the legislature to
be final and conclusive, the Supreme Court will not enquire whether they have'
justly and properly exercised the powers confided to them, but it will take care
that they do not exercise powers which they do not legitimately possess.
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.
The CHIEF JUSTICE delivered the opinion of the court.
The certiorari issued in this case, brings before us an order
made by two justices of the peace of the county of Essex, for the
discharge of John Taylor, an apprentice, from Lawrence Acker-
man, his master, and an order of the Court of General Quarter
Sessions of the Peace of that county, made on appeal, confirming
the order of discharge.
One of the exceptions taken by the counsel of the plaintiff in
certiorari is, that the complaint to the justice, at th.e inception of
the proceedings, was not made by the apprentice. The fact is.
verified by the proceedings returned with the writ. On the appli-
cation to the justice he issued a summons to the master to appear
before him "to answer to a charge lodged against him for ill-
treating his apprentice by the name of John Taylor; complaint
made by the father, Andrew Taylor."
The act "respecting apprentices and servants," Rev. Laws, 366,.
which is the foundation of the authority and jurisdiction of the jus-
tices, a»d of the sessions, in cases of this nature, directs " that if
any master or mistress shall be guilty of any misusage" &c. "BO-
that his or her clerk, apprentice or servant, shall have any just
cause to complain, or if the said clerk, apprentice or servant,
shall absent hhnself" &c. "or be guilty of any misdemeanor,"
&c. " then the said master or mistress, or the said clerk, appren-
*See 3 Halst. Rep. 305, where this case came before the court upon a motion,
to quash the certiorari. :
VOL. IV. X
66 NEW JERSEY SUPREME COURT.
Ackerman v. Taylor.
tice or servant, being aggrieved and having just cause of com-
plaint, shall repair to one justice of the peace within the county
where the said master or mistress dwells, who shall in his wis-
dom take such order and direction between such master or mis-
tress and his or her clerk, apprentice or servant as the equity of
the case shall require." If the justice cannot compound or agree
the matter, he is to call to his assistance two other justices, who,
constituting a court for the hearing of the matters in difference,
may if they think proper, discharge the apprentice, or cause due
'correction to be administered to him subject to an appeal to the
next Court of General Quarter Sessions of the Peace of the county.
By the terms of this act, it is obvious the complaint to the jus-
tice must be made by the master or the apprentice. No other per-
son is authorized to interfere. The justice cannot, proceeding under
this statute, listen to or act upon the complaint of any other.
The policy of this limitation might, if necessary, be readily sus-
tained. The relation of master and apprentice, resembling in
some degree that of parent and child, is interesting and delicate,
and should not be subject to interruption or disturbance by even
well meant interference of others. From the genius and spirit of
our people and institutions, apprentices seldom find just cause of
complaint ; and if they do, they will not hesitate to make them
known and promptly to receive adequate redress. It is not
required of us, however, to defend the policy of the law. It is
enough that the wisdom of the legislature has prescribed a rule,
has not authorized the justice to summon the master to answer a
charge lodged or a complaint made even by a father, but has
directed that the apprentice, if aggrieved, and having just cause
of complaint, shall himself repair to the justice.
A complaint then from the master or apprentice is the very foun-
dation of the authority of the justice. Without it, he has no legal
power to move. Such complaint is indispensable to confer on him
jurisdiction. All the subsequent proceedings are dependent each
on the other; and a complaint made by a person permitted by law
to complain must appear to sustain the whole. Without such com-
plaint ; if such complaint does not appear ; or if it appear to Lave
been made by a wrong person, the proceedings are vicious and
defective -ab origins. This principle has been repeatedly adjudged.
In the case of The King v. Wootton Rivers or Wootton Rivers, v.
Marlborough, reported in Carthew 365, Comberback 354, 5 Mod. 149,
Salk. 4,9.2, .an .order of two justices for the removal of a pau-
MAY TEEM, 1827. 67
Ackerman v. Taylor,
per, reciting that it was upon complaint made to them, but omitting
to set forth that the complaint was made by, the church wardens
and overseers of the poor, having been affirmed in the sessions,
was in the Court of King's Bench quashed for the omission.
The court said " It is absolutely necessary that in the body of
the order it should be expressly shown that it was made on the
complaint of the church wardens and overseers of the poor, for
otherwise the justices had no authority to make the order or
remove the pauper." The language of the English statute res-
pecting removals is, " it shall be lawful, upon complaint made
by the church wardens or overseers of the poor of any parish,
&c. for any two justices, &c. by their warrant to remove," 13
and 14 Car. 2 ch. 12. In the case of The King v.Hulcott, 6Z>.
and E. 583, an order was made by a justice of the peace on the
statute 5 Eliz. ch. 4, at the instance of a master to discharge a
servant hired for a }Tear who had become insane before the year
expired. On appeal the sessions confirmed the order. The justice
had jurisdiction to make an order of discharge only where the ser-
vant was a servant in husbandry, and it was not stated in the order
the servant discharged was such servant. The Court of King's
Bench on certiorari quashed the order because it did not appear
on the face of it that the justice had jurisdiction, and the servant
was therefore not legally discharged. In Firiley v.Jowle, 12 East
248, upon the statute 20 Geo. 2 ch. 19, for the regulation of cer-
tain apprentices and servants, which enacts that it shall bo lawful
for two or more justices of the peace, " upon application or com-
plaint made upon oath by any master or mistress against any
su-ch apprentice, touching any misdemeanor, &c. in such service"
to bear and determine the same and punish or discharge the
apprentice, the Court of King's Bench held that the application
or complaint must be made by the master or mistress, and it
must be verified on oath, but it need not be on the oath of the mas-
ter or mistress who may know nothing of the facts themselves.
The answer given to this objection in the brief furnished us by
the defendant's counsel is, that it is matter of form only. But
this answer is not sound. The objection is the want of a
material fact. Moreover, matters touching jurisdiction, if sus-
tainable, are always of substance, not of form. In The King v.
Hareby, Andrews 361, on a motion to quash an order of removal
because there was no complaint set out therein, it was answered
that it is only matter of form. But by the court. " This is the
68 NEW JERSEY SUPREME COURT.
Ackerman v. Taylor.
foundation of the jurisdiction of the justices " and therefore
they quashed the order. In The King v. Bedmin, 2 Strange, 1158,
an order of removal was made without saying it was on the com-
plaint of the church wardens and overseers. On appeal the sessions
set all this right under the statute 5 Geo. which authorizes them to
amend defects of form. But the Court of King's Bench said, ''This
is going too far. It was never designed they should insert new
facts, but only amend the informal way of setting out the facts
•which were stated." And the orders were quashed.
In the brief of the defendant's counsel it is further said that the
regularity or irregularity of the proceedings before the justices is
matter of form only, and especially as it has been decided that the
Quarter Sessions has original jurisdiction. Thence, I presume it
was intended to infer, that as they have original jurisdiction to
discharge, their order is sustainable on the ground of their own
independent jurisdiction, although the antecedent proceeding of
the justice or justices should be erroneous or defective. Let us
examine this matter briefly, in order that the apparent propriety
and application of the inference may be removed, and that the
weight due in the investigation of the subject to the English cases
may be justly appreciated. It is true that in England the Quarter
Sessions has original jurisdiction to discharge apprentices.
The King v. Gill, 1 Str. 143 ; The King v. Davie, 1 Str. 704 ; and
in The King v. Johnson, 2 Salk. 491, it was held that an original
order to discharge an apprentice might be made in the sessions
without any previous application to a justice of the peace to en-
deavor to compromise the matter. The rule is considered to be so
settled because many original orders of sessions had been con-
firmed in the King's Bench, although strong doubts are ex-
pressed of the propriety of the rule. In 1 Burn's Just. 76, it is
said, The sessions are not to take the matter by appeal. Now the
course of proceeding and the jurisdiction of the Quarter Sessions
under our statute are wholly different. The only jurisdiction of
that court here is upon appeal. They have no original jurisdiction
to discharge an apprentice. Hence in England the inference may
be just, that the order of the sessions may be correct although the
proceedings before the justice were defective. But not so with us.
The order of the sessions, which is in affirmance of the proceedings
brought before them by appeal, must necessarily be erroneous if
those previous proceedings are essentially defective.
I am opinion therefore that the orders should be quashed, be-
MAY TERM, 1827. 69
Ackerman v. Taylor.
cause the inferior tribunals have exceeded the bounds of their
jurisdiction. They had jurisdiction only on complaint made
by master or apprentice, and they have proceeded and made the
orders in question, without such original complaint.
The ground on which our decision is made avoids the objections
of the counsel of the defendant to the writ of cerliorari. He admits
in his brief that " where the inferior court has exceeded its juris-
diction, or has exercised a jurisdiction over matters not given to
it by statute, there are a few instances where a certiorari has
been granted." Now if we are right in our views of the sub-
ject, the inferior tribunals have "exceeded their jurisdiction," and
" have exercised a jurisdiction over matters hot given to them by
statute." The general superintending power of this court over
the proceedings of inferior tribunals, especially of such as are
created by statute, and possess special powers only, and exercise
a limited jurisdiction, is unquestionable. If their proceedings are
declared by the legislature to be final and conclusive, we shall not
inquire whether they have justly and properly exercised the
powers confided to them, but we are bound to take care that they
do not exercise powers which they do not legitimately possess.
In the language of the Court of King's Bench, in the case of The
King v. The Inhabitants of Glamorganshire, 1 Ld. Raym. 580, " This
court will examine the proceedings of all jurisdictions erected by-
act of parliament; and if they, under pretence of such act, pro-
ceed to encroach jurisdiction to themselves greater than the act
warrants, this court will send a certiorari to them to have their
proceedings returned here; to the end that this court may see
that they keep themselves within their jurisdiction, and if they
exceed it to restrain them." The powers heretofore confided to
this court may unquestionably be abridged or taken away by the
authority of the legislature. This effect however has not been
produced; nor was it intended by the tenth section of the act
respecting apprentices and servants. We may not indeed inter-
meddle with proceedings had " in pursuance of" that act. But we
are not thereby prohibited from inquiring whether the proceedings
have been in pursuance of the act, whether under the supposed
authority of that act an excess of jurisdiction has not occurred.
Such was the opinion of this court in Vunch v. Whorl, Pen. 336.
In TheKingv. The Justices of the West Riding of Yorkshire, l93Doug.
a certiorari was applied for, to remove certain orders made at a
Court of Quarter Sessions on an appeal against the allowance of
70 NEW .TEESEY SUPEEME COUET.
The State v. Mayhew.
the accounts of the surveyors of the highways under the statute 13
Geo. 3. It was objected that by the express terms of the eightieth
section no certiorari can issue to remove any proceeding to be had
or taken in pursuance of the act. It was answered that if the Quar-
ter Sessions exceeded their jurisdiction in receiving this appeal,
the certiorari might issue, because the proceeding is not in pur-
suance of the act, but in derogation of it : — and the certiorari was
allowed. In The King v. Reeve and others, 1 BL Rep. 231, on a
motion for a certiorari to remove convictions on the statute
against conventicles and the proceedings on an appeal to the ses-
sions according to the statute, which enacts " that no other court
whatsoever shall intermeddle with any cause or causes of appeal
upon this act, but they shall be finally determined in the Quarter
Sessions only." 2 Bur. 1041, Lord Mansfield in delivering the
opinion of the court said, " There is no color that these negative
words should take away the jurisdiction of this court to issue
writs of certiorari. This court hath an inherent power to issue
certiorari in order to keep all inferior courts within due bounds,
unless expressly forbid so to do by the words of the law."
Orders quashed.
CITED IN Stanley v. Horner, 4 Zdb. 512. Mitchell v. Morris Can. & Blcg. Co.,
2 Vr. 103. Traphagen v. West Hoboken, 10 Vr. 234.
THE STATE against ELEAZER MAYHEW.
1. The sentences or decrees of the Orphans' Court on the final settlement
and allowance of the accounts of executors, administrators, guardians or trustees,
may be removed by certiorari to the Supreme Court to be reviewed.
2. On the settlement of an administrator's accounts, interest may be charged
against him, if it appear that he has actually received interest, or that he has
made in his own affairs profitable use of the money, or that from the time of
the sales of the real estate, the money has remained out upon bond and mort-
gage drawing interest, well secured, and easily and promptly to be collected.
3. The decree of the Orphans' Court is presumed legal until the contrary is
shewn.
4. A decree of the Orphans' Court on a final settlement of the accounts of an
administrator, ordering the surrogate to strike a dividend of the estate among
the several creditors named in the account, will not be set aside because a divi-
dend has not been struck.
This was a certiorari to the Orphans' Court of the county of
Salem, brought by Eleazer Mayhew, to remove the record and
proceed ings of an account stated and passed by the Orphans' Court
of said county, in which the said Eleazer Mayhew, administrator
MAY TERM, 1827. 71
The State v. Mayhew.
of John Johnson, deceased, was accountant, and in the final settle-
ment of which the 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 :
The inventory made by the accountant, E. Mayhew, of the per-
sonal estate of the intestate, bearing date 19th November, A. D.
1819, amounts to $2714.52£. 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
$3412 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 cred-
itors. The final account states the whole amount at $7099.961, and
the debts at $7550.19, 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. Mayhew, 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 Elea-
zer Mayhew 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 $1343, being the interest
on $5735.96, from and after the 3d day of January, 182 1, 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 Cor-
nelius 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 tho
interest upon the several other claims and demands against tho
said estate, from the llth day of March, A. D. 1823, to tho llth,
72 NEW JERSEY SUPREME COURT.
The State v. Mayhew.
day of June, 1824, and thereupon strike a dividend of the estate
of the said deceased in the hands of the said Eleazer Mayhew,
amongst the several creditors named in the said account."- In
the same term, the surrogate re-stating the account agreeably to
the order of the court it was then finally decreed that the same
be allowed in all things as re-stated by the surrogate. Done in
open court, June Term, 1824, and signed by three judges. The
return to the certiorari having been completed, the prosecutor
in May, 1825, assigned and filed before the Supremo 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 Mayhew. the accountant, with a large
sum of interest amounting to $1343, 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 divers sums of money by him actually and lawfully paid and
disbursed in the administration of 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.
L. H. Stockton and Wall, for the prosecutor of the certiorari,
contended that the decree of the Orphans' Court ought to be
reversed, because the accountant was charged interest on a large
sum of money for which he was not accountable, and cited 10
Mod. Rep. 20 ; Rev. Laws 269 ; 1 Vez. jr. 450 ; 2 Atk. 106 ; Free, in
Chan. 505; 1 Brown Ch. 359; 3 Dessau Eq. Rep. 241; Coxe Rep.
155 ; 4 Serg. and Raw. 116; 1 Sin. 190.
D. Elmer, contra.
The CHIEF JUSTICE delivered the opinion of the court.
•
This case brings before us questions upon the liability of an
administrator and the mode of charging him in account, arising
upon a decree made by the Orphans' Court of the county of Salern.
To the proper understanding and correct determination of these
matters a view of the proceedings in that court and some of the
most material facts exhibited in the return made to the writ of
.certiorari is indispensable.
MAY TERM, 1827. 73
The State v. Mayhew.
At March Term, 1822, the account of the plaintiff in certiorari,
Eleazer Mayhew, as administrator of John Johnson, deceased,
was reported by the surrogate. In this account, which was sworn
to, in the usual form by the administrator, on the 6th March,
1822, he is charged, on the 17th November, 1819, with the amount
of the inventory $2714.52, and on the 6th May, 1820, and the
20th January, 1821, with the sums arising from the sales of real
estate of the deceased, amounting together to $3412; and these,
with some moneys received from matters not included in the
inventor}^, make the debit side of the account $6223.79. The
credit side of the account claims allowance for sundry disburse-
ments $1058.74; for a note appraised but not recovered $49.45;
fora debt due the administrator $154.07; and for commissions
$497.87, making $1760, and leaving, as set forth in the account, a
balance of $4463.66 in the hands of the accountant, to be applied
to the discharge of the debts of the deceased. By a rule of the
court of the same March Term, leave was given to Cornelius
Johnson to file exceptions against the account,. and they were
filed on the fifth day of the next month.
In the term of June, 1822, the parties were heard on the excep-
tions, and it appearing " that a number of receipts stated as debts
of preference, were not debts of preference according to law,"
and that the administrator had not "proceeded agreeably to the
act respecting the settlement of the estates of decedents who die
insolvent" the court set aside "the whole account for want of
legal form," and ordered the administrator "to take a rule
directing the creditors to exhibit their claims and demands, under
oath or affirmation, according to the statute on that subject." A
rule was accordingly taken requiring the creditors to exhibit their
claims within six months. In June Term, 1823, another account
was presented to the court, sworn to in the usual form by the ad-
ministrator, on the third day of March, 1823. The debit side adds
a small sum received from the sheriff of the county of Cumber-
land, and otherwise does not materially differ from that of the for-
mer account, except that it gives the second instead of the twentieth
of January, 1821, as the last date of sale of real estate. The credit
side claims allowance for sundry disbursements, and alleged
debts of preference, and commissions, and distinguishes certain
debts claimed by creditors under the rule but not entitled to be
preferred in paj'ment. For the allowance of this account a
decree was made at the same term. In September Term, 1823,
74 NEW JERSEY SUPREME COURT.
The State v. Mayhew.
upon application from certain creditors of the estate, and upon
hearing counsel of the parties, the court ordered the account of
June Term, 1823, to be opened. Nothing further appears from
the return to have been done until March Term, 1824, when the
court made an order that the surrogate should re-state the account
retaining the several items and sums, but discriminating between
the debts of preference and those riot of preference; that the
administrator should produce to the surrogate his receipts for
payments made on account of debts of preference, and such other
evidence as he might have in his possession, and on failure that the
surrogate should re-state the account from the evidence and
papers in his possession ; and leave was given to the creditors to
file exceptions to the account so to be stated by the surrogate.
An account was stated by the surrogate pursuant to the requisi-
sition of this order, to which on the 7th Ma}7, 1824, exceptions
were filed. These exceptions insist, among other things, that
the accountant was not, as he ought to have been, charged with an
excess of the sales over the appraisement, and with $500 or some
other large some of money, for interest money received and due on
moneys in his hands: that certain items on the credit side of the
account, for alleged disbursements, ought not to have been cred-
ited ; that the claim of certain alleged creditors to the amounts
stated, that is to say, the administrator himself and Cornelius
Johnson, ought not to be allowed; and in general that the account
is in divers other particulars erroneous and untrue. At June
Term, 1824, the matter came on upon the exceptions, in the pres-
ence of the exception creditors, of the administrator and of John-
son, the creditor whose demand was impugned, and of their res-
pective counsel, and the court by their .decree, after reciting that
they had heard the evidence and examined the papers, ordered
the surrogate to alter and re-state the account, and in the re-state-
ment to charge the administrator with $151.48 for monej's
received by him of the estate not appraised, and an excess of sales
beyond the appraisement, and with $1343, being the interest on
$5755.96 from the 3d January, 1821, and that he strike out from
the debts of preference $29.93, and reduce the claim of Cornelius
Johnson to $436.11, being the amount due to him; and that he
should carry out the interest on the other claims and demands
against the estate to the llth June, 1824; and thereupon strike a
dividend among the creditors. At the same term of June, 1824,
a re-statement was made by the surrogate according to the direc-
MAY TERM, 1827. 75
The State v. Mayhew.
tions of the court, and the account thus re-stated exhibits a debit
side conforming to the former accounts already mentioned, add-
ing the two items of charge specified in the court's order, being
$6368.56, exclusive of the interest, and making in all $7711.56.
It makes an allowance for moneys disbursed in payment of ex-
penses and preferred debts and commissions to $611.60, and
exhibits a balance of $7099.96. It then exhibits a statement of
the debts unpreferred, and which of course were entitled to a
dividend only, as the estate was insolvent, but which had actually
been paid by the administrator, together with interest cast upon
them to the llth of June, 1824. It further exhibits a statement
of the debts unpreferred which remained unpaid, with interest
cast on them also up to the llth of June, 1824, it shews in the
result a deficiency to pay the debts of $450.22. Upon this ac-
•ount, thus re-stated, the court after reciting that they had
examined it, and were satisfied it was re-stated agreeably to
their order, decree at the same term, that it be allowed and that
the surrogate should strike a dividend of the estate amongst the
creditors named in the account.
The first question to be examined respects the jurisdiction of
this court, for if it be true as insisted by the counsel of the de-
fendant in certiorari, that such writ will not lie, all further
enquiry is of course superseded.
By the thirty-third section of the act concerning the Ordinary
and the Prerogative and Orphans' Courts, Rev. Laws, 787, it is
declared that all final sentences or decrees where no appeal is
given to the Prerogative Court shall be subject to removal by
certiorari into the Supreme Court. The cases in which appeals
are given are to be found in the first, second, twenty -first and
twenty-seventh sections of the act just mentioned. The first
section defines the general authority of the Ordinary, and de-
cluri's it shall extend only to the granting of probate of wills,
letters of administration, letters of guardianship, and to the
hearing and finally determining of all disputes that may arise
thereon. By the second section, the Ordinary is directed to hold
a Prerogative Court for the hearing and determining »f all
causes that should come before him, either directly or by appeal
from any of the Surrogates or the Orphans' Courts. The
twenty-first section provides that where doubts arise on the
face of a will or a caveat is put in against proving a will, and
whenever disputes happen respecting the existence of a will,
76 NEW JERSEY SUPREME COURT.
The State v. Mayhew.
the fairness of an inventory, or the right of administration, the
surrogate shall issue citations to appear at the next Orphans'
Court when the cause shall be heard in a summary way and de-
termined by the judges of the court, subject to an appeal to the
Prerogative Court; and all proceedings of surrogates not brought
as above mentioned before the Orphans' Court shall be subject to
an appeal to the Prerogative Court. The twenty-seventh section
directs that the powers and duties relative to the admission of
guardians for persons under the age of twenty-one years, shall be
exercised by the Orphans' Courts, subject to an appeal to the
Prerogative Court. Now it is most manifest, that neither in the
general delegation of power to that court, nor in the particular
specifications of the twenty-first and twenty-seventh sections is
an appeal given from the sentence or decree of the Orphans'
Courts on the final settlement and allowance of the accounts of
executors, administrators, guardians or trustees mentioned in the
thirtieth, thirty-first and thirty-second sections of the act to
•which reference has been made; and hence it clearly results
that those sentences or decrees, no appeal being given, are liable
to removal here by certiorari. This subject has been before this
court in the cases of Wood v. Tollman's Executors, Coxe 153, and
Burroughs v. Mickle, Penn. 913, and in both the certiorari was
sustained. In July, 1824, in the case of Benjamin Sulard, admin-
istrator of Thomas Sebring v. Daniel Smalley, Governor "William-
son dismissed an appeal from a decree of the Orphans' Court of
Middlesex county on the final settlement of the accounts of an
administrator on the ground that the Prerogative Court had no
jurisdiction. The legality of the removal of such decrees by
certiorari ought now therefore to be considered as settled.
We are then to examine the questions raised by the counsel
of the plaintiff in certiorari, the accounting administrator, and
the grounds which they have urged for the reversal of the de-
cree of the Orphans' Court.
The first relates to the item of interest, and insists that it was
improperly charged against the accountant. On this subject a
very wide field was explored by the plaintiff's counsel, who made
a very able and interesting discussion of the topic of the interest
of money and its application to the rights and duties of an execu-
tor or administrator. The doctrines advanced were, we think, in
some particulars entirely sound and correct; in others, to say the
least, very doubtful and questionable. But from the view we take
MAY TEEM, 1827. 77
The State v. Mayhew.
of the present case, a minute detail and investigation are not,
on our part, necessary. It is not to be controverted, at this
time, that there are circumstances in which an executor or ad-
ministrator is justly chargeable with interest. A distinction was
suggested between the liability where minors and where cred-
itors are to be the recipients of the estate, and it may be that
sound principle requires some difference in the degree or in the
strictness which would be exercised; but still it is not to be dis-
puted that there are cases in which interest ought to be charged
in favour of creditors. To establish this general doctrine by a
review of the cases which have occurred in our state, especially
in the Court of Chancery, and in the courts of England and of
our sister states, would be an unnecessary expenditure of time.
In the case of Darrel v. Eden, cited and much relied on by the
plaintiff's counsel, from 3 Desaus. Rep. 242, the chancellor says,
that where the executor has made or received interest, or has
kept money on hand which there was no reasonable ground to
keep by him unemployed, he shall be charged. The decree of
the Orphans' Court in the present case does not, nor was it
requisite or proper that it should, state the facts or evidence
upon which the several charges were founded or directed by the
court. It recites that they heard the evidence and examined
the papers. By them, it may have appeared that the adminis-
trators had actually received the interest in question, or that he
had made in his own affairs profitable use of the money; or that
from the times of the sales of the real estate, the money had
remained out upon bonds and mortgages, drawing interest, well
secured, and easily and promptly to be collected. Under either
of these circumstances the charge for interest could not be
resisted. If these, or any other grounds of legal liability, existed,,
the decree of the Orphans' Court was right. But did such cir-
cumstances exist? Was such legal liability shewn ? That court
has so decided. On whom is the duty devolved of exhibiting
before this court those facts and circumstances on which the
decree is to be impugned — the evidence on which it was founded?
It has been already observed that these facts and circumstances
and evidence need not be stated in the decree. The act allows
the removal by certiorari, but leaves every thing else to the legal
principles which govern that writ and the proceedings under it.
The party on whom the duty is, by those principles devolved,
will be seen by an enquiry, whether an order, sentence or decree
78 NEW JEESEY SUPEEME COUET.
The State v. Mayhew.
brought up here by certiorari is, in legal intendment, right or
wrong? Whether the party prosecuting the certiorari is required
to impugn the proceeding below, or the party in whose favor it
has been awarded is obliged here to sustain it by the production
of the evidence on which it has been founded. The learning on
this subject is so familiar and so well understood as to leave no
room for doubt or controversy. I shall content myself with
merely referring to some of the cases irt this court. Eldridgev.
Lippincott, Coxe 399. Doughty V. Read, Penn. 901. Seward v. Van-
degrift, Ibid. 922. Fleming v. Naoman, Ibid, 852. Martin v. Steele,
Ibid. 718. Leonard v. Ware, 1 South. 150. The decree is pre-
sumed right until the contrary is shown, either from the face
of the decree, or by such matter dehors the record as may be the
proper subject of examination. The decree stands fully supported
by legal intendment, and the party in whose favor it is made,
may safely rest on it until its destitution of legal support is
shown by him who makes it the subject of complaint. Inasmuch
then as the evidence before the Orphans' Court has not been
brought here, and as it has been shown that circumstances may
have existed, and that too within the obvious compass of the most
common probability, which would fully justify the charge of
interest, it must stand unless the objections deduced from the face
of the return and now to be considered are entitled to prevail.
It was contended that interest, if allowable, was charged on
too great a sum ; on a sum which the administrator never at any
one time had in his hands. The interest, as appears by the
order of the court, is charged on 85753.96, being the balance, or
more correctly speaking, one dollar less, of the nett amount of
the estate after deducting from the whole amount which came
into his hands, his payments for expenses and preferred debts,
and the amount allowed him for commissions. There is nothing
on the face of the account from which the faintest inference can
be fairly drawn that the above sum is more than came into his
hands. In fact, the debit side of the account contains nothing
more than he had previously charged himself with, except the
interest and the sum of 8151.48, added in the last account under
the order of the court, for moneys received of the estate not ap-
praised, and an excess of sales beyond the inventory ; and against
the latter charge no complaint has been made here. It will be
seen from the accounts that the administrator charged himself
with the amount of the inventory 82714.52 on the 17th November,
MAT TEEM, 1827. 79
The State v. Mayhew.
1819, and on this amount no interest is charged until January,
1821, a period of about fourteen months. It is true it does not
appear of what the estate included in the inventory was composed;
whether of goods, or stock, or debts due the deceased, or what
may have been the proportion of each ; but it does appear that
there was a sale; and the articles sold produced more than their
appraised value, and that he claims allowance in his first account
only for a single note and that for a small sum, as irrecoverable.
It will be seen too, that varying from the most common, I do
not say the universal, mode, the commissions are deducted not at
the close of the account, the settlement of the account, but as
of January, 1821, so that no interest is charged on them. It
appears then that interest is not charged until the sales of the
real estate, and until the personal estate bad been for fourteen
months in his hands and under his management; and then only
on the balance after the deductions I have stated. The admin-
istrator had, it is true, in the mean time and prior to the decree
of the court, made sundry payments in full of unpreferred debts,
under, we may suppose, an expectation that he should have
funds to pay all. But in order to do him ample justice in this
respect, and at the same time prevent any encroachment on the
just rights of other creditors, and the proportionate share of the
estate to which they were entitled, and which the court could
not infringe or reduce, however innocent may have been the mis-
take of the administrator, interest is cast and brought into
account on all these payments up to the llth of June, 1824, the
same time to which the interest is cast on the balance of the estate
and on the claims of the unpaid creditors, so that although
interest is on the one hand charged against him, there is on the
other an interest allowed to him to the very verge of the just
rights of others. Indeed it would be difficult, if not impractica-
ble, in any other way to make up the account, and preserve equal
and exact justice to the administrator and the paid and unpaid
creditors. It is very certain, as remarked by one of the plain-
tiff's counsel, that the interest could not have been charged on
choses in action outstanding at the decease of the testator, because
the appraisement amounts to the sum of $2714.52 only. But
there is nothing in this consideration which in itself shews that
interest ought not to have been charged, or that the sum is too
large. The real estate may have been and most probably was
sold for cash, and on securities drawing interest ; and the part of
80 NEW JERSEY SUPREME COURT.
The State v. Mayhew.
the personal estate not consisting of choses in action, may, in
fourteen months, have been turned into them or into money.
There is nothing on the face of the account, then, which shows
that the administrator has been charged with interest on a cent
more than may have been in his hands, or that in this respect
any injustice has been done to him.
The plaintiff's counsel further insisted that the interest should
not have been charged, because the circumstances of the estate
were such that he could not put out the money in order to obtain
interest; that he was compelled to keep it on hand ; that a long
litigation occurred ; protracted by the errors of the surrogate and
the court ; during which he could not pay out the money, and the
termination of which he could not anticipate; so that he was
under the necessity of holding himself always prepared. Now
this argument is founded on the assumption that the money was
on hand, and thus retained pending the progress of the accounts
to a settlement. If such were the fact, the objection would cer-
tainly present itself in a very imposing attitude. But it is not
shown to us that the money was on hand. Notwithstanding any
thing exhibited to us, the money may have been profitably em-
ployed by the administrator, or may have been outstanding in
such manner as I have described, bearing interest, well secured
and easily'collectable; and it is certain from the account that the
court made those moneys draw interest in his favor which he had
expended in unpreferred debts. If the estate was drawing interest,
the charge cannot be resisted. If the money were on hand, that
fact should have been shown. There is no ground of necessary
presumption that it was on hand. Chancellor Desaussure, in the
case already mentioned, says very properly, there may be cir-
cumstances which may require an executor to keep money on
hand. He says also it lies with the executor to show the exist-
ence of such circumstances as would justify the departure from
a rule founded on great justice and equity.
The plaintiff's counsel further contended, that he ought not in
any event to be charged with interest beyond §500, because that
Bum and no greater is mentioned in the exceptions filed. The lan-
guage of the exception is that the administrator had not charged
himself with "$500 or some other large sum of money for inter-
est." The object of filing written exceptions is not merely to
sustain future proceedings in objection to the account, but to ap-
prize the accountant of the matters in respect to which his account
MAY TERM, 1827.
The State v. Mayhew.
will be controverted. Both these objects are amply attained by
the exception in question. The accountant is fully informed that
it is intended, to charge him with interest. The precise sum is
not indeed mentioned, nor in most cases could it be done with
safety or confidence. Interest, he is apprised, will be claimed ;
$500, or some other large sum; what sum, must.be left to the
requisition which may be shown by the situation of affairs when
they come to be examined, and to the judgment of the court on
the circumstances of the case.
Considerable reliance, in opposition to the charge of interest,
was placed on the fact that the first two accounts contained no
item of interest, and that they had been sworn to by the adminis-
trator. By far too much respect is here claimed for the oath of
the accountant. It would be an unnatural and inordinate exten-
sion of its influence to consider it conclusive to repel such a
charge, or that the court could not legally introduce such an
item, because of the oath, if otherwise they found just ground
for it. The rule in chancery, with respect to an answer respon-
sive to the charging parts of the complainant's bill, bears no
analogy. There is a much more intimate and natural relation
to the principle of accounting in that court. There, small sums
are allowed, if stated when and to whom paid, and positively
and not to mere belief, sworn to by the accountant. Com. Dig.
Am. ed. tit. Chancery, Account, 2 A. 4. I do not intend to say
this rule has been or ought to be adopted in our courts; but to
shew that there is no court acting on fixed and well considered
principles which has ever given such operation to the oath of
the party as was claimed on this occasion.
The next principal objection to the decree, is, that certain items
on the credit side of the account were struck out; and it seemed
to be the impression of the plaintiff's counsel that some of these
had been struck out by the surrogate without the order of the
court. The real state of the case apparent on the papers is thus.
The court ordered the credit side of the account to be reduced by
$29.93, and the credit side of the last account being 8611.60, is
exactly that sum less than the account excepted to $641.53 ; and
it is rendered clear that the items struck out and reduced are those
intended by the court, because the amount of the items, three,
twelve and sixteen, struck out, with the amount taken from
twenty-two, which is the item reduced, is $29.93 ; and on the
face of the last account these items are stated as those struck
VOL. iv. F
82 NEW JERSEY SUPREME COURT.
The State v. Mayhew.
out and reduced by the court; and by the decree of the court
made on that account it is expressly declared to be re-stated
agreeably to the previous order of the court. There is nothing
on the face of the account or papers which serves to show that
these items were improperly rejected by the court. The princi-
ple stated by the plaintiff's counsel may be sound, that where
an administrator does actually and in good faith pay money
connected with the estate, it ought to be allowed. But the
application of this principle to the case before us is yet to be
seen. Until it is shown to have been disregarded by the court
we have no right to act as if it had been.
In the last place, it is contended that the decree ought to be re-
versed, because a dividend is not, as it ought to have been, struck.
The latest proceeding returned with the certiorari is the decree of
the court, which I have already mentioned, that the account as re-
stated by the surrogate should be allowed, and that the surrogate
should strike a dividend of the estate among the several creditors
named in the account. It would be a very harsh and oppressive
measure upon all parties, if this court were compelled to set aside
all that has been done, because some acts, in themselves distinct
from the proceedings brought before us, have not been done. The
measure will be best appreciated by considering this objection, as
indeed it ought to be, distinct from the others, and on the pre-
sumption that the account is correct. For if this objection is now
sustained, we must do the like when the account is acknowledged
to be correct. Under such circumstances, to set aside the whole,
and put the parties back to seek a new report from the surrogate,
would be a ruinous procedure. The account, as it now sttuids,
furnishes the ready means of ascertaining the dividend of each
creditoi-. The amount of the estate to be divided, the amount of
debts among which the dividend is to be made, and the amount of
each individual debt are shewn. The dividend of each is the re-
sult of a very plain and simple calculation. Whether the court
were bound to go further, arid ascertain and decree the specific
dividend of each creditor, we need not decide; because if there
be any thing wanting in turn respect, we do not think we ought
to make that deficiency the cause of destroying the proceed-
ings already taken and correct in themselves. If any thing more
is required to be done, we see nothing to prevent it from being
yet done. The act concerning the estates of persons who die
insolvent, Rev, Laws 768, sec. 10, directs that " the said personal
MAY TERM, 1827. 83
Trenton Bank v. Wallace.
and real estate which shall come to the hands of the said execu-
tor or administrator, the preferred debts as mentioned in the
second section of this act, and the reasonable allowance which
may be decreed by the court to the executor or administrator for
care and expenses being first paid, shall be distributed to the said
several creditors by the said executor or administrator, in pro-
portion to the sums that shall be found due to them respectively
as aforesaid, under the direction of the said court from time to
time, as may be found convenient and just." "We shall therefore
send the proceedings to the Orphans' Court, that they may pro-
ceed thereon as may be legal.
Let the decree be affirmed, with costs ; and let the proceedings
be remitted to the Orphans' Court to be proceeded on agreeably
to law.
CITED IN Ribble v. Jefferson, 5 Hal. 139. Tenbrook v. M'Colm, Id. 333. Ud-
dd v. Me Vickar, Ad., 6 Hal. 44. Vanpelt's Ex. v. Veghte, 2 Or. 209.
THE TRENTON BANK against JOHN B. WALLACE.
An affidavit made before a judicial officer of another state, verifying a plea
in abatement, cannot be read in this court.
A plea, in abatement of another action pending, for the same cause, in another
state, must be verified by an affidavit, or accompanied by a record of the pro-
ceedings 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 by general or special demurrer.
If the record of another court be pleaded in abatement, the party pleading it
must accompany the plea by an exemplification, to be filed therewith. Per FORD*
just.
W . Hoisted, for the plaintiff.
Kinsey and Wall, for the defendant.
Opinion of JUSTICE FORD.
In this case the plaintiff declares on a judgment against the
defendant recovered in the Inferior Court of Common Pleas for
the county of Burlington in New Jersey. The defendant pleads
in abatement, that the plaintiff commenced a prior action against
him on the snme identical judgment in the Courtof Common Pleas
of Crawford county in Pennsylvania, as by the record and pro-
ceedings, &c. of that court appears; which action is there .still do-
84 NEW JEESEY SUPEEME COTJET.
Trenton Bank v. Wallace.
pending. The defendant annexes to the plea an affidavit of the
truth of it, which affidavit was sworn before a judge of Crawford
county aforesaid. The plaintiff demurs generally to the plea in
abatement, and after joinder moves several exceptions; one of
which is, that the affidavit is a nullity by reason of its not being
made before a judge or commissioner for taking bail and affidavits
in this court, where the action is depending, and therefore that
it cannot be read or used in this cause. This objection is fully
supported by the case in 3 Hals. 176 ; so that there is no affidavit
of the truth of the plea. The rule of the court is, " That no dilatory
plea, or plea of another judgment, shall be received in this court,
unless the party offering such plea do offer therewith to be filed,
an affidavit proving the truth thereof, or do show some probable
cause to the court to induce them to believe that the matter there-
in set forth is true." The defendant then argues that an affidavit
is not necessary when the plea is to the jui'isdiction ; and for this
he cites a decision prior to the statute of Anne ; but our rule sup-
plies the place of that statute. This is not only a dilatory plea
and so within the letter of the above rule, but it comes within
the statute which our rule is taken from. In 2 Archb. Pr. 2, it is laid
down, that a plea to the jurisdiction like all other dilatory pleas,
must be verified by affidavit. It is next argued that the rule does
not require an affidavit without any alternative; it says, an affi-
davit or some probable cause of belief that the matter is true ; and
as the matter pleaded is a record, that no more probable evidence
of it can be given than the production of the record itself exempli-
fied under the seal of the court, as is done in this case. Now the
record if properly produced, would clearly prove the institution of
aa action on this judgment in Pennsylvania; but this record is
deficient in three respects. First, it is offered, not along with the
plea according to the rule; but it comes in afterward ; after a de-
murrer, and not till the time of argument. Second: Though it
would prove the institution of an action, the proof that such action
was still pending would be wholly deficient without an affidavit.
Thirdly: The record is not properly produced. Lord Coke says,
If a man plead an outlawrie in abatement he must show forth the
record thereof sub pede sigilli, unless the record be in thesame court.
1 Inst. 128 b. So a plea of popish recusancy in abatement must
shew the record thereof from the sessions sub pede sigilli. Curwen
v» Fletcher, 1 Stra. 520. But if it be a record of the same court the
plaintiff might demand a note of the term and number of the roll
MAY TERM, 1827. 85
Trenton Bank v. Wallace.
and sign judgment the next day for want of it. Sac. Ab. tit.
Abatement, m. 1 Ld. Ray. 347. From hence it clearly appears
that if the record of another court be pleaded in abatement, the
party must, as the Institute expresses it, show forth such record
under seal.
The mode of doing this, as suggested by the plaintiff's counsel,
is to make a profert of the record in the plea, but I am not satis-
fied that this is so. Lilly givea a plea in King's Bench of a prior
action for the same cause depending in the Common Pleas, with
only a pro ut patet per recordum. \Lil.ent.1. "Wentworth gives two
similar pleas, 1 Went. 52, 64. The same is given in Story's plead.
65. See also 3 Ld. Ray. 52. These are sufficient, I think, to es-
tablish the form of the plea. The meaning of the books and rea-
son of the thing is, that jn abatement, an exemplification of the
record sub pede sigilli, duly authenticated, must accompany the
plea, and be filed therewith as matter of evidence. In abatement
the plea and the evidence must be put in together, or the plea will
be ill. Matter of fact must be verified by affidavit; matter of
record must be verified in another way, by annexing the record
sub pede sigilli. Even a sworn copy of the record will not be ad-
missible on the issue of nul tiel record, Gilb. Evid. 26. The evi-
dence of it must be in such form that it can be read in our court.
As this is the record of a judicial proceeding in another state, its
production under the seal of that court does not authorize the
) eading of it here, unless it be authenticated according to the act
of congress. No day is to be given for the production of the
record, but it is to be brought into court and filed with the plea,
as evidence, legal evidence, of the matter contained in the plea.
Now in this case there is no affidavit, no exemplication of the
record authenticated so as to be read, nor was it filed along with
the plea. For these reasons the plea cannot be maintained, and
the defendant must answer over.
Opinion of JUSTICE DRAKE.
This is an action of debt brought by the plaintiffs on a judg-
ment heretofore obtained by them, against the defendant, in tho
Inferior Court of Common Pleas of the county of Burlington.
Tho defendant pleads in abatement, a former action, for the
same cause, pending in tho Court of Common Pleas of Crawford
county, in the state of Pennsylvania. A general demurrer is
filed to the plea, and joinder in demurrer.
86 NEW JERSEY SUPREME COURT.
Sooy v. M'Kean.
The first objection to this plea is, that it has been filed without
offei-ing therewith an affidavit proving the truth thereof; and
without any probable cause shewn to the court to induce them
to believe that the matter therein set forth is true. An affidavit
accompanies the plea, taken before a judicial officer of the state
of Pennsylvania. But this cannot be read, as the affidavit re-
quired by the rule, 3 Halst. 176, nor is it evidence of the proba-
ble cause therein mentioned. For this cause the plea might
have been treated as a nullity, or set aside upon motion, 1 Chitty
453, and the authorities appear to allow of its being taken ad-
vantage of on efther general or special demurrer. For this
reason, without adverting to the other questions raised in the
cause, I am of opinion that the demurrer is sustained, and that
the defendant should answer over.
The C. J. gave no opinion, being a stockholder in the bank.
CITED IN Munn v. Merry, 2 Or. 184.
ARCHIBALD S. SOOY against ROBERT M'KEAN, SAMUEL TAGGERT
and EDWARD COOK.
A court may legally stay the proceedings in a second action, until the coats
of a former action, brought by the same plaintiff for the same cause of action,
shall be paid.
This was an application for a mandamus on the part of Archi-
bald Sooy, an insolvent debtor, to the Court of Common Pleas,
of Burlington, to compel them to proceed to the hearing of his
cause, and was submitted to the decision of this court without ar-
gument, upon the following statement of facts agreed upon, viz.:
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 re-
ceived 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
MAY TERM, 1827. 87
Sooy v. M'Kean.
the truth and honesty of the declarations and confessions of the
said Archibald Sooy, (be having first submitted himself to an
examination upon interrogatories) and did then and there under-
take to prove to the court by the first day of the then next term,
that the said Archibald S. 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 credi-
tors; 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 admin-
istered 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 there-
after 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 Holeman, and lodged with the gaoler of said
county ; and that the said Archibald Sooy did thereupon, in the
same term of Angust, and on the same day, present a petition,
praying the benefit of the several insolvent laws of the state of
New 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 Archi-
bald 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 be 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 were by him paid, and did remand th«-
88 NEW JEESEY SUPEEME COURT.
Sooy v. M'Kean.
said Archibald Sooy to prison, there to remain until the said
costs should be paid.
THOMSON W. SIMS, Att'y of plaintiff.
J. H. SLOAN, Att'y of defendants.
The CHIEF JUSTICE delivered the opinion of the court.
Upon the trial of an issue joined in the Court of Common Pleas
of the county of Burlington, according to the provision of the act
for the relief of persons imprisoned for debt, between Archibald S.
Sooy, alleging himself to be an insolvent debtor, and certain of
his creditors, a verdict was found against the debtor and judgment
was thereupon rendered with costs. Afterwards, on the same day,
another execution in debt was issued by a justice of the peace at
the suit of another creditor, against Sooy, and lodged with the
gaoler in whose custody he then was. On the same day Sooy
presented to the court another petition for discharge as an insol-
vent debtor, and on the day appointed to hear him and his
creditors, it appearing to the court that the costs had been duly
taxed, a copy thereof served on the debtor, and notice given to
him that payment thereof would be insisted on before the hear-
ing under his petition, and that the said costs had not been paid,
the court, at the instance of the creditors who were defendants
in the issue, refused to proceed on the application of the debtor,
until the costs for which judgment had been rendered should be
paid. Application is made here for a mandamus, and the single
point presented to us by the state of the case, and by the agree-
ment of the counsel, is whether the court might legally stay the
proceedings until the payment of the costs.
The stay of proceedings in a second action until the costs of a
former are paid, is founded on sound and just principles. The
practice first fully obtained in the action of ejectment. In the case
of Roberts v. Cook, 4 Mod. 379, which was in ejectment, the court
said "If the verdict had been against the party bringing the
second action, or he had been nonsuited, he should not have brought
another action before the costs of the first had been paid, be-
cause it was a vexation to bring a new action." In Keene v.
Angel, 6 D. & E. 740, Lord Kenyon said, " The only question in
these cases is whether the second ejectment is in substance
brought to try the same title, if so, the rule is of course to stay
the proceedings until the costs of the former ejectment have been
MAY TEEM, 1827. 89
Sooy v. M'Kean.
paid." For a time the extension of the practice to other actions
was questioned. The policy and propriety of it, however, did not
long remain a doubt. In Weston v. Withers, 2 D. & E. 511, the
plaintiff having been nonsuited in an action of trespass for taking
goods, brought a second action for the same cause and sued in
forma pauperis. On a rule to shew cause why the second action
should not be stayed, it was objected that it could only be done
in ejectment. But the court made the rule absolute, and Justice
Buller read two cases where the like rule had been made in other
actions than ejectment. In the case of Grovesnor v. Cape, cited in
2 Bel. Rep. 741, and in SWils. 150, trover was brought to try a
question of bankruptcy. The merits were fully gone into, the
opinion of the court was with the defendant, and judgment had.
A new action was brought, in case, for money had and received,
and not in trover, lest the former judgment should be pleaded in
bar, but professedly to try the same question of bankruptcy over
again. The court refused to permit the second action to proceed
until the costs of the former should be paid. For a time it was
questioned whether the proceedings could be stayed, unless in the
first action the merits had been examined and decided, either by
nonsuit or verdict. But sound reason prevailed over this diffi-
culty. It could not fail to be seen that if the first action was
ended by the neglect of the plaintiff to pursue it with regularity
and diligence, his neglect should afford him 'no title to escape
the payment of costs. In the case of Balduoyn v. Richards, 2 D.
& E. 511, n., a second action was stayed after judgment as in
case of nonsuit, for not going to trial in the first, which was for
malicious prosecution. The same rule is pursued in the Supreme
Court of New York. Cuyler v. Vanderwerk, 1 John, cases 247.
Perkins v. Henman, 1 9 John. 237
The reason on which the courts have acted in all these cases
equally exists in respect to the case of an insolvent debtor. Tho
stay of proceedings is no denial of justice. In truth, it is but
dealing out even handed justice to both parties. He who has
exposed his adversary to costs, and has failed from neglect or
demerit, has no just claim to be again heard until he has satis-
fied those costs. If an insolvent debtor, against whom a verdict
and judgment have passed, can immediately institute new pro-
ceedings, and failing in them, can again and as often as be please,
without exposure to costs, for an execution on the judgment
would yield nothing, invoke the time and attention, and demand
90 NEW JEESEY SUPEEME COTJET.
Carpenter v. Titus.
the aid of the courts, fraud, instead of skulking in concealment,
would speedily walk forth in bold and undisturbed impunity ; for
no creditor would engage in so unequal a contest, in which a
defeat would to the debtor be almost equal to a victory. We say,
if a debtor may, after verdict and judgment, institute new pro-
ceedings, for we wish to be understood as expressing no opinion
upon that point.' We think the Court of Common Pleas were
right in refusing to proceed until the costs should be paid, but
we do not say whether they are or are not bound to proceed to
an hearing if they are paid.
Mandamus refused.
CITED is State v. Sheri/ of Middlesex, 3 Or. 68. Race v. Dehart, 4 Zab. 40.
JOHN CARPENTER against URIEL TITUS.
1. A rule of the Court of Common Pleas, requiring the appellant upon the
return of the appeal papers, and prior to the entry of the appeal, to pay to the
clerk of the court the sum of one dollar, is illegal.
2. The amount of the fees to which the court is entitled, upon the return of
the appeal, is thirty-seven cents.
This was an application for a mandamus to be directed to the
Court of Common Pleas of the county of Hunterdon, 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.
W. Hoisted, for the appellant.
Hamilton for appellee.
The CHIEF JUSTICE delivered the opinion of the court as follows :
By a rule of the Court of Common Pleas of the county of Hun-
terdon, it is required "that upon the return of the appeal papers,
the appellant shall pay to the clerk of the court the sum of one
dollar, to answer the court and clerk's fees on the said appeal.
MAY TERM, 1827. 91
Carpenter v. Titus.
and that no appeal shall be entered on the minutes or heard
before the court until the same be paid, and if the same be not
paid at the term to which the appeal is returned, the appeal shall
be dismissed, unless for special cause shewn." An appeal between
the above named parties was dismissed under this rule, because
the sum mentioned in the rule was not paid, the proceedings of
appeal being in other respects regular; and a mandamus to rein-
state the appeal is now sought.
The object of the rule, and we understand a similar one has
been made in some others of the counties, is just, salutory, and
legal ; to secure to the court and clerk the payment of the small
amount of fees which is in those cases allowed to them. The
duties performed by the judges of the Courts of Common Pleas in
matters of appeal, are important and beneficial to the community,
and require, on their part, much of their time, care and attention.
The fees established by law for these sei-vices are small, though
doubtless wisely graduated by the legislature, with a view to
afford a rehearing in matters of small value, without inordinate
expense. But even these fees, moderate as they are, are often
left unpaid and are lost, without prompt and effectual means are
taken to secure them. For what court, sensible of its own dignity,
would seek or sue for fifty cents in as many different parts of the
county ? It is therefore both expedient and lawful for the court
to make and enforce suitable rules on this subject. And we
entirely approve of the principle on which the rule now brought
"before us, is founded. But we apprehend the amount required to be
paid on the return of the appeal papers is too large. The courts
may properly direct that the several fees allowed for the various
nervices incident to the appeal shall be paid at the time of their
performance, and that the clerk shall not be required to file the
papers nor to enter an appeal or a judgment, unless at the time
the appropriate fees are tendered to him. Thus, the court may
direct that on the return of the appeal, the fees for the services
then to be done shall be paid, prior to the performance of those ser-
vices. But we apprehend, payment, at that time, in advance of
fees which are anticipated at some future stage of the proceeding,
cannot be required. For example, the fee due to the court on the
hearing and determination of the appeal. A hearing may perhaps
never take place. Many cases, by compromise, or agreement, or
otherwise, between the parties, are never tried, and this service
therefore, is not performed. In many instances a considerable
92 NEW JEESEY SUPEEME COUET.
Hawthorn v. Munn.
time elapses after the entry before the trial. Certain judges
might, under this rule, receive the fees, and others be required to
perform the duties. Upon looking into the table of fees in the
statute, Rev. JLaws, 647, we think that the amount for the services
to be performed, upon the return of the appeal, or in other words,
when "the transcript of the proceedings and judgment, together
with the bond," are sent by the justice to the clerk of the court,
is thirty-seven cents, that is to say, for entering action, seven cents,
for filing bond, seven cents, for filing transcript, seven cents, for
rule for entering appeal, seven cents, and for crier's fee, nine
cents. Of consequence, the sum of one dollar ought not in the
present instance to have been required, nor should the appeal
have been dismissed for the omission to pay it.
Let a mandamus issue.
SIMILAR CASE— Hawthorn v. Munn, 4 Hal. 92.
JOHN HAWTHORN against AARON MUNN.
ON APPLICATION FOR MANDAMUS TO THE COMMON PLEAS OF ESSEX.
BY THE COURT. — Our opinion in Carpenter v. Titus, wo think,
requires us to order that the mandamus applied for in this case
be issued.
It was contended that the appeal between these parties was
dismissed for want of diligence as well as for the non-payment of
the dollar. But it abundantly appears that the difficulty really
arose from the rule which is the subject of consideration. This
rule, incorrect as to amount, stood directly in the way of any,
even the first, step on the part of the appellant. In that court
it is somewhat more strict than the rule in Hunterdon, for it
directs the clerk " not to receive or file any bond, transcript or
other paper in appeal," until the payment of the dollar is made.
The appellant cannot, we think, have been in culpable neglect
for omitting to proceed, when, by the operation of this erroneous
rule, he was precluded from doing so.
Let a mandamus issue.
MAY TERM, 1827. 93
Milnor v. Milnor.
MAHLON MILNOR against JOHN M.. MILNOR.
A judgment entered upon a bond with warrant of attorney to confess judg-
ment, after the death of the obligor, will be set aside as irregular.
If the obligor was insolvent at his decease, a creditor may move to have the
judgment set aside.
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. Wall, on behalf of E. M'Neely, one
of the creditors of the said John M. Milnor, moved to set aside
this judgment and execution, upon the ground that John M.
Milnor had died insolvent previous to the entry of said judg-
ment, viz. on the 13th of February, 1827, which was admitted to
be true, and cited the case of Wood v. Hopkins, 2 Penn. Rep. 689,
as ruling this case.
L. H. Stockton, contra.
The CHIEF JUSTICE delivered the opinion of the court.
On the 13th February, 1827, John M. Milnor died insolvent.
On the 16th day of the same month, judgment against him, in
favor of Mahlon Milnor, was entered up, on bond and warrant
of attorney to confess judgment, as of the preceding November
Term of this court. Letters of administration of the estate of
the deceased were granted to his widow and Joseph Gillingham.
Execution was issued upon the judgment, returnable to the last
term; and now Robert M'Neely, a creditor of the deceased,
moves to set aside the judgment.
In support of the motion is cited the case of Wood v. Hopkins,
decided in this court, in September Term, 1810, and afterwards
affirmed, on writ of error, in the Court of Appeals, Pen. 689. And
that case ought to govern, and will rule us on the present occa-
sion, unless a substantial diversity, sufficient to remove the present
judgment beyond its operation, shall be found. Wo are there-
fore to examine the points of difference presented to our consid-
eration by the plaintiff's counsel.
In the first place, it is shewn, that the application in Wood v.
Hopkins, was made by the administrators of the deceased, and is
hei*e made by a creditor.
It is manifest that this diversity can in no wise bear on the
regularity of the judgment, or legality of entering it after the
decease of the debtor. The validity of the judgment cannot vary
94 NEW JERSEY SUPREME COURT.
Milnor v. Milnor.
with the person by whom the application is made. If however,
the creditor is not entitled to make the application, it is imma-
terial how irregular the judgment may be, he cannot prevail.
And this presents the real topic of enquiry. .Robert M'Neely,
the applicant, is admitted in the state of the case, to be a credi-
tor of the deceased. The estate being insufficient to pay the
debts, he and the other creditors are, according to our statute,
entitled to a pro fata distribution of the assets after certain
preferences are satisfied. Of these preferences, are judgments
entered of record against the decedent in his lifetime. If then
the present judgment stands as a judgment of November Term,
1826, in the lifetime of John M. Milnor, the share of Robert
M'Neely will certainly be diminished, perhaps entirely destroyed,
according as less or more of the assets may be required to dis-
charge the judgment. He has an interest therefore directly
affected by the judgment at the time of its entry. According to
the case of Head v. Bainbridge, 1 South. 351, and the principle on
which it was decided, he is entitled to be heard ; for such,
says Justice Rossell, in delivering the opinion of the court on
that occasion, is the just right of him whose interest is to be
affected.
The next diversity pointed out to us is, that in Wood v. Hopkins
the bond and warrant were executed five years prior to the de-
cease, and here only a few days.
It will be observed that neither in Wood v. Hopkins, nor in the
present case, is the slightest charge or suspicion of fraud made
against the plaintiff. The naked question in each is the regular-,
ity of the entry of a judgment after the decease. Now nothing
can be more clear than that the age of the bond and warrant
cannot affect this question. If the decease forbade the use of
the warrant, it must equally do so, whether one day or seven
years old. Upon an allegation of fraud, the difference might
perhaps have just operation. On which side, most strongly, it
is not necessary now to enquire. It is true, as stated by the plain-
tiff's counsel, that the age of the bond was mentioned by the
court in Wood v. Hopkins, but it was not for the purpose of pror-
ing or establishing the rule of law on which the decision was
made, but to evince the policy and propriety of the rule.
In the next place it was shewn to us that the statute under
which the present judgment was entered, required the making an
affidavit of the existence and fairness of the debt, which had been
MAY TEEM, 1827. 95
Milnor v. Milnor.
done, and that no such affidavit was required under the statute
in force at the time of the judgment in Wood v. Hopkins.
As remarked on the last head, if any imputation of fraud in
respect to the present judgment had been made, this affidavit
might have operation to repel such charge. But such affidavit
cannot affect the real question before us. It cannot sustain the
judgment, if otherwise irregular. As the law stood at the time
of Wood v. Hopkins, the existence and fairness of the debt were
presumed from the bond and warrant. At present the affidavit
is required to corroborate or take the place of the presumption.
But the existence and fairness of the debt, however fully estab-
lished, cannot support the judgment if illegally entered.
In the fourth place, it is said, that by the act of 1820, prescrib-
ing the mode of entering judgments on bonds with warrants of
attorney, the judgment is expressly directed to be of the last pre-
cedent term; whereby it is insisted the ancient mode of entering
up judgments, sanctioned by the case of Oades v. Woodford, 7 Mod.
96, is restored, and the fictitious relation which in the case of Wood
v. Hopkins, the court would not suffer to prevail to defeat the stat-
ute for the distribution of the estates of persons dying insolvent,
is changed into reality. But it will be seen by a reference to the
statute of 1798 respecting bonds with warrants of attorney, to be
found in Paterson's edition of the laws of New Jersey, page 455,
that precisely the same words, "as of the last precedent term,"
are used, and in the same connection. The third sections of both
these statutes are also substantially the same. The first section
of the act of 1799, Pott. 435, which provides for the pro rata
distribution of the estate of a person dying insolvent among his
creditors, subject to certain preferences, was also repealed, but
was supplied by another act similar in its provisions, passed in
June, 1820. Rev. Laws, 766. It is true then, that both the stat-
utes brought into view in the case of Wood v. Hopkins, have been,
as was urged at the bar, repealed; but inasmuch as they have
been supplied by other statutes, substantially the same, the de-
cision in that case and the principle on which it is founded must
equally prevail in cases arising under the latter statutes.
in the last place, it is insisted that the judgment in Wood v.
Hopkins was irregularly entered, for that the amount set down in
the judgment was not authorized by the warrant, and to show this
matter the original papers of that case are laid before us. This
alleged irregularity, it is said, may have had influence ID the
96 NEW JEKSEY SUPEEME COURT.
Cooper v. Sheppard.
determination. But it does not appear by the report of the case,
that any such objection was raised or considered by this court or
the Court of Appeals, and it is well known to the counsel who
argued that cause, of whom I was one, that the irregularity now
suggested was not then brought into question.
Upon the authority of the case of Wood v. Hopkins, we are of
opinion that the judgment in this case should be set aside.
CITED IN Evans v. Adams, 3 Gr. 375. Melville v. Brown. 1 Harr. 369. Clapp
v. Ely. 3 Dutch. 569. jBlackwell v. Eankin, 3 Hal. Ch. 158.
DAUCHY and others against TAYLOR.
CHANGE OF VENUE.
The venue in this case was laid in the county of Essex. The
plaintiffs reside in New York, where, it was admitted, the cause
of action, which was of a transitory nature, arose.
Upon hearing an affidavit of the defendant, stating that he
resides in the county of Gloucester, that the process issued in
this case was served upon him in that county, and that the wit-
nesses material for his defence also reside there, the court
ordered the venue to be changed to the latter county.
Gifford, for the plaintiffs.
Sloan, for the defendant.
JOHN COOPER against JOSEPH SHEPPARD.
STAY OF PROCEEDING UNTIL PAYMENT OF COSTS
The court ordered the proceedings in this action to be stayed
until the payment of the costs of a former action, brought by the
plaintiff in the Inferior Court of Common Pleas of the county
of Monmouth, for the same cause, in which the plaintiff, after
the close of the evidence, had submitted to a voluntary nonsuit.*
Wall, for the defendant.
* Sooy v. ATKean, Ante, 86. Perkins v. Henman, 19 John. 237.
MAY TERM, 1827. 97
Eobeson v. Thompson.
JOHN P. ROBESON AND JACOB PARRY against JOHN R. THOMPSON.
1. A variance between the affidavit to hold to bail and the writ, the former
omitting, the latter" inserting, the Christian names of the plaintiffs, is not a
sufficient reason to discharge the bail, after bail has been perfected.
2. But if the cause of action set forth in the declaration is substantially variant
from that set forth in the affidavit, the bail will be discharged, even after a trial
and verdict against their principal.
Wall moved that an exoneretur should be entered on the bail
piece in this case, because the declaration filed by the plain tffs set
out a different cause of action from that which was disclosed in
the affidavit to hold to bail. The affidavit, (which was made by
one George M. Stroud) stated, " That the sum of $329.26, was
due and owing to him, (as assignee of Robeson and Parry,
merchants, who, being insolvent, made an assignment to him of
all their estate, for the benefit of the creditors) by John R.
Thompson, (late of the firm of Chambers and Thompson) as
appears by the books of the said Robeson and Parry." The
declaration sqjts out a cause of action by John P. Robeson and
Jacob Parry against John R. Thompson alone, founded upon a
special agreement made by Thompson with the plaintiff, that
they might release his partner, Chambers, from the payment of
his share of a partnership debt, and that he, Thompson, would
not take advantage of it, but would still hold himself liable to
pay the one equal half part of the said debt.
This, it was -insisted, was such a material variation from the
cause of action set forth in the affidavit to hold to bail, as
entitled the bail to have an exoneretur entered on the bail piece;,
and in support of this position the following authorities wero
cited : 2 Saund. Rep. 72, a. 1 Tidd Prac. 24. 2 Ibid. 992. 1 Arch..
Prac. 55.
Hamilton and Scott, contra.
JUSTICE DRAKE delivered the opinion of the court.
A capias was issued in this case, returable to the term of No-
vember, 1822, founded upon an affidavit made in the preceding
vacation, by one George M. Stroud, who affirmed, — that the sum
of $329.56 was due and owing to him, (as assignee of Robcson and1
Puny, merchants, who, being insolvent, made an assignment to-
him of all their estate, for the benefit of their creditors) by John
R. Thompson, (lute of the firm of Chambers and Thompson) a»
apju-urs by the books of the said Robeson and Parry. — Bail was-
VOL. IV. Q
98 NEW JERSEY SUPEEME COURT.
Robeson v. Thompson.
put in and perfected, and the cause appears to have slept until
very lately, when it has been put at issue, a trial had at the last
Hunterdon Circuit, and verdict for the plaintiffs. The bail now
move the court to be discharged from their recognizance, on the
ground that the cause of action declared on, varies from that
stated in the affidavit, in the following particulars:
1. That the affidavit states a debt due to George M. Stroud,
assignee, &c. whereas the declaration sets out a debt due to John
P. Robeson and Jacob Parry.
2. That the Christian names of the persons composing the firm
of Robeson and Parry, are not set out in the affidavit, and we can-
not presume them to be the plaintiffs in this cause.
But these variances appear as well upon the writ as upon the
declaration; and bail having been perfected without noticing
them. I am of opinion, that it is now too late to apply for a dis-
charge on these grounds.
But another variance is brought to our view, apparent upon
the declaration and not on thb writ. And to this the counsel for
the plaintiffs makes the same objection as to time. The facts
shewn in this case, satisfy us that the declaration was not filed
before the lust term of this court, and that the bail have had no
opportunity of discovering its contents, and founding a motion
thereon, before the present term. And in answer to some sug-
gestions made by the plaintiffs' counsel, I would observe that the
long delay on the part of the plaintiffs in filing their declaration,
would be a reason for extending more, rather than less, indulg-
ence to the bail, as to the time when it is incumbent on them to
make any motion founded on the contents of that declaration. I
am of opinion that they are in time; and that if their objection
be a good one, they should have the advantage of it.
The cause of action set out in the declaration, is, in substance,
that the said John C. Chambers and John R. Thompson, being in-
debted to the plaintiffs for goods sold, &c. applied to the plaintiffs,
and requested them to release and discharge said Chambers from
all liability on account of the said debt, in consideration whereof
the said John R. Thompson executed his certain deed, or instru-
ment of writing, sealed with his seal, bearing date the fourteenth
day of November, A. D. 1820, in the "words and figures follow-
ing." The deed is then set out; the import of which is, that if
the plaintiffs release Chambers, he (Thompson) will not take ad-
vantage of it, .but will still hold himself liable to pay the one equal
MAY TERM, 1827. 99
Westcott v. Somers.
half part of the said debt. It is added that the plaintiff did
release and discharge Chambers; by reason, of which premises
an action accrued to the plaintiffs, to demand and have, from
said defendant, the one-half of said debt.
Now, it is only by the operation of this special agreement, that
the action could be maintained against John R. Thompson alone.
But the affidavit, as far as it discloses the ground of action, in-
duces the supposition that the suit is brought to recover of John
R. Thompson a debt due from Chambers and Thompson, on book
account. Courts of justice suffer slight variances to be taken
advantage of in this way. 2 Taunton 107. 6 Term Rep. 363.
7 'Term Rep. 80. 13 East 273. And it is right they should do so.
Whoever attacks the liberty of the citizen should know the
grounds on which he does it. Our statute requires an affidavit of
the cause of action, in order to hold to bail. And it should be
stated truly. And bail may safely come forward, and protect the
debtor from imprisonment, even where he is liable, if that lia-
bility rests upon different grounds from those stated in the affidavit.
The court order the exoneretur to be entered.
The CHIEF JUSTICE, having been concerned as counsel in the
cause, gave no opinion.
ELIZABETH WESTCOTT against JAMES SOMERS, Executor of JOHN
SOMERS, deceased.
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 Ihe latter cubmitting "all matters in difference between the parties in the
said cause," will not vitiate the report, if it appear that the referees really went
into an examination only of the matters in difference in the cause.
Chapman, for plaintiff.
Davenport, for defendant.
•
The CHIEF JUSTICE delivered the opinion of the court.
This case comes before us on a rule to shew cause why a
report of referees made in favor of the defendant, should not be
set aside, and was submitted without argument.
The objection to the report is, that the paper produced before
100 NEW JEESEY SUPEEME COUET.
Westcott v. Somers.
the referees, purporting to be a copy of the rule of reference, was
not a true copy, but variant ; and that the referees went into an
investigation of all matters in difference between the parties,
•whereas the reference was only of matters in difference in the
action.
There is certainly a diversity between the original rule and
the copy presented to the referees. The language of the former
is that " all matters in difference in the said cause be submitted ; "
of the latter " that all matters in difference between the parties
in the said cause be submitted." But it would be entirely too
strict; it would be losing the substance in search of the shadow,
to set aside a report for a difference scarcely discernible, except
by legal eyes, and which it is making no great presumption to
suppose, was observed neither by the referees nor by the parties,
•who were unattended by counsel, unless indeed some practical
injury has resulted to the plaintiff; unless some matters not
•within the cause, were actually made the subjects of enquiry and
adjudication by the referees. In the deposition of one of the
referees there is a general expression that they went into an
examination, and carefully examined into all matters in differ-
ence between the parties. But this expression is plainly consis-
tent and reconcileable with an examination only of the matters
in difference in the cause; for there may have been none other,
and is therefore of itself entirely too equivocal to sustain an
objection to the report. All uncertainty on this point, is, how-
ever, dispelled by looking further into the deposition. The
referee gives a general statement of the subjects of their exam-
ination. He says, " We went into an examination of the various
items contained in the set-off." And again, "We proceeded to
examine the accounts _ between the plaintiff and defendant, as
exhibited and set forth in the set-off." These, and not the
demand of the plaintiff in the action, seem to have been the real
and only subjects of controversy. It appears by the deposition,
that the referees received in evidence some receipts given by
Brazure Westcott, and also proof of articles sold to him by the
executor, at the vendue of the estate. It cannot however, with
propriety be urged, that Brazure Westcott was not a party,
and that these mattei-s therefore were not in difference in the
cause. For the claim stated in the notice of set-off is chiefly for
payments made and articles sold and delivered to Brazure West-
cott ; and moreover, the action is brought for a personal legacy
MAY TERM, 1827. 101
Chandler v. Monmouth Bank.
t>equeathed to the plaintiff by her father, she then being the wife
of Brazu re Westcott, and so continuing for some time after her
father's decease, although become a widow before the commence-
ment of the suit. Whether these matters were properly allowed
by the referees, we are not called to examine and decide. It is
enough for the present occasion, to find, us is manifest, that they
were in difference in the cause.
The reason assigned is not sufficient to affect the report.
MARTIN CHANDLER against MONMOUTH BANK.
A writ of certiorari will not lie, to relnove into this court, before trial, a com-
mon law action, depending in an Inferior Court of Common Pleaa.
A certiorari is the proper writ to remove an information or indictment, and
an habeas corpus to remove a civil action.
This case was argued by Wood, for the defendant in certiorari,
and. Watt for the plaintiff.
The CHIEF JUSTICE delivered the opinion of the court.
A writ of certiorari was sued out of this court to remove hither
an action in a plea of trespass on the case, instituted by Martin
Chandler against the president, directors and company, of the
Monmouth Bank, in the Inferior Court of Common Pleas of the
county of Monmouth, and depending in that court. Upon the
return of the writ a motion was made to quash it as improvi-
•• dently issued ; and the case presents for our determination the
question whether a writ of certiorari will lie, to remove into this
, court, before trial, a common law action, depending in an Inferior
Court of Common Pleas.
The argument in support of the writ, is, in substance, that
although not common nor usual, yet the writ is proper on com-
• mon law principles, and in the Court of King's Bench in England ;
that the use of it here has not been prohibited or abrogated ; and
that it was therefore lawfully issued, as this court possesses the
same general jurisdiction as the three groat common law courts
of Westminster Hall.
After the surrender of the powers of government by the pro-
prietors to Queen Anne, in 1702, and before the abolition of the
102 NEW JEESEY SUPEEME COUET.
Chandler v. Monmouth Bank.
regal authority, several ordinances were made by the provincial
governors, for the establishment and regulation of the courts of
the colony. These ordinances were founded on the powers given
to the first regal governor, Lord Cornbury, by his commission
from the queen, which was considered as the basis of the authority
of the subsequent governors. "And do give and grant unto you
full power and authority, with the advice and consent of our said
council to erect, constitute and establish, such and so many
courts of judicature and public justice within our said province,
under your government, as you and they shall think fit and
necessary, for the hearing and determining of all causes, as well
criminal as civil, according to law and equity, and for awarding
execution thereupon, with all reasonable and necessary powers,
authorities, fees and privileges, belonging unto them." Learn,
and Spicer, 651. On the presenfoccasion it will not be necessary
to look into any of those ordinances, earlier than that of the first
of August, 1751, entitled, "An ordinance respecting the Supreme
Court," (Book A. A. A. of commissions, &c. 313, Secretary's
office. 1 Hoist, app. 6) which remained in force on the second
day of October, 1776, when the act passed, entitled "an act to
confirm and establish the several courts of justice within the
Btate." Patt. 39.
By this ordinance the Supreme Court is empowered " to have
cognizance of, to hear, try and determine, all pleas, civil, crimi-
nal and mixt, as fully and amply as all or any of the courts of
King's Bench, Common Pleas or Exchequer, in that part of
the kingdom of Great Britain called England, have, or of right
ought to have; and any person or persons may commence and
prosecute any action or suit in our Supreme Court, and may, by
habeas corpus, certiorari, or any other legal writ, remove any
action, suit or plaint, out of any of the respective county courts,
sessions of the peace, or any other inferior court depending or
to be depending, and any judgment thereupon given or to be
given in any of the said courts; -provided always, that the com-
mencing and prosecuting any action, suit or plaint in the said
Supreme Court, and the removal of any information, indictment
or cause, matter or thing, be so commenced, prosecuted and re-
moved, according to, and, as near as may be, agreeably to the
laws in force in that part of the kingdom of Great Britain called
England, and the laws of our province of New Jersey not
repugnant thereto."
MAY TERM, 1827. 103
Chandler v. Monmouth Bank.
In the construction of this clause, the writs of habeas corpus and
certiorari, and other legal writs, being mentioned, it is manifest
that each is to be referred to its appropriate office, and not extended
indiscriminately to the removal of causes; for otherwise the ha-
beas corpus might be employed for the removal of indictments
pending, and of judgments given, in the inferior courts. It will
be seen also, that causes are to be removed, as near as may be,
agreeably to the laws in force in England, or, in other words,
conformably to the practice of the English courts. Now it is very
certain that whatever may have been the theoretical opinion, in
practice the certiorari was very rarely, and the habeas corpus
almost exclusively, used for the removal of causes from inferior
courts of record. Archbold (2 Archb. pr. 169) says, " The writ of
certiorari seldom occurs in practice in civil cases. The writ of
habeas corpus cum causa, being the one uniformly sued out to
remove causes from inferior courts of record." In the case of
Highmore v. Barlow, Barnes 421, a writ of certiorari to remove an
ejectment from the Mayor's Court of London was quashed. "The
practice appearing to be, that in ejectment a writ of habeas cor-
pus is the proper process to remove, and not a writ of certiorari."
From these considerations it may be justly inferred that the true
construction of the ordinance is, to authorize acertiorari to remove
an information or indictment, and an habeas corpus to remove a
civil action; such being "as near as may be, agreeable to the
laws in force in England." This construction is strengthened,
if not confirmed and established, by the unvarying practice, since
the ordinance, thus to use those writs, and by the uniform course
of legislation in respect to the removal of causes. Not an instance
of the use of the writ of certiorari to remove a civil action at com-
mon law was mentioned on the argument at the bar. Not an in-
stance, it is believed, is to bo found on the records of this court.
Surely the contended propriety of the certiorari could not have so
long escaped the astuteness of the profession, more especially
within the last twenty-five years, when the use of the habeas cor-
pus has been so much straitened. A steady undisputed course of
practice for three-quarters of a century, cannot fall far short of the
weight of an express adjudication. Let us review the course of
legislation. In the year 1797, when the abuse of the power of re-
moval by the presentation of a writ after the jury were convened
for the trial, required restraint, by the sixth section of an act
entitled "an act relative to proceedings in the courts of law," it,
104 NEW JEESEY SUPEEME COUET.
Chandler v. Monmouth Bank.
is enacted "that no action shall be removed from any of the
Courts of Common Pleas to the Supreme Court by writ of habeas
corpus, after a plea has been filed" Was not the manifest design
of the legislature to prevent a removal, after that period. The
evil existed in the removal not in the mode whereby it was
effected. If any other mode of removal had then existed, the leg-
islature would not have made a provision, useful in itself, and
earnestly demanded by public convenience, which might be so rea-
dily evaded as by the alteration of a few words of form, and the
adoption of another name. In the act of 9lh November, 1797,
which is entitled "an act to prevent suits under a certain sum
being brought in the Supreme Court," it is provided " that no
suit commenced in any of the Inferior Courts of Common Pleas
shall be removed by writ of habeas corpus into the said Supreme
Court, unless the debt, damages, matter or thing in controversy
shall exceed two hundred dollars; that no writ of habeas corpus
for the removal of a cause shall be received by the Inferior Court
of -Common Pleas to which it may be directed, nor shall any cause
be removed by such writ, after issue joined upon matter of law
or of fact." And " that if any cause be removed or stayed by
writ of habeas corpus, and afterwards be remanded or sent back
by writ of procedendo, or other writ, the same cause shall never
again be removed or stayed by any writ of habeas corpus." All
these provisions are certainly intended to apply to the removal
of the cause. It is true, the term, habeas corpus, is used, be-
cause.the legislature intended to regulate removals prior to judg-
ment, and by that mode such removals were effected. We cannot
suppose the legislature meant to prohibit the removal of a cause
under two hundred dollars by habeas corpus, and yet suffer it to
be removed by certiorari: or that the latter was left to be used
.after issue joined, although the former might not be; or that a
cause remanded after the one writ might be again removed by
the other. The removal itself was the object of legislation in
all these particulars, and the expression of the name serves to
shew a legislative declaration that such was the writ whereby,
^exclusively, such removal was obtained.
The consequences which would result from sustaining this writ
• cannot be overlooked on the present enquiry. A cause of any
.amount may be removed into the Supreme Court. It may be
.removed after the jury are convened, nay, after the plaintiff has
.exhibited his evidence. It may be removed as often as it shall be
MAY TERM, 1827. 105
Chandler v. Monmouth Bank.
remanded. No recognizance or other security can be required on
its removal. Not only suits pending in the Courts of Common
Pleas may be removed, but suits may be carried to the Supreme
Court from courts for the trial of small causes, for they are courts
of record, and the plaintiffs compelled to forego just demands, or to
expend more than their amount in the recovery. Such results
ought not to be hazarded to sustain a writ not warranted by the
practice of those who have gone before us. and the use of which
is not required for the furtherance of justice or convenience, since
all legitimate purposes may be attained by tne naoeas corpus.
Upon the argument at the bar some reliance was piacea on tne
determination of the Supreme Court of New York, in Jachsonv.
Corley, 14 John. 323, that a certiorari lay to remove an ejectment
from the Court of Common Pleas of the city of New York. The
propriety of such removal seems to have been placed by the
court on their own statute, which is said to put both writs "on
the same footing, and consider them equally efficacious, in the
removal of a cause." The statute referred to is in these words —
"that no writ of habeas corpus or certiorari shall issue out of
any court, to remove any prisoner out of any gaol, or to remove
any suit or action out of any Mayor's Court or Court of Com-
mon Pleas, or any indictment, presentment, inquisition, judgment,
order, record, recognizance or other proceeding, out of any other
court or from before any justice or justices of the peace, unless
the same be allowed and signed by one of the justices of the
court out of which the same shall issue." It does not become
us, nor do we intend, to call in question the construction placed
by that court on one of their own statutes. If, however, we are
compelled to consider it, because of its alleged bearing on the
case before us, we can see no obstacle, if both writs are on the
same footing and equally efficacious, to the use of the habeas
corpus in the removal of an indictment; and we are disposed to
believe, a construction which would operate, reddendo singula
singulis, by giving each its ancient and appropriate action, would
be most sound and defensible.
We are of opinion that the question presented to us should be
answered in the negative, and that the writ be quashed.
106 NEW JERSEY SUPKEME COUET.
Bennet v. Kite.
WILHELMUS BENNET against JACOB KITE, Administrator of SIMEON
CART RIGHT, deceased.
MANDAMUS.
If upon a transcript of a justice's docket, duly certified under hand and seal,
the justice, on the day after the certificate bears date, makes an endorsement
upon the back jof 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 Com-
mon Pleas.
Ityerson, for plaintiff.
Anderson, for defendant.
The CHIEF JUSTICE delivered the opinion of the court as follows .
An application is made to us in this case fora mandamus to the
Court of Common Pleas of the county of Sussex, to reinstate an
appeal.
The justice sent to the clerk of the court a transcript of the pro-
ceedings and judgment in the cause,duly certified underhand and
seal, the certificate bearing date on the 20th day of February, 1826,
one day prior to the term of the court next after the judgment.
On the back of the transcript is an endorsement in the hand-
writing of the justice as follows: "February 21, 1826, the defend-
ant appeared and filed an affidavit, and produced bond, signed
Wilhelmus Bonnet and Isaac Carmer, and demanded an appeal,
which I excepted and granted.
JOHN LAYTON, Justice of Peace."
At May Term, 1826, the court, on motion of the appellee, dis-
missed the appeal because there was not sufficient evidence before
the court of the demanding of the appeal.
We are of opinion the Court of Common Pleas did right in con-
sidering the endorsement on the transcript and the matters stated
in it as not properly before them. It was no part of the transcript
of the proceedings, entered according to the statute, by the justice
on his docket, and which he was required to make and certify, and
had made and certified, under his hand and seal. It was not made
under permission given by the Court of Common Pleas to the jus-
tice to amend or complete his transcript. It was not made in con-
sequence of a rule of the court for a certificate of matters which
the justice ought to have entered on his docket, but had omitted.
Such permission and such rule, that court has authority to grant,
at the instance of either party. And they are common in practice.
In one or other of these modes the case ought to be brought before
MAY TEEM, 1827. 107
The State v. Schanck.
that court. But the endorsement in question is not sustained
by either of them.
The dismissal of the appeal in this instance, by the Court of
Common Pleas, might at first view seern to savor of rigor. But
it is not so. It is the duty of the parties to take care that the
proceedings are conformable to law. And it is only in a careful
conformity to law by the courts, whenever questions are pre-
sented before them, that either guide or safety can be found for
them or for the parties.
Mandamus refused.
CITED 15 Tichenor v. Hewson, 2 Or. 29.
THE STATE against TYLEE SCHANCK.
CERTIOBAKI TO COMMON PLEAS.
J. Whether notices of the application for the appointment of surveyors have
been set up at three of the most public places in the township where the road
is to be laid out, is a point upon which the judgment of the Court of Common
Pleas is final and conclusive.
2. The return made by the surveyors will not be considered vague and uncer-
tain because the several courses of the road set forth in the return, are said to
be as the magnetic needle of the practical surveyor engaged in laying out the
road, pointed on a particular day ; nor because the route had been run on a
subsequent day by two other surveyors, who found a small difference of course
on the iirst line, and at the termination of the road a departure of about four
chains ; a fourth surveyor agreeing with the first.
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 differ-
ent person, and no adjournment of time or place shewn in the return, is not
sufficient to vitiate the return.
• 4. After the return of a road is recorded, the applicants cease to have, alone,
the control over it.
Wood and Ryall, for plaintiff in certiorari.
Wall, for defendant.
The CHIEF JUSTICE delivered the opinion of the court.
The first reason assigned for setting aside the recording of the
return of the road in question, is, that it was not shewn to the
Court of Common Pleas, that the notices or advertisements of
the application for the appointment of surveyors had been set
up at three of the most public places in the township whore the
road was proposed to be laid out.
It is a sufficient answer to this reason, that the Court of Com-
mon Picas have, as required by the statute, adjudged the adver-
tisements in question to have boon sot up agreeably to law j and
108 NEW JERSEY SUPREME COURT.
The State v. Schanck.
that, in the words of the statute, the judgment of that court on
this point is finul and conclusive. We are not at liberty to call
into examination the correctness of the determination of the
court. The subject was clearly within their jurisdiction ; and the
legislature obviously designed to prevent, as they had a right to
do, if they thought proper, a review here. Otherwise the terms
of the statute are without meaning, force or effect.
The second reason is, that the return made by the surveyors is
vague and uncertain. It is insisted to be so, first, because the sev-
eral courses of the road set forth in the return are said to be as the
magnetic needle of the compass of Leonard Walling, the practical
surveyor engaged in laying out the road, pointed on the 17th and
18th of August, 1824, the days on which they were run out. In
this mode of expression we see nothing of uncertainty. It is no
more than a designation of the instrument by which the observa-
tion of the courses was made. It is admitted that it would have
been correct for the surveyors to have said, we run N. 35° 43VE.
Can it then be uncertain to say, what is really the fact, and what
is always understood, though not always expressed, as the needle
pointed which was used by us ? The remark made by the counsel
of the defendant in certiorari is just. It really adds to the cer-
tainty of the return. Let us suppose it to be requisite some
twenty years hence, to ascertain the exact location of these courses
when the monuments mentioned may be gone. What variation
shall the survej-or allow ? What allowance shall he make for the
known difference of instruments ? His answers to these questions
must be conjectural, as these returns are commonly drawn. But
in the present case, he will resort to some line in the neighbor-
hood known also to have been run by the compass of Leonard
Walling, and his answers will then approach, if not attain, to cer-
tainty. Second : The return was said to be uncertain because
the route had been run on a subsequent day by James H. Newell
and James Robinson, deputy surveyors, with their compasses,
who agreed in their observations, and found a small difference of
course on the first line, which, followed out through the courses
of a road of several miles, found at the termination a departure
of about four chains. By the depositions of Leonard Walling,
and of Thomas Debow, another surveyor, it appears they also,
at a subsequent day, agsiin run out the road, each with his own
compass. . They agreed, and found the original survey, as
they believed, entirely correct. Who then can say the courses
MAY TEEM, 1827. 109
The State v. Schanck.
contained in the return are incorrect ? Is it shewn that the instru-
ments of Newell and .Robinson were more sure and perfect than
those of Walling and Debow ? Or that the former were more skil-
ful and experienced artists than the latter? The difference be-
tween them is a very few minutes, and is nothing more than the
variance common among instruments, and very common among
surveyors. If a return is to be set aside because an instrument
and surveyor, not shewn to be in the slightest degree superior,
nay, not even shewn to be equal, in accuracy and skill, to the
original instrument and surveyor, differ somewhat in the survey,
is it not manifest that the act for laying out roads is repealed
without the will or intervention of the legislature?
The third reason is, that the surveyors met on the 17th
August, 1824, at the house of John Casler, in Freehold, that the
return is dated and signed on the 21st of the same month, at the
house of William Johnson, in Mount Pleasant, and that no
adjournment of time or place is shewn in the return. The case
of the Monmouth and Middlesex road, decided in this court, and
reported in 1 South. 290, is in point on this head, and we need
do no more, therefore, than refer to it. In that case the sur-
veyors met on the 23d day of September, 1818, at the house of
John Casler, in Freehold, and the return is dated and signed on
the 26th day of the same month, at Cranbury. The objection
was overruled and the return sustained. The report of the case
does not mention the difference of place, but we have examined
the original papers from the files of the clerk's office.
In the fourth place, it is alleged that the freeholders appointed
by the court to review the road, did not perform their duty. A
recurrence to the facts at once dispels this objection. The free-
holders were directed to view the road as laid out by the sur-
veyors; and they required Mr. Newell to run the road from
monument to monument, as mentioned in the return. Where
else were they to go to find it? certainly not on the route he
proposed to have shewn to them.
It is said in the fifth place, the recording of the return ought to
be quashed, because, since the suing out of the writ of certiorari, it
was agreed between the prosecutors of the writ and certain of tho
applicants for tho road, that the proceedings here should be sus-
pended, until another road, in some parts different, but substan-
tially tho same, should be applied for by the prosecutors, and if
obtained, as has been done, tho road now in question should by
110 NEW JERSEY SUPREME COURT.
Hoskins v. Paul.
consent be set aside. It may well be doubted whether this court
would be warranted in setting aside a road after it had been
established and recorded, and thus become, as it were, the prop-
erty of the public, upon the consent or confession of errors of
some of the original applicants. They cease to have, alone, the
control over it after it is recorded. Another mode of vacating
a public road is pointed out by the road act. However this
matter may be, it is clear we cannot coerce the applicants to
come in and confess error, nor can we reverse the proceedings
unless sufficient error is confessed or shewn. The case of The
State v. Woodward, decided at the last term, was cited by the
counsel of the prosecutors. But it bears no analogy to the
present circumstances. We there decided that in the just exer-
cise of the legal discretion confided to this court, a certiorari in
a matter of road ought not to be granted to a person whose
avowed cause of complaint was an alleged variance of the route
.laid from the route originally proposed, which had been induced
at his request and by his urgency.
Let the recording of the return be affirmed.
CITED IN State v. Green, 3 Sarr. 182. Matter of Highway, Id. 293. State v.
Smith, 1 Zab. 91.
JOHN HOSKINS and CHARLES KINSEY, Assignees of PETER BAR-
KER, against JOHN PAUL and JOSEPH M. PAUL.
IN EEPLEVIN.
1. The goods of one of three joint-lessees found upon the demised premises,
are liable to be distrained for rent, although the tenant had, previous to rent's
becoming due, made an assignment of them under the insolvent act, to assignees
for the benefit of his creditors.
2. Though unfinished cloth, sent to a fulling mill to be wrought, is exempt
from distress as well by the common law as by the statute of this state, yet this ex-
emption extends only to goods of strangers and not to goods of the tenant himself.
It is agreed between the parties in the above cause, and their
attorneys, that the same be 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,
MAY TERM, 1827. Ill
Hoskins v. Paul.
that judgment be entered for the defendants accordingly, with
costs, in conformity with the agreement between the parties.
Dated November 27th, 1823. Viz.:
1st. That Peter Barker, of the city of Burlington, New Jersey,
on the 26th October, 1822, by deed of assignment of that date,
assigned to the plaintiffs all his estate, real and personal, in
trust for the benefit of the creditors of the said Peter Barker,
according to the act of the legislature of New Jersey entitled
"An act to secure to creditors an equal and just division of the
estates of debtors who may convey to assignees for the benefit
of creditors," passed the 23d February, 1820; to which assign-
ment were annexed an inventory under the affirmation of the
said Peter Barker, of his estate, real and personal, a list of his
creditors and the amount of their claims, such as could be ascer-
tained, pursuant to the said act ; and possession of the said estate
was delivered by the said Peter Barker to the said assignees, upon
the execution of the said assignment, excepting the goods here-
inafter mentioned; and said assignment was recorded in the
clerk's office of the county of Burlington, 29th October, 1822.
2. That the said assignees gave public notice of the said
assignment, and that creditors make their claims under oath or
affirmation, and did exhibit to the surrogate of the county of
Burlington, under affirmation, a true inventory and valuation of
said estate, as far as had como to their knowledge, and did enter
into bond with sufficient security, to the governor of New Jersey,
for the faithful performance of said trust, which bond and inven-
tory were filed in the said surrogate's office, a receipt for the
said bond endorsed by the said surrogate upon the said assign-
ment, and the assignment recorded in the clerk's office of said
county, 16th December, 1822.
3d. That at the time of the execution of the said assignment,
certain of the goods thereby assigned, and mentioned in the
inventory accompanying the same, and in the in ventory afterwards
exhibited by the said assignees, viz. Thirteen pieces of sattinet,
and eight pieces of cassimere, were at a certain fulling mill at
Euyres' Town, in the said county of Burlington, having been sent
there by the said Peter Barker for the purpose of being fulled,
and which said fulling mill was leased by the defendants to the
said Peter Barker, John Colvin and Joseph E. Garwood, for one
year from the 25th March, 1822, at the yearly rent of four hun-
dred and fifty dollars, payable in half yearly payments, and that
112 NEW JEKSEY SUPKEME COUJRT.
Hoskins v. Paul,
six months' rent for the said premises, amounting to two hundred
and twenty-five dollars, became due from the said Barker, Colvin
and Garwood, to the said defendants, on the 25th September, 1822.
4tb. That on the 5th November, 1822, the said thirteen pieces
of sattinet, and eight pieces of cassimere, being in the said fulling
mill, unfulled and in the same state as when sent there by the said
Peter Barker, were distrained by the said defendants for the said
six months' rent being then due to them from the said Barker,
Colvin and Garwood, and were replevied by the said plaintiffs on
the day of November, 1822, and that the said defendants had
notice of the said assignment before making the said distress. —
But no actual possession of the said goods had been taken by the
plaintiffs, other than the possession arising from the assignment
and the proceedings under the same, and the possession of the
rest of the property described in the same.
CHARLES KINSEY, Atfy for the plaintiffs.
GARRET D. WALL, Atfy for defendants.
The cause was argued by Kinsey for the plaintiffs, and Wall
for the defendants.
The CHIEF JUSTICE delivered the opinion of the court.
Peter Barker, John Colvin and Joseph E. Garwood, were lessees
of a fulling mill, for which six months' rent became due on the 25th
September, 1822, to John Paul and Joseph M. Paul, the landlords.
On the 26th of October, 1822, Peter Barker made an assignment
of all his real and personal estate to Hoskins and Kinsey, the plain-
tiffs in this case, for the benefit of his creditors, according to our
statute of the 23d February, 1820. On the 5th November, 1822,
the landlords distrained certain pieces of unfinished sattinet and
kerseymere then in the fulling mill, which had been sent there by
Barker, previous to the assignment, for the purpose of being
fulled, and which are part of the goods mentioned In the inventory
accompanying the assignment. The validity of the assignment
and the conformity to the statute of the proceedings of the assignees
under it, are not brought into question. The assignees prosecuted
an action of replevin and now insist that the goods were not dis-
trainable. 1. Because they were not at the time of the distress the
goods of Barker, the tenant. 2. Because they were privileged
from distress, having been sent to the mill in the way of trade.
1. By the eighth section of our statute concerning distresses,
MAY TERM, 1827. 113
Hoskins v. Paul.
Rev, Laws, 201, it is declared to be lawful to take and seize as a
distress for arrears of rent, any of the goods, and chattels of the
tenant, and not of any other person although in possession of such
tenant, which may be found on the demised premises, except such
goods and chattels as are by law privileged from distress. To
understand the just operation of this section, and to give it a cor-
rect construction, it is necessary to recur to the common law as it
stood at the making of the statute, and which has been thereby
altered. At common law, whatever goods and chattels, except
exempted under particular circumstances, as when sent there in
the way of trade, and the like, the landlord found on the premises,
whether they belonged in fact to the tenant or a stranger, were
liable to distress for rent. 3 Bl. Com. 8. As if a stranger sent his
horse or cattle on the demised premises to pasture, they might be
immediately distrained by the landlord ; and so far was the rule
considered to extend, that in the case of Francis v. Wyatt, 3 Burr.
1498, it was held that a gentleman's carriage sent to a livery sta-
ble was liable to distress for rent due from the tenant of the stable.
The object of the alteration introduced by our statute was to re-
strain the generality of the right of distress as it stood at common
law, and to establish a rule more just in its operation, and more con-
formable to public utility and convenience. But neither the reason
of the thing, the design of the legislature, nor the remedy intended,
will justify the extension of the exemption to the goods now in
question. The statute will not bear such a construction. The
evil to be corrected was the injustice of seizing the property of a
stranger, when it happened to be brought, on some lawful occasion
•and for some lawful purpose, upon the premises, and applying it
to the payment of a debt of the tenant. There is no such injus-
tice in taking the property of the tenant, which may have been on
the premises during the whole period of the demise, and up to the
moment of seizure, though a short time before placed by him in
a course of application to the payment of his debts. The pal-
pable difference between the two cases is, that in the one, prop-
erty which never belonged to the debtor is snatched from the
innocent owner; and in the other, a mere preference over other
creditors is given to the landlord, the payment of whose claim
for rent is always a favored object of the law. In the one case,
the property of a man, without fault and without compensation,
is taken from him; in the other, no injury is really done to credi-
tors, because all calculate on the liability of the goods to satisfy
VOL. IV. H
114 NEW JEESEY SUPEEME COTJET.
Hoskins v. Paul.
the arrears of rent. It is true the legal ownership of the prop-
erty, is, by this assignment, passed from the debtor and vested in
the assignees, but it is sub modo only; and the construction I
have given to the statute is supported by the thirteenth section,
of the act respecting assignments, Rev. Laws, 676, which declares
the assignee to have as full power and authority to dispose-of the
estate, as the debtor had at the time of the assignment..
2. According to the common law, goods otherwise liable to dis-
tress, are, under certain circumstances, exempted; thus, corn
sent to a mill, yarn at a weaver's, cloth at a taylor's shop to be
made into garments, and the like, Co. Lit. 47, a; and the princi-
ple doubtless extends to unfinished cloth sent to a fulling mill to
be wrought. This protection is preserved by our statute. " Suoh
goods and chattels as are by law privileged from distress" are
expressly saved from liability. But this is an exception to the
general rule at common law subjecting to distress the goods even
of a stranger found on the premises. It was designed for the en-
couragement and benefit of trade; and extends only to the goods
of others, not to the goods of the tenant himself. These are not
exempted, although on the premises, or sent thither by him to bo
wrought upon according to his trade. Blackstone says, " the
articles privileged are supposed in common presumption not to
belong to the owner of the house, but to his customers." 3 Bl.
Com. 8. Hargrave, in note 295, on Co. Lit. 47, a, mentions some
instances of exemption from distress, and then refers to the case
of Francis v. Wyatt "for other cases, in which things, the property
of strangers, are privileged from distress for the sake of trade
and commerce." In Gisbourn v. Hurst, 1 Salk. 249, the court
state the rule to be that "goods delivered to any person exercising
a public trade or employment, to be carried, wrought or managed
in the way of his trade or employ, are, for that time, under legal
exemption, and privileged from distress." The true foundation
of the exemption from distress in the excepted cases is said to
be, "the detriment the common weal would suffer if such things
should be liable to distress for rent." Now it is manifest the
common weal can suffer only by distraining the goods of stran-
gers, and never by distraining those of the tenant himself.
We are therefore of opi nion, that the goods seized were liable to
distress, and that judgment should be rendered for the defendants.
CITED IK Allen v. Agnew, 4 Zab. 444. Hamilton v. Hamilton, 1 Dutch. 547.
MAT TERM, 1827. 115
Woodward v. Woodward.
SAMUEL TAYLOR, APOLLO WOODWARD and WM. I. EMLEY, Ex'rs
of ABNER WOODWARD, dec'd, against HORACE N. WOODWARD.
A legacy charged upon real estate may be attached in the hands of the devisee
of the real estate, for a debt of the legatee.
But a mere personal legacy is not attachable.
A writ of attachment had been sued out by the executors of Ab-
ner Wood ward, deceased, against HoraceN. Wood ward, for a debt
due to the deceased in his lifetime, by virtue of which writ the
sheriff of Monmouth attached a legacy of $4000 bequeathed by
Abner Wood ward, deceased, to the said Horace N. Wood ward, and
ordered by the testator to be paid by his son Apollo Woodward, to
whom the testator had devised a plantation, subject to the pay-
ment of this legacy. The writ of attachment was returned to the
term of February, 1826, and now at this term
Wood, for the defendant in attachment, moved to quash the writ
of attachment, and set aside the levy of the sheriff. Because he
had levied upon a legacy which was not, as he contended, attacha-
ble. This legacy was a mere trust or equitable demand. In attach-
ment the sheriff could only levy upon common law rights, and
these charges upon real estate are not the subjects of common law
jurisdiction. If there have been no promise by the devisee to the
cestui que trust, an action at common law will not lie to recover
them. 1 Dessau. Rep. 588. 3 Cruise Dig. tit. Prescription, ch. 2, sec.
59. 1 Vern. 256. Serg. on Attach. 86. This court, in the case of Thorn
v. Wright, decided in September Term, 1826,* determined that a
* The case of Benjamin Thorn v. Isaac Wngkt, was not reported with the cases
of September Term, because it was understood that the same question would arise
in the case of The Executors of Woodward v. Woodward, and receive a more elab-
orate discussion before the whole court, (the Chief Justice being prevented by in-
disposition from taking any part in the decision of the case of Thorn v. Wright).
That case came before the court on a motion made by D.Oroxall to quash the writ
of attachment and the return of thesheriff thereon, by which it appeared that the
sheriff had attached a pecuniary legacy bequeathed to the said Isaac Wright, in
the hands of the executors ; and it was insisted in support of the application, that
as a legacy could only be recovered in a Court of Chancery, and no action at com-
mon law would lie for the recovery thereof, that it was not such a property or
right as could be attached by virtue of the attachment act ; for the word rights,
used in the statute, meant only legal rights. No Action could be brought to re-
cover it until a refunding bond had been given. Rev. Laws 50, sec. 3.
Hamilton, contra.
FORD, Justice. A legacy is not a right at common law. It may be reduced k
a right by the legatee, if he pursues the provisions of the statute, (Rev Laws. 50,
sec. 3). The right does not vest until the bond has been offered or filed. There
is no provision in the attachment act requiring the attaching creditor to give
sacli bond. How then is the executor to obtain the indemnity the refunding
bond was intended to afford ? I am of opinion, therefore, that this legacy is not
attachable, ami that the writ of attachment and return must be quashed.
JUSTICE DRAKE concurred.
CITED IN Woodward' « Ex. v. Wood ward, 4 Hal. 115. Shinn v. Zimmerman, 3 Zab,
101. Osborne v. Edwards, 3 St<.cH. 73. See Taylor, Ex. v. Woodward, supra.
116 NEW JERSEY SUPEEME COURT.
Woodward v. Woodward.
personal legacy was not attachable ; and the principle settled in
that case must govern this.
Wall, contra, contended, 1. That the debtor ought not to bo
permitted to interpose an objection to this attachment, and
thereby virtually to say that this property ought not to be taken
for the payment of his debts. 4 Bin. Rep. 373.
2. That though he was not disposed tx> controvert the general
position that a legacy could not be attached, yet that rule 'applied
only to pecuniary legacies, and depended upon principles different
from those applicable to legacies charged upon land. Serg. on At-
tach.86. 6 Mod. 26. ZSalkAlb. 2Ld.Kay.$3>7. 3 John. Hep. 189.
The CHIEF JUSTICE delivered the opinion of the court.
Abner Woodward, by his will dated 22d April, 1825, and proved
13th Kovember, 1825, devised a plantation to his son, Apollo Wood-
ward, in fee simple; and bequeathed to his son Horace N. Wood-
ward, the sum of four thousand dollars, which he ordered his son
Apollo to pay, and directed that the plantation above mentioned
should be bound for the payment of the legacy by his son Apollo.
After the decease of the testator, the executors sued out a writ
of attachment against Horace N. Woodward, for a debt due to
the deceased in his lifetime; which writ was returned to the
term of February, 1826, by the sheriff, that he had attached the
above mentioned legacy in the bands of Apollo Woodward.
The counsel of Horace N. Woodward, the defendant in attach-
ment, moves to quash the return, and insists that the legacy is
not attachable, first, because not suable at law, but in equity
only ; and second, from analogy to the case of a personal legacy,
which has been held in this court not to be liable to attachment
in the hands of executors.
1. The statute respecting attachments authorizes the sheriff to
attach the goods and chattels, rights and credits, moneys and
effects, lands and tenements, of an absconding or absent debtor.
This writ is an useful remedy, sometimes the only method, where-
by the creditor can secure his debt. It is therefore to receive a
liberal, not a rigorous regard. The terms of the statute are
abundantly sufficient to comprehend the case of a legacy, and
ought so to be construed, unless there be something in the nature
of the subject, or the mode of recovery, or the tribunal having
jurisdiction over it, which may prevent. It is clear there are
MAY TERM, 1827. 117
Woodward v. Woodward.
circumstances under which a legacy charged on land is recover
able in a court of common law. This position is fully sustained by
the following cases. Ewer v. Jones, 2 Salk. 415 ; 2 Ld. Ray. 937
Nicholson v. Shearman, T. Raym. 23. v. 1 Siderf. 45.
Paschell v. Keterich, 2 Dyer, 151. b. Sambern v. Sambern, 2 Bulst.
257. Hawkes v. Saunders, Cowp. 289, per J3uller,just. Livingston
v. Livingston, 3 John. 189. Beeker v. Seeker, 7 Jo/in. 99. Fa?ior-
rfen v. Vanorden, 10 «7o/w. 30. On the other hand, two authorities
only were cited on the argument at the bar, by the counsel of tho
defendant. 3 Cruise 566, tit. Presumption, ch. 2, sec. 9, where tho
writer says, A legacy given out of real property is only recovera-
ble in a court of equity. Cruise refers to a single case in support
of this position, 1 Vern. 256, where the question was not men-
tioned, and it does not even appear thai; the legacy was given out
of real property. The other case was from 1 Dessau. Ch. Hep. 588.
The grounds on which that decision was made are not distinctly
shewn, and may have been something in the statute law or pecu-
liar customs of the state of South Carolina. It is, however, not
strong enough, if determined on general principles applicable
elsewhere than in that state, to overcome a multitude of contrary
cases. If, under no circumstance, a legacy, charged on hand,
were suable at common law, there would be some foundation for an
objection to the return in question. But as such cicumstances
may exist, the objection is premature, and can only be raised with
propriety, when a claim is made against the garnishee, by tho
regular course of procedure, calling on him for payment. If then
such circumstances cannot be shewn, he may avail himself of the
want of them, and successfully resist the demand of the plaintiff
in attachment. But it is said the garnishee may have no inter-
est to resist the claim, and may omit to do so. And if he should,
the debtor has no cause of complaint. If the debt on which
the attachment is founded is just and honest, he can have no room
for complaint that his property is applied to satisfy it. If not due,
or unjust, ho should dissolve the attachment, and defend himself
against it. Again, it is said, the lands charged with the legac}-
may be swept away from the devisee for the payment of tho debts
of tho testator, and if therefore, he should pay tho legacy under
tho attachment, he might be subjected to loss. Against such an
event the garnishee may readily protect himself. But ought any
court to listen to such a complaint from tho debtor? lie can
sustain no injury; and he ought not to bo allowed to shelter
118 NEW JEKSEY SUPEEME COUET.
Haggerty v. Vankirk.
the legacy and abstract it from the reach of the law and of his
creditors, under a peradventure that the devisee will not be wise
enough to take care of .himself.
2. In the second place, .the present legacy was insisted to be
not liable to attachment from analogy to a personal legacy.
But there is a wide difference between the -two cases; so that a
barrier may properly exist in the one which is not to be found
in the other. A personal legacy cannot be demanded until a
refunding bond, with two sufficient sureties, is tendered to the
executor, nor be sued for until such bond, if refused on tender,
is filed. Rev. Laws, 50, sec. 3. No such preliminary is required or
necessary in the case of a legacy charged upon land. If then an
executor was liable to be made garnishee in attachment, he might
be subjected to make payment without that reasonable indemnity
which the law has provided for him. Upon this ground mainly
as I have understood, for I was absent from indisposition when
the decision was made, this court, in the cause of Thornv. Wright,
quashed an attachment levied on a personal legacy in the hands
of executors.
We are of opinion, therefore, that the objections to the return
are not sustained, and that the motion to quash it ought to be
overruled.
CITED IN Shinn v. Zimmerman, 3 Zab. 151. Osborne v. Edwards, 3 Stock. 78.
See later decision in Taylor, Ex. v. Woodward, 1 Hal. Oh. 1.
CHRISTOPHER HAGGERTY, Appellee, against PETER VANKIRK,
HENRY C. KELSEY and JAMES BRASTED, Executors of THOMAS
VANKIRK, deceased, Appellants.
If plain tiff's state of demand exhibit an original claim exceeding one hundred
dollars, a general credit " by sundries," reducing the Bum demanded below one
hundred dollars, will not be sufficient to give the justice jurisdiction.
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 demand for one hundred dollars.
MAY TERM, 1827. 119
Haggerty v. Vankirk.
(which contained several items of book account, in the usual
form, amounting to £38 18 7
And then gives credit to the defendant thus) " credit
by sundries," - 925
£29 16 2
Equal in dollars and cents to - $75 52
Interest on the above amount to this day 24 48
- $100 00
The defendants below filed no set-off or account, and upon
this statement of demand a trial was had, before the justice, and
a verdict and judgment rendered for the plaintiff below, the
appellee in the Court of Common Pleas, for the sum of ninety-
nine dollars. Upon the calling of the appeal in its turn, the
defendants below, and appellants in the Court of Common Pleas,
moved the said court by their counsel, to set aside and dismiss
the proceedings, upon the ground that the sum in the plaintiff's
state of demand exceeded the jurisdiction of the justice originally,
and of the Court of Common Pleas on the appeal ; and that the
credit given by the plaintiff below was not set out with particu-
larity and certainty, to enable him thereby to reduce his account
•within the jurisdiction of the justice. Of this opinion was the
court, and refused to try the cause; and ordered the proceedings
to be set aside and dismissed. But before the argument on this
motion was closed, and before the court delivered any opinion,
the appellee, the plaintiff below, offered to the court, to prove
that the credit given on the statement of demand was not ficti-
tious, but was a bona fide credit or set-off, on and against the
account of the appellee, which offer the court refused.
The above appeal was tried at the present November Term of
the Inferior Court of Common Pleas of the county of Sussex, when
the above stated proceedings took place; and it is now agreed
between the counsel in the above cause, that the counsel for the
appellee may move the Supreme Court of Judicature of this state,
at the next February or May Term, for a peremptory mandamus
upon the Inferior Court of Common Pleas of the county of Sussex,
to restore the appeal and proceedings before the said court in said
cause ; and in case the Supreme Court shall be of opinion that the
Court of Common Pleas aforesaid ought not to have set aside tho
120 NEW JEHSEY SUPKEME COUKT.
Tillou v. Britton.
proceedings and dismissed the same in the cause aforesaid, that the
said appeal and proceedings be restored. November Term, 1825.
THOS. C. KYERSON, of counsel with appellee.
ALPHEUS GUSTIN, of counsel for the appellants.
This case was argued by Ryerson and Halsey for the appellee,
and Vroom for the appellants.
THE CHIEF JUSTICE delivered' the opinion of the court,
"We feel ourselves bound by the authority of decided cases on
this subject to say, that a general credit, by sundries, like that in
the present instance, is not sufficient to bring the cause within
the jurisdiction of the justice. In the case of Trice v. Oxenius, Penn.
660, the court declare that a credit of this kind is too vague. In
La Rue v. Boughaner, 1 South. 104, the court say, "If a plaintiff
will give credit and strike a balance, he must do it fairly and
according to the truth, shewing the particulars, with their dates, as
they are in the account." In Williams and Priestly v. Hamilton,
1 South. 220, the court came over the same ground again, and de-
cided the same way. If the question was a new one, we should
all be, probably, of a different opinion; at least, we should hesi-
tate very long before we should give such an opinion. But yield-
ing to the weight of adjudged cases, we are compelled to refuse
the application for a mandamus.
Mandamus refused.
CITED IN Griffith v. Clute, 4 Hal. 264. Farley v. Mclniire, 1 Or. 190. Howdl v.
Burnett, Spen. 266. Pinkney v. Ayres, 1 Zab. 697.
FRANCIS R. TILLOU against SAMUEL BRITTON.
1. To an action brought by the endorsee against the drawer of a promissory
note, payable at a particular bank, without defalcation or discount, the defend-
ant cannot set off a demand which he may have against the bank which dis-
counted the said note, and transferred it to the plaintiff.
2. It makes no difference in this respect, whether the note was transferred
after or before its maturity.
3. A notice subjoined to the general issue, stating "that at the time the note
(in question) was discounted, the bank paid the defendant the amount thereof
in its own bills, that afterwards, before the note' became payable, and while the
bank was still the holder thereof, the defendant tendered the same identical
bills to the bank in payment of the note, but it would not receive them ; of all
•which the plaintiff had notice before he took the endorsement : and the defend-
ant still holds the same bank bills, unpaid and unsatisfied," is bad, in substance,
MAY TEEM, 1827. 121
Tillou v. Britton.
because it does not contain such matter, as, if pleaded, would be a bar to the
action.
4. So also, a notice stating "that while the bank was the holder of the note
the saifl bank became indebted to the defendant, in the sum of four hundred
dollars, whereupon the defendant offered to set off so much of his demand as
would satisfy the said note; and that the bank was in failing circumstances, of
all which the plaintiff had notice before he took the said endorsement, and that
the transfer thereof to him was fraudulent and void," is bad, in substance, not
containing such matter as would be a bar to the action.
5. So also, a notice containing the following statement of facts would be bad
for the same reason, viz.: " That the bank gave its own bills for the note in
question, when it was in failing circumstances, and destitute of funds to redeem
them, and in fact, refused to take the same bills back again in payment of the
note, and that the plaintiff knew these facts when he received the note by
endorsement."
6. So also, a notice, stating "that while the bank was the holder of the
defendant's note, it became indebted to him in a larger sum than the amount
of the said note, and that the bank was in failing circumstances; of all which
the plaintiff had notice before he took an endorsement of the note, and that the
said transfer was contrived by fraud, covin, collusion and guile, with intent to
defraud the defendant of the amount of said note; and that the transfer of the
same to the plaintiff was fraudulent and void," is bad.
7. So also is a notice bad which states " that the bank, while the holder of
this note, was indebted to the defendant and divers other persons, in large sums
of money, amounting to one hundred thousand dollars, and being in failing
circumstances, transferred the note to the plaintiff with intent to delay, hinder
and defraud creditors."
8. So also a notice stating "that the bank, being indebted to the plaintiff,
transferred the note to.him lor the purpose of giving him an advantage over
the other creditors of the bank, whereby he should be first paid, and receive a
greater proportion than others, contrary to the statute in such case made and
provided," is bad.
9. A debtor in failing circumstances may prefer a creditor.
10. The act "to secure creditors an equal and just division of the estate of
debtors who convey to assignees for the benefit of creditors," (Rev. Laws 674)
does not extend to a solitary transfer of an individual item of property to a
creditor in payment of a debt ; and the operation of the act must be confined,
if not to cases where a trust is created, at least to cases where there is something
like universality in the assignment.
11. To .make a tender valid, the debt must be due at the time of the tender.
Per FORD, Justice.
12. Nothing which would be matter of substance, in a plea, must be omitted
in a notice. Per FORD, Justice.
13. A notice may present as many independent defences as could be set up
by way of special pleading. But each defence must stand by itself as much as
in a plea, so that it may plainly appear where one defence ends and another
begins. Per FORD, Justice.
14. Fraud may be given in evidence by a defendant under the general issue,
without giving previous notice; or where facts are intermixed with matter of
law, may be pleaded specially, or notice be given under the statute. If no
notice be given, the particulars must be opened to the court at the time of the
trial, that it may see whether they amount to fraud. Per FORD, Justice.
14. If previous written notice of particulars be given, it stands in the place of
an opening, and the court must adjudicate on its sufficiency. Per FORD, Justice.
15. The particulars must be shewn in a notice as fully as in an opening. Per
FORD, Justice.
122 NEW JEESEY SUPEEME COUET.
Tillou v. Britten.
This was an action of assumpsit, brought by Francis E. Tillou,
as 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 endorse-
ment except that of Provost) to Tillou.
The declaration was in the usual form. The defendant
pleaded — 1. The general issue. 2. Payment to the president,
directors and company of the State Bank at Trenton, before the
endorsement to the plaintiff ; and that he had notice thereof
before he received the note.
And with these pleas the defendant gives notice that he will
give in evidence, under the plea of payment —
1. That the said promissory note of this defendant, in the
declaration above mentioned, after the making thereof, and
before any transfer or delivery thereof to the said plaintiff, to
•wit, on the said eighteenth day of April, in the year of our
Lord one thousand eight hundred and twenty-five, at Trenton
aforesaid, was, by the said Paul M. Provost, endorsed and
delivered, and the contents thereof by that endorsement ap-
pointed, to be paid to the president, directors and company of
the State Bank at Trenton, and was received and discounted by
them, the said State Bank; and that afterwards, and while they
the said State Bank, were the holders of the said note, and
before any transfer or delivery thereof to the plaintiff, to wit,
on the same day and year last aforesaid, at Trenton aforesaid,
this defendant became possessed of, and was the lawful holder,
of the bank notes of the said State Bank, to a large amount,
to wit, the sum of four hundred dollars; and this defendant then
and there tendered and offered to pay to the said State Bank,
in their said notes, the full amount of the sum mentioned and
contained in the said note of this defendant, and demanded his
said note ; that the said State Bank then and there refused to
accept the said payment, or to give up the said note of this
defendant; of all which premises the said plaintiff, afterwards,
'and before any transfer or delivery to him of the said note of
this defendant, had notice; and this defendant still holds the
said notes of the said State Bank, unpaid and unsatisfied.
2. And this defendant will also give in evidence — that after the
MAY TERM, 1827. 123
Tillou v. Britton.
aforesaid endorsement and delivery by the said Paul M. Provost
to the said State Bank, of the note of this defendant in the decla-
ration mentioned, while the said State Bank were the holders of
the said note, and before any transfer or delivery thereof to the
plaintiff, to wit, on the said eighteenth day of April, in the year
last aforesaid at Trenton aforesaid, the said State Bank became
and were, and still are, indebted to this defendant in a large
sum of money, to wit, the sum of four hundred dollars, lawful
money of New Jersey, for so much money by this defendant
before that time lent and advanced to the said State Bank, and
at their request. And this defendant then and there applied to
the said State Bank and offered to set off and remit to them,
against the said note of this defendant, the full amount of the said
Bum of money mentioned1 in the said note, out of the debt so due
and owing by the said State Bank to this defendant, and required
them to deliver up the said note of this defendant; all which the
said State Bank then and there refused. That the said State
Bank were in failing circumstances, and, by reason of the prem-
ises, there then was not, or at any time afterwards would be, any
thing due or to grow due and payable to the said State Bank on
occasion of the said note of this defendant; of all which said
premises the said plaintiff afterwards, and before any transfer or
delivery to the said plaintiff of the said note of this defendant,
to wit, on the same day and year last aforesaid, at Trenton afore-
said, had notice ; and the transfer to the said plaintiff was and
is fraudulent and void.
3. And this defendant will further give in evidence — that before
and at the time of the transfer and delivery of the said note of
this defendant in the declaration mentioned, to the said plaintiff,
to wit, on the same day and year aforesaid, at Trenton afore-
said, the said State Bank were the holders of the said note, and
then were and still are indebted to this defendant, in a sum of
money exceeding the amount of said note, to wit, the sum of four
hundred dollars, and that by reason thereof, there then was not,
nor afterwards would be, any thing due or to grow due and pay-
able from this defendant to the said State Bank on occasion of
the said note, and that the said State Bank then were in failing
circumstances, of all which premises the said plaintiff then and
there had notice, and that the transfer and delivery of the said
note by the said State Bank to the said plaintiff, was devised and
contrived of fraud, covin, collusion and guile, to the end, purpose
124 NEW JERSEY SUPREME . COURT.
Tillou v. Britton.
and intent to defraud this defendant of the amount of the said
note, and that the transfer of the said note to the plaintiff, was
and is, fraudulent and void.
4. And this defendant will also give in evidence — that before
and at the time of the transfer and delivery to the said plaintiff
of the said note of this defendant, in the said declaration men-
tioned, to wit, on the same day and j-ear last aforesaid, the said
State Bank were the lawful holders of the said note, and the
said State Bank then were and still are indebted to this defend-
ant, and to divers other persons, in divers sums of money, amount-
ing altogether to a large sum, to wit, the sum of one hundred
thousand dollars, and that said State Bank then were in failing
circumstances, of which premises the said plaintiff then and there
had notice; and that the said transfer and delivery to the said
plaintiff of the said note of this defendant, was devised and con-
trived of fraud, covin, collusion and guile, to the end, purpose
and intent, to delay, hinder and defraud, this defendant and
others, the creditors of the said State Bank, of their just and
lawful actiofls, suits, debts, accounts, damages and demands,
against the said State Bank, and that the said transfer to the
said plaintiff, was and is, fraudulent and void.
5. And this defendant will also give in evidence, that before
and at the time of the said transfer and delivery to the said
plaintiff of the said note of the defendant in the said declara-
tion mentioned, to wit, on the same day and year last aforesaid,
at Trenton aforesaid, the said State Bank were the holders of the
said note, that the said State Bank were then in failing circum-
' O
stances, and then were, and still are, indebted to this defendant
and to divers other persons, in divers sums of money, amounting
altogether to a large sum, to wit, the sum of one hundred thou-
sand dollars, of which premises the said plaintiff then there had
notice; and the said State Bank, being or pretening to be, in-
debted to the plaintiff, that the said note was assigned, trans-
ferred and delivered, by the said State Bank, to the said plaintiff,
as one of their creditors, of fraud and covin, for the purpose of
giving him, the said plaintiff, an advantage over this defendant
and others, the creditors of the said State Bank, whereby he the
said plaintiff should be first paid, and have and receive a greater
proportion in respect of his debt, than others the creditors of the
said State Bank, contrary to the form of the act of the legisla-
ture in such case made and provided ; and that the said assign-
MAY TERM, 1827. 125
Tillou v. Britton.
ment, transfer and delivery, of the said note to the said plaintiff,
was and is fraudulent and void.
Wall and R. Stockton, for the plaintiff, moved to strike out the plea
of payment and all the notices thereto subjoined, and contended —
1. That the first notice was defective — 1. Because the tender
was alleged before the note was payable. 6 Bac. Abr. 463. 2.
Because the tender was not stated to have been made at the same
place at which the note was payable. 6 Bac. Abr. 450. 17 Mass.
Sep. 247. 3 Stark. Evi. 1394. 3. Because bank notes cannot be
tendered as cash, 3 Hals. Rep. 172, and it makes no difference
that they are the notes of the bank to which the tender is stated
to have been made. 3 Stark. Evi. 1391. 13 Mass. Hep. 235. 6
Bac. Abr. 449. 1 Dyer, 82.
2. That the second notice was multifarious. A notice like a
plea ought to put the defence upon a single point. This notice
contained several distinct allegations, and upon which the defend-
ant meant to place himself, it was impossible to tell. Yiewing it
as a plea of set-off, it is bad, because the note was payable without
defalcation or discount, and therefore not liable to a set-off. Rev.
Laws, 397, sec. 4. 2 South. Rep. 764. Viewing it in the light of
a fraud upon the defendant's right of set-off, the defendant had no
right of set-off, for he was a party to the note, and had himself im-
pressed upon it its negotiable character; and therefore there was
no fraud against him. Neither is it a fraud, for a bank or an in-
dividual, when in failing. circumstances, to prefer a creditor. 2
South. Rep. 743. 5 John. Rep. 412, 427. 14 Ibid. 458. 20 Ibid.
442. 2 John. Ch. Rep. 283. Cowp. Rep. 432. 5 T. Rep. 235. 1
Ves. Rep. 280. 7 Mod. Rep. 139. Newland on Contr. 380.
It may be said by the defendant's counsel, that they have a
right to put the question of fraud to the jury. But fraud is a ques-
tion of law, especially when there is no dispute about the facts.
9 John. Rep. 337. 1 Burr. Rep. 390.
3. That the third notice was multifarious. It stated a num-
ber of facts which could not be contained in a plea. A notice,
like a plea, ought to tend to one single point, which, when pre-
sented, would be a bar/ It was also defective in substance, as it
did not allege by whom the fraud was committed. 2 Chit. Plead
660. Neither did it state that the plaintiff was participant in the
fraud ; and if the bank did intend to defraud the defendant, yet if
the plaintiff did not participate in the fraud, no advantage of it
126 NEW JERSEY SUPREME COURT.
Tillon v. Britton.
could be taken against him. Neither does it allege that the bank
was not indebted to the plaintiff at the time of the transfer of the
note to him; nor how the bank was indebted to the defendant.
4. The fourth notice was liable to the same objection as the
third ; and to the additional objection, that it stated that the bank
was indebted to divers other persons, in divers sums of money.
5. The fifth notice insisted that the transfer of this note was
void, under the statute Rev. Laws, 674. But it was apparent from
the very title of the act, that it was not intended to apply to a
case of this kind. The title of it is "An act to secure to creditors
an equal and just division of the estates of debtors who convey
to assignees, for the benefit of creditors." The transfer of a note
to a creditor in payment of a debt, was not such a conveyance.
To give to this statute the construction contended for by the
adverse counsel, would be to unhinge all the commercial business
of the state; it would prevent a person from taking a note or
a bond, or any chattel, without first enquiring into the circum-
stances of the person from whom he was to receive it ; and the
whole scope and language of the act repelled the idea of its
being applicable to a case of this kind.
Saxton and Wood, contra.
Opinion of JUSTICE FORD.
The defendant made a note of two hundred and fifty dollars, to
Paul H. M. Provost, or bearer, payable at the Slate Bank in Tren-
ton, without defalcation or discount ; which note with the endorse-
ment of Provost thereon, he presented to the said bank for discount,
and for it received the money. Before the note so discounted became
payable, the bank endorsed it over to Tillou, the plaintiff, who, at
its maturity, brought upon it the present action, against Britton,
the maker. The defendant pleaded the general issue; and secondly,
that he paid the note to the bank, of which payment the plain-
tiff had notice before he took the endorsement. To these pleas
the defendant subjoined five notices of special matters, which he
intended to offer in evidence at the trial. The statute pro-
vides that a defendant (except in cases of mutual dealing) may
plead the general issue, and give in evidence any special matter
which, if pleaded, would be sufficient to bar the action ; giving
notice with such plea, of the special matter so intended to be
MAY TERM, 1827. 127
Tillou v. Britton.
offered in evidence. Rev. Laws 403, sec. 2. Another statute
provides, that when persons stand indebted to each other on
mutual dealings, and one brings an action against ttfe other, the
defendant may plead payment, .and give notice with such plea,
of any bond, bill, receipt, bargain or contract, that ho intends to
set off at the trial. Rev. Laws 307, sec. 11. The plaintiff now
moves the court to strike out the plea of payment to the bank,
and each of those notices, upon objections which he adduces
against them severally, and which oblige us to consider them in
their order.
The first notice is — That at the time the note in question was
discounted, the bank paid the defendant the amount thereof in
its own bills; that afterward, before the note became payable,
and while the bank was still the holder thereof, the defendant
tendered the same identical bills to the bank in payment of the
note, but it would not receive them; of all which the plaintiff
had notice before he took the endorsement; and the defendant
still holds the same bank bills, unpaid and unsatisfied.
Now, if we throw these facts into the form of a special plea
it will be denominated a plea of tender; but clearly defective in
substance. To make a tender valid, the debt must be due at the
time of the tender; the money tendered must be specie; and
the money must be 'brought into court along with the plea.
Therefore, as the matters contained in the notice are not a suffi-
cient bar, this notice cannot stand alone. It must be observed,
however, that the defendant's counsel presented it, not alone,
but in connection with the second notice, which comes next
under consideration.
The second notice is — That while the bank was the holder of
the note, the said bank became indebted to the defendant in the
sum of four hundred dollars; whereupon the defendant offered to
set off so much of his demand against the bank, as would satisfy
the said note; by reason whereof, there was not then, nor after-
wards would be, any thing due from the defendant, on said note,
to the bank: also that the bank was then in failing circum-
stances ; of all which the plaintiff bad notice before ho took the
said endorsement; and that the transfer thereof to him was
fraudulent and void.
It would have been difficult to determine, whether this is a
notice of set-off under the plea of payment, or a notice of fraud,
under the general issue, if the defendant's counsel had not
128 NEW. JERSEY SUPKEME COUET.
Tillou v. Britton.
solved the difficulty by representing it to be both. Aceoi'dingly,
one of them has pressed it upon the court as an equitable set-off,
while the o|bcr has considered it in quite the opposite light, of
a bar by reason of fraud and covin. In order to constitute a
set-off, this notice is taken by itself; but in order to constitute
a fraud, the defendant connects this notice with the former one.
Afterwards he took the third by itself; then presented the
fourth and third in connection ; and lastly he combined together
the fifth, the second and the first. As the principles which
ought to regulate and govern notices in general, underwent con-
siderable discussion in the course of the argument, it is proper
to notice them in this place.
The statute having avowed, that the substitution of a notice in
lieu of a special plea, was intended to facilitate pleading, by doing
away those forms and technicalities which were supposed to have
little or no connection with the merits of a defence, we may assume
it as a general rule, that notices are not to be set aside for errors
or omissions in matter of form. But still the special matter must
be such, as, if pleaded, would be sufficient to bar the action ;
therefore nothing which would be matter of substance in a plea,
must be omitted in a notice. The statute uses the word "suffi-
cient" and if the matters are only partly sufficient, to bar the
action, they fall short of the requisition of the act. Also, a notice
may present as many independent defences as could be set up by
way of special pleading ; for the word "any" special matter, will
comprehend every special matter which could be pleaded. Like-
wise, the special matters may be arrayed under as many numeri-
cal divisions as the defendant sees fit to employ ; he may also use
any form of words or phraseology that may belong to common par-
lance, and are intelligible to a person of common understanding.
But each defence must stand by itself, as much as in a plea ; so
that it may plainty appear where one defence ends and another
begins. This is important for two very decisive reasons ; one is,
that the adverse party may have fair notice of the nature of the
bar intended to be set up against him, and may be prepared to
meet it at the trial ; the other is, that the court may see and bo
able to judge of the sufficiency of the matter in point of law. Tho
idea thrown out in the argument, that a notice is an entire instru-
ment, and if the defendant only confine himself within it, he may,
at the time of trial, garble it, by drawing some facts from the be-
ginning, some from the end, others from one part, and others from
MAY TEEM, 1827. 129
Tillou v. Britton.
another part, so as to make out a bar, it is too unlike any thing
else known in pleading, and really contains the elements of too
much confusion to be seriously adopted. Under such license a
party could so wrap up and conceal his defence, that no human
sagacity might be able to develop it, without a key to the design ;
and the whole might be little different from a Chinese puzzle.
The adverse party might never find out the connections of the
instrument, if they were altogether arbitrary; and therefore he
might be obliged to go to trial with little better knowledge of
the intended defence than if he had received no notice. Whereas,
the statute in requiring a notice, means a fair, candid and intelligi-
ble statement of facts, presenting each defence by itself, as much
as in a plea ; so that the adverse party may know, and be prepared
to meet it; and so that the court and jury may clearly under-
stand the points they are to try. For these reasons I think the
first and second notices so objectionable that they ought not to
be allowed. But, as the defendant will have leave to amend his
notice, in the foregoing, or any other particulars, if he chooses
to apply for it, it will not be improper to assume the proposed
combinations, in order to see whether the second notice contains
sufficient matter for a good and legal set-off; and whether the
first and second combine sufficient matter to constitute a fraud
at the common law.
Let us examine it first in the character of a set-off. The notice
does not assert that the bank agreed to a set-off, but that the
defendant offered to make it; and then treats that offer as an
actual or equitable payment, because the statute directs the plea
of payment, between mutual dealers, to be put in by the defend-
ant when he is sued. But if parties have no action depending,
a simple offer by one party to set off, when nothing ia paid,
released or delivered up, by that party, nor received by the other,
cannot amount to payment, in either a legal or equitable point
of view ; but being unaccepted, the offer leaves the parties pre-
cisely as they were; and if either of them holds a commercial
note, not yet due, against the other, he may endorse it away
precisely as if no such offer had been made ; for the offer is no
evidence of payment, nor can it be pleaded as such. But the
plaintiff took this note, it is said, under full notice that an off-set
lay against it, and therefore it is argued that he ought to hold it
subject to that set-off. On the other hand, ho took the note be-
fore it became due, and he could not know that the matter of
VOL. IV. I
130 NEW JEESEY SUPEEME COURT.
Tillou v. Britton.
set-off, which consisted of bank notes, would be retained by the
defendant till his own note should corne to maturity. The defend-
ant lay under no obligations either legal or moral to retain them.
Admit that he had two hundred and fifty dollars in the notes of
the bank, and had proffered them in payment of the note before
it became due, and they were not accepted ; he gave no notice that
he would keep that money idle two or three months, without using
it in the course of his business. The notice states, indeed, that the
bank was in failing circumstances; but that would excite most
people to get clear of such notes as fast as possible; and it could
not be foreseen that the defendant would act so differently from all
other people, as to retain his money for two or three months under
such circumstances. It consisted of negotiable notes against the
bank ; and he had as good a right to pass away their notes as they
had to pass away his. Least of all could it be supposed that he
would retain those bills for a discount against this note, inasmuch,
as he had promised to pay it without discount, and had placed the
note in open market, with this promise plighted on the face of it
under his hand. If he had a demand ever so just and good against
the bank, he had promised never to set it up against this note;
and the plaintiff, at the time the endorsement was offered to him,
had a right to rely on that promise; he also knew that any
attempt to set up a discount, would not only be in derogation of
the promise, but contrary to an act of the legislature, and to a
plain decision of this court founded thereon. The statute provides,
that no discount shall be allowed when the note expresses that the
money therein mentioned shall be paid without defalcation or dis-
count. Rev. Laws, 396, sec. 4. Accordingly, in the case of Coryell
T. Croxall, 2 South. 764, this court decided that no discount could
be set up against the endorsee of a note so drawn ; though he took
it after it was over due, and had bacome dishonored. In that case
the court ordered the plea and notice of set-off to be stricken out;
and the same must therefore be done here as far as respects the
set-off. But whether the facts in the second notice combined
with those in the first, will, if taken together, make out a case
of fraud at the common law, remains yet to be considered.
A combination, then, of the first and second notices, presents
the following case. That the bank gave its own bills for the note
in question, when it was in failing circumstances and destitute of
funds to redeem them, and, in fact, refused to take the same bills
J?ack again, in payment of the note ; and that Tillou, the plaintiff,
MAY TEEM, 1827. 131
Tillou v. Britton.
knew the foregoing facts when he received the note by endorse-
ment.
Now the defendant has an option to present fraud in either of
two waj's; he may give it in evidence at the time of the trial,
under the general issue, without giving previous notice ; or, when
facts are intermixed with matter of law, (1 Ld. Ray. 87, Hussy
v. Jacob. 12 Mod. 97, 376. Tidd's Pr. 201) as in this case, he
may plead them specially, or give notice of them under the
statute. If he give no notice he must open the particulars, at
the time of trial, to the court, that it may see whether they
amount to fraud, supposing them to be all true. If they will
not, the particulars must be overruled for this plain reason, that
though the defendant may give fraud in evidence, he cannot
give in evidence what is no fraud. So if he give pi-evious written
notice of particulars, it stands in the place of an opening, and
the court must adjudicate on its sufficiency. The particulars
must be shewn in a notice as fully as in an opening. This posi-
tion the defendant has, however, controverted, both by reason-
ing and by a case. He argues that because particulars may be
given in evidence without any notice, therefore a notice need
not state them. It is plain, however, that he must shew them
in some way or other to the court, that it may judge of their
competency; otherwise a party would become his own judge,
and, under pretence of proving fraud, might lay before the jury
the most irrelevant and illegal evidence. But a case in this
court of Mason v. Evans, Coxe's Rep. 182, is relied upon; where
to debt on bond the defendant pleaded fraud in obtaining the
bond, and set out the particulars ; he also pleaded fraud generally
and set out no particulars; and the court differed as to the legality
of the last plea; two of the judges held it to be good; but the third
judge condemned it as a novelty? as being unprecedented in law,
and anomalous in principle; it being neither the general issue
nor yet a special plea, but a kind of general special plea. As the
defendant has not put in this kind of plea in the present instance,
it becomes unnecessary to speculate on what would have been the
consequences had he done so. On the contrary, he has set out the
particulars, as was done in the former plea in the above case; and
I cite that as a case in point, to shew that when the particulars are
set out, the court must adjudicate upon them, and strike them out
if they do not amount to fraud. The particulars in that plea were
that Mason, declaring himself to be seized in fee of certain lands
132 NEW JERSEY SUPEEME COURT.
Tillou v. Britton.
in Virginia, sold them to the defendant, when, in fact, he had no
titlein them, and that the bond was given to him for those lands.
The court set aside the plea, and the Chief Justice said it was
clearly ill, "because the facts set forth in it, from which the con-
clusion of fraud is deduced, are not, if proved, a sufficient ground
for such an inference; if Mason had bought the lands fairly, he
might honestly sell them, if he was ignorant of the defect in the
title, and there is no averment that he knew his title to be defec-
tive." In like manner, the court, in this case, must examine the
particulars pleaded, (or given notice of, which is the same in sub-
etance) and determine whether a conclusion of fraud can be
legally deduced from them.
Take then, the facts in the notice to be true, that- the bank was
then in failing circumstances, and knew that it had no specie to
redeem the bills, at the time it issued them to the defendant, and
that they still lie on his hands unredeemed and perished ; still
the notice does not aver that the bank had then actually failed ;
nor does it deny that it was in the full exercise of its usual busi-
ness, nor but that its note.8 sustained as good currency as specie,
in so much that the defendant gave his own note for them at par.
If the bank has failed since that time to pay its notes, the defend-
ant meets with a misfortune common to every man whose debtor
becomes insolvent. Many good men have sold property to a pur-
chaser, who afterward failed to pay the note he gave for it, and
was really worth nothing at the time he gave it; but I do not
know a case in which subsequent failure, of itself, has been holden
to vitiate and set aside the sale. If the defendant had given for
these bills a deed for a lot of land, would the subsequent failure
of the bank have rendered its title to that land void? more es-
pecially if the land (or the note, which is the same thing) had in
the meantime been conveyed t» a»third person for valuable con-
sideration? Even if the bank had really defrauded Britton, by
giving him worthless bills, may Britton for that reason, defraud
Tillou? Such ethics would not stand the test of law, morality,
or religion. So that if the bank had committed a fraud on Brit-
ton, he ought not to visit it on the head of Tillou, the plaintiff,
unless he was concerned in the original transaction.
This brings under consideration the second branch of the notice,
which is, that Tillou knew all the foregoing facts and circumstan-
ces before he took the endorsement. Let us then examine the
particulars. The notice does not aver the presence of Tillou at the
MAY TERM, 1827. 133
Tillou v. Britton.
making of the note, or when the defendant got it discounted, or
when the bank issued its bills to the defendant; nor that he
excited the defendant to make the note, or to borrow the bills,
or the bank to issue them ; nor that he knew at the time of the
loan, that the bank was in failing circumstances, or was issuing
bills without the means of redeeming them. It avers that after
thedefendant and the bank had completed theirdealings together,
the plaintiff first arrived at tBe knowledge of this note being held
by the bank, and of the circumstances under which they acquired
and held it. And the question comes fairly up, whether a knowl-
edge of these circumstances is sufficient to impair the credit and
circulation of a note, drawn in this form, and to impeach it in
the hands of 'an assignee who had no concern in the original
transaction. But this question received a full and final decision,
by the unanimous opinion of this court, in the case of Coryell \.
Croxall, 2 South. 764, before cited. Croxall made a note in this
form to one Le Grand, and afterward furnished him with goods,
so that he had a just and righteous set-off against Le Grand ;
but after the note was over due, Le Grand endorsed it away, and
in that dishonored state it came to the hands of Coryell, the
plaintiff; yet he recovered of Croxall, the maker, according to
the face of the note, and the set-off for the goods was wholly
disallowed, on the authority of the statute. The defendant'^
counsel have suggested a want of similarity between the two
cases, in this important point, that Coryell had no notice of an
existing off-set before he took that note by endorsement. But
I hold the similarity in that respect to be complete. Coryell,
when he took the note, saw that the day for payment of it had
elapsed ; he saw that the maker, for some cause, had in the lan-
guage of merchants, put dishonor on the note. This, according
to all the books, was notice to Ooryell that some difficulty attended
the note; it was notice to him to enquire into the circumstances
before he took it ; otherwise he would have to hold it as if he knew
all the equities attending it. The doctrine with respect to com-
mercial notes bad long been settled, and the court did not mean
to remove or shake a tittle of it; the court proceeded on the ground
that his knowledge of those equities could make no difference,
for that here was a promise that no discount should be made, even
if the maker of the note had a good one against Le Grand. The
endorsee had a right to rely on that promise contained in the
body of the note, and it was no fraud in him to take it. Such a
134 NEW JEESEY STJPEEMB COUET.
Tillou v. Britton.
charge would fall more heavily on the maker of the note, who
had promised to pay without discount, and yet meditated a fraud
on that promise.
I would not have it inferred (from any thing stated hypotbeti-
cally, for argument and illustration) as being my opinion, that a
bank acts fraudulently by issuing notes beyond the amount of its
capital. It is allowed by its charter to do so to a certain extent,
and for the excess to rely, like a merchant, on its credit. Most
merchants extend their business, on credit, far beyond the amount
of their actual capital; and I do not foresee, nor can any man fore-
see, the endless consequences of declaring all their notes, on that
account, to be fraudulent and void ab initio. But the case does not
call for a direct opinion on this point. I place my opinion on
another ground, that if a man promise to pay a note without defalca-
tion or discount, and there happen to be any failure of consideration
between the maker of the note and the person to whom it is made,
or any subsequent equities arise between them, they must adjust
those matters in a separate action between themselves, without
involving the endorsee in their disputes, even if he knew that
disputes existed at the time he received the endorsement. And
for this, and other reasons before mentioned, I am of opinion
that the particulars make out no fraud at common law, and that
the first and second notices ought not to be allowed.
The third notice is, that while the bank was the holder of the
defendant's note, it became indebted to him in a larger sum than
the amount of the said note, by reason whereof there was not
then nor afterward would be, any thing due from the defendant
to the bank, and that the bank was then in failing circumstances j
of all which the plaintiff had notice before he took an endorse-
ment of the note; and that the said transfer was contrived by
fraud, covin, collusion and guile, with intent to defraud the defend-
ant of the amount of said note ; and that the transfer of the
same to the plaintiff was fraudulent and void.
The first part of this notice repeats again the matter of set-off,
the failing circumstances of the bank, and the plaintiff's knowl-
edge thereof, which have been considered insufficient under the
former notice, and need not be repeated again under this head.
The ensuing part imputes to the plaintiff an intent to shut out the
off-set by means of the endorsement, and gives to that intent the
appellation of fraud. But admitting the intent in its utmost lati-
tude, I am still opposed to the idea of its being fraudulent in
MAY TEEM, 1827. 135
Tillou v. Britton.
point of law. On the contrary, it was a lawful intent. The
defendant had promised payment without discount, and the
statute had bound him to the fulfilment of that promise, so it
was not fraudulent, but lawful, for any man to take the note
with an intent to enforce the promise in its true sense, and with
a determination not to submit to any discount.
The concluding part of the notice is, that the transfer to the
plaintiff was fraudulent and void. We have seen that it is not ren-
dered so by any of the foregoing facts; and if any other facts
exist beside those, they ought to have been set out, for the
information of the adverse party, and also that the court might
judge of their effect. The defendant may mean, and from sug-
gestions thrown out in the argument, he possibly does mean, by
"fraud, covin, collusion and guile," that the plaintiff gave no
consideration for the note, and that the bank, while it is the
real owner, only uses the plaintiff's name, by collusion with him,
in order to deprive the defendant of his off-set. If the matter
were so stated, I am clearly of opinion, that the transfer would
be collusive and fraudulent ; but these matters cannot be taken
by way of presumption, or parol suggestion, in addition to the
notice, for the particulars ought all to be set out. I am, there-
fore of opinion, that this third notice, in every point of light in
which I can view it, is also insufficient.
The fourth notice is, that the bank while holder of this note,
was indebted to the defendant and divers other persons in large
Bums of money, amounting to one hundred thousand dollars, and
being in failing circumstances, transferred this note to the plain-
tiff, with intent to delay, hinder and defraud its creditoi's.
Now neither court or jury have any lawful right to presume a
sale or transfer fraudulent, merely because the seller stood in-
debted at the time, and was in failing circumstances. A person
thus situated possesses an undeniable right of sale for valuable
consideration, or to transfer property to a creditor in satisfaction
of a junt and honest demand. The notice should have stated tho
transfer as being without consideration, or not in satisfaction of a
debt justly due or owing to the plaintiff, or some other matter
from which a court and jury could lawfully infer an intent to de-
fraud, delay or hinder creditors. If both the defendant and the
plaintiff had just demands against tho bank, the said bunk had a
right to pay either of them first without an imputation of fraud
by the other. Tho law contains no such principle, as that a man
136 NEW JEESEY SCJPKEME COUET.
Tillou v. Britton.
in failing circumstances may not pay any just debt first which
will best relieve his circumstances. If, while a man retains his
property in his own hands, the right of giving preference should
be denied, he would so far lose the dominion over his own, that he
could not pay any body, because, whoever he paid would receive
a preference. He could only pay rateably, which is never incum-
bent till after he has taken the benefit of the insolvent laws, or
has assigned his property to trustees for the benefit of creditors,
and so put the dominion over it into other bands. Accordingly
it was decided by this court, in the case of Hendricks v. Mount, 2
South. 743', that the making of such preferences was every day
done, was every day sustained in our courts of justice, and is legal.
The fifth notice is, that the bank, being indebted to the plain-
tiff, transferred the note to him for the purpose of giving him an
advantage over the other creditors of the bank, whereby he
should be first paid, and receive a greater proportion than others,
contrary to the statute in such case made and provided.
The statute referred to, Rev, Laws 674, was made to secure
to creditors an equal and just division of the estates of debtors
who convey to assignees, in trust for the benefit of creditors. The
present case does not fall within the letter or purview of this
statute. Here is no conveyance to assignees as agents, or in
trust for others than the plaintiff himself. If the statute embraced
such a case as this is, no merchant, owing a few small debts,
and being in that sense a debtor, could endorse over a common
commercial note so as not to be fraudulent and void, without
annexing to every such endorsement, an inventory, under oath,
of all his property, real and personal, together with a list of all his
creditors, that the same might be published in two newspapers !
It would be a waste of time to pursue this point any further.
On the whole, we consider the plea of payment to the bank,
and those several notices, not sustainable in law, and therefore
let them be stricken out.
Opinion of JUSTICE DRAKE. *
The important facts stated in the first, second, third and fourth
notices, filed in this cause, are — that the note sued on, before it
was transferred to the plaintiff, was the property, and in the hands,
of the president, directors and company, of the State Bank at
Trenton ,• that whilst it was their property, the defendant tendered
MAY TEEM, 1827. 137
Tillou v. Britton.
to them payment thereof in their bank notes, which they refused
to receive, and that these bank notes were the same which the de-
fendant had received of the bank for the note in question; that
the said banking company was indebted to the defendant in a large
sum of money, and he offered to set off so much of his demand as
would satisfy this note, which the company also refused ; that the
said bank was in failing circumstances, and the defendant still
holds the said bank notes; of all which premises the plaintiff had
notice before the transfer to him of the promissory note in question.
These facts are presented in an objectionable form, being spread
through various notices, no one of which is considered even by the
counsel for the defendants, to be sufficient, in itself, to bar the
plaintiff's action. But overlooking defects of form, the question
arises, whether all these matters combined constitute a legal
defence. The plaintiff prosecutes, as endorsee, for a valuable
consideration, (for such the law presumes him, and there is no
allegation to the contrary) on a regular negotiable note, endorsed
before due. And whether before or after, does not appear to be
material, as it contains the words without defalcation or discount.
2 Southard, 764. Can the negotiability of such a note be restrained
by the circumstance that the holder is indebted to the drawer, or
that the drawer has offered to pay it as stated in the notice, or
that he has retained in his hands the original consideration for the
note, which he is willing and has offered to restore, and to take it
up? All these facts, with the additional one that the holder was
"in failing circumstances" when the note was negotiated, will not
make the transfer of it fraudulent. The note was made for the
market, so expressed as to give it protection against cross demands,
and there is no pretence of any new agreement that such demands
should be accepted in payment. I can perceive no fraud, no vio-
lation of good faith, in the transfer of this note. The bank neither
accepted their notes as payment, nor induced the defendant to
purchase or retain them under a promise that they would so
accept them. If it be true that the bank was "in failing circum-
stances," and that their notes had consequently fallen in value
(which latter fact is not alleged) this circumstance presents an
important reason why this off-set should not bo made. The funds
of the bank should be made as available as possible, for the pay-
ment of its debts ; and the maker of a note, who had received
the whole amount of it, should not be permitted to pay it off
with a depreciated currency.
138 NEW JEESEY SUPEEME COUET.
Tillou v. Britton.
But there is an allegation of fraud, contained in one or more of
these notices, "and that the transfer and delivery of the said
note, by the said State Bank to the said plaintiff, was devised of
fraud, covin, collusion or guile, to the end, purpose and intent, to
defraud the defendant of the amount of said note, and that the
transfer of the said note to the said plaintiff, was and is fraudu-
lent and void." I presume this is meant as a conclusion from
the facts stated, and which I have already considered. If not,
it is too general to stand alone, and cannot protect the notices
from being struck out.
The fifth notice brings up for consideration, the construction of
the act entitled "An act to secure to creditors an equal and just divi-
sion of the estates of debtors who convey to assignees for the benefit
of creditors," and I am of opinion, that if the act is not to be confined
to cases of assignment in trust for the benefit of creditors, yet it was
never meant to extend to a solitary transfer of an individual item of
property to a creditor, i n payment of an honest debt. The construc-
tion contended for by the counsel for the defendant, would deprive
a man in failing circumstances of all power over his property; for
if he could not transfer a note, or other article of property, im-
mediately to a creditor, in payment of a debt, he should not be per-
mitted to sell it in order to raise money for that purpose. The
operation of the statute must be confined, if not to cases where a
trust is created, at least to cases where there is something of uni-
versality in the assignment, or, in the language of the act, where
the debtor's estate is assigned, which should be done either collec-
tively, or if in parcels, and to particular creditors, the assignment
should appear to be part of a system or plan, designed to transfer
the debtor's estate in such manner as to prevent an equal and just
distribution of it among his creditors. But in this notice, no assign-
ment of the debtor's estate is suggested. It is confined to the trans-
fer of a solitary note. I am of opinion, that upon the most ex-
tended construction of the statute, this case is not within its
provisions, and that therefore the notice should be struck out.
The CHIEF JUSTICE, being one of the stockholders of the State
Bank at Trenton, gave no opinion.
The second plea, and all the notices, ordered to be stricken out.
CITED IN Coxe v. Higbee, 6 Hal. 396. Story v. Baird, 2 Or. 264. Sanderson v.
Crane, Id. 507. Youngs v. Little, 3 Or. 4. Cumberland Bk. v. Hann,
3 Harr. 227. Van Wagoner v. Pat. Gas Light Co., 3 Zab. 300. Boa-
well v. Green, ] Dutch. 396. Owen v. Arvis, 2 Dutch. 43. Fairchild
v. Hunt, 1 McCart. 372.
MAY TERM, 1827. 139
Stewart v. Drake.
THOMAS STEWART and PHILIP FINE, jun., against IMLA DRAKE.
CERTIOKARI.
1. If there is a subsisting mortgage on the premises at the time of the execu-
tion of the deed of conveyance, the covenant in the deed that the premises are
free from encumbrances, is broken as soon as made.
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.
3. Where, by reason of an antecedent mortgage, the grantee is evicted, or the
whole of the premises is absorbed in the discharge of the mortgage debt, the
rule of damages for breach of a covenant against encumbrances, or for quiet en-
joyment and warranty, is the same as if the grantee had 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.
4. If a covenant against encumbrances 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 theiamount 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.
Attorney- General and Saxton, for plaintiffs in certiorari.
Vroom, for defendant.
The CHIEF JUSTICE delivered the opinion of the court.
John Sharps, jun. of the county of Sussex, being the owner of
two farms in that county, mortgaged them to secure the payment
of a large sum of money. Afterwards, on the 1st of April, 1818, he
sold one of those farms to Imla Drake, for $7287.87, and conveyed
it to him by deed of bargain and sale, containing covenants of seizin,
of freedom from encumbrances, for quiet enjoyment, and of general
warranty. Drake entered into possession. In the year 1823, upon
a bill filed in the Court of Chancery, on the mortgage, against
Drake and others, a decree was made for the sale of the two farms,
to satisfy the mortgage debt, then amounting to $9569.96. On this
decree an execution was issued, and the other farm being first sold
by the sheriff produced $5300, leaving a balance of $4269.96. On
the 7th July, 1823, in order to raise the balance, Drake's farm was
sold, and conveyed by the sheriff, for $2800, to Joseph Drake, the
son in law of Imla Drake, and at the time in possession of the farm,
as his tenant. Joseph Drake, in September following, sold and con-
veyed the farm, for $3200, to John Howell, who immediately went
into possession. On the 13th of February, 1823, Sharps made an
assignment for the benefit of his creditors, and within the time
prescribed by the statute, Imla Drake exhibited his claim for the
purchase money of the farm, $7287.87. Upon exceptions, and a
hearing in the Court of Common Pleas, the claim was admitted
to a dividend. And this decision is brought here by certiorari.
140 NEW JERSEY SUPEEME COUET.
Stewart v. Drake.
It is admitted on all hands, that if Drake is entitled to exhibit
a claim under this assignment, which will in the sequel be exam-
ined, the amount on which he is to be admitted to a dividend,
is the same as he would be entitled to recover in an action
against Sharps.
On the part of the exceptants below, the plaintiffs in certiorari,
it is insisted that Drake could not recover on the covenant of
seizin, because the existence of a mortgage is no breach of that
covenant; that on the covenants of quiet enjoyment and war-
ranty, he could not recover, because there had been no ouster
or eviction, which is indispensable; and that on the covenant
against incumbrances, he should be admitted to claim, at the
utmost, not more than the balance, 84269.96, unsatisfied by the
first sale.
In the first place, as to the right of Drake to recover on the
covenants contained in the deed. If a breach of any one of the
covenants is shewn, the right of recovery is established, and it
will remain only to ascertain the amount. One of the covenants
is, that the farm, at the execution of the deed, was free from
incumbrances. There was, however, upon it a subsisting incum-
brance, the mortgage made by Sharps. This covenant, there-
fore, was broken as soon as it was made, in the same manner as
the covenant of seizin is said to be broken as soon as made, if the
grantor is not then seized. Hale v. Dean, 13 John. 105. Prescott
v. Trueman, 4 Mass. 627. Wyman v. Ballard, 12 Mass. 304. Funk
v. Voneida, 11 Serg. and Eawle, 109. Moreover, the facts- in this
case establish a breach of the covenants for quiet enjoyment
and of warranty. The rule in respect to these covenants was
correctly stated by the plaintiff's counsel. To constitute a
breach, there must be a lawful eviction, or a disturbance of the
possession. By the effect, and usually by the terms of the decree
of the Court of Chancery, the parties defendants therein are for-
ever barred and foreclosed of all equity of redemption, of so much
of the mortgaged premises, as may be sold by virtue of the decree.
In this case, a sale under the decree, and a conveyance by the
sheriff, were made. The purchaser was actually in possession.
From the time of the conveyance by the sheriff, he held, and
rightfully held,lhe possession as his own, and shortly afterwards
sold to another person, whom he placed in possession. Joseph
Drake, the purchaser, had previously been the tenant of Imla
Drake. But from the sheriff's conveyance the tenancy ceased.
MAY TEEM, 1827.
Stewart v. Drake.
Imla Drake could legally claim neither rent nor pos8ession against
Joseph Drake. Both his title and possession ceased, and by
legal means. A more complete disturbance of bis possession, a
more thorough eviction, could not readily be devised. The cases
cited by the plaintiffs' counsel, from Johnson's Reports, do not
impugn, but accord with, this conclusion. The principle which
pervades the whole, is, that there be a disturbance in, or depri-
vation or cessation of, the possession, by the prosecution and
operation of legal measures.
In the second place, it appearing that these three covenants
are broken, without making any enquiry as to the covenant of
seizin, it is to be ascertained what amount of damages the gran-
tee, under them, is entitled to recover. The rule applicable to a
case circumstanced like the present, has not been settled, so far
as we are informed, by any express decision in this court. "We
are therefore to be governed by analogy, by sound principle, and
by the light which may be reflected from the decisions in the tri-
bunals of our sister states. At common law, on the doctrines of
the ancient warranty, where the grantee, having lost the lands
by the total want or failure of title in the grantor, sought to re-
cover satisfaction by voucher or writ of warrantia chartce, he was
entitled to the value of the lands at the time of the warranty,
which was fixed by the purchase money, or consideration, ex-
pressed in the conveyance. To adopt the same principle, however,
in cases of partial encumbrances, would be manifest injustice. A
sound rule was laid down by Chief Justice Parsons in Massachu-
setts, and has been adopted by the Supreme Courts of New York
and Pennsylvania. If there be a subsisting mortgage at the time
of the conveyance, the grantee, under a covenant against encum-
brances, may recover damages, because there is a breach, but they
shall be nominal only, where he remains undisturbed, and has paid
nothing to the mortgagee; for the encumbrance may be removed
by the grantor, or he may be compelled by the mortgagee to dis-
charge it, or the grantee may otherwise remain forever unaffected
by it. If the grantee has extinguished the encumbrance, he shall
then recover in damages the amount paid to extinguish it, if fair
and reasonable, with interest, and in some cases, where an action
on account of the encumbrance has been brought against him,
the costs also of such action. Prescott v. Trueman, 4 Mass. 627.
Delavergne v. Norris, 1 John. 358. Stannard v. Eldridge, 16 John.
254. Funk v. Voneida, 11 Serg. and Raw. 109. These cases are,
142 NEW JERSEY SUPREME COURT.
Stewart v. Drake.
however instances of partial encumbrances only; where the
grantee retains the land, but is subjected to a partial inconve-
nience, and they stand on the sound principle, that the grantee
should be fully satisfied for the injury he has sustained, but that
holding the land and deriving a partial benefit, his redress shall
be conformed to such circumstances.
Where however by reason of an antecedent mortgage, the
grantee is evicted, or the whole premises are absorbed in the
discharge of the mortgage debt, a different rule prevails in
New York. The grantee recovers to the same amount as if
evicted by reason of a total want or failure of title in the gran-
tor. The case of Waldo v. Long, 7 John. 173, was an action on
covenants against encumbrances, and of power to sell. The
plaintiff produced a mortgage, executed prior to the deed to
him, from the defendant, and also a posted in an action of eject-
ment against him on the mortgage, which had been tried the
same day. The plaintiff recovered the consideration money
expressed in the deed, with interest and the costs of the eject-
ment. In Sennet v. The Executors of Jenkins, 13 John. 50, the
testator had conveyed a lot of land to one Coffin, who after-
wards reconveyed it to the testator, having, however, in the
meantime, mortgaged it to the loan officers of Columbia
county. The testator subsequently conveyed it to the plain-
tiff, by deed containing " the usual fall covenants." The plain-
tiff was evicted under a judgment and execution in ejectment,
at the suit of Jackson, on the demise of Powers, who derived
his title from the loan officers of Columbia county, of which
suit the defendants had notice. An action was brought, on the
covenants in the deed to the plaintiff, and on the trial at the cir-
cuit a case was made, stating the above facts, and submitting
to the Supreme Court the question as to the rule of damages.
That court determined, that the plaintiffs should recover the
consideration money paid, and the interest thereon, from the
date of the deed from the loan officers to Powers, provided it did
not exceed six years, together with the cost^of the ejectment. So
in Massachusetts; for in the case of Wyman v. Ballard, 12 Mass.
304, which was under like circumstances as the last mentioned
case, except that the grantee had conveyed to a third person, the
court said, this third person should sue upon the covenant of
warranty, as assignee, because he had been evicted, and he would
then recover the same as if evicted from total want or failure
MAY TEEM, 1827. 143
Stewart v. Drake.
of title; which, however, is fixed in that state at a different
measure from a recovery on the covenants .of seizin or for quiet
enjoyment.
The rule that the grantee shall recover to the same amount as
if evicted from a total want or failure of title, is sound in principle
and just in operation. Upon the grantee the effect is precisely
the same, whether the premises are swept away from him by the
overwhelming weight of an encumbrance, or by a total wa'nt of
title. His recompence ought therefore to be the same. So as
regards the grantor. He has covenanted against both events,
and as each produces on the grantee the same effect, the liability
of the grantor ought in each to be to the same extent.
It was said that Drake might have relieved and saved the
property by the payment of the balance of the mortgage debt,
84269.96 ; and he should therefore have been admitted to a divi-
dend on that amount only. But he was under no obligation or
duty to discharge the encumbrance. On the contrary, Sharps,
the grantor, had expressly bound himself to do so, or otherwise
to protect the premises from the influence of the mortgage. Drake
may have been wholly unable to command such a sum of money;
and, whether able or not, his omission of what he was under no
obligation to perform, cannot impair or lessen his claim upon
Sharps.
The great injustice of restraining Drake's recovery to the
balance of the mortgage debt, will be rendered very striking,
by a supposition that the purchase money was yet unpaid, and
remained outstanding on bonds in the hands of Sharps. Against
these bonds Drake could claim only a reduction for the balance,
$4269.96. And the residue, $3017.91, Sharps would place in
his own pocket, notwithstanding Drake had lost the property,
from a cause against which Sharps had covenanted to protect him.
It was said on the argument at the bar, that the loss occasioned
by the depreciation in the general value of property between the
sale to Drake and that made by the sheriff, ought not to fall on
Sharps. But with this depreciation the questions have no just
connection. Drake is deprived of the property, as I have remarked,
by a stroke against which Sharps engaged to protect him. The
consideration for which he paid his money has totally failed. The
money he paid ought, therefore, to be restored to him. But if the
question, on whom the depreciation ought to fall, bo considered, it
is perfect justice that it should fall on Sharps. He assumed the
U4 NEW JERSEY SUPREME COURT.
Johnson v. Martinus.
responsibility by his covenants. Had bis assertion that the prem-
ises were clear of encumbrances, been true, the loss from depre-
ciation must have been borne by the purchaser. Being untrue,
the risk was upon him while the encumbrance remained. If Drake
had lost the premises from a want of title in Sharps, he must
have repaid the original consideration money. He could not, on
common law principles, have claimed a reduction on account of
an intermediate depreciation of value. Nor can he where the
loss is total, occasioned by the existence of an encumbrance.
The sum sanctioned by the Court of Common Pleas, is not
therefore, in our opinion, beyond the just and legal claims of Drake.
3. It was insisted by the plaintiffs' counsel as I have already-
suggested, that Drake was not entitled to come in under this
assignment, because it was made in February, 1823, and his claim
did not exist until the sheriff's sale, in July following. But if the
covenant against encumbrances was, as has been stated, previously
broken, a claim did exist at the time of the assignment. The
actual amount of the claim might not have been certainly fixed or
ascertained until July, but it was fixed in season to enable him to
exhibit his claim, under oatb,within the time limited by the statute.
We find no cause of reversal in the proceedings of the Court of
Common Pleas.
CITED IN Garrison v. Sanford, 7 Hal. 264. Morris v Rowan, 2 Earr. 306.
Kellog v. Platt, 4 Vr. 331. Pos( v. Stager, 2 Stew. 558.
JOSEPH JOHNSON against CHRISTOPHER MARTINUS.
IN EEROE TO COMMON PLEAS.
In an action brought by the endorsee against an endorser of a promissory note,
payable to bearer, and endorsed in blank, the endorser will be permitted to shew
it was the agreement at the time of the endorsement, that he was not to be liable
as endorser upon the note, and that his name was endorsed merely to enable the
plaintiff to collect the money of the drawer.
Clark and Vroom, for plaintiff in error.
Saxton, for defendant.
The CHIEF JUSTICE delivered the opinion of the court.
The action in the court below was brought by Martinus against
Johnson, upon a promissory note drawn by William E. Potts, in
MAY TEEM, 1827. 145
Johnson v. Martinus.
favour of Thomas I. Lowrance, or bearer, by him transferred, by
delivery, to Johnson, and by him endorsed to Martinas. The en-
dorsement was in blank, and was filled up in the common general
form at the trial. After the plaintiff had closed his evidence, the
defendant offered a witness to prove an agreement of the parties,
Martinus and Johnson, at the time of the transfer, in relation to it ;
that according to the agreement, Johnson was not to be considered
liable to Martinus as endorser upon the note, and that his name
was endorsed merely to enable the plaintiff to collect the money
from the drawer. The evidence was overruled, and a verdict and
judgment rendered for the plaintiff. The rejection of the evidence
is assigned for the reversal of the judgment.
The objection to the testimony is founded on the rule which
excludes .parol evidence to impugn or alter a written contract.
But this rule is wholly inapplicable in the case before us. An
endorsement, while yet remaining in blank, and not filled up,
is not a written instrument, nor entitled to its effect, protection
or immunity. Before the note can be given in evidence to
maintain an action, the endorsement must be filled up. A noto
endorsed in blank, by the original payee, may pass through
many hands without further endorsement, and the last holder
may fill up the blank with an endorsement to himself, and
maintain an action against the drawer or endorser, although
neither of them knows into whose hands it has found its way
until called on for payment. Such, however, could not be the
case, if, at the moment of the signature of the endorser, it is
a complete written contract, and not, as the truth is, inchoate
and imperfect, and with something yet to be done, before the
right is fully and legally vested in the endorsee. The real
nature of the transaction is an authority to fill up the endorse-
ment according to the agreement of the parties, if an agree-
ment is made, and if none is made, with a common general
endorsement, such as the law presumes the parties intend where
no special agreement is made. The fair and bonafide possession
of a note with a blank endorsement, furnishes presumptive evi-
dence of authority to fill up the blank in a general, unlimited,
unrestricted manner. But the evidence is presumptive only, and
leaves to the endorser the liberty, while it imposes on him the
necessity, of proving the making of a different, express stipulation.
It is competent for a party in possession of a noto thus endorsed,
to fill up the endorsement, without other evidence of his right to
VOL. IV. K
146 KEW JERSEY SUPREME COVET.
Johnson v. Martinus.
do so than the mere possession. But it is competent for hia
immediate endorser, to prove that in so doing be has abused his
authority , and expressed the contract different from the stipu-
lation and agreement of the parties. Such conduct on the part
of the endorsee, would be a direct fraud ; and if the very perpe-
tration of the fraud could close up the avenues of detection and
preclude enquiry, the rules of law and the courts of justice
would merely call,, instead of treating, fraud, as that all destroy-
ing thing it is so .universally and so justly described. If a
person,, as is- sometimes very imprudently done, give his name to
a note with a blank left for the amount, but with an expi-ess
agreement that it ie to contain a sum* not exceeding one thousand
dollars, and it is filled by the payee with ten thousand dollars,
in an action* on this note by the payee, or by an endorsee with
knowledge of the facts, DO- court would hesitate to receive evi-
dence from a witness present a-t tbe signing of the note, of the
actual agreement between the parties, and of the authority
really given to th« holder of the note. Such evidence was re-
ceived in the ease of Ferris v. Sancton, I South. I, without objec-
tion either at the circuit or at the bar, as to the nature of the
evidence, although the competency of the witness- in that case,
connected as he was with the event of the suit, was controverted,
and ultimately denied. The same principle is applicable to the
question before us. The object was to shew that the endorse-
ment was filled up differently from the agreement of the parties,
that it should have been so filled up as to enable the endorsee to
recover the money from the drawer, but to save tbe endorser
from any responsibility in case of his failure.
In tbe ease of Herriek v, Cetrman, 10 John. 224, in a suit be-
tween the endorser and bis immediate endorsee, the Supreme
Court of New York said, that they were in one sense original
parties, between whom tbe consideration of tbe contract might
be enquired into, and held, evidence that the plaintiff, the endorsee,
had given »o consideration for tbe note, and was the mere agent
of tbe payees, to be admissive, in order to show that no recourse
could be bad to tbe endorser. In Barber v. Prentiss, 6 Mass. Sep.
430, tbe drawer of a bilk in an action by an endorsee, was per-
mitted to show, though tbe endorsement was general, that the en-
dorsee held the bill as the agent for the payees, for collection only,
and that the payees had requested him not to pay the endorsee;
and these facts were held to furnish a good defence. The case offlill
MAY TERM, 1827. 147
Johnson v. Martinus.
v. Ely, 5 Serg, and Rawle, 363, was an action by the endorsee
against the endorser, upon promissory notes drawn by one
Lamb, in favor of the defendant, and by him endorsed in blank,
and the plaintiff proved on the trial, that the notes were
delivered to him by the endorser, in payment of coffee pur-
chased of him by the endorser at the time of giving the notes.
.The defendant, the endorser, offered to prove by the testi-
mony of a witness, that at the time of the endorsements, it
was expressly agreed between the plaintiff and the defend-
ant, that the defendant was not to be held responsible as an
endorser for the payment of the notes, but that the endorse-
ment was made for the purpose of enabling the plaintiff to
collect the money from Lamb, the drawer. The Supreme Court
of Pennsylvania held that the evidence was admissible. In
Mehelm v. Barnet, in this court, Coxe 86, the defendant had,
" by general words in common form," as is said in the report,
assigned to the plaintiff a sealed bill, on which the plaintiff had,
after two years, sued and failed to recover, the maker being
insolvent, and then brought the action against the assignor,
to recover back the consideration paid on the assignment. The
defendant offered to prove it was expressly agreed at the time
of making the assignment, that the plaintiff should put it imme-
diately in suit, and take it at his own risk. The plaintiff's
counsel objected to the evidence respecting the terms of the
assignment, contending that it was going out of the assignment,
and varying the instrument, or the construction arising from it,
as it stood; that if the defendant meant to put any terms, they
should have been stated in the assignment; that after endors-
ing a note generally, the endorser could not, when prosecuted
by the endorsee, set up a special agreement to overthrow the
general operation of the endorsement. Upon the trial, which
was at bar, the evidence was held admissible, Kinsey, Ch. J. and
Justice Smith being in favor of it, and Justice Chetwood opposed.
The question again came before the court, on a rule to shew
cause why the verdict, which was for the defendant, should not
be set aside, and the whole court sustained the admiasibility of
the evidence.
What might have been the effect of the evidence offered in
the present case, on the part of the defendant below, if it had
been received, when considered in connection with other evidence
which is stated on the bill of exceptions, we are not at liberty
148 NEW JEESEY SUPREME COUET.
De Wit v. Decker.
to enquire or weigh. It is enough, that testimony to which the
party was legally entitled has been rejected.
Let the judgment be reversed, and a venire denovo awarded.
CITED IN Watkins v. Kirkpatrick, 2 Dutch. 89. Meyer v. Beardsky, 1 Vr. 236.
SOVERINE DE WIT, Appellee, againtt JEFFERSON DECKER, Appellant.
If, upon the trial of an appeal, a jury is demanded, and there is an objection
to the sheriff, the Court of Common Pleas are fully competent to order the cor-
oners to return a jury.
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 parties, viz.
An appeal was taken from the judgment of a justice, rendered
upon the verdict of a jury, and it came 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, the counsel for the appellant moved for a trial by jury, and
the court ordered the sheriff to return a panel, and thereupon the
sheriff returned a panel accordingly, in the above cause. To this
panel the counsel for the appellant objected, and filed a written
challenge to the array, when it was agreed between the parties,
and was otherwise made to appear to the court, that Benjamin
Hamilton, esq. the present sheriff of Sussex, previous to his elec-
tion to the office of sheriff, had attended before the justice, on the
trial of the cause below between the above parties, and had on such
trial assisted th e plaintiff, Soverine De Wit, as adviser and advocate
in the cause. The court, after argument, quashed the array. The
counsel of the appellee then moved the court to order that the
coroners of the county do return a panel, to which the counsel
for the appellant objected, and after argument, the court refused
to order or permit the coroners to return a panel. Upon the
above state of the case, it is agreed that application may be
made, in behalf of the appellee, to the justices of the Supreme
Court of New Jersey, at Trenton, at the term of February next,
MAY TERM, 1827. 149
Den v. Sinnickson.
or the May Term thereafter, for a peremptory mandamus to be
directed to the Court of Common Pleas of Sussex, commanding
them to direct the sheriff of Sussex, or coroners of said county,
to return a panel ; and in case the said Supreme Court shall be
of opinion, that under the facts and law of this case, the said
Court of Common Pleas of Sussex ought not to have quashed
the array or panel, as before stated, or, after quashing the same,
ought to have directed the coroners of Sussex county to have
returned a panel in the above cause, that the Supreme Court
may order and direct a peremptory mandamus to the Court of
Common Pleas aforesaid, commanding them to direct the sheriff
or coroners of Sussex to return a panel in the above cause, or as
shall appear to the said Supreme Court to be the most correct.
WM. HALSEY, of counsel, for appellee.
P. D. VROOM, for appellant.
BY THE COURT. — "We are all of opinion that the term sheriff,
(made use of in the third section of the supplement to the act
constituting courts for the trial of small causes, Rev. Laws, 797,)
means the proper returning officer; and if there is a legal
objection to the sheriff, the Court of Common Pleas are fully
competent to order the coroners to return a jury. Upon prin-
ciple, we should hesitate to prescribe, by mandamus, the partic-
ular course to be pursued by the Court of Common Pleas, and
it is to be understood that we do it in this case only in conse-
quence of the express agreement of the parties.
JOHN DEN ex dem. ABNER PENTON and ANN PENTON against SENECA
SINNICKSON and SINNICKSON SPARKS.
IS EJECTMENT.
1. 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.
2. Whether the possession is adverse or not, is a question for the jury.
3. Outstanding titles are not to be favoured. Whoever sets them up should
prove them strictly, and shew them to be subsisting and available.
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 instruc-
tion, and have found a verdict contrary to law.
150 NEW JERSEY SUPEEME COUET.
Den v. Sinnickson.
W. N. Jeffers, for plaintiff.
Wall, for defendants.
JUSTICE DRAKE delivered the opinion of the court.
This is an ejectment brought to recover the one third part of
two tracts of land, one containing forty acres, and the other about
six aci*es, lying in the township of Lower Penn's Neck, in the
county of Salem. The plaintiff, upon the trial, g'ave in evidence
a division of the real estate of Jane Lummiss, deceased, made in
December, 1803, by commissioners appointed by the Orphans'
Court of the county of Salem, among her three children, Jane,
(wife of Thomas Woodnut) Ann, (wife of Burtis Penton) and
Edward Lummiss, the younger. By this, and other testimony, it
appeared, that the premises in question were set off to Jane Wood-
nut who died without issue, and the lessors of the plaintiff, being
the only children of the said Ann Penton, dec. claim their mother's
shai'e of the property of her sister, the said Jane Woodnut, dec.
The plaintiff also gave evidence of the possession of the
premises by the said Jane Lummiss and her husband, Edward
Lummiss, during their lives, prior to the year 1803, (before which
time they both died) but how long that possession extended back,
did not appear distinctly, before the plaintiff rested his cause.
He also gave evidence of the possession of the premises being
held, after the division, by young Edward Lummiss, erther on
his own account or in behalf of Woodnut, until it was sold, as
his property, in the winter of 1806-7, after which it went into the
possession of Joseph Copner, under whom the defendants claim.
The plaintiff having rested, the defendants' counsel moved the
court to nonsuit. This was refused, and herein it is said that the
court erred.
It has been repeatedly decided, that 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. Such prior
possession having been shewn on the part of the plaintiff, and the
possession of the defendants, under Joseph Copner, not amount-
ing to twenty years, and the only proof of its originating under
color of right, furnishing at the same time some evidence of
recognition of the Lummiss title, I am clearly of opinion, that
it could not, of itself, bar the recovery of the plaintiff, and that
the court committed no error in refusing to nonsuit.
MAY TERM, 1827. 151
Den v. Sinnickson.
By the evidence on the part of the defendants, it appears —
that the lands in controversy, with other lands, were conveyed,
in the year 1729, by Sinnick Sinnickson, to one Erick Gill John-
son, who lived on the premises and died there, having, before
his death, conveyed the same to his nephew, William Gill John-
son, by deed dated the 22d day of May, 1770. On the decease
of Erick Gill Johnson, William Gill Johnson took possession,
and held it until his death, which is testified to have been
"before the war," and probably was about the year 1773.
At his decease he left his widow, Jane, (afterwards Jane Lum-
miss) in possession. He also left a son, Andrew, who died at
the age of five years, and a daughter Sarah, who survived her
brother, and died at the age of twelve or thirteen years, " after
the peace" and probably in 1785 or 1786.
In two or three years after the death of William Gill John-
son, his widow, Jane, married Edward Lummiss before men-
tioned, and they continued to enjoy the premises until their
decease, which took place before the year 1803.
The possession of Jane and Edward Ijiimmiss having been
thus commenced, she being the widow of William Gill Johnson,
and entitled to dower, and the mother and guardian of his
infant children, upon whom, in succession, the inheritance was
cast, it is insisted that it was not of an .adverse character; and
I should be inclined to that opinion, especially during the life-
time of Sarah Gill Johnson, who died in 1786 ; yet, as the
character of the possession is a question of fact for the jury to
decide, as a period of twenty years intervened between the death
of Sarah Gill Johnson, in 1786, and the sale to Joseph Copner,
in 1806, and as the jury may have considered the Lummiss title
as recognized by Joseph Copner, under whom the defendants
claim, in the first place by his purchase, and again, by an
expression in his will, I am not prepared to say that the verdict
is against law and evidence, or that it should be set aside for
that reason.
But an outstanding title is set up in the heirs of Sarah Gill
Johnson. Who are they? She died without issue, and without
any brother or sister, or the descendant of brother or sister,
living. Her father, William Gill Johnson, had no brother or
sister "that witness knew of." "Erick Gill Johnson had no
chil'lren. He had q brother John, that left two children,
Margaret, who married Alexander Brown, and Rebecca, who
152 NEW JERSEY SUPREME COURT.
Den v. Sinnickson.
married Ananias Elwell." But had Erick Gill Johnson no
brother besides John ? The witness gives no answer. Can we
tben say that there is an outstanding title in the descendants of
John? And if there be, how much, or what proportion of the
premises does it embrace? These outstanding titles are not to
be favoured. Whoever sets them up should prove them strictly,
and shew them to be subsisting and available. In the present
case it was incumbent on the defendants to trace the heirs of
Sarah Gill Johnson distinctly, and to shew in them a title pro-
tected from the operation of the statute of limitations, by some
of the disabilities therein mentioned. Having done this very
imperfectly, they cannot complain of the jury for not finding in
their favour upon doubtful evidence.
Upon a view of the whole case, I cannot perceive that injus-
tice has been done. A recovery has been had in favour of
undoubted heirs under the Lummiss title, against the defendants,
claiming under a branch of the same title, through Joseph
Copner, who had gone far to acknowledge its validity, and who-
purchased shortly after that title had been publicly recognized,
and a division of the lands claimed under it had been made by
virtue of an order of the Orphans' Court of the county of Salem,
and the jury have overlooked a supposed outstanding title, with
which the defendants are wholly disconnected, and which is left
doubtful by the evidence, whether it is now subsisting" and
available. The judge at the circuit, might, no doubt, have been
more explicit in his charge, with respect to the character of the
possession of Jane Lummiss; yet 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 found a verdict contrary to law.
I am therefore of opinion, that the rule to shew cause, &c.
should be discharged, and that judgment be entered for the
plaintiff.
The CHIEF JUSTICE, having been of counsel for one of the
parties, gave no opinion.
CITED IN Leport v. Todd, 3 Vr. 124.
CASES DETERMINED
15 THE
SUPREME COURT OF JUDICATURE
OP THE
STATE OF NEW JERSEY
AT SEPTEMBER TERM, 1827.
WILLIAM FOLLY against PETER VANTUYL and MARY his wife.
IN ERROR.
1. A deed may be delivered by any acts or words evincing an intent to deliver,
provided such intent have reference to the -present time.
2. If the obligor hold out the bond in his hand, (after it has been signed and
sealed) and say to the obligee "here is your bond, what shall I do with it," this
will be a sufficient delivery, although the bond never comes to the actual posses-
sion of the obligee.
3. The omission to give any charge when not required, or the omission to state
some legal principles which may be applicable to the case, where the attention of
the jury has not been improperly directed, is no ground of complaint on a writ
of 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 favour
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. The bill of exceptions, disclosed the following facts:
Jacob Bamper, a witness, examined on the part of the plain-
tiffs, testiffed that he drew a bond from William Folly to Mary
Folly, conditioned to pay fifty pounds, with a proper penalty,
which he believes was one hundred pounds. It was his custom
to draw the penalty for double the amount of condition. That
(168)
154 NEW JERSEY SUPREME COURT.
Folly v. Vantuyl.
he saw said bond executed by said "William ; after the defendant
executed the bond, he held the bond out in his hand and said to
Mary, " here is your bond, what shall I do with it." The witness
could not recollect the answer Mary made, but the defendant
added, I will take care of it for you. The bond was endorsed aa
Mary's bond, and handed by defendant to his wife, who put it up
in defendant's trunk, at his request. That he also then drew a
will for him. That it was about fourteen or fifteen years ago.
That he forgets who was by, and did not know whether the bond
was delivered then or not. That he said the said bond was for
the use of his daughter. That the daughter was in and out, but
he did not recollect whether she talked to defendant. Mary
lived in the house with him at this time. Said that this was
money that came from old Hans Van Blarcom, about a child that
Yan Blarcom's son was said to be the father of by Mary. He
understood that Van Blarcom paid defendant seventy pounds.
The defendant kept twenty pounds. The child was then four or
five years of age. This child had always lived with the defend-
ant; he is nineteen years of age. Mary has been married thir-
teen years. As soon as the bond and will were executed they
were locked up in a desk by defendant's wife. Cannot say
whether Mary was present.
Plaintiffs then called Anthony Crouter, who being duly sworn,
testified, that last March or April a year ago, Mr. Vantuyl, the
plaintiff, requested him to go to the defendant's house. That
they went, and Mrs. Vantuyl was there, and said she had come
for that bond. The old lady, Mrs. Folly, said, you must go to
Mr. Van Blarcom's. Peter Vantuyl then said, I demand that
note or bond. Defendant said, there is no bond for you.
Plaintiffs then called Abraham A. Quackenboss, who being
duly sworn, testified, that last March or April a year ago, he saw
William Folly, and said, that he enquired of witness whether it
was right for him to pay to his son in law what he wanted ;
whether it was not right that the boy should have it. Defend-
ant did not admit that he had the bond. — Acknowledged that
there was money to be paid, but that it ought to go to the boy.
That Peter Vantuyl worked at witness' house.
The defendant now moved to nonsuit the plaintiff, which the
court overruled.
The defendant then opened his evidence by his counsel, and
called Abner Armstrong, who being duly sworn, testified, that
SEPTEMBEE TEEM; 1827. 155
Folly v. Vantuyl.
some time in April, eighteen hundred and twenty-four, he saw
Bamper, and rode with him, and mentioned that there was a dis-
agreeable circumstance in Folly's family; that Vantuyl and his
father-in-law had got into trouble; that there was seventy pounds
that Van Blarcom was to pay to Folly; that fifty pounds was to
go to Wright's girl, (meaning Mary Vantuyl) and Folly had re-
fused to pay it. He asked Bamper if she had any writings; he
said, no; he said Van Blarcom gave a bond, and that was in
Folly's hands. He asked him if he ever saw any of the papers,
to which he replied, no — he wrote a will for him, but never saw
any bond, nor did he know of any bond. Bamper's character
was not the worst, or the best.
The defendant then called Adam Folly, who being duly
sworn, testified, that he stopped at Bamper's and talked of his
father's business with Vantuyl. Asked him if he knew of any
bond that had ever been given. He said, no — he never knew
of any such bond ; knew of no bond between Mr. Vantuyl and
his wife, and the old gentleman. This was last full, after har-
vest. His brother Peter, and Bamper's wife, were present. He
had lived in his lather's house twenty years, and never heard of
any bond.
Defendant then called John Van Blarcom, who being duly
sworn, testified, that the child of Mary Vantuyl, whilst Mary
Folly, was brought up by the defendant from an infant.
Jacob Bamper, called again by the plaintiff, said, that he never
stated to any person that he had not seen or drawn the bond from
William Folly to Mary. All he said was, that he had never seen
the bond given by Mr. John Van Blarcom to William Folly.
The plaintiffs and defendant having rested their evidence, the
defendant, by his counsel, prayed the court to charge the jury
on the following point, to wit, that a bond was not legally deliv-
ered unless it was actually delivered to the obligee, or some other
person in trust for him, and that other person a different person
from the obligor. Thereupon the court charged the jury, that a
delivery of a bond was necessary to maintain the action ; but
whether the bond in this case was delivered or not was a question
of fact for the jury to decide. If they were of opinion that the
bond was not delivered, then they ought to find for the defend-
ant. If they were of opinion that the bond was executed and de-
livered, then they ought to find for the plaintiff. The court wero
not requested to charge on any other point in the cause.
156 KEW JERSEY SUPEEME COTJET.
Folly v. Vantuyl.
The court having charged the jury, the defendants prayed, by
their counsel, a bill of exceptions.
The following causes of error were assigned for the reversal
of the judgment.
1. Because the court refused to nonsuit the plaintiffs, there
being no evidence of the legal delivery of the bond in question.
2. That the court was requested by the counsel of the said
William Foil}7, to charge the jury that a bond was not legally
delivered unless it was actually delivered to the obligee, or to
some other person in trust for him, and that other person a dif-
ferent person from the obligor, and which charge the court de-
clined to give to the jury.
3. That the court refused to charge the jury, what was or was
not a delivery of a bond, but instructed them as follows, to wit,
that a delivery of a bond was necessary to maintain the action,
but whether the bond in this case was delivered or not, was a
question of fact for the jury to decide. If they were of opinion
that the bond was not executed and delivered, then they ought to
find for the defendant. If they were of opinion that the bond was
executed and delivered, then they ought to find for the plaintiff.
ATTORNEY-GENERAL and GIFFORD,
for the plaintiffs in error.
W. PENNINGTON, for defendants.
EWING, C. J.—
A bill of exceptions was taken by the defendant below, to the
charge given by the Court of Common Pleas of the count}7 of
Bergen. The action was in trover, for a bond alleged to be the
property of the plaintiffs, and said to have been made by the
defendant, Folly, to one of the plaintiffs, before her coverture.
The case depended, as appears from the bill of exceptions, on
the question of the delivery of the bond.
The counsel of the plaintiff in error, on the argument, objected
to the charge; that the court had been required to state to the
jury what constituted a legal delivery, and had omitted to do so.
Upon looking into the bill of exceptions, however, it appears the
court was not called on generally to explain or state to the jury in
what a legal delivery consisted, but a specific proposition was pro-
pounded, and the court was asked so to state the law to the jury.
"The defendant, by his counsel, prayed the court to charge the
jury on the following point, to wit, that a bond was not legally
SEPTEMBER TERM, 1827. 157
Folly v. Vantuyl,
delivered, unless it was actually delivered to the obligee or some
other person in trust, and that other person a different person
from the obligor." And the court was not requested to charge the
jury on any other point in the cause. Now the proposition thus
propounded was not correct. There are other modes, as will be
hereafter shewn, whereby a legal delivery may be effected, with-
out an actual tradition or handing over by the obligor to the
obligee, or some other person in trust for him. It was therefore
no error in the court to decline giving such a charge. Let us
then examine the charge which was given, and see whether
there be in it any thing illegal or erroneous. The court charged
the jury, that "a delivery of a bond was necessary to maintain
the action, but whether the bond in this case was delivered or
not, was a question of fact for the jury to decide ; if they were
of opinion that the bond was not delivered, then they ought to
find for the defendant ; if they were of opinion that the bond
was executed and delivered, then they ought to find for the plain-
tiffs." It may be, that a more full, explanatory and satisfactory
charge, might have been given. So far, however, as it extends,
what it does contain, is true and correct. Whether any charge
shall be given, or how full and explicit it shall be, are subjects
on which the court may exercise a sound discretion ; and the
omission to give any charge, or the omission to state some legal
principle which may be applicable to the case, where the atten-
tion (ft the jury has not been improperly directed, is no ground
of complaint on a writ of error. Calbreath v. Gracy, 1 Wash. Cir.
Co. Rep. 198. If in the opinion of counsel, a charge on particu-
lar legal points is necessary, such charge may be required, and
its omission, or the manner of its performance may then become
the subject of investigation. And, if the court state any matter
to the jury, without being so requested by counsel, exception
may be taken to it. But unless the court charge erroneously, or,
being legally required, omit or refuse to charge at all, or on some
particular point, there is no room for exception. In the case
before us, according to these principles, I am of opinion there is
no error in the charge of the court.
For the decision of the case before us it is not necessary to
say more; but as the question on the proof of the delivery of
the bond was very fully argued, it may perhaps be more satis-
factory to express an opinion on that point. Was there sufficient
evidence to warrant the jury in finding a delivery of the bond?
158 NEW JERSEY SUPREME COURT.
Folly v. Vantuyl.
The jury having found the delivery, is there evidence to sustain
the verdict?
Jacob Bamper testified, that he drew the bond, which he
described; that he saw it executed by the defendant. After
the defendant executed it, he held it out in his hand, and said
to Mary, one of the plaintiffs, the obligee named in it, " Here
is your bond, what shall I do with it? The witness could not
recollect the answer Mary made, but the defendant answered, I
will take care of it for you. The bond was endorsed as Mary's
bond, and handed by the defendant to his wife, who put it up
in the defendant's trunk at his request ; that he also then drew
a will for him ; that it was about fourteen or fifteen years ago ;
that he forgets who was by, and did not know whether the
bond was delivered then or notj that the defendant said the
bond was for the use of his daughter; that his daughter was
in and out at the time, and lived in the house, but he did not
recollect whether she talked to the defendant; that as soon as
the bond and will were executed, they were locked up in a
desk by the defendant's wife, and cannot say whether Mary
was present."
On the argument some remarks were made towards the dis-
credit of Bamper. The jury, however, have confided in him,
and that subject is by the verdict closed against enquiry.
There is no precise or set form in which a delivery must be made.
A deed may be delivered by words without acts; or by acts with-
out words; or by both acts and words. Shep. Touch. 58. After
the writing has been signed and sealed, an intent, coupled with
acts or words evincing such intent, to consummate and complete
it, and to part absolutely and unconditionally with it and the
right over it, is sufficient to give it legal existence as a deed. In
Shelton's case, Cro. Eliz. 7, the grantor sealed the deed, in tho
presence of the grantee and of other persons, and it was at the
same time read, but not delivered, nor did the grantee take it
away, but it was left behind them in the same place, yet by the
opinion of all the justices it was held a good grant, for the
parties came for that purpose, and performed all that was requi-
site for the perfecting it except the actual delivery; but it being
left behind them, and not countermanded, was said to be a
delivery in law. In Hollingworth v. Ascue, Cro. Eliz. 356, it was
said by Anderson, Ch. Just. "A delivery may be without words
of delivery, as it hath been adjudged that one made a release
SEPTEMBER TERM, 1827. 159
Folly v. Vantuyl.
and cast it upon the table, and said " this will serve" this is a
good delivery. Shephard says, Touch. 58, " If I take the deed
in my hand, and use these or the like words, Here, take it, or this
will serve, or I deliver this as my deed, or / deliver it to you, these
are good deliveries." Lord Coke says, Co. Lit. 36, a., a deed
may be delivered by words " without any act of delivery, as if
the writing sealed lies upon the table, and the feoffor or obligor
says to the feoffee or obligee, ' Take up said writing, it is suffi-
cient for you,' or ' it will serve the turn,' it is a sufficient
delivery." In Goodright v. Strahan, Cowp. 201, where a deed, in
nature of a mortgage, was made by a husband and wife, of the
wife's lands, which by reason of the coverture, was admitted to
be void as to the wife, yet facts, after the decease of the hus-
band, amounting to an acknowledgment by the wife that the
deed was hers, and that the party should enjoy according to the
terms of it, were held to be equivalent to a redelivery. In
Goodrich v. Walker, 1 John, cases, 253, the Supreme Court of
New York said "A formal delivery is not essential, if there
be any act evincing the intent." In the case before us, the
obligor, after having signed and sealed the bond, holding it up
in his hand, addressed the obligee, "Here is your bond." Words
evincing and acknowledging a delivery as strongly as any which
could be selected. As if he had said " This instrument is now
complete. It has become a bond. It is now your property.
'What shall I do with it?' It is now absolute. It is under
your control. I have no longer any authority over it. Direct
where it shall be placed, and by whom preserved, for your
benefit." The obligee said something, not recollected nor
proved, and the defendant added, "I will take care of it for
you." I will take care of it, not until some stipulation or con-
dition is performed, not until certain circumstances occur which
may induce me to give it legal efficacy; but "for you," absolutely,
unconditionally, as your property, in the character of your
agent and fiduciary. It may be said, that in the cases which I
have cited, the deed, in some mode more or less direct, came into
the hands of the person to whom it was made, and was produced
by him. I do not apprehend that any substantial difference in
principle results from this consideration. In the cases where the
deed was left on the table, or cast on the table, there was no
actual delivery to the grantee, or to any person for him. The
essence of the whole consisted in the intent of the grantor or
160 NEW JERSEY SUPREME COURT.-
Folly v. Vantuyl.
obligor to perfect the instrument, and to make it at once the
absolute property of the grantee or obligee, and the acts and
declarations are, in truth, the evidence of such intent. Such was
the clear intention and the plain avowal, in the present instance,
of the defendant. The validity of the bond, if once by apt
delivery it had legal existence, cannot be destroyed by the fact
of her placing or leaving it in the hands of the obligor for safe
keeping. The prudence of such a measure, or the presumption
which might arise in the absence of any evidence of delivery,
are other considerations. Moreover, in examining this subject
it should not be overlooked, that the matters contained in the
hill of exceptions are not to be scanned like the facts stated in a
special verdict. They are the matters given in evidence to a
jury — from which they were authorized to draw all just infer-
ences and presumptions.
There is then enough in the evidence to warrant the jury in
the belief that the bond was legally delivered, and to sustain the
verdict.
On the argument was mentioned the case of Den on the demise
of Gibbs v. Shaver, tried before me at the Sussex May Circuit, 1825,
in which a deed was overruled. Being a Nisi Prius decision, it
can deserve no weight here, and I should not notice it, except for
the single purpose of distinctly stating the circumstances. The
deed on that occasion offered and overruled, had been signed and
sealed by the grantor, and then taken and retained by him during
his lifetime. He not only had not delivered it directly or indi-
rectly, by himself or another, to the grantee, or to any person for
her, but avowed his intention when he signed it, not to deliver it
in his lifetime. In the certificate of acknowledgment by the
grantor, the word " delivered," was omitted, and the reason of
the omission was stated by the judge who had taken the acknow-
ledgment, to be, because the grantor had not delivered it, and
did not intend in his lifetime to deliver it.
In my opinion the judgment of the Court of Common Pleas
of Bergen should be affirmed.
FORD, J. — Peter Yantuyl and Mary his wife, who were plain
tiffs in the court below, declared against the defendant, William
Folly, who was the father of Mary, in trover for a bond of fifty
pounds, which the husband and wife alleged to have been made
and delivered by the father to his daughter Mary, prior to her
SEPTEMBER TERM, 1827. 161
Folly v. Vantuyl.
being married to Vantuyl, but which he now refused to deliver
up to the husband and wife on request. The signing and sealing
of the bond seem not to have been contested between the parties
at the trial. The sum was part of seventy pounds, for which Hans
Van Blarcom had given his bond to Mr. Folly, in consideration
that his son was the putative father of a child by Mr. Folly's
daughter Mary, anterior to her marriage with Vantuyl. The
main dispute was whether Mr. Folly had ever delivered the bond
to his daughter, and what constitutes a delivery in law. Jacob
Bamper, testified, that he drew up the bond from Mr. Folly to
his daughter, in the usual penalty, conditioned to pay her fifty
pounds, and saw him sign and seal it; he then saw him hold out
the bond towards his daughter, and say to her, "Mary, here is
your bond, what shall I do with it?" He did not recollect what
answer Mary made; but Mr. Folly added, "I will take care of
it for you." It was then endorsed as Mary's bond, and Mr. Folly
handed it to his wife, who put it up in her husband's trunk, at his
request. Upon the evidence thus given there was a motion for a
nonsuit, on the ground that it did not amount to proof of a deliv-
ery ; but the motion was refused. The defendant's counsel then
asked the court to charge the jury, that a delivery, in order to
bo legal, must be made to the obligee, or to some person in trusf
for the obligee, which person could never be the obligor him
self or his wife. The court charged the jury that a delivery of
the bond was necessary to be proved, in order to maintain the
action that if they considered it not proved, they would find for
the defendant, otherwise for the plaintiffs. The counsel for the
defendant took a bill of exceptions to this charge, because it
did not explain what was, or was not, a legal delivery. Now,
the single question in this case was, whether the bond was
delivered to Mary herself; it was considered by the court to be
the simple point and the only one; for as to the idea of the
obligor making the delivery to himself or his wife, they neither
approved, nor so much as gave it countenance, in their charge.
The delivery was not made to Bamper the witness ; that was not
even pretended ; and it could not be made to any other person pre-
sent at the time but Mary herself. It could neither be made to
the obligor nor to his wife. Delivery means the surrender of some-
thing tortnother person, and therefore excludes the i-dea of a man's
surrendering to himself. He would have no act to perform. It
equally excludes the idea of a man's surrendering to his wife; for
VOL. IV. L
162 NEW JEESEY SUPEEME COUET.
Folly v. Vantuyl.
husband and wife are one person in law, and cannot act in the
opposite characters of giver and receiver. By the husband's
appointment a wife may deliver a deed for her husband, or
receive one for him, because in so doing she acts consistently
with the relationship between husband and wife, who are allowed
to act for, but never against each other as separate parties.
Hence a delivery of the bond could not have been made to any
person then present but' Mary herself; and whether it was, or
was not, delivered to her, was the simple point put to the jury.
And if they credited the testimony of Bamper, as undoubtedly
they must have done, they certainly did right, both as to matter
of fact, and matter of law. They could not find indeed that the
instrument of writing was delivered into Mary's hand, nor was
that necessary. Delivery may be consummated by an act with-
out words; and so it may by words only, without any act of
delivery. All the books are to this effect. Shep. Touch. 57, lays
down the doctrine thus: " So if I take the deed' in my hand, and
use these or the like words; here take it; or, this will serve;
or, I deliver this as my deed ; or, I deliver it to you ; these are
good deliveries." To the same effect is Cruise's Dig. tit. Deed, ch.
2, sec. 51. "A deed may be delivered by words without any act of
delivery; as if the writing sealed, lies on the table, and the feoffor
says to the feoffee, go and take up the said writing, it is sufficient
for you ; or, it will serve the turn ; or the like words, it is a
sufficient delivery." So in Cro. Eliz. 7, Shelton's case, "A deed
was sealed in presence of several and of the grantee himself,
and read, but not delivered, nor did the grantee take it, but it
was left behind them in the same place; the court said that
the parties came for the purpose; it was left behind them
and not countermanded, and is a good delivery in law." In
corroboration of these authors, see 1 Inst. 36 a. 9 Co. 137.
.Corny. Dig. tit. Fait. A. 3. Now Mr. Folly's words were quite
.&s strong as those mentioned in the books, and much less
equivocal than some of them. He signed and sealed in the pres-
ence of Mary and others, and had the bond lying before him on
the table; so far the similarity to the case in the books is per-
fect. He need not to have taken it in his hand; for according
to Lord Coke, Comyns and Cruise, before cited, he might have let
it lie on the table or window bench, and only have peferced to it;
he went further than the books require ; he took it in his hand,
and holding it out to Mary, said " here is your bond." This is
SEPTEMBEE TEEM, 1827. 163
Folly v. Vantuyl.
far less equivocal than in the case of a deed for lands to say,
"there it lies on the table," without saying what lies there,
whether the deed or some other document or brief of title com-
monly on a table at the time of making out a conveyance. 'Mr.
Folly left nothing dubious or equivocal about what instrument
he intended by it, for he held the bond in his hand ; and his
words were more pregnant with meaning than most of those
which are said in the books to be sufficient; "Mary, here is your
bond : " had he said here is my bond, he would have left the mat-
ter equivocal, for it might be his, drawn up, signed and sealed,
but not delivered, by him ; his saying here is your bond, is vastly
more conclusive, inasmuch as it could not be her's without de-
livery ; therefore his words imported delivery, and they must be
BO understood or they cannot be true. Beyond all, he submitted
the control and custody of it to her will, by asking her "what
shall Ida with it?" The father condescends to ask instructions
from his child touching the safe keeping of the instrument,
thereby admitting her to be the owner and proprietor of it in a
sense that she could not be without a previous delivery, and
shewing that he himself considered what was said and done as
amounting to it. In the case of Goodrich v. Walker, 1 Johns, cases
253, it was taken as the sense of all the books, " that a formal de-
livery is not essential if there be any act. evincing the intent."
Now he could not have better manifested his intent to deliver the
instrument, and render it effectual, than after signing and sealing,
to take the instrument in his hand, hold it out to Mary, acknowl-
edge it to be her bond, and submit it to her disposal. A delivery
that was complete at the time could not be revoked afterward
by Mr. Folly without the consent of his daughter.
Finally. If the delivery to Mary at the time be once established,
it was by no means illegal or inconsistent that the father should be
entrusted with the safe keeping of a bond belonging to his child.
The idea that because it was a bond against himself and in bis
physical power, therefore he might lawfully suppress, cancel or
destroy it, is altogether sophistical and repulsive to sound morals.
He might as well claim a right to squander a sum of money be-
longing to a child, after it had been deposited in his hands for safe
keeping, and deny that he was answerable. The promise con-
tained in these words, " I will take care of it for you" amounted to
a Mjlemn contract so to do, it created a direct trust and confidence
and the violation of it would be considered in all courts as a gross
164 KEW JEESEY SUPKEME COUET.
Folly v. Vantuyl.
and unnatural injury to the just rights of the child. On the whole
the court decided properly in refusing the motion for a nonsuit;
in their charge they put the true point to the jury, whether the
bond was delivered to Mary herself, and they might have gone
further and declared that the acts and words ascribed to Mr.
Folly amounted in law to a complete delivery. It is no injury
to the defendant, of which he can complain, that the court did
not charge against him as they might; and for these reasons I
think there is no error, and that the judgment ought to be affirmed.
DRAKE, J. — The principal question in this cause relates to the
delivery of the bond by the defendant to his daughter. A motion
that the plaintiffs be nonsuited, was made for defect of evidence
in that particular; and the refusal of the court is assigned as a
reason for the reversal of the judgment.
There are some authorities, that a delivery must be to the gran-
tee, or a third person for his use. But these expressions are prop-
erly applicable to the case of an escrow, or conditional delivery,
as will appear upon tracing them back to their origin. There are
many of these principles laid down in the old books, which in the
subsequent history of the law, are found too narrow to embrace
the great variety of cases which arise, properly belonging to the
same class. And it shows that commentators and courts should
be cautious how they endeavor to regulate, or construe, by arbi-
trary rules the ordinary transactions of mankind. It is opposed to
the spirit of the common law, which is the perfection of reason,
and seeks to adapt its provisions to the circumstances of every case ;
that the intentions of contracting parties may be carried into effect,
and justice be done. " Any acts or words evincing the intent to
deliver," are sufficient, provided such intent have reference to the
present time. In the case before us, the intent was fully evinced.
The defendant "held the bond out in his hand, and said to Mary,
here is your bond, what shall I do with it:" thus putting it at
her disposal and under her control. The witness could not recol-
lect Mary's answer, but the defendant added, "I will take care of
it for you." "The bond was endorsed as Mary's bond," handed
by the defendant to his wife, and put away. The defendant
constituted himself her agent for the safe keeping of this bond.
An act acquiesced in by the daughter, but not of a nature to de-
prive her of the benefit of the delivery. Situated as the parties
were, the delivery was as complete as if Mary had taken it into
SEPTEMBER TERM, 1827. 165
Gould v. Brown.
her hand when extended towards her, and had then returned it
to her father for safe keeping. And that additional ceremony-
would have satisfied the most rigid requirements of any dicta to
be found in the books.
It is next objected, that the court did not explain the law to
the jury, when requested, as to what would constitute a good
delivery. If I am correct in the view taken of the first point in
this cause, no injury has been done to the plaintiff in error by
want of particularity in the charge of the court. If they had
been more explicit, it must have been against the plaintiffs in
error, and in conformity to the finding of the jury. Upon the
whole case I am of opinion that the judgment be affirmed.
Judgment affirmed.
CITED IN Linn v. Ross, 1 Harr. 57. Marshall v. Hann, 2 Harr. 429. Den,
Farlee v. Farlee, 1 Zab. 286. Cole v. Taylor, 2 Zab. 61. Crawford
V. Bertholf, Sax. 458. Woodward v. Woodward, 4 Hal. Ch. 779.
JOHN R. GOULD against CHARLES BROWN.
OEBTIOEARI.
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 it' the
party aggrieved omit or neglect to seek such relief on the trial of the appeal,
ne cannot obtain it in this court.
2. A judgment of the Court of Common Pleas, rendered on an appeal, will
be reversed if the state of demand is defective.
3. In an action of trespass vi 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
Hornblower, for plaintiff.
Attorney -General, for defendant.
The CHIEF JUSTICE delivered the opinion of the court.
Gould, the plaintiff in certiorari, seeks to reverse the judgment
in this case, because the justice refused to allow an adjournment
to which he was legally entitled, whereby he was deprived of the
attendance of his witnesses. Brown answers that he should have
sought relief on the appeal he made to the Court of Common
Pleas, where after a trial by jury, judgment was again rendered
against him ; and having omitted to do so, he is precluded here.
The plaintiff replies, that redress here is open to him, because
that court could not relieve him from the error of the justice.
166 NEW JEKSEY SUPEEME COUET.
Gould v. Brown.
The sixth section of the supplement, of November, 1820, to the
act constituting courts for the trial of small causes, Rev. Laws, 798,
enacts that nojudgment rendered in any of those courts,from which
an appeal is given, shall be removed into this court by certiorari
or otherwise, for the correction of any supposed error therein, but
the party thinking himself aggi'ieved shall have relief upon the
appeal only, and that both as to matter of law and matter of fact.
The letter of this section, as well as the obvious design of the
legislature, was, to correct upon the appeal all errors of the jus-
tice, in cases where an appeal is given, and to preclude those
errors from being the subject of enquiry or complaint here, ex-
cept when they may have been sanctioned by the Court of Common
Pleas, or redress refused there, so that they may have become in
fact the errors of that court. Nothing can be more plain and
explicit than the language of the act. No judgment shall be
removed here by certiorari for the correction of any supposed
error therein. Is not this clause of the same purport precisely
as if the legislature had said, a supposed error in the judgment
of the justice shall not, on certiorari, be assigned as a reason or
cause of reversal? Again, the party shall have relief upon the
appeal only, and that both as to matter of law and matter of fact.
Terms more comprehensive could not have been easily conceived
or readily employed. The error assigned in the cause before us
is in matter of law. The justice refused an adjournment, to which,
as the plaintiff says, he was legally entitled. If so, he is required
by the express provisions of the act to seek relief in the Court
of Common Pleas, and not here until it be first refused to him
there. To suppose that the Court of Common Pleas cannot afford
relief in a case of this nature is incorrect. The powers given to
that court by the act are abundantly sufficient; and we are not
to presume that they would not have been properly exercised.
It cannot escape observation, that if the present cause of reversal
were sustained, so many others similar in principle would irresisti-
bly follow, that by judicial construction, a very plain enactment
of the legislature would be almost, if not altogether, overthrown.
The plaintiff in certiorari should have sought relief upon the
appeal, and having omitted to do so, he cannot prevail here.
An alleged defect in the state of demand is also assigned as
.cause of reversal. This objection stands on very different ground
from the former. If a state of demand is radically vicious, or sets
forth no legal cause of action, a reversal will take place ; and
SEPTEMBER TEEM, 1827. 167
Ogden v. Price.
rightfully; for a judgment in such a case in favor of the plaintiff
is an error of the Court of Common Pleas. .The state of demand
is to exhibit the plaintiff's cause of action; and such cause, after
judgment, he is supposed to have proved on the trial. If there-
fore it contain no legal cause of action, or exhibit an illegal com-
plaint, it manifests an error in the Court of Common Pleas to have
entitled the plaintiff in such case to recover. We may therefore
enquire into the alleged defect. The state of demand is in tres-
pass vi et armis for the taking and carrying away sundry goods
and chattels particularly enumerated ; and is admitted to be every
way formal, except that the alleged value of the articles taken is
not expressed. For such an omission, or for one partaking so little
of the essence of a cause of action, no judgment of a justice or of
a Court of Common Pleas, it is believed, has ever been reversed in.
this court. In Moore v. Whitacar, Pen. 460, in trespass ; and in Lip-
pincott v. Smith, 1 South. 95, in case, the value of the property was
not averred. Notwithstanding exceptions to the state of demand,
not it is true on this ground, the judgments were sustained. The
case of Vandyke v. Dodd, 1 Halst. 129, is more directly in point.
The very objection was there taken. Justice Ford, in delivering
the opinion of the court, said, "Had it alleged the quantity and
value of each article, it would have been more formal ; but the
uttermost form of the books alleges quantity and value under a
videlicet, and then they are not to be proved as laid, but are left
open to any evidence that the plaintiff may be able to adduce at
the trial. The declaration is sufficient in substance."
Let the judgment be affirmed.
CITED IN Glover v. Dollins, 3 Harr. 236. Cheeseman v. Cade, 4 Zab. 633.
OLIVER W. OGDEN against ROBERT PRICE and JOSEPH D. PRICE.
CEBTIOBARI.
A right to the services of a child, born of a slave since the fourth day of July
1804, is assignable, and may be vested by assignment in one person, while the
ownership of the mother is in another.
A subsequent change in the condition of the mother, will not affect the right
of the master to services of the child.
This was a certiorari brought to reverse a judgment of a
justice of the peace, obtained by the defendants in certioran
168 NEW JEESEY SUPEEME COUET.
Ogden v. Price.
against Ogden, the plaintiff, for harboring a black girl named
Betty, alleged to be the property of the defendants, the plaintiffs
below. The facts appeared by a state of the case, agreed
upon, to be:
That this black girl was born since the fourth day of July, 1804,
that her parents were slaves; and that they, together with their
child Betty, had been sold on the 10th of April, 1816, by Ogden,
the defendant below, to Thomas Morrell ; and on the 31st of
March, 1817, Mr. Morrell sold all three of them to Phineas Moore,
who on the 14th of April, 1824, sold them to Elihu Price ; and he
failing and taking the benefit of the insolvent act, assigned them,
together with all his other property, to the plaintiffs below (as
assignees under the statute) for the benefit of his creditors. Mr.
Morrell, at the time he purchased the parents of Betty, agreed
verbally with them to manumit them at the expiration of seven
years, provided they would serve him faithfully to the end of that
time. This promise was renewed to them by Moore, at the time
he purchased; and when Moore sold to Price, he recommended
to Price to manumit them before they arrived at the age of forty,
which Price promised should be done. But no such manumission
•was ever made by Price.
Scudder and Horriblower, for plaintiff.
W. Hoisted, for defendants.
EWING, C. J. — The only question presented in this case to our
examination is, whether the assignment made by Elihu Price to
the plaintiffs below was valid as to the negro child Betty, and
transferred to them her services. The right of Price at the time of
the assignment to the services of the child until the age of twenty-
one years, is not questioned; nor the formality and sufficiency
of the instrument, if the child, or more properly the services of the
child, during the residue of that period, were legally assignable.
The first section of the act for the gradual abolition of slavery,
Rev. Laws, 679, upon which it is avowed the resolution of the
question depends, seems too plain to sustain a doubt. " Every
child born of a slave within this state since the fourth day of July,
1804, or which shall hereafter be born as aforesaid, shall be free,
but shall remain the servant of the owner of his or her mother,
and the executors, administrators or assigns of such owner, in
the same manner as if such child had been bound to serve by
SEPTEMBER TERM, 1827. 169
Ogdei> v. Price.
the trustees or overseers of the poor, and shall continue in such
service, if a male, until the age of twenty-five years, and if a
female, until the age of twenty-one years." By the explicit terms
of this section, the assignability of the servant is established. The
child shall remain the servant of the owner of the mother, and
of the assigns of the owner, until the specified age. Such phrase-
ology admits but one construction. Nor when one transfer has
been made by the owner of the mother, does the servant cease to
be assignable, so that the assignee cannot transfer to another per-
Bon. Independent of the manifest and utter improbability that
Buch was the intention of the legislature, and of the incongruity
of such a limitation if a transfer be at all admitted, the letter of
the section is hostile to it. The term, assigns, comprehends not
merely a single person, but a line or succession of persons. Its
use, in this way, in respect to real estate, is very familiar.
It was insisted at the bar by the plaintiff's counsel, that the
assignment in question was invalid, because the child could not,
according to the act, be held by any other person than the owner
of the mother, nor be transferred, without in like manner and at
the same time, the transfer of the mother. This argument finds
not the slightest support in the act. On the contrary it is
clearly repudiated. The child is to remain the servant of the
owner of the mother. If the sentence had stopped there, the
position insisted on would have -had some semblance of support;
but, as if to preclude doubt or misapprehension, it proceeds, "and
the executors, administrators or assigns of such owner." More-
over, the inadmissible consequence would necessarily result, and
indeed such seemed to be the opinion of the plaintiff's counsel,
that the death or manumission of the mother would at once dis*
charge the child. Nothing but the most unequivocal language
should induce the belief that the legislature intended to expose
the owner, after the expense of nursing and maintaining the
child during the helpless years of infancy, to be cut off from all
remuneration by the premature decease of the mother, or to the
loss of the services of the child by a liberal and generous manu-
mission of its parent.
The argument of the plaintiff's counsel against the validity of
the assignment was mainly placed on the provision in the sec-
tion under consideration, that the child "shall remain a ser-
vant," in the same manner as if such child had been "bound to
service by the trustees or overseers of the poor." An indented
170 NEW JERSEY SUPREME COURT.
Ogden v.« Price.
servant, it was said, cannot be assigned, nor can an apprentice.
Therefore as the child is to remain in the same manner, no assign-
ment can be made. It is manifest, however, that the case bears
no analogy to that of an apprentice, and the reason of the one
cannot fairly apply to the otherj nor is it so perfectly clear as
was assumed by the plaintiff's counsel, that the indented ser-
vant may not be assigned. JBut without entering at all into the
examination of these questions, it is a sufficient answer to the
argument to advert again to the act. It makes in express terms,
the kind of servant now in question, assignable, whatever may
be the rule with regard to an indented servant or an apprentice.
The servant is to remain in the same manner as if bound to ser-
vice by the trustees or overseers, not only in the hands of the
owner, but of the assigns of such owner. The provision, then,
declaring the manner in which the servant shall remain, was
clearly not intended to restrain or deny the assignability, but
for other purposes.
It was further contended, that the servant is not property,
and therefore cannot pass by an assignment. But this is erro-
neous. The services of a slave, and the services of the servant
now in question, are a species of property, long and clearly
recognized as such by the laws, customs and business of the
Btate; deemed valuable to the owner; and transferred from one
citizen to another like other personal property. With the ques-
tion of abstract or original right to such property, we have here
nothing to do; nor with its policy.
In the course of the argument much inconvenience was antici-
pated, and many abuses predicted from permitting these servants
to be assigned ; and the affliction induced by the separation of
children and parents, was portrayed in vivid colors. It cannot,
however, fail to be recollected, that however justly arguments ab
inconvenienti may be presented, where the construction of a stat-
ute is doubtful, they are not admitted where the language is clear,
and the design and intention manifest. Fisher v. Blight, 2 Cranch.
386. If the pictures exhibited by the plaintiff's counsel were
drawn from real life; if fact, not fancy, sat for the portrait, the
power of the legislature might properly be invoked. Much,
too, was said, and justly, in reprobation of personal and domestic
slavery in every form ; and however we may yield as men and as
citizens to the truth of the remarks which did honor to the head
and heart of the counsel who submitted them, yet even they, we are
SEPTEMBER TERM, 1827. 171
Ogden v. Price.
persuaded, will not expect that we, sitting in this hall, should from
such considerations, refuse obedience to a constitutional and un-
ambiguous act of the legislature. Our duty is jus dicere, non dare.
FORD, J.— An action on the case was brought before a jus-
tice of the peace against Oliver "W. Ogden, for harbouring a
black girl named Betty, about thirteen years of age, alleged to
be the servant of the plaintiffs. She was born since the fourth
of July, 1804, and had been sold, together with her parents, who
were slaves, on the tenth of April, 1816, by Mr. Ogden to
Thomas Morrell; and on the thirty-first of March, 1817, Mr.
Morrell sold all three of them to Phineas Moore ; who on the
fourteenth of April, 1824, sold them to Elihu Price; and he, on
taking the benefit of the act, had assigned them, together with
all his other property, to the plaintiffs below, as .assignees, under
the statute, for the benefit of his creditors. Mr. Morrell had
agreed verbally with the parents of the girl, at the time when
he purchased them, to manumit and set them free at the expira-
tion of seven years, provided they would serve him faithfully till
the end of that time; this promise was renewed to them by Mr.
Moore, at the time of his purchasing them; but he had not ful-
filled it; and as they were approaching the age of forty when he
sold them, ho recommended to Elihu Price to have it done before
they should attain to that age, and was promised that it should
be done; but Mr. Price failed, and took the benefit of the act,
before it was accomplished. It was insisted that the black girl
Betty, was no longer a servant. By the act for the gradual
abolition of slavery, Rev. Laws, 679, sec. 1. though born of a
slave she was born free ; but the statute says, " she shall remain
the servant of the owner of the mother, and the executors, admin-
istrators or assigns of such owner, in the same manner as if
such child had been bound out to service by the overseers of the
poor, and shall continue in such service until she attains the age
of twenty-one years." She is to remain a servant of the owner
of the mother; and did so remain, it was argued, as long as
there was any owner of the mother to claim her service; but
when her mother became free, under the foregoing promises,
at the end of seven years, and ceased to have a legal ownert
there was no person of that description to claim the services
of Betty, and that consequently she could not lawfully be con-
strained to serve any body. This argument takes for granted
172 NEW JEESEY SUPEEME COUET.
Ogden v. Price.
what yet remains to be proved, that verbal promises of freedom,
•without any act or record of manumission, made the parents
free at the end of seven years. Supposing this for argument's
sake were true, that the mother became free at the end of seven
years, how could her subsequent acquisition of freedom have
any influence over the condition of the child? The condition
of service attached to the chlid from the circumstances of its
birth; it resulted from being born of & slave; it was separated at
its birth from the fate, and was no longer to follow the destiny
of the mother; for according to the wording of the statute it
was to. remain and continue a servant till the age of twenty-one
years, and consequently its condition could not vary with the
subsequent condition of the mother. A right to the services of
the child resulted to, and vested in, the person, who was owner
of the mother at the time the child was born ; but this right was
* O
not ordered by the statute to attend and follow such ownership
wherever it might afterward go ; it was made to be exactly the con-
trary, a right that might pass to executors, administrators or
assigns; it was a right made assignable by itself, and consequently
it might be vested in one person by assignment, while the owner-
ship of the mother was in another. This right of service was to
be as independent as if it had been acquired by indenture from the
trustees and overseers of the poor. The overseers have power to
bind out the children of poor parents till eighteen; but was it
ever supposed that a subsequent change in the condition of tho
parents, as if they should suddenly become rich, would vacate
the indenture? If not, then how could this statutory indenture
become void by the subsequent condition of the mother? If the
mother's freedom could unbind the child and discharge it from ser-
vice, it would. paralyze that entire clause in the statute which de-
clares that such child shall remain and continue in such service till
she attains the age of twenty-one years. The conclusion is inevita-
ble that the child must continue till twenty-one years old a ser-
vant to the first owner or his assigns, and the plaintiffs below
claim her in the latter character. The objection that her services,
if offered for sale by the assignees at public auction, will be an
outrage upon humanity, if allowed its full weight, would do away
slavery itself by an act of the court. Another objection is that
apprentices are not assignable in law, but however it may be
with apprentices, a servant under this statute is made expressly
assignable; and here there is a direct assignment to the plaintiffs
SEPTEMBEE TEEM, 1827. 173
f " Cooper v. Crane.
below, which gave him a clear right to recover as they did, and
the judgment must be affirmed.
DRAKE J. concurred.
Judgment affirmed.
DANIEL COOPER and AGNES CRANE, Executors of DAVID CRANE,
deceased, against WILLIAM CRANE.
1. In an action of assnmpsit, against executors, the plaintiff, under the common
counts, upon promises by the testator, for money lent and advanced, had and
received, paid, laid out and expended, for work and labor, and for goods, wares
and merchandise sold and delivered, may prove, that the testator in his lifetime,
cut, carried away and sold, a quantity of wood and timber from the premises of
the plaintiff, without his permission.
2. An omission to demand a set-off for such a claim against the tortfeasor will
not preclude an action of assumpsit against his executors to recover the value
of the property taken.
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 con-
tained the common counts. The plea was the general issue, with
the following special notice.
Take notice, that under the above plea the defendants will give
in evidence, that David Crane, esq. deceased, in his lifetime, to
wit, the 31st of January, 1821, prosecuted an action of debt
against the plaintiff, William Crane, on an account and note of
hand, before Oliver Nuttman, esq. a justice, of Essex. That the
defendant in that suit, set up by way of set-off, an account against
said David Crane, and if he had any demand for what he now
claims, ought to have set off the same in that suit, or is barred
or precluded from demanding the same. That the said suit was
tried before said justice, and a jury, who rendered a verdict for
said David Crane against William Crane, for $20.60 debt, with
costs, and judgment was rendered thereon, and the money paid,
all which these defendants will insist upon.
174 NEW JEESEY SUPREME COURT.
Cooper v. Crane.
On the trial the defendants took bills of exceptions which
exhibited the following matters. The plaintiff, in support of the
issue on his part, opened to prove to the jury, that the testator
in his lifetime, cut, carried away and sold, a quantity of wood
and timber from off the premises of the plaintiff.
To the admission of this evidence the defendants by their
counsel excepted, and the court after argument admitted the
evidence; to which opinion of the court the counsel of the
defendants took a bill of exceptions.
The plaintiff afterwards called and examined as a witness, one
Edward Price, who testified that he drew the note shewn to
him ; that the note was given in part of the consideration for
the purchase of about thirty acres of land, sold to the testator
by Mrs. Jane Ross. Mrs. Ross asked fifteen hundred dollars
for it, but he thinks it was sold for less; part was paid in
money, and the note was given for the remainder of the
consideration money. The plaintiff and testator were both
present when the money was paid and the note given. He
does not remember which of them paid the money. He under-
stood the money was to be raised to pay a debt due from Mrs.
Jane Ross to one Mr. M'Leod. He understood David Crane,
the testator, was to pay the money, David made his mark to
the note. He said he bought it to give it to the plaintiff, at
his death. The note was put in the possession of Mrs.
Ross. The testator bought the land. He cannot recollect
what passed between the parties as to who was to pay the
note. On his cross-examination, he said, there was nothing
eaid about taking any bond given by the plaintiff to the testator,
in part payment for the land. They were nearly a year talking
about the bargain, and during that time had several conversa-
tions about it. He does not recollect that Mrs. Agnes Yail was
present at any conversation about bargaining for the land, or
that he had ever seen her at the time of any such conversation.
There was no agreement except to give the note and pay ^he bal-
ance in money. He recollects one instance where he was security
on a note, and signed his name first. In that case he took a writ-
ing to show who was to pay the money. This was before the
present note was given. He did not mention to the plaintiff, when
this note was given, any thing about such writing. He thought
that was a matter between the parties themselves. He thinks it
possible there might have been something said about giving a bond
SEPTEMBEE TERM, 1827. 175
Cooper v. Crane.
in part payment; but the object in selling the land was to raise
the money as soon as could be, to pay M'Leod's debt. Witness
transacted the business of the sale, as agent for Mrs. Ross, and
at that time transacted most of her business; and if any such
bond had been offered, he thinks he should not have taken it
•without consulting William Chetwood, esq. her counsel.
The plaintiff then proved by Joseph C. Hornblower, esq. that
he took the aforesaid note, to collect the money, and apply it to
the payment of a bond and mortgage, placed in his hands by
Col. M'Leod, against Mrs. Jane Ross, for collection. He wrote
to the drawer for payment. He never saw the testator, or
heard from him on the business. The plaintiff wrote to him,
and, he thinks, he requested time for payment. He prosecuted
both. The plaintiff paid the several sums endorsed on the note,
as by his receipts endorsed for the same. The plaintiff said
nothing to witness about his being security, so far as the witness
recollects. The plaintiff also paid a bill of costs; he thinks of
about ten dollars.
The defendants gave in evidence a certified copy of a judgment
obtained by David Crane, deceased, in his lifetime, against the
plaintiff, before Oliver Nuttman, esquire ; also a copy of the plain-
tiff's account, filed with the justice in that suit as a set-off.
The defendants then called Agnes Vail, who testified, that she
was present when the testator and Edward Price made the bar-
gain for the land. The testator agreed to give a thousand dollars
for the land. The testator wished Mr. Price to take, in part pay-
ment for the land, a bond he said he held against the plaintiff.
He handed a paper he called the bond to Edward Price, who read
it, and said he would take it in part pay ; it would, he thought,
answer the same as money. The testator agreed to pay the bal-
ance in money, and asked Mr. Price if he could not lend him a
small sum, to make up the money payment. He said he thought
he could. Witness did not read the paper herself. The witness
was then asked, if Mr. Price or the testator, at the time, mentioned
the amount of the bond ; which was objected to by the plaintiffs
counsel, and tlft court overruled it, or would not permit the wit-
ness to answer the question ; to which opinion of the court tho
counsel for the defendants took a bill of exceptions.
Before any enquiries were made about this bond, it was ad-
mitted notice had been given to produce it at the trial.
Agnes Vail, tho witness, further testified, that she was present
176 NEW JEKSEY SUPKEME COURT.
Cooper v. Crane.
at the testator's when he and the plaintiff left there to go down to
Mr. Price's, at Elizabeth Town, to get the deed for the land. Mrs.
Crane, the wife of the testator, objected to the bond of the plain-
tiff being assigned away; she said it might distress him. The
plaintiff said he had no objections; he owed the bond and must
pay it, and it was immaterial to him to whom he paid it. No bond
was produced or shewn to the plaintiff; but she saw the wife of
the testator pinning his pocket, as if to prevent any thing getting
out. The counsel of the defendants again enquired of the witness,
whether Price mentioned the sum due on the bond when be read
it, or whether it was mentioned by the testator at the time, or
whether it was mentioned by the plaintiff, or any person in his
presence, at the time they met to go down for the deed. The
question was objected to by the plaintiff's counsel, and the evi-
dence rejected by the court; to which opinion of the court the
defendants by their counsel took a bill of exceptions.
The defendants, by their counsel, then called upon the court to
charge the jury, that the plaintiff not having set off the demand
for which this action is brought, in the suit before Oliver Nuttman,
esq. thereby discharged the testator and his estate from all liability
for the same, and precluded himself from all right to sue for or re-
cover the same in this court ; but the court charged the jury that
the plaintiff had not thereby precluded himself from such recovery;
to which opinion and charge of the court, the defendants by their
counsel excepted, and prayed that this their bill might be allowed
and sealed by the court, and it is allowed and sealed accordingly.
Yerdict and judgment for plaintiff.
The following errors were assigned —
1st. Because the court below admitted illegal testimony on the
part of the plaintiff.
2d. Because the court below rejected legal and competent evi-
dence on the part of the defendants.
3d. Because the court charged the jury contrary to law.
CHETWOOD and ATTORNEY-GENERAL, for plaintiffs.
HORNBLOWER, for defendant.
EWINO, C. J. — William Crane, the defendant in error, sued Daniel
Cooper and Agnes Crane, executors of David Crane, dec. the
plaintiffs in error, in the Inferior Court of Common Pleas of the
SEPTEMBER TEEM, 1827. 177
Cooper v. Crane,
county of Essex, and declared in the common counts, upon
promises by the testator, for money lent and advanced, money
paid, laid out and expended, money had and received, for work
and labor, and for goods, wares and merchandize, sold and
delivered. The defendants pleaded the general issue, with notice
that they would give in evidence that the testator, David Crane,
in his lifetime, on the 31st January, 1821, prosecuted an action
of debt against William Crane, on an account and note, before
Oliver Nuttman, esq. one of the justices of the peace of the
county of Essex; that William Crane in that suit set up, by way
of set-off, an account against the said David Crane, and if he
had any demand for what he now claims, he ought to have set
off the same in that suit, or is barred and precluded from de-
manding it ; that the suit was tried before the justice and a jury,
who rendered a verdict for the said David Crane, against the
said William Crane for $21.67 debt, with costs, and judgment
was rendered thereon by the justice for that sum, and that the
said debt and costs had been paid by the said William Crane, to
the said David Crane; all which the said executors would insist
upon by way of defence. On the trial in the court below, a
verdict and judgment were rendered for William Crane, and
errors are assigned here upon the matters contained in certain
bills of exceptions.
1. In the first place, it is said, that the court admitted unlaw-
ful evidence on the part of the plaintiff below. As appears by
the bill of exceptions, he opened to prove that the testator in his
lifetime, cut, carried away and sold, a quantity of wood and
timber from the premises of the plaintiff; which evidence was
admitted by the court after objection from the counsel of the
defendants. In this, it is insisted, the court erred ; for that the
cutting and carrying away the timber was an act of trespass;
the claim arises ex delicto ; the right of action died with David
Crane; and that if any form of declaration could have been
maintained, it should have been a special assumpsit, whereby the
defendants might have been apprized of the nature of the demand.
A review of the ancient decisions on this subject is rendered un-
necessary by the case of Hambly v. Trott, Cowp. 372, in which the
whole were examined by the powerful mind of Lord Mansfield,
and the result stated in the most clear and precise manner in the
following terms : " If it is a sort of injury by which the offender
acquires no gain to himself at the expense of the sufferer, as
VOL. IV. M "
178 NEW JEHSEY SUPREME COUET.
Cooper v. Crane.
beating or imprisoning a man, there the person injured has only
a reparation for the delictum in damages to be assessed by a
jury. But where besides the crime, property is acquired which
benefits the testator, there an action for the value of the prop-
erty shall survive against the executor; as for instance, the
executor shall not be chargeable for the injury done by his tes-
tator in cutting down another man's trees, but for the benefit
arising to his testator for the value or sale of the trees he shall.
So far as the tort itself goes, an executor shall not be liable, and
therefore it is, that all public and private crimes die with the
offender, and the executor is not chargeable, but so far as the
act of the offender is beneficial, his assets ought to be answera-
ble, and his executors therefore shall be charged." The rule
thus distinctly and clearly laid down has since invariably pre-
vailed. In 1 Sch. and Lefroy 264, Lord Redesdale says, " The
principle of the law is that if any man become possessed of the
property of another, though he became possessed by wrong,
and might, during his life, be made answerable for the wrong,'
yet that does not destroy the right which the other party had
to the thing itself or the value of it, and he would have a remedy
for any thing of that description after the death of the wrong-
doer against his executors. And in cases of timber, mines and
the like, equity has in many instances obliged a party to account
for what he had so taken." In 3 T. R. 549, Lord Kenyon said,
" Where a person is guilty of a tort, as by cutting down trees,
and then dies, no action lies against his representatives for
damages arising out of the tortious act, but the value of the
timber may be recovered out of his assets." And Chitty, in his
treatise on pleadings, 1 vol. 80, says "for injuries to real prop-
erty no action in form ex delicto can in general be supported
against the personal representatives of the wrongdoer, though
if trees, &c. be taken away and sold by the testator, assiimpsit
for money had and received lies against his executor." The
justice and propriety of the rule that satisfaction should be
made out of the estate of the deceased, are evinced to the
mind and fully approve themselves upon the slightest reflec-
tion. What of soundness can there be in any argument which
would restrain the injured party from recovering satisfac-
tion out of the fund which was composed in part of the
fruits of the injury? Might it not with much greater reason
be urged that the rule should be extended to enforce a repara-
SEPTEMBEE TEEM, 1827. 179
Cooper v. Crane.
tion for the delictum /" and to enable a suffering party to obtain
redress for a slander, an imprisonment or a .battery, where there
are sufficient assets? On the argument it was insisted that to
admit evidence of the kind now in question under the general
terms of a count for money had and received would expose a
defendant to great jeopardy from want of precise information
of the nature of the plaintiff's claim. But it is obvious there is
no peculiar jeopardy in this case; nothing but what is common
to most of the claims of which evidence m'ay be given under
this count ; and the jeopardy may always be avoided by a call
on the plaintiff for a bill of particulars. I am of opinion the
evidence was rightly admitted, and there is no error in this
respect.
2. In the next place it is assigned for error that " the court
below charged the jury contrary to law, and so misdirected the
jury in matter of law."
One of the demands on the part of the plaintiff was for money
paid by him on or before the llth day of April, 1820, for the use
of David Crane, the testator, in discharge of a promissory note
for $868, with interest, dated May 1st, 1818, payable to Jane Eoss
or order at one year after date, and given, as the plaintiff alleged,
by David Crane for his own debt, and by himself as security
merely for David Crane. Under the notice accompanying the plea
the defendant gave in evidence certified copies from the docket
of Oliver Nuttman, esq., one of the justices of the peace of the
county of Essex, and of the pleadings in the action therein men-
tioned. By these documents it appeared that on the 31st of
January, 1821, David Crane commenced an action of debt against
William Crane, that William Crane filed an account and claimed
a set-off for various items of cash, of work and labor done, for
goods sold and delivered, &c. amounting to nearly $200, but did
not exhibit any claim, or demand any set-off for the money now
alleged to have been paid by him for David Crane in discharge
of the above mentioned promissory note. The action was tried
on the 15th February, 1821, by jury, and a verdict found and
judgment rendered in favour of David Crane, for $21.67 debt,
with costs. All which appears to have been paid by William
Crane to the justice on the 28th of April of the same year. In
the progress of the trial before the Court of Common Pleas it
was insisted by the counsel of the executors, that the debt con-
tained in the promissory note was the real debt of William
180 NEW JEKSEY SUPREME COUKT.
Cooper v. Crane.
Crane ; and on this point evidence was given by both parties, not
necessary here particularly to detail. Tha defendants, the exe-
cutors, by their counsel called on the court, as appears by the bill
of exceptions, to charge the jury that the plaintiff, not having
set off the demands for which this action was brought in the suit
before Oliver Nuttman, esq. " thereby precluded himself from all
right to sue for or recover the same in this court." But the court
charged the jury that the plaintiff had not thereby precluded
himself from such recovery; to which opinion and charge the
defendants excepted.
The questions which this bill of exceptions presents to us are,
1st. Whether the claims for which this action was brought were,
or either of them was, the subject of set-off in the action before
Justice Nuttman ? And, 2d. If so, what is the legal effect of the
omission to claim the off-set in that action?
The first of these questions depends on the construction of the
fourteenth section of the act constituting courts for the trial of
small causes, S^v. Laws 632. " If the defendant have any account
or demand p.gainst the plaintiff, he shall be permitted to discount
or set off tbe same against the account, debt or demand of such
plaintiff, but such copy of his or her account, or state of his or
her demand so intended to be set off, shall be delivered to the
said justice on or before the return day of the summons, or if on
a wai'rant, then at the time of the hearing of the cause, and in
default thereof the said account or demand shall not be received
in evidence on the trial of the said cause."
The claim of William Crane for the cutting and carrying away
of the wood and timber from his premises, unless done by his
consent or agreement, which is not alleged in the bill of excep-
tions, was during the lifetime of David Crane, and therefore at
the time of the trial before Justice Nuttman, in tort and for un-
liquidated damages. It could not therefore be the subject of
set-off. Smock v. Warford, 1 South. 306. Edwards v. Davis, 1
Halst. 394. Swing v. Sparks, 2 Halst. 59. It was said he might
have waived the tort, and demanded the proceeds of the sales of
the wood and timber. Bat he was under no obligation until the
decease of David Crane to yield up his compensation for an
essential part of the injury, in order to place the residue in a
form whereby a set-off might be sought.
The claim of William Crane, for money paid for David Crane in
discharge of a promissory note on which he was the surety merely,
SEPTEMBER TEEM, 1827. 181
Cooper v. Crane.
as he alleges, of David Crane, was, if sustained by proof, a proper
subject of set-off; and in the action before Justice Nuttman, be-
cause the money had been previously paid. It was however
contended that a set-off could not then have been demanded,
because there was an agreement that the land for the purchase
of which by David Crane the note was given, was on his death
to belong to William, and he could not therefore recover until
the death of David and it was found the land was not given to
him. If there were any evidence in support of this allegation,
the truth of which was strenuously denied by the counsel of
the defendant, the matter should have been submitted to the
jury on the question of fact, with proper instructions as to the
law. The only evidence to this point contained in the bill of
exceptions, is the testimony of Edward Price, who said, "The
note was given in part of the consideration for the purchase of
about thirty acres of land, sold to the testator by Jane Ross.
Part was paid in money, and the note was given for the remain-
der. The plaintiff and testator were both present, when the
money was paid and the note given. He understood the money
was to be raised to pay a debt due from Jane Ross to one M'Leod.
He understood David Crane, the testator, was to pay the money.
David made his mark to the note. He said he bought it to give
it to the plaintiff, at his, the testator's, death. The note was put
in the possession of Mrs. Ross. The testator bought the land."
Now it is most certain there is nothing in this testimony whereby
William Crane, if merely surety and compelled as such to pay
the money, could bo restrained one hour, much less until the de-
cease of David Crane, from legal measures for its recovery.
There was no agreement that William should pay and wait
until David's decease, and have the land for his recompense. It
may well be doubted whether the testimony shews anything
more than an expression of the motive of David in making the
purchase, an intent to give the land to William, an intent revo-
cable at his pleasure. It would indeed be a singular arrange-
ment, whereby a wealthy uncle as he was represented on the
argument, should benefit his kinsman, to leave the nephew to
pay for the land, to enjoy it himself during his own life, and then
bountifully bestow it upon him at his decease.
The demand for money paid, laid out and expended, being a
proper subject of set-off, the second question recurs, what is the
legal effect of the omission to claim the set-off in the action before
182 NEW JERSEY SUPEEME COUET.
Cooper v. Crane.
Justice Nuttman? The resolution of this question depends on
the fifteenth section of the act above mentioned, Rev. Laws, 633.
"If any defendant neglect or refuse to deliver a copy of his or
her account or state of demand against such plaintiff, he or she
shall forever thereafter be precluded from having or maintain-
ing any action for such account or demand, or from setting off
the same in any future suit. Provided always, that where the
balance found to be due to such defendant exceeds the sum of
one hundred dollars, then the said defendant shall not be pre-
cluded from recovering his or her account or demand against
such plaintiff in any other court of record having cognizance of
the same." The plain and obvious language of this section re-
quires the account or demand of the defendant to be delivered
to the justice, whatever may be its amount. There is not the
slightest foundation for the distinction that it is to be delivered
when the balance falls short of $100, and may be omitted when
it exceeds that sum. In all cases, it is to be delivered; and,
whatever may be its amount, the penalty of preclusion from
future action or set-off is equally imposed on neglect or refusal.
Nor was the construction of the counsel of the defendant in
error correct, that "found due" means in a subsequent action
to be brought in another court. The words mean in the very
action before the justice. "Found due to such defendant." What
defendant? He who has delivered his account for set-off to the
justice. "Then the said defendant shall not be precluded."
When? When a balance exceeding the sum of $100 has been
found due to him. Nor is the course of proceeding in such case
obscure or difficult. If on the trial, whether before the justice
alone or by a jury, the balance found to be due to the defendant
exceeds one hundred dollars, the justice cannot give judgment,
not for the plaintiff, because nothing is due to him, nor for tho
defendant, because the sum due exceeds the jurisdiction of the
court. He is therefore to record the fact and dismiss the action,
and then the defendant shall not be precluded from recovering
in any other court of record having cognizance.
A very interesting, if not the most forcible, part of the argu-
ment of the counsel of the defendant in error on this head, con-
sisted in pointing out the inconveniences which may result from
the operation of the precluding provision contained in the statute.
These inconveniences have not, however, as is believed, been
practically suffered, and the rule contained in the section, as I
SEPTEMBER TEEM, 1827. 183
Cooper v. Crane.
understand it, has long since been stated by Mr. Pennington and
Mr. Griffith in their treatises on the courts for the trial of small
causes. To the argument ab inconvenient i, however, we cannot
yield. It is founded on an assumption of fact we are not at liberty
to admit, that the justices and their juries will systematically do
wrong. The defendant's counsel supposes that parties conscious
there are large and just claims against them, will on pretence
of some small account, sue before the justices of the peace, com-
pel the other party to claim a set-off, and then by management,
intrigue, corruption, or from incompetency, induce the justice
or jury, as the cause may be tried by the one or the other, to
disregard the proofs of the defendant, find the amount due him
to be less than one hundred dollars, and thus work great oppres-
sion and injustice. There is however but little cause for alarm.
Such a course of things is not to be apprehended. It has not
yet been experienced, and whenever it shall, the prompt inter-
ference of the legislature will correct the evil. Moreover, a
defendant thus injured will now find redress by appeal ; and in
the Court of Common Pleas will seek and obtain the justice
which the argument supposes will be denied him in the court for
the trial of small causes.
It appears to me then, that the demand for the money paid in
discharge of the promissory note was the proper subject matter
of set-off, and might have been claimed in the suit before Justice
Nuttman ; that the plaintiff below was precluded from maintain-
ing an action for that demand; that the jury should have been
BO instructed; that there is error in the charge of the court;
and that for this cause the judgment should be reversed.
Such being the case it is not necessary to examine the other
errors assigned.
Let the judgment be reversed, and venire facias de novo issue.
FORD, J. — William Crane declared in the court below, on an.
indebitatus assumpsit, against the executors of David Crane,
deceased, for money lent to their testator, money paid, had and
received, goods sold, and work and labour done and performed for
him in his lifetime ; and at the trial of the cause offered to prove
that the testator in his lifetime had cut and carried away CUM t.-iin
wood and timber from the plaintiff's premises to a considerable
amount without any permission. This evidence, after being
adjudged by the court, on objection and argument, to bo admissible,
184 NEW JEESEY SUPEEME COUET.
Cooper v. Crane.
was, however, waived by the plaintiff, and not introduced. It
becomes therefore quite unnecessary to enquire or determine
whether the plaintiff had power to waive the tort or not; or in
case he had such election, whether he could recover in assumpsit
instead of action on the case, for as the evidence was waived
and not adduced, the opinion of the court could have no possible
operation in the cause.
The plaintiff then gave in evidence a certain promissory note
(which he had paid off himself and taken up) subscribed first
with his own name, and under that with the name of the testator,
bearing date the first of May, 1818, whereby the subscribers
jointly and severally promised to pay to Mrs. Jane Boss or her
order, one year after date, eight hundred and sixty-eight dollars,
with interest ; and he shewed that the testator had purchased
of this Mrs. Eoss a certain tract of land, and paid her part in
cash, and for the balance of the purchase money had given
her this note with the plaintiff for security. The executors on
the contrary, represented the plaintiff as having been principle
in the note, and the testator his security ; that the plaintiff
being indebted to the testator on bond to this amount, but
unable to raise the money, had given his note of the same
amount as the bond, to Mrs. Eoss, for the testator's convenience,
and on doing so that the bond had been given up to him. In
support of this opening, they proved that Edward Price was
the agent of Mrs. Eoss in selling the land, and that the testator
proposed to him to assign a bond that he held against William
Crane, in part pa}*ment for the land ; that he shewed Mr. Price
a writing which the testator called a bond against William Crane,
and that Mr. Price read it in the presence of the witness, and
agreed to take it in part payment; but the witness did not have
the writing in her hand nor read it. She further testified that
shortly afterward she heard- a conversation between the testa-
tor and William Crane respecting the bond that he owed to the
testator, in which conversation William Crane consented that
the testator might assign it to Edward Price, in part payment
for the land, saying that as he owed the bond and would have
to pay it, he might as well make the payment to one as to
another. She was then asked whether William Crane, in that
conversation, admitted the amount of the bond ; but the court
after objection and argument, were of opinion that the contents of
the bond could not be proved otherwise than by the instrument
SEPTEMBEE TERM, 1827. 185
Cooper v. Crane.
itself, and therefore they overruled the question. The rejection
of that evidence is now assigned for error j but I apprehend that
the rejection was proper. The rule which requires the deed itself
to be produced in evidence is never to be dispensed with, unless
such deed has been lost or destroyed, or has got into the hands,
or under the power or control of the adverse party, who refuses
to produce it on notice. Now here was no pretence of any losa
or destruction of the instrument; on the contrary it was alleged
to be existing in the hands of William Crane, and the executors
had given him notice to produce it. Then the fact of its being
in his hands was necessary to be proved to the satisfaction of the
court, and until it was so proved, the court had no authority to
receive parol evidence of the contents. Upon this point the
proof was altogether deficient; it not only failed to show that
the bond had ever been in the hands of William Crane since he
executed it ; but on the contrary it shewed that the bond was
last seen in the testator's own hands; that he shewed it to Mr.
Price, and was forming a plan to assign it away; and as to its
having been delivered up to Mr. Crane at the time when he and
the testator made their joint note to Mrs. Ross, there was not
a particle of proof to that effect. Presumption, if that was
to be resorted to, lay all the other way ; the testator as a pru-
dent man would never have given up that bond till the note
in which he was jointly bound for the money was brought to
him cancelled. The proof of the bond being in the bands
of Mr. Crane was neither direct nor presumptive. It might
be in the hands of the executors themselves, for all that the
court knew, or might have been assigned away by the testator
in his lifetime, and evidence of its contents was properly resisted
by the court.
The executors then set up another defence against the demand ;
they shewed the record of an action of debt which the testator
had prosecuted against William Crane in the court for trial of
small causes, eight months after William Crane had paid all the
money on that note to Mrs. Ross, and insisted that if such pay-
ment formed a valid demand against the testator, that he was
bound by law to set it off in that action, and yet he had not done
it; they shewed by the record that ho had brought in various other
demands against the testator to the amount of $195.80, but that tho
testator's account being still larger by §21.69, he had recovered
a verdict and judgment against William Crane for this latter
186 NEW JERSEY SUPREME COURT.
Cooper v. Crane.
sum; and they prayed the court to charge the jury according to
the fifteenth section of the act, Rev. Laws, 633, that William
Crane, by neglecting to set off this demand against that action,
was precluded from ever maintaining an action for it. But the
court charged the jury that he was not precluded by that act, in
case the jury should now be of opinion that the balance then duo
to him exceeded one hundred dollars. In this charge I think the
court mistook the law, and the true intent and meaning of the
statute. The fourteenth section was intended to be directory to
the justice, and compulsory on him; it provides that "if the
defendant have any account or demand against the plaintiff, he
shall be permitted to discount or set off the same," so the justice
may not refuse to receive an account if it be presented. The next,
which is the fifteenth section, was intended to be compulsory on
the defendant; it provides that "if he neglect or refuse to set off
his account or demand, he shall forever thereafter be precluded
from maintaining an action for the same ;" so it lays an obligation
on him to produce all his accounts or demands, and this obliga-
tion is not repealed by any subsequent clause or passage in the
act. The proviso, by which it was supposed to be repealed,
runs in these words, "Provided always, that when the balance
found to be due to such defendant exceeds the sum of one hun-
dred dollars, then the said defendant shall not be precluded
from recovering his or her demand against suqh plaintiff, in any
other court of record having cognizance of the same." Now
this proviso, instead of exonerating the defendant from the
foregoing obligation to produce all his accounts and demands,
supposes him to comply with that injunction, and only provides
for a consequence that may possibly result from such compliance;
it may appear from a production of all his accounts that the bal-
ance due to such defendant exceeds one hundred dollars; and it
provides a remedy for this consequence of producing all his
accounts before the justice, without relaxing the prior injunction
for their protection in the smallest degree. The production of all
accounts is first strictly enjoined, and then the consequence that
may result from it is fairly provided for. The production, and
the consequence of production, are not only different things in
their nature, but a provision is made for the latter that cannot be
applied to the former without making the statute contradict itself;
it would be saying to the defendant, you shall produce all your
accounts, and after they are found to exceed one hundred dollars
SEPTEMBBE TERM, 1827. 187
Cooper v. Crane.
you need not produce them. It is not fair to read the statute in
such a manner ; it means to say to the defendant, you shall pro-
duce all your accounts, and in case they are found to make a
balance in your favour exceeding one hundred dollars, you need
not proceed any further in that court; its jurisdiction is too
limited to do you justice, and you may sue elsewhere. The pro-
duction of all the defendant's demands is not peculiar to the
court for small causes; it is required'of the defendant in every
common law court in the state when he is sued ; it is a rule of
peace; it enforces settlements; prevents the multiplication of
suits ; and is as useful in the court for small causes as in any
other, and perhaps more so. Neither the justice nor the jury
are to find the sum actually due to the defendant ; their finding
is, that it exceeds one hundred dollars; and that simply entered
on the magistrate's record, shews that the plaintiff has no de-
mand; exposes him to pay the costs of a suit in which nothing
•was due to him; and gives the defend*ant an ample right and a
remedy in another court. The meaning of the statute evidently
is, that where the balance is found, by the justice, to exceed one
hundred dollars, &c. ; and this meaning is implied in the strongest
manner although the words by the justice are not to be found in
the act ; it results from the subject matter treated of in those
two sections, which is the regulation of a suit in the justice's court,
and the word "found" must mean found in the justice's court of
which the sections are treating, or the meaning will not be ap-
plicable to the subject matter; it will be torn away from the
subject and left at random. It is argued that the word "found"
may mean "found in any other court;" as if these sections were
intended to make regulations for some other court, when their
avowed object is a regulation for the justice's court only. The
statute says " when the balance found due to such defendant ex-
ceeds one hundred dollars, then he may sue elsewhere; then and
not till then, may he sue; it makes the finding to precede, and the
suit elsewhere to follow after ; but the construction contended for
would allow the suit elsewhere to be brought first, and the finding
to follow after it, so as to reverse the meaning of the statute com-
pletely. Moreover, the words of the statute, " found due to such
defendant," require the finding to be for a defendant, and they
cannot be forced, even by torture, to mean for a plaintiff, as they
must do under the construction contended for, in case it should
be adopted. Mr. Crane has laid aside the character of a defend-
188 NEW JEESET SUPREME COURT.
Cooper v. Crane.
ant, and assumed that of a plaintiff; and must demand this
finding to be for him as plaintiff in this suit, or he cannot re-
cover; and yet the statute says if it be found due to such defend-
ant, thereby connecting the finding necessarily with the justice's
court and a defendant there, and not with a plaintiff here.
But the nature of this construction exposes it to another seri-
ous objection ; it countenances and even permits a record of the
court for small causes, after that record has stood seven years
in full verity and still remains firm and unreversed, to be im-
peached and falsified by parol evidence, and its merits overhauled
in a collateral action. That record represents the balance of all
accounts between the parties at that time, as found by the oaths
of the country and the judgment of the court, to have been
twenty-one dollars against William Crane; but our record, if wo
affirm the present action and judgment, will represent the bal-
ance at that time to have been eight hundred dollars in his favour.
Baron Gilbert, in his treatise on evidence, page 7, says, "that
records of courts of justice are authentic beyond all manner of
contradiction." Yet in this second suit we must slight the
authenticity of the former record, and allow it to be most grossly
contradicted. Baron Gilbert adds that "records are demonstra-
tions of right." Yet, if this judgment be affirmed, we shall havo
the singular spectacle of two demonstrations, both of which are
right, both verity, and both.in utter contradiction ; one a demon-
stration that the balance at that time was twenty-one dollars,
and the other that it was eight hundred dollars. If the defend-
ant in the first suit voluntarily suppressed a part of his accounts,
can his proof of that fact authorize him to impeach a record ?
or can a record ever be contradicted by parol evidence ? Favour-
able cases are said to make bad precedents ; they sometimes
lead courts astray by the plain and urgent justice they present;
but this presents no such fascinations; it would seem rather to
excitr a suspicion of there being something wrong about this
demand, when the owner would rather be condemned in the
suit before the justice than set it up; as if it quailed before the
eye of the testator, not daring to encounter him in his lifetime,
and as if it had gathered boldness only since his death. But bo
its merits what they may, it comes too late; it ought to have
been set off in the former action, as the statute imperiously re-
quired, in order to make a final settlement ; it is now precluded by
the express words of the statute, and if allowed will make a second
SEPTEMBEE TEEM, 1827. 189
Weed v. Van Houten.
record contradictory to the former. The charge of the court
below was in my opinion erroneous on this point, and the judg-
ment for this cause ought to be reversed.
DRAKE, J. concurred.
Judgment reversed.
CITED IK Hazen v. Addis1 Ad.t 2 Gr. 334. Hayden v. Vredand, 8 Vr. 374.
NATHANIEL WEED and HARVEY WEED against ADRIAN VAN
HOUTEN.
In an action on a promissory note, made payable at a particular place brought
by the 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-aasumpsit.
E. B. Ogden, attorney for plaintiff.
R. Campbell, for defendant.
The CHIEF JUSTICE delivered the opinion of the court.
The question presented in this cause is whether in an action by
the payee of a promissory note, payable at a particular place, and
not on demand, but at time, it is necessary to aver a presentment
of the note and demand of payment by the holder at that place
at the maturity of the note. It embraces also the necessity of
such proof on the trial, because if such averment be essential to
the declaration, the proof on the trial is indispensably required.
This subject has, of late years, undergone much discussion and
some contrariety of determination in the English courts. It has
been held that in an action against the maker of a note made paya-
ble in the body of it at a particular place, there was no necessity
of proof of a presentment at that place. Wild v. Rennards, 1
Carnpb. N. P. Rep. 425, note. Nichols v. Bowes, 2 Ibid. 498. Where
no place of payment was mentioned in the body of a note, but a
memorandum was made in the margin or at the foot that it would
be paid at a particular place, it has been held that the place of pay-
ment and presentment at that place need not bo averred in the
declaration. Saunderson v. Judge, 2 H. El. 509; nor proved on tho
trial. Price v. Mitchell, 4 Campb. 200. Richards v. Milsington, 1
Holt. N. P. Rep. 363, note. Again ; it has been held that in an
action on a note against the maker, where tho place of payment
190 NEW JERSEY SUPREME COURT.
Weed v. Van Houten.
was mentioned in the note, a presentment at such place was a
condition precedent and must be shewn in the declaration. Saun-
derson v. Bowes, 14 East, 498. Dickinson v. Bowes, 16 East, 108.
Bowes v. Howe, Excheq. Chamb. 5 Taunton 30. Where a bill of
exchange was drawn without place of payment inserted in the
body of it, but there was a special acceptance making it payable
at a particular place, it was held by the Court of King's Bench,
and by Lord Mansfield, Lord Ellenborough and Chief Justice
Gibbs, at Nisi Prius, that a presentment at such place need not
be averred. Fenton v. Goundry, 13 East, 459. Smith v. Delafon-
taine, cited by Lord Ellenborough in 13 East, -470. Ilowe v. Wil-
liams, 1 Holt, 363, note. Lyon v. Sundius, I Campb. 423. Head v.
Sewell, 1 Holt, 363. The contrary doctrine was held in the Court
of Common Pleas. Ambrose v. Hopwood, 2 Taunt. 61. Callaghan
v. Aylett, 3 Taunt. 397. Gammon v. Schmoll, 5 Taunt. 344. By
recent decisions however, as well of the King's Bench as of the
House of Lords, the rule which now prevails is, that where the
note or bill is made payable at a particular place, or where the
latter is accepted, payable at a particular place, a presentment
at such place must be averred in the declaration and proved on
the trial. Cowie v. Halsall, K. B. 1821. 4 Barn, and Aid. 197.
Howe v. Young, in the House of Lords, 1820. 2 Broderip and
Bingham, 165. This was an action against the acceptor of a bill
of exchange accepted to be paid at a particular place, and the
House of Lords decided that an averment of presentment at
that place was necessary in the declaration. It ought however
to be remarked, and the case in this respect is one of rare occur-
rence, that the judgment was given against the opinions of a large
majority, eight, of the common law judges, who held the aver-
ment to be unnecessary. The other four judges and the two
chancery lawyers, Eldon and Redesdale, expressing opinions
which were adopted by a majority of the house.
This subject has also undergone investigation in the American
courts, and here, a much greater uniformity of opinion and decision
has prevailed. In Foden v. Sharp, 4 John. 183, which was an
action by the payee against the acceptor of a bill of exchange ac-
cepted payable at a particular place, the Supreme Court of New
York said, "The holder of a bill of exchange need not shew a
demand of payment of the acceptor, any more than of the maker
of a note. It is the business of the acceptor to shew that he was
ready at the day and place appointed, but that no one came to
SEPTEMBEK TEEM, 1827. 191
Weed v. Van Houten.
receive the money, and that he was always afterwards ready to
pay." The case of Wolcott v. Vansantford, 17 John. 248, was an
action by the payee against the acceptor of an inland bill of
exchange, drawn at five months, payable at the Bank of Utica.
A' demurrer was taken to the declaration because the bill was
made payable at the Bank of Utica and there was no averment
that it was presented there on the day it became payable. The
court, after a very full and elaborate argument by Chief Justice
Spencer, held that averment and proof of such presentment
•were unnecessary; "that the time and place of payment are
merely modal, forming no essential part of the contract; that
it is incumbent on the defendant, whether the gayee was at the
place at the time appointed or not, to shew in his defence that
he was there ready and willing to pay, and that the payee did
not come, &c. ; that the consequences of the absence of the payee
under such circumstances, unless he makes a subsequent special
demand and there be then a refusal, are merely that he must be
content with receiving the sum originally payable, and if he sue
without having made a special demand, he loses all claim to
damages and costs." In the case of Dodge v. Lanman, in error
in the Supreme Court of Connecticut for Hartford count}', in
February Term, 1806, cited in a note of Mr. Day, the American
editor of East's Reports, 7 East, 388, it was held that in an
action against the maker of a promissory note made payable at
a particular place, there is no necessity of proving a presentment
there for payment.
In Carley v. Vance, 17 Mass. 389, which was an action by the
payee against the maker of a promissory note drawn paj'able at
time, at a particular place in Boston, Wilde, justice, in delivering
the opinion of the court, says, "The objection taken in this case
to the declaration for want of an allegation of a demand at the
time and place appointed for payment, cannot, we think, be
maintained. It is difficult to reconcile all the cases, but the
weight of authority is opposed to the objection, and. it has no
foundation in principle." "In an action against the maker of a
promissory note or the acceptor of a bill of exchange, no good
reason can be given for requiring the plaintiff to aver a demand.
If the defendant was ready with his money at the time and place
stipulated, he may plead it as a matter of defence."
In the case of The Bank of the United States v. Smith, 11 Wheat.
175, Justice Thompson, delivering the opinion of the Supreme
192 NEW JERSEY SUPKEA1E COURT.
Weed v. Van Houten.
Court of the United States, says, " This question however does
not necessarily arise in the case now before the court, and we
do not mean to be understood as expressing any decided opinion
upon it, although we are strongly inclined to think that as against
the maker or acceptor of such a note or bill, no averment or
proof of demand of payment at the place designated would be
necessary."
After this review of the matter, I have no hesitation in ex-
pressing my entire concurrence in the American decisions, so far
as is necessary for the present occasion, that on a promissory note
made payable at a particular place, in an action by the payee
against the drawer, a special averment of presentment at that
place is not necessary to the formality or validity of the decla-
ration, nor is proof of it requsite, on the trial on a plea of non-
assumpsit, to sustain the issue on the part of the plaintiff. This
rule, I am satisfied, is most conformable to sound reason, most
conducive to public convenience, best supported by the general
principles and doctrines of the law, and most assimilated to the
decisions which bear analogy, more or less directly to the subject,
as for instance, on a bond, rent, and an award. An obligation with
a condition for the payment of money at a particular place does
not require a special averment in the declaration, which merely
alleges a nonpayment by the defendant. Shep. Touch. 376. [390]
Jtastal. 158, b.pl. 1. In declarations for rent payable on the land,
or generally, an averment of demand on the land, is unnecessary.
2 Chitty plead. 173, 191. 1 Lilly, 130, 135, 141, 148, 155, 168.
Eastal. 175, a. pi. 4. Shep. Touch. 376 [391]. On an award di-
recting the payment of money at a particular day and place, the
declaration need not assert a demand at that day and place, Lam-
bard v. Kingsford, 1 Lutw. 207. Precedents in Caldw. on Arbitr. 332.
I am aware that ingenuity has labored to shew distinctions be-
tween these cases and the present; but they are specious, not
solid. It is not however my design to enter into a full discussion
of the matter. The luminous and elaborate arguments of those
distinguished jurists of our own country, Sponger and Wilde, ren-
der it unnecessary ; and the discussions and reasonings of the
judges who dissented from the House of Lords in the case of Howe
v. Young, already mentioned, cannot be read without profit, nor,
as I think, without conviction.
Let the demurrer be overruled.
SEPTEMBEE TEEM, 1827. 193
Garwood v. Garwood.
BENJAMIN GARWOOD against ISRAEL GARWOOD.
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
judgment in attachment is obtained.
Sims and W. Halsted, for plaintiff.
Sloan and Wall, for defendant.
EWINO, C, J. — A sale of certain real estate reported to be un-
susceptible of partition having been made, two claims are exhibited
to the proceeds of the share formerly belonging to Israel Garwood,
one of the tenants in common. Benjamin Garwood claims by vir-
tue of a sale and conveyance by auditors under an attachment at
his suit. James Garwood claims by a deed of bargain and sale
from Israel Garwood made previously to the issuing of the writ
of attachment, but not recorded until after it was executed. Be-
fore the return day of the writ, the deed was recorded, and after-
wards, before any meeting of the auditors, and before any creditor
had made application for the audit of his account, notice was given
to Benjamin Garwood of the execution and recording of the deed,
prior to which he had no such notice. The fairness and considera-
tion of the deed are not impeached. We are therefore to consider
it a bona fide conveyance for a valuable consideration.
The question arises from the first section of the act concerning
conveyances, Rev. Laws, 747. Independent of that section, tho
claim of James Garwood under the deed made to him would un-
doubtedly prevail. For the deed would have full operation and
effect, would have vested in him, the unqualified title to the undi-
vided share prior to the issuing of the attachment and of course to
tho avails of that share when sold by the commissioners appointed
on the application for partition. By that section it is enacted,
that every deed or conveyance of or for any lands, tenements or
hereditaments to any purchaser of the same, shall be void and of
no effect against a subsequent judgment creditor, or bona fide
purchaser or mortgagee, for a valuable consideration, not having
notice thereof, unless such deed or conveyance shall be acknowl-
edged or proved and recorded, or lodged for that purpose within
fifteen days after the time of signing, sealing and delivering the
eame. Is Benjamin Garwood within the protection of this act?
Does he stand in tho character of a judgment creditor, not having
notice of the deed ? For the want of notice is as essential to the
VOL. IV. N
194 NEW JERSEY SUPREME COURT.
Garwood v. Garwood.
protection of a judgment creditor as of a purchaser or mortgagee.
Such i& the grammatical construction of the language of the sec-
lion ; and such too it may be fairly presumed was the intention of
the legislature, otherwise persons with full knowledge of an honest
transfer of real estate, might trust the grantor, and then, obtaining
a judgment, defeat the bona fide purchaser, who from negligence
or ignorance, had omitted to have his conveyance recorded.
When judgment was rendered on the attachment, and not ear-
lier, Benjamin Garwood acquired the character of a judgment
creditor. But at that time, when he became such, he had notice
of the deed. He could not then be called a judgment creditor with-
out notice, nor entitled to the rights annexed to that character.
By the sixth section of the act concerning attachments, Rev.
JJaws, 356, it is provided that the writ of attachment shall bind
the property and estate attached from the time of executing the
Bame. And hence it is supposed that the rights of the plaintiff in
attachment as a judgment creditor have relation to the time of
executing the writ, at which time he had no notice of the deed.
But the argument is not sound, nor is the inference just. The lien
given by that section exists for the legitimate, natural and appro-
priate purposes of the attachment and no more; to protect the
property from alienation by the debtor, or seizure by subsequent
judgments and executions; but there is nothing in it which can
clothe the plaintiff with the rights or entitle him to the char-
acter of a judgment creditor until he actually becomes so.
As, therefore, Benjamin Garwood is not a judgment creditor
without notice, the omission to record the deed within the period
of fifteen days did not defeat its operation. The claim under it
Bhould prevail; and an order should be made for the payment
of the amount of sale to James Garwood.
FORD, J. — Israel Garwood made a deed of bargain and sale for
.certain lands to James Garwood on the llth of August, 1824,
v which deed was duly executed and delivered on the day of its
. date, by a transaction altogether fair and bona fide; but the pur-
chaser omitted at the time to put the deed upon record. Five
^TOoaths after that transaction, Benjamin Garwood sued out a writ
•of. Attachment against the grantor, Israel Garwood, as an abscond-
ing d<ebtor, and had it levied on the lands that had been conveyed
in, .Ei^Ener aforesaid to James as a purchaser. Fourteen days
,a£ter< the attachment had been so levied, James Garwood, the pur-
SEPTEMBEE TEEM, 1827. 105
Garwood v. Qarwood.
chaser, put his deed upon record, and caused notice of it to be
served upon Benjamin Garwood, the plaintiff in attachment ; but
he, apprehending that the recording of the deed and the giving
notice thereof came too late after an attachment had been
actually levied, proceeded to a judgment and sale by auditors of
the land, as property still belonging to Israel Garwood, the
debtor; at which sale he became the purchaser, and received
from them a deed of conveyance for the same land. The ques-
tion submitted to the court is which of these two purchasers
has the legal title.
The statute of 8th March, 1798, Rev. Laws, 356, sec. 6, provides
that a writ of attachment shall bind the property and estate of the
defendant from the time of executing the same. A later statute,
of 30th May, 1820, Rev. Laws, 734, sec. 3, binds from an earlier
period, to wit, from the time of issuing such writ. But here the
debtor had made a conveyance of his property and estate fivo
months prior to the existence of the attachment, and prior to
any lien whatever thereon. Nothing to invalidate that convey-
ance is to be found in either of these statutes; for they leave the
power of alienation absolute till the issuing of an attachment,
and the title of James Garwood the purchaser must therefore
remain valid, unless it can be avoided under some other acts than
these. The case imputes no fraudulent intent to those parties ;
it does not even represent the grantor as being indebted at the
time to any person whatever, but leaves the transaction on the
broad ground of a bona fide sale; and as the deed contains the
usual words of a conveyance in presenti, it did, according to the
principles of the common law, divest the grantor of all his estate
and interest in the land, at the time of its execution, and vested
a fee-simple in James Garwood, the purchaser. It could not be
bound by a subsequent attachment as the property or estate of
Israel Garwood, for his own conveyance precluded him and his
heirs forever from any interest therein. But though the deed
stands firmly against Israel Garwood and his heirs, it may be
suggested to be void as against other persons, under another
statute, for want of being recorded in due time.
The act of 5th June, 1820, Rev. Laws, 747, sec. 1, provides, that
every deed of conveyance for lands, not recorded within fifteen
days after the execution of the same, shall be void and of none
effect against three descriptions of person, not having notice thereof ;
the first is a subsequent judgment creditor, the second a bonafid«
196 NEW JERSEY SUPREME COURT.
Baldwin v. Simmons.
purchaser, and the third a mortgagee for valuable consideration ; it
renders a deed void for want of being recorded against none others,
and expressly provides that as between the parties and their heirs
it shall be valid and operative. .Benjamin Garwood, the pur-
chaser under the auditor's sale, cannot set aside the prior deed by
force of this act, unless he can bring himself under one of those
three descriptions. Now he is not a mortgagee ; and although
he is a subsequent judgment creditor, and likewise a subsequent
purchaser, yet he is such under foil previous notice of the prior
conveyance. The state of the case shews that he had full notice
of the conveyance to James Garwood long before he obtained
his judgment, and longer still before he made his purchase of the
auditors. He therefore acted with his eyes open. Now the
statute avoids unrecorded deeds only against those persons who
had no notice of them. As against him who had notice of the
prior deed it remains manifestly as valid as if this statute had
never been enacted. And as to the attachment act, it avoids
those deeds only which are made after the issuing of the attach-
ment ; and that it does whether they are recorded or not. The
consequence is that James Garwood remains the legal owner of
the land, and is entitled to the proceeds of the sale thereof under
the act for the partition of lands.
DRAKE, J. concurred.
CITED IK Rutgers v. Eingdand, 3 Hal. 186. Campion v. Kille, 1 McCart. 234.
JESSE BALDWIN against WILLIAM SIMMONS.
CERTIORA.RI TO COMMON PLEAS OF ESSEX.
Where the case brought up turns upon a mere question of fact, upon which
a jury have passed, this court will not interfere ; it will not enquire on certiorari
whether a verdict is against evidence.
Gifford, for plaintiff.
W. Pennington, for defendant.
The opinion of the court was delivered by EWINO, C. J
In the court below Simmons sued for goods sold and delivered,
and his demand was admitted to be just. Baldwin claimed an off-
SEPTEMBER TERM, 1827. 197
Baldwin v. Simmons.
set for the amount of a promissory note drawn by one Moses
Bailey, payable to Lott Pratt or order. Same time before this
note became due, Baldwin then being indebted to Simmons on the
Bale of the goods for which this suit is brought, placed the note,
having the endorsement of Pratt in blank upon it, in the hands
of Simmons, who, as well as the drawer, resided in the city of
Ne\Y York. Of what passed at the time, and of the terms on
which the note was so placed, there is no direct testimony. The
son of Simmons, under the direction of Baldwin, about the time
the note became due, demanded payment of the drawer, who
said it was inconvenient then to pay it, but promised to do so iu
a few days at a time fixed. In the interval he absconded. No
protest was made, nor notice given to Pratt, the endorser. Some
time afterwards the son of the plaintiff came to Newark, and
there, at the store of Baldwin, was informed, by him, where
Pratt lived, on whom he called and endeavored to get him to
take the note again, which was refused. The note had not been
endorsed by Baldwin. Some other circumstances were given in
evidence by Simmons, for the purpose of shewing that he acted
as agent merely, and under the instructions of Baldwin. A ver-
dict was rendered for Simmons without allowance of the set-off,
upon which judgment was given. ^
It was contended on the argument here, by the counsel of
Baldwin the plaintiff in certiorari, that the note was taken by
Simmons in consequence of the debt for the goods sold, and as a
conditional payment, and that having failed to exercise proper
diligence for the recovery of the note, he must sustain the loss,
and the off-set should therefore have been allowed.
On the part of Simmons, it was insisted that he received the
note merely as the agent of Baldwin, that he had pursued all
the directions which had been given to him, and was therefore
in no wise liable for the loss of the note.
It was admitted on both sides that the note had not been
received by Simmons as an absolute payment, and the law as
stated by each of the counsel, being founded on his own view
of the facts, was not controverted by the other.
The only question then raised and presented to us by the par-
ties, is a pure question of fact, whether Simmons received the
note as a conditional payment of the antecedent debt, or as the
mere agent of Baldwin, to collect the money according to his
direction, and hold it when collected subject to his order.
198 NEW JERSEY SUPREME COURT.
Craig v. Craig.
Inasmuch then as the whole case turned on this point of fact;
inasmuch as the verdict of the jury, the proper tribunal, has
fixed the matter of fact; inasmuch as if the verdict had been
contrary to the evidence, the court below had authority to set
aside such verdict, Squier v. Gale, 1 Halst. 157, and would doubt-
less, if ap'plied to, have properly exercised the power; and
inasmuch as it does not appear nor is it alleged that any incor-
rect decision or charge in point of law was given by the court
below to the jury, there is not any ground on which we can act
to interfere with the judgment. It has been long since and
repeatedly decided that this court will not enquire, on certiorari,
whether a verdict was against evidence. Coxe, 75, 94, 227, 228.
Pen. 277. 2 South. 815. 3 Halst. 255.
Let the judgment be affirmed.
CITED IN N. J. R. R & Tr. Co. v. Suydam, 2 Harr. 63, 71. Tindall v. Tindall,
3 Harr. 439. State v. May. &c., of City of Hudson, 3 Vr. 367.
WILLIAM CRAIG against ELIZABETH CRAIG.
IB ERBOB.
Where distinct actions are depending, of all which a reference is intended,
there must be separate rules of reference, and separate reports ; or they must be
first united, and then referred ; or in one of them a rule of reference must be
entered, with a submission of all matters in dispute between the parties.
This case came before the court upon a writ of error directed
to the Common Pleas of the county of Hunterdon. The abstract
of the record sent up to this court from the Court of Common
Pleas is as follows :
ABSTRACT OP THE RECORD.
Pleas before the Inferior Court of Common Pleas of the county
of Hunterdon, A. D. 1825 ; term of August.
BLACKWELL, Clk.
Hunterdon Inferior Court of Common Pleas, of August Term,
1823.
Hunterdon, ss. Elizabeth Craig puts in her place, P. I. Clark, &c.
Hunterdon, ss. William Craig puts in his place,P.D.Vroom,jr.&c.
Hunterdon, ss. William Craig was summoned to answer Eliza-
beth Craig, of a plea that he render unto her $356.00, lawful
SEPTEMBER TERM, 1827. 199
Craig v. Craig.
money, &c. (Common declaration in debt on a sealed bill given
by said William Craig to Elizabeth Craig, dated 18th February,
1812, for $178.)
Hunterdon Pleas, of May Term, A. D. 1824.
Elizabeth Craig")
v. > In Trover.
William Craig, )
Hunterdon, ss. Elizabeth Craig puts in her place, P. I. Clark, &c.
Hunterdon, ss. William Craig puts in his place, P. D.Vroom, jr. &c.
Hunterdon Pleas, of May Term, A. D. 1824.
Elizabeth Craig")
v. > In Case.
William Craig, )
Hunterdon, ss. Elizabeth Craig puts in her place, P. I. Clark, &c.
Hunterdon, ss. William Craig puts in his place, P. D.Vroom, jr. &c.
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. &c." and day is given, &c.
At which day, &c. came the parties, and the referees bring in
their report as follows :
"Elizabeth Craig ^
v. [• In Debt — In Case — and in Trover.
" William Craig, j
" To the honorable the judges of the Inferior Court of Common
Pleas of the county of Hunterdon.
" 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 proof*
and allegations of the said parties, touching all the matters in
200 NEW JEESEY SUPEEME COUET.
Craig v. Craig.
difference between them in said suits, which have been brought
before us for our consideration, do make this our report of and
concerning the same, that is to say, we do report that the said
William Craig do pay to the said Elizabeth Craig 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.
"NATH'L SAXTON,
" WILLIAM DEMUN,
"JACOB KLINE."
Curia advisari vult.
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 adjudged
to the said Elizabeth and with her assent, &c. and the said Wil-
liam in mercy, &c.
Judgment signed this 6th day of August, 1825.
GEORGE EEA.
Vroom, for the plaintiff in error, relied upon the following among
other reasons for the reversal of the judgment, viz : that the re-
port of the referees on which the judgment is entered, is a joint
report embracing all the matters arising out of three suits, where-
as the referees should have made a separate report in each suit.
Clark, contra.
EWING, C. J. — The record returned with the wi-it of error in
this case exhibits a singular assemblage of incongruous materials,
" rudis indigestaque moles,
Nee quicq\iam nisi pondus iners, congestaque eodem,
Non bene junctarum discordia semina rerum"
It sets out with three distinct actions of different natures, which
are brought at last to a supposed harmonious union. It contains,
in the first place, a placita of August Term, 1825 ; then a placita of
August Term, 1823; a warrant of attorney from Elizabeth Craig
in plea of debt ; a warrant of attorney from William Craig in a
similar action ; a declaration by Elizabeth Craig against William
Craig, in debt of two counts on a sealed bill and for interest; then
SEPTEMBER TERM, 1827. 201
Craig v. Craig.
a placita of May Term, 1824 ; a warrant of attorney from Eliza-
beth Craig in trover, and a warrant of attorney from William
Craig in a like action; then another placita of May Term, 1824,
and warrants of attorney from the same persons in a plea of
trespass on the case. Then follow an entry of the appearance of
the parties on the first Tuesday of February, 1825, and a rule
of reference of "all matters in difference between the parties in
these causes respectively ;" then a continuance, the first that ap-
pears on the record, to the first Tuesday of May, on which day a
report is returned by the referees, entitled "Elizabeth Craig v.
William Craig. In debt, in case and in trover." Continuances
are entered to August Term, 1825, and then judgment, but
whether in debt, in case, or in trover, whether for debt or dam-
ages, does not appear; that Elizabeth Craig do recover the sum
of $287 mentioned in the report, and also her costs and charges,
the amount of which remains in blank.
No one accustomed to appreciate and admire, the regularity
and connection and simplicity of a common law record, can see
this return without surprise and repugnance.
From the return and an answer to a rule made on a suggestion
of diminution, it appears that three distinct actions were com-
menced by Elizabeth Craig against William Craig; that a declara-
tion was filed in one of them, but not in the others; that a
reference of these actions was ordered to the same referees, who
made, not a separate report in each action, but a joint report, on
which the above mentioned judgment was entered. On the part
of the plaintiff in error, it is insisted that the making of a joint
report is erroneous ; that besides the injury done by the referees
on the merits of the controversy, of which he can make no com-
plaint here, injustice is done by the joinder, inasmuch as he is
thereby compelled to pay the costs of all the actions, whereas the
sum found could not have been so divided, if there had been sep-
arate reports, as to have made him pay the costs of all, and per-
haps in one or more he might have recovered costs. On the part
of the defendant it is insisted there is no error; that the rule of
reference was a joint rule, the three causes were jointly referred;
that the rule was so ordered by the court by consent of the par-
ties; and that such consent authorized the court to make a joint
rule and takes away all error.
Upon inspection of the record however it does not appear
there was a joint rule or a joint reference. The entry on the
202 NEW JERSEY SUPREME COURT.
Craig v. Craig.
record is somewhat peculiar, being distinguished by marks of
quotation designed to show it was copied from some other entry;
and doubtless it was taken from the minutes, where a hasty and
loose mode, as is well known, prevails, when divers rules of the
same nature have in different causes been made, to enter at
length one rule either under or over the titles of all the causes,
and thus save time and labor, reddendo singula singulis, but with-
out intention or expectation that a joint rule is thereby produced.
Nor is there any thing in the language of the entry inconsistent
with the idea of separate rules, or indicative of a joint rule, or
that such was the design of the parties. "It is ordered by the
court and by the consent of the parties in these causes, that all
matters in difference in these causes between the parties respec-
tively be submitted," &c. Unless distinct rules were intended,
the word " respectively" seems to be without meaning or office.
It was said the entry speaks of a report and a judgment; but
such is precisely the appropriate language which would have been
used by a person who believed he was making an entry which
though common to all the causes was intended to operate as a
distinct rule in each.
But whatever inference of intention may be drawn from the
terms of the entry, a joint rule in three distinct actions was
wholly illegal and impracticable. Neither the power of the
court, nor the consent of the parties could make it. The very
nature of the thing forbids. Every rule must be made and en-
tered in its peculiar cause, and there was here no joint cause.
Parties may agree and refer several causes to the same persons.
Where the subjects of different causes are susceptible of union
or consolidation, the causes may be first united and a single rule
of reference of all the matters be then made. There is reason to
doubt whether under the phraseology of our statute concerning
references, Eev. Laws, 159, section 3 and 4, when a cause depend-
ing in court is referred by rule, and a judgment is to be entered
on the report, any thing more can be submitted than the matters
in difference in that cause. But if this be not so, it is clear that
where distinct actions are depending, of all which a reference is
intended, there must be separate rules and separate reports; or
they must be first united and then referred; or in one of them a
rule of reference must be entered, with a submission of all mat-
ters in dispute between the parties.
In my opinion, the joint report made in the present case is not
SEPTEMBER TERM, 1827. 203
Craig v. Craig.
sustainable by a rule which was entered, nor by sound legal
principles; that the judgment is therefore erroneous and should
be reversed.
To this conclusion I am brought with some reluctance, be-
cause it is highly probable real justice may have been done
between the parties by the report. That however is an enquiry
into which we are not at liberty to enter. And it is Certain that
safety and security are only to be attained by a strict and care-
ful adherence to prescribed rules and forms, although they may
operate hardly in some instances. Upon the argument at the
bar considerable reliance was placed by the counsel of the
defendant in error, on the case of Brown v. Scott, 1 Dall. 145,
in which a general or joint report, five several actions having
been referred, was sustained in the Court of Common Pleas of
Philadelphia .county against the opinion of Shippen, president,
who said he did not see how it was possible to enter judgment
upon the report so as to avoid error. Without adverting to the
difference of the practice between the two states which renders
a decision of this nature of so little weight here, however re-
spectfully we are disposed to listen to their legal reasonings and
adjudications on general topics, the real value of this case in the
courts of that state may be learned from the case of Hart v.
James, in the Supreme Court, 1 Dall. 355, where a contrary
principle prevailed ; and from the case of Groffv. Musser, 3 Serg.
and Rawle, 262, in which the principle of Hart v. James waa
sanctioned and pursued: and Chief Justice Tilghman said of the
case of Brown v. Scott, "The president thought that the arbitra-
tors had no right to consolidate, and although he was overruled
by his associates, (who were not lawyers), yet I have always
understood that his opinion has been held for law." Let the
judgment be reversed.
FORD, J.— Elizabeth Craig instituted three several actions against
"William Craig in the Court of Common Pleas for the county of
Hunterdon ; one in debt, wherein she declared on a bond ; one in
case, and one in trover and conversion ; but she had not declared
in any but the first when she obtained and entered a rule,
by consent of parties, for a reference to the following effect:
" That all matters in difference in these causes between the parties
respectively, be submitted to " three persons named as referees,
whose report shall be final and conclusive between the said par-
204 NEW JEESEY SUPEEME COCJET>
Craig v. Craig.
ties, made a judgment of the court, and execution issue thereon
if need be." The report is a single one, and it states the three
suits thus, "Elizabeth Craig v. William Craig. In debt, in case,
in trover and conversion." It then certifies that the referees
had considered all the matters in difference in the said suits which
had been brought before them ; and that William Craig do pay to
Elizabeth Craig $287 in full satisfaction of all matters so submitted
to their consideration. The final judgment runs as follows, " It is
considered that the said Elizabeth Craig do recover against the
said William Craig the said sum of $287, mentioned in the said
report," and also so much, "for her costs and charges in her
said suits"
It is to be observed that this is not an award which imposes
some duty on each of the parties, mutually to be performed,
and that can be enforced on a delinquent party only by means
of an attachment, or action on the bond or award ; it is a
strict reference where the report is to be enforced by a judg-
ment and execution that are to be binding upon goods and
lands. Now this judgment is erroneous on account of its vari-
ance from all known and instituted precedents ; such an entry is
not to be found in any book or any established forms in our
courts of justice. It does not set forth, as records universally do,
and of necessity must do, the cause why judgment for $287 is
awarded against the defendant. It ought to specify that it is for
debt on a contract, or damages for nonperformance of certain
promises and assumptions, or for a tort in the conversion of prop-
erty ; and a departure herefrom would overthrow the law as it
now exists, and introduce a new law unknown before. But an
examination into this record for the cause of the judgment leads
us only from one degree of darkness to another; the judgment
does not tell what it is entered for, but only that it is founded
on a report; the report refers to undefined matters that were
brought before the referees in three suits; and the examination
becomes confounded among those three suits by their being for
three totally different matters. It is no wonder that the clerk
in entering the judgment could not specify what the money was
adjudged for, nor that he omitted that essential part altogether,
and passed over it in silence. .Nobody can say from this record
what the money was adjudged for, and therefore it must be taken
to be for nothing. Presumption, if left to itself, can never supply
a cause of action. The cause of recovery does not appear of
SEPTEMBER TEEM, 1827. 205
Hunt v. Gulick.
record, and could never be set up in bar to another action. To
amend the form of the judgment upon the matters contained in
the record, if leave could be granted for that purpose, would be
a vain endeavor, for if amended to be for debt it would not con-
form to the action for tort; or amended to tort it would not
conform to the action for debt. The reason which renders it so
totally incapable of amendment is that debt and tort cannot pos-
sibly be united in one judgment; they require different actions
and different judgments, and by no consent of parties or power
of the court can they be consolidated into one. It appears to
me that this confusion Las resulted from the act of the referees
in making only one report, which they ought to have avoided
by making one in each of the suits, on account of the impossi-
bility of comprising all three in one, and from the word "respec-
tively" in the rule which may well mean separately. In that case
one of the judgments certainly, and possibly two of them, might
have been for less than one hundred dollars each, and have car-
ried no costs; whereas by condensing them together they make
the defendant pay full costs, very unlawfully, in each of the
three suits.
Eeverse the judgment.
DRAKE, J. concurred.
OLIVER HUNT against ABRAHAM GULICK, RALPH P. LOTT and
SAMUEL G. WRIGHT, assignees of DAVID CHAMBERS.
1. In an action of debt against a constable for neglect of duty in serving an
execution, an averment in the state of demand that the execution was not re-
turned within thirty days will not vitiate it.
2. The right of a plaintiff in execution to recover against a constable for neg-
lect of duty in the service of an execution is a vested right, and a repeal of
the statute rendering the constable liable will not defeat the recovery.
3. For neglect of duty in the service of an execution the constable is liable
to pay not only the debt, or damages and costs mentioned in the execution, but
also the interest.
This was a certiorari to tho Court of Common Pleas of the
county of Somerset. The following is the state of the case
agreed upon by the parties, viz.
Abraham Gulick, Ealph P. Lott and Samuel G. "Wright, as-
signees of David Chambers, tho plaintiffs below, brought, in the
206 NEW JERSEY SUPREME COURT.
Hunt v. Gulick.
month of August, 1822, an action of debt before John Stout, esq.
one of the justices of the peace in and for the county of Som-
erset, and filed the following statement of demand :
The plaintiffs demand of the defendant the above sum of
eighty-five dollars and nine cents; for that the plaintiffs hereto-
fore, to wit, on the twenty-fifth day of January, A. D. 1812, ob-
tained a judgment in a certain court for the trial of small causes
in the said county of Somerset, whereof Josias Ferguson, esquire,
then was and now is a justice, against one John M'Michael, for
forty-eight dollars and twenty cents debt, besides sixty-eight
cents costs of suit, in all forty-eight dollars and eighty-eight
cents; that afterwards, viz., on the twenty-seventh day of Janu-
ary, then instant, the said Justice Ferguson issued an execution
in behalf of the said plaintiffs against the said John M'Michael,
the said defendant on the judgment aforesaid, for the said debt
and costs, commanding among other things, the defendant Oliver
Hunt, he being then one of the constables of the township of
Montgomery in the said county, and the same to him being di-
rected and delivered on the day and year aforesaid, to levy and
make the debt and costs aforesaid of the goods and chattels of
the said John M'Michael, and the same to pay over to the said
plaintiffs, or in their absence to the said justice, and for want of
sufficient goods to take the body to jail, and to make return of
his proceedings thereupon had within thirty days, according to
the provisions of an act entitled "An act constituting courts for
the trial of small causes," passed March 15, 1798, and of a sup-
plement thereto, passed February 16th, A. D. 1799; and the said
plaintiffs aver, that the said defendant did neglect to perform any
of the duties required of him as constable under the said acts
respecting said execution, although after he received the same
sufficient goods and chattels of the said John M'Michael might
have been found by due diligence, or the body of the said John
might have been carried to jail by ordinary diligence for want
of sufficient goods and chattels, or the said execution might have
been duly returned within thirty days, with all proceedings had
thereon, according to the requirements of said acts. By reason
of the said defendant's neglect thereof an action hath accrued
to the plaintiffs against him for the said debt and costs, and
interest, for which they pray judgment.
The justice gave judgment in favor of the defendant with
costs of suit.
SEPTEMBER TEEM, 1827. 207
Hunt v. Gulick.
The plaintiffs appealed to the Court of Common Pleas in and
for the county of Somerset, and the appeal was entered in the
term of October, 1822. In the term of January, 1823, the said Court
of Common Pleas reversed the judgment of the justice and gave
judgment in favour of the plaintiffs for the sum of fifty-four dollars
and ninety-three cents of debt,with four dollars sixty -six cents costs
of suit, besides eleven dollars and forty-one cents, costs of increase.
The following were the reasons relied upon for reversal of the
judgment.
Because the said judgment of the Court of Common Pleas is
against law.
Because the several acts of the legislature, to wit, an act enti-
tled "An act constituting courts for the trial of small causes,"
passed 15th March, 1798, and a supplement thereto, passed Feb-
ruary 16tb, A. D. 1799, upon which the statement of demand is
founded, and the action brought and a recovery relied, were
afterwards, and before the 7th day of August, 1822, when this
suit was commenced, repealed, and not in force on the day last
aforesaid, by reason whereof the judgment and proceedings were
and are illegal and void.
Green, for plaintiff.
Hamilton, for defendants.
The CHIEF JUSTICE delivered the opinion of the court.
1. The first reason assigned for the reversal of the judgment
in this case was adjudged insufficient for the like purpose in the
case of Sanford v. Coif ax, 1 South. 120.
2. The second reason for reversal is that prior to the com-
mencement of the action in the court below, the act of March,
1798, whereby an action was given to the plaintiff to recover the
debt and costs mentioned in an execution, from a constable for
neglect of duty, was repealed. The point on which this question
depends is whether prior to the repeal any right was by the statute
vested in the plaintiff; for it is agreed on all hands and fully sup-
ported by the authorities in the books, that a repeal does not affect
any vested right, even where the statute contains no saving clause.
Now in the present case a neglect of duty within the statute
having occurred, the constable immediately by force of the statute
became liable to the plaintiff for the amount of debt and costs
208 NEW JERSEY SUPKEME COUKT.
Hunt v. Gulick.
mentioned in the execution. A right to recover such amount was
when the neglect took place forthwith vested in the plaintiff. The
liability of the constable, and the right of the plaintiff to recover,
did not by any means depend on the commencement of the action
or on the rendition of the judgment. Both were fixed by the
statute. Both existed prior to the commencement of any suit.
The action was merely the mode whereby the existing liability
and right were to be enforced. Hence the repeal of the statute
could not legally destroy the right of the plaintiff in execution.
The cases cited on the part of the plaintiff in certiorari do not
reach the pi'esent question. There is a wide distinction between
the matter of civil right and the cases of crime or of penalties
which may be recovered by any person who will sue. In the
United States v. Passmore, 4 Dall. 372, the statute of the United
States which made certain acts an indictable offence having
been repealed before the finding of the indictment, there existed
no such offence, and consequently the acts could not as such be
the subject of indictment or punishment. In popular actions
given to common informers, no person is entitled to the penalty,
no right is vested in any person, until at least an action is com-
menced. It is otherwise when the party aggrieved is entitled to
recover. Yelv. 53. Andrews, 70. I D. & E. 705. In the case
of The Commonwealth v. Duane, 1 Binney 608, Chief Justice
Tilghman made these apposite remarks ; " If the same expres-
sions, [alluding to an act of the legislature] had been used as
applied to a civil action, I should have thought myself warranted
in giving it a different construction, because then it would have
operated in a retrospective manner so as to take away from a
citizen a vested right. But there is a wide difference between
a civil and a criminal action. In the latter the commonwealth
only relinquishes its own right of inflicting punishment." In
the case of The State v. Shinn, 2 South. 553, and in Miller's
case, 1 W. Bl. 451, which were applications for discharge as
insolvent debtors, no right had vested in the applicants prior
to the repeal of the acts, which took place while the proceed-
ings were in progress. The applicants were not in these cases
entitled to discharge until they had complied with the requisi-
tions of those acts which remained as yet undone at the time
of their repeal.
3. The third reason is that the judgment against the constable
was rendered for the interest as well as the debt and costs men-
SEPTEMBER TEEM, 1827. 209
Independence v. Pompton.
tioned in the execution. The words of the statute are that "the
constable shall be liable to pay to the person in whose favour the
execution issued the debt or damages and costs or any of them
mentioned therein." The sound construction of the act is that
the constable shall be liable for whatever he might have lawfully
raised under the execution: And although by the words of the
execution and by the terms of the statute, Patt. 317, sec. 25, the
execution commands the constable to levy the debt or damages
and costs, yet he does actually and rightfully levy interest upon
the debt. Any other construction would operate as a bounty to
the constable for delay and misconduct. The twenty-second
section of the statute respecting sheriffs, Rev. I/aws, 241, directs
that the sheriff for neglect of duty on writs of execution "shall
be amerced in the value of the debt or damages and costs," yet
the uniform course of this court has been to amerce in the
amount of the interest also. In the case of Hunt v. Boylan, 1
Hoist. 211, on a similar reason assigned for reversal, Chief Jus-
tice Kirkpatrick said "I should be very much inclined to think
that the debt included the interest." In Jones v. King, the al-
lowance of the interest against the constable was held to be an
insufficient cause for reversal.
Let the judgment be affirmed.
CITED ITS Williamson v. N. J. 8. R. R. Co., 2 Stew. 334.
INDEPENDENCE against POMPTON.
1. The hearsay declaration of the father is not competent evidence to prove
the place of the child's birth. .
2. This court on certiorari in settlement cases has no jurisdiction or control
over the sessions in matters of fact, or the credibility of witnesses.
3. A state of the 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.
This was a certiorari to the Court of Quarter Sessions of the
county of Warren, to bring up the order and proceedings of the
said court on an appeal quashing an order of two justices for the
removal of David Monroe and his wife and daughter Sarah from
the township of Independence, in the county of Warren, to the
VOL. iv. o
210 NEW JERSEY SUPREME COURT.
Independence v. Pompton.
township of Pompton in the county of Bergen. And the follow-
ing is the state of the case sent by the sessions to this court.
On the trial of the above appeal before the Court of General
Quarter Sessions of the Peace of the county of Warren in the term
of August, eighteen hundred and twenty-five, the appellees pro-
posed to prove the birth place of David Monroe, one of the pau-
pers removed, to have been in the township of Pompton in the
county of Bergen, and for that purpose to prove by the said David
that he always understood that he was born at Ringwood, in the
township of Pompton, and especially that he always understood
this from his parents, who are now dead. To this evidence the
counsel for the appellants objected, and after argument the court
sustained the objection and rejected the evidence. The appellees
then proved by the said David, that he recollected living at Ring-
wood when he was so young that his mother used to lead him
about by his hand, and that he remained at Ringwood until he
was about ten years of age, when he began to drive a team of oxen,
and after that a team of mules; that after being thus employed
about four years, he went into the state of New York and into the
state of Pennsylvania, and worked in each of those places; and
from the latter he returned into the state of New York, and thence
into the township of Independence in the county of Sussex, now
in the county of Warren, where he has resided and worked ever
since, until he was rendered incapable by an accident.
It did not appear upon the trial of the above appeal that the
parents of the said David Monroe had any place of legal resi-
dence, nor that the said David Monroe had acquired any other
than as above appears.
Halsey, for the plaintiff in certiorari, contended that the order
of the sessions ought to be reversed, because —
I. The court rejected legal evidence by rejecting the evidence
of i-eputation of the birth place of the pauper, and the declara-
tion of the parents in respect to the same. It appears by the
state of the case agreed on that such evidence was offered and
rejected by the court.
II. Because the court quashed the order when it sufficiently
appeared in evidence that the birth place and legal residence of
the pauper was in Pompton.
1. It appears by the state of the case that the pauper lived in
Ringwood (Pompton township) from his earliest recollections
SEPTEMBER TERM, 1827. 211
Independence v. Pompton.
with his parents, until he was ten years of age, when he went
into New York and thence into Pennsylvania.
That this was sufficient evidence of the birth of the pauper in
the absence of all other evidence, and therefore the court ought
to have affirmed the order of removal.
2. There was no evidence on the trial of the appeal that the
parents of the pauper had any place of legal settlement, nor
that David Monroe the pauper had acquired any other place of
legal residence than at Ringwood.
3. That the circumstance of the pauper becoming chargeable
in Independence for the first time, did not render the township
of Independence on that account chargeable.
4. In the situation of this country the difficulty of proving the
birth of any person by eye witnesses after a lapse of time,
especially in sparse settlements, and that the evidence offered
and given in the above cause is sufficient for the purpose of
proving birth and settlement consequent thereof.
Dickerson, for the defendants —
As to the first reason assigned, the defendants insist that the
sessions were not in error, and for the correctness of their deci-
sion refer the court to 2 East 27, 54, and 8 East 542, and to the
case of Westfield v. Warren, 3 Hoist . 249.
As to the second reason assigned, the defendants insist —
1. That the testimony of the pauper, David Monroe, does not
establish the fact of his birth at Pompton with such certainty as
is required to give him a settlement there. Nor is it the beet
evidence which from the nature of the case ought to have been
produced to establish the fact of birth at Pompton.
The fact stated by the pauper that he recollects living at
Pompton "when he was so young that his mother used to lead
him about by the hand," is too vague and uncertain to establish
the -fact of birth at that place.
2. As the settlement at Pompton must depend solely upon the
fact of the birth of the pauper at that place, this court will not
undertake to settle that fact in the present case; and more par-
ticularly as by the transcript and proceedings it appears that
other witnesses were sworn before the sessions.
The CHIEF JUSTICE delivered the opinion of the court.
This certiorari brings before us an order of the sessions of the
212 NEW JEESEY SUPEEME COUET.
Independence v. Pompton.
county of Warren, quashing an order of two justices of the peace
for the removal of David Monroe and his wife and daughter, as
paupers, from Independence to Pompton, and a case made by
the sessions upon the determination of the appeal before them.
The counsel of Independence insisted in the sessions that
David Monroe was settled by birth in the township of Pompton,
and to shew the place of his birth offered to prove by him, "that
he always understood that he was born at Eingwood in the
township of Pompton, and especially that he always understood
this from his parents who are now [at the time of the trial in
the sessions] dead." This evidence was objected to and over-
ruled, and in this, it is said, the sessions erred.
The rule of evidence is thus stated by Starkie, in his recent
and valuable treatise: "Proof that a party was born in a par-
ticular parish is prima facie evidence of a settlement there. But
it has been held that the declarations of deceased parents are
not evidence as to the place of birth." 3 Starkie 1319. The
subject of hearsay evidence in settlement cases underwent great
and thorough discussion in the case of Rex v. Eriswell, 3 Term
Rep. 707. and by that case the exclusion of such evidence as to
matters not of mere pedigree has been since considered as defi-
nitively settled. Such evidence was rejected in Rex v. Chadderton,
2 East 27, and Lord Kenyon said, "Tbe hearsay from the pau-
per's mother is no evidence at all of any fact." In Sex v.
Ferry Frystone, 2 East 53, evidence of the declaration of a pau-
per who was dead, and his examination in writing touching his
place of settlement taken under oath before two justices, were
both adjudged inadmissible. In Rex v. Abergwilly, 2 East 63, a
similar principle was decided. In Rex v. Erith, 8 East 539,
the very question now before us was discussed in the King's
Bench. Tbe court after time taken for consideration determined
that the hearsay declaration of the father of a bastard child as
to the place of his, the bastard's birth, was not competent evi-
dence of that fact. The reasoning of Lord Ellenborough in
delivering the opinion of the court on that occasion may stand
in the stead of any further examination of the principle on
our part. "The only doubt," he says, "which has been intro-
duced into this case has arisen from improperly considering it
as a question of pedigree. The controversy was not as in a case
of pedigree, from what parents the child has derived its birth ;
but in what place an undisputed birth derived from known and
SEPTEMBER TERM, 1827. 213
Independence v. Pompton.
acknowledged parents has happened. The point thus stated
turns on a single fact involving no question but of locality, and
therefore not falling within the principle of or governed by the
rules applicable to cases of pedigree ; and is to be proved there-
fore as other facts generally are proved, according to the ordinary
course of the common law; that is by evidence to which the objec-
tion of hearsay does not apply."
The hearsay evidence in this case was properly rejected by
the Court of Quarter Sessions.
The overseers of Independence then proved by David Monroe,
" that he recollected living at Ringwood when he was so young
that his mother used to lead him about by his hand, and that he
remained at Ringwood until he was about ten years of age, when
he began to drive a team of oxen and after that a team of mules ;
that after being thus employed about four years he went into the
state of New York." No other evidence was given of the set-
tlement either of Monroe or of his parents. On the part of
Independence it is insisted that here was sufficient evidence in
point of fact, of the birth of the pauper in Pompton, and that
the order of removal should therefore have been affirmed by
the sessions. The question raised before us on this point by the
counsel of Independence is that the sessions erred in matter of
fact, not of law. Now it is a clear and well settled rule that
this court on certiorari in settlement cases has no jurisdiction or
control over the sessions in matters of fact or of the credibility
of witnesses. The case in this instance made in the sessions is
not properly stated. It should have set forth the fact of the
place of birth as found by the sessions, and not, as has been
done, the mere evidence adduced to prove the fact. On this sub-
ject it is believed an inconvenient departure sometimes occurs
from ancient and approved rule, and the occasion affords a fit
opportunity to state and explain the rule. A state of the 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 ; or in other words, not merely the facts from which other
facts are to be inferred by that court ; except where the question
intended to be raised here is that evidence has been improperly
received or rejected. The reason is plain. This court is not to
examine and decide controverted questions of fact, but ques-
tions of law only upon facts found, established and certified by
214 NEW JERSEY SUPREME COURT.
Independence v. Pompton.
the sessions. To illustrate: The testimony of Monroe was said
to be presumptive evidence of the place of his birth. The ses-
sions should have stated not simply this presumptive evidence,
but their conclusion or inference in point of fact from the evi-
dence before them, whether the place of birth was or was not
shewn or proved to be in the township of Pompton. In the case
of Rex v. Martley, Burr. Sett, cases 120, an order of sessions was
brought by certiorari into the Court of King's Bench, confirming
an order of two justices for the removal of a pauper, his wife and
children, to Martley. "They were all strollers and vagrants, and
had been so all their lives, and never gained a settlement any
where, and the places of their births seemed very uncertain.
However the sessions had not sufficiently stated i\\Q facts: they
had stated only the evidence. The court therefore recommended
it to the counsel on both sides to consent that it should go down
again to be better stated. They supposed it to be the intention
of the sessions to state the facts for the opinion of this court
upon them. But this court could not judge of the place where
the paupers were born." Special orders of sessions were con-
sidered, they said, in the nature of special verdicts ; which are
not to state the evidence of the fact, but the fact itself. In Rex v.
Luffington, Burr. Sett, cases, 232, where the marriage of a pauper
was a matter of fact on which the question of settlement de-
pended, the special case stated that William Hillyer " was mar-
ried by a person in a black coat and band whom the said Mary
Hanbury apprehended to be a clergyman, but has since been
informed that he was a layman." The Court of King's Bench
said the case was very imperfectly stated. "As to the person in
a black coat and band, &c. it is only evidence of the circum-
stances of the first marriage, whereas the sessions should have
determined whether the marriage was by a clergyman in holy
orders or not." In Rex v. Bray, Ibid 682, the ground of settle-
ment was an alleged hiring and service for a year. Lord Mans-
field said, "Here the justices have not stated the fact of any
hiring at all. They have only stated evidence. The court cannot
draw conclusions from the evidence." Justice Aston concurred
with Lord Mansfield in thinking the case imperfectly and defec-
tively stated; and it was sent back to the sessions to be restated.
In Rex v. Clifton, Ibid 697, a case was twice sent to the sessions
to be restated.
In the case before us, although defectively stated, there is, I
SEPTEMBER TERM, 1827. 215
Harwood v. Murphy.
apprehend, no difficulty in seeing the opinion of the sessions as
to the fact; that the place of birth was not in their estimation
proved to be in Pompton, because no other evidence, the case says,
of the settlement of the pauper or his parents was given. It would
therefore result only in useless expense to send back the case. It
ought to be if a reasonable doubt existed as to the opinion of the
sessions. For the rule of law is clear and unquestionable. The
place of birth is the place of settlement until another be shewn.
Let the order of the session be affirmed.
CITED IN N. J. R. R. Co. v. Suydam, 2 Harr. 71 . State v. May. <&c., of City of
Hudson, 3 Vr. 367.
JOHN HARWOOD against JAMES MURPHY.
1. An agent who has sold personal property belonging to his principal is not
a competent witness for the vendee, to prove that he was not agent, and that the
property was sold on his own account, and thereby to establish the validity of
the sale.
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.
Hamilton, for plaintiff.
Wood, for defendant.
The facts in this case sufficiently appear in the opinion of the
court, delivered by EWINQ, Chief Justice.
One of the reasons presented for setting aside the verdict
rendered for the plaintiff in this case is that an incompetent
witness was admitted to give evidence.
The action is in replevin for ship timber. Murphy, the defend-
ant, pleaded that the timber in question was his property; and
upon this point issue was joined. One Farr had purchased
certain trees from the owners of the land on which they grew,
had worked them up into ship timber, and had sold the timber
to Harwood, the plaintiff. Murphy alleged that Farr was in his
employ and acting for him at the time of the purchase and
working up of the timber, and that the sale to Harwood waa
therefore invalid. After Murphy had given evidence in support
of this allegation, Harwood offered Farr as a witness to prove
that the purchase was made by him on his own account and
not as the agent or in the employ of Murphy, and thereby to
establish the validity of the sale. The competency of Farr waa
sustained by the judge.
216 NEW JEKSEY STJPEEME COUET.
Harwood v. Murphy.
The rule on this subject is clear and simple. It is in its
application that difficulty interposes. If the person offered as
a witness stands entirely indifferent to the event, so that his
interest cannot be in any degree affected by it, he is admissible.
When it is said the witness is admissible if equally interested, the
same rule is stated, though in somewhat different terms, for he
has then in truth no interest inasmuch as being under equal
responsibility, the event must be indifferent, or in other words
without interest, to him. But where the responsibility will vary
with the verdict, that is to say, where if the verdict be for the
one party, the witness is exposed to a certain responsibility, and
if for the other party he is liable to a different and lighter respon-
sibility, then he does not stand indifferent and ought not to be
permitted to give evidence for the party whose success will leave
him subject only to the lighter charge. If the liability of the
witness remain 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 for that party and to produce that event.
If then it can be demonstrated that the responsibility of Farr
would necessarily be less in case 'of a verdict for Harwood than
for Murphy, he had an interest in the result and ought not to
have been admitted to testify.
A verdict for Murphy would leave Farr liable to Harwood on
the implied warranty of title which attends the sale of a chattel.
He would also be liable to Murphy. For having infringed his
contract with Murphy and violated his duty as an agent, he
would be held to render satisfaction in damages commensurate
with the injury.
But in case of a verdict for Harwood, what then would be his
situation ? Towards Harwood he would be under no responsi-
bility, for as his title to the timber would be sustained, he could
have no claim against Farr, the disturbance of his right by
Murphy being illegal and tortious. Without stopping to enquire
whether in such case Farr would be liable at all to Murphy, it
is manifest that if liable*it must be to him alone.
Unless therefore the -claim of Murphy in the latter event would
be equal to the united claims in the former event of both himself
and Harwood; which cannot be supposed, especially when it is
recollected from the evidence that Murphy had advanced no
money to Farr for the purchase of the timber, the existence of
the interest of Farr in the success of Harwood is clearly shewn.
SEPTEMBEE TEEM, 1827. 217
Harwood v. Murphy.
To produce that result therefore his evidence was incompetent;
and the verdict ought to be set aside.
Another view of the subject brings my mind to the same con-
clusion. The sale to Harwood raised, as has been already men-
tioned, an implied warranty of the title on the part of Farr. A
verdict in this case in favour of Harwood would afford an effectual
protection to Farr from all liability on that warranty. He had
therefore a direct, certain interest. The verdict might also
be given in evidence for or against him according to the event.
If for Harwood, Farr might use it in case of an action by Har-
wood against him on the warranty. If against Harwood, he
might give it in evidence in such action. In Martin v. Hendrick-
son, 2 Ld. Raym. 1007, which was an action by the owner of a
barge against the master of a ship for so negligently managing
his ship as to sink the plaintiff's barge, the pilot of the ship was
held an incompetent witness for the defendant, because he was
answerable to the master of the ship 'in an action for the damages
the master suffered by his ill management, and consequently
for the damages which should be recovered in that action
against the defendant. In Powell v.Hord, Ibid. 1411, in an action
against a sheriff for a false return on a capias ad satisfacien-
dum, the sheriff's bailiff, who was alleged to have neglected the
execution of the writ, was held an incompetent witness for the
sheriff. In Green v. The New River Company, 4 T. R. 589, an
action brought against the company for damage done to the plain-
tiff's horse by the bursting of a pipe, owing to the negligence
of a person in their employ ; this person was rejected as a
witness. The court said the verdict might be given in
evidence against him in an action by the defendants as to
the quantum of damages, though not as to the fact of the
injury, and therefore he was incompetent without a release.
In Heermance v. Vernoy, 6 John, 5, in an action of trespass
for taking away a bark mill, the defendant offered a witness
to prove that he had sold to the plaintiff the promises on
which the bark mill stood, had verbally excepted the mill,
and had afterwards sold it to the defendant. The court held
the witness to be inadmissible. "Every man is considered,"
say the court, "as warranting the title of personal property
which he sells, though there be no express warranty for that
purpose. The witness was then interested in defending the
title set up by the defendant as he stood behind him and
218 NEW JERSEY SUPREME COURT.
Hatchings v. Scott.
was responsible to him if it failed." Inasmuch then as Farr
had a direct and certain interest in a verdict in favour of
Harwood, it is clear that he was inadmissible unless an interest
at least equal in a verdict in favour of Murphy can be shewn.
What interest had Farr in a verdict in favour of Murphy ? Such
a verdict would afford him no protection against a suit by
Murphy. Nor would it materially change his liability to Murphy,
if liable at all. A verdict either way would leave Farr responsible
to Murphy. In either case, his liability would be for the damages
sustained by Murphy from the failure of the delivery of the timber
to him, and in neither for the value of the timber, because he took
the timber from Harwood and had advanced no money to Farr
for the purchase of it. Farr then had really no interest to be
promoted by a verdict in favour of Murphy. Of consequence
there was nothing to counterbalance the weight of his interest
in favour of Harwood. This view of the case is taken on the
presumption that Murphy might maintain an action against
Farr in case of a verdict for Harwood. If he could not, the issue
being on the question of property, the interest of Farr in a
verdict for Harwood is still more apparent.
I am of opinion therefore that Farr was an incompetent wit-
ness for Harwood without a release.
Let the verdict be set aside, with costs to abide the event of
the suit.
CITED IN Henarie v. Maxwell, 6 Hal. 98. Sherron v. Humphreys, 2 Or. 218.
Letson v. Dunham, Id. 310.
JOHN HUTCHINGS against JOHN SCOTT and HENRY V. GARRETSON.
CERTIOHAEL
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.
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.
Scott, for plaintiff.
Wood, for defendants.
EWINQ, C. J. — Judgment was rendered on the fifteenth day of
SEPTEMBEE TEEM, 1827. 219
Hatchings v. Scott.
May, 1826, in favour of John Scott and Henry Y. Garretson,
against John Hutchings, by Nicholas Boraem, esquire, recorder
of the city of New Brunswick, in a plea of debt, for divers
articles of goods, wares and merchandize, sold and delivered
and specifically enumerated in the state of demand. The pro-
ceedirigs were conducted in the manner usual before justices of
the peace and prescribed in the act constituting courts for the
trial of small causes.
The plaintiff in certiorari moves to reverse the judgment,
because the recorder had not jurisdiction of the subject matter,
not being a justice of the peace of any county; nor of the per-
son of the defendant, as it is not shewn that he was a corporator
or resident within the city; and because the legislature cannot
constitutionally confer on a corporation officer the powers of a
justice of the peace.
The sixty-second section of the act constituting courts for the
trial of small causes, Rev. Laws 646, enacts that " the mayor,
recorder and aldermen of any city, borough or town corpo-
rate, or any and each of them, shall be deemed, esteemed and
taken, to be a justice of the peace, for the trial of causes
hereby authorized within the intent and meaning of this act;
but nothing herein contained shall be construed or taken to
enlarge the territorial jurisdiction of the said several and
respective offices] but the same shall be and remain co-extensive
with the limits of the borough or city for which they are
respectively appointed and commissioned." From the plain
and unambiguous language of this section, it is manifest that a
similar jurisdiction is given to these corporation officers within
their corporate limits as is given by the act to justices of the
peace of the several counties within their respective counties.
The "cases hereby authorized within the intent and meaning
of this act," are the cases over which jurisdiction is given
by the act to the justices of the counties. The territorial
jurisdiction of the mayor, recorder or aldermen, is declared
co-extensive with the limits of the borough or city for which
he is appointed and commissioned, in the same terms and to the
same effect, as the territorial jurisdiction of a justice of the peace
of a county is, by the second section* declared to be co-extensive
with the limits of the county for which ho is appointed and com-
missioned. No word or phrase is to be found in the act which
restrains the jurisdiction to causes of action arising within tho
220 NEW JERSEY SUPREME COURT.
Hutchings v. Scott.
city or borough, or the parties to corporators or persons residing
there. The provision of the tenth section of the act to amend
the charter of the city of New Brunswick, Rev. Laws 508, that
nothing therein contained should authorize the mayor, recorder
or aldermen to commit to the said gaol any debtor or debtors
not residing in the said city, is necessarily extended by the
operation of the act above recited. A cause of action cognizable
before a justice of the county is therefore within the jurisdic-
tion of a corporation officer, and a person amenable to the
process of the former is liable to the process issued by the
latter, if found within his territorial limits. Hence, as the
justice may by the express terms of the act, hear, try and
determine the suit, although the cause of action did not arise
•within the county, and as it is in no wise required that either
party should be a resident of the county, it follows that it is
not necessary to aver or shew the cause of action to have arisen
within the city or borough, or that the defendant was a resident
there. In the case of John Arnwine v.jJohn Polhemus, on cer-
tiorari to the recorder of the city of Trenton, in the term of
May, 1796, it was decided by this court that the recorder, as a
justice of the peace, had jurisdiction in a plea of debt against
a defendant not an inhabitant of the city of Trenton, and that a
freeholder and resident of the county of Hunterdon, not being
a freeholder and resident of the city, was liable to arrest by a
constable of the corporation on a warrant issued in such plea
by the recorder.
On the argument at the bar, it was urged, that the recorder of
New Brunswick had no jurisdiction because there could be no
appeal to any Court of Common Pleas, no appeal being expressly
given, and the situation of the city, lying in two counties,
rendering it impracticable. Great weight would be justly due to
this argument if the appeal were of the essence of the jurisdic-
tion, or the latter could not subsist without it. But such is not
the consequence; and although the right of review is justly
cherished in our judicial system, and ought sedulously to be sus-
tained, yet is is not vital to any jurisdiction, nor would it be here
denied, if there can be no appeal, for in such case a writ of cer-
tiorari would certainly be supported. Whether then there can
be an appeal from the recorder, and whether to the court of
Middlesex or Somerset, are questions not necessary for us on this
occasion to examine or decide, and we need only say that a
SEPTEMBER TEEM, 1827. 221
Hutchings v. Scott.
reasonable doubt in this respect would form a sufficient ground
and motive for legislative interference.
It remains to enquire whether the legislature may consistently
with the constitution, confer the powers and authorities of jus-
tices of the peace on the mayor, recorder or aldermen of a city
or borough. The argument of the plaintiff's counsel is that the
constitution provides for the appointment of justices of the
peace only, not for corporate officers, and that to exercise these
powers and authorities, the individual must be appointed ac-
cording to that instrument to be a justice of the peace. The
practical construction given to the constitution by conferring on
these officers the powers of justices of the peace in the incorpo-
ration of almost every city or borough since the year 1776,
affords a very convincing answer to this argument. In the
charter of New Brunswick, Rev. JJaws, 506, it is declared that
" the mayor, recorder and aldermen shall be justices of the
peace ex officio within the said city, and shall be appointed by
the Council and General Assembly of this state in joint meeting
and commissioned by the governor, in the same manner as the
judges and justices of the peace throughout the same are ap-
pointed and commissioned and shall continue in office for the
same time, and be amenable in like manner to the Council ajid
General Assembly." So in all other corporations. These corpo-
ration officers, it appears then, are justices of the peace. They
are appointed by the same body, exercise the same powers, per-
form the same duties, continue in office for the same period, are
commissioned in the same manner, and are amenable for misbe-
havior to the same tribunals as other justices of the peace. They
have not indeed precisely the same name. Nor is this in anywise
essential. Nor does it abrogate their authority as justices that
other powers are given to them and other duties required from
them; for by the same process of reasoning, the annexation of
Borne new power or duty, as has been done in divers instances by
legislative acts, would destroy the ancient office of a justice of
the peace; and yielding to the argument we must follow it out
to its inevitable extent, that the powers, duties and authorities
of justices must at all time remain as they were at the forma-
tion of the constitution. It is further to be noticed that although
the constitution mentions justices of the peace, it by no means de-
fines their powers, nor prescribes the limits of their jurisdiction,
either as to subject matter or territory. It speaks of "justices of
222 NEW JERSEY SUPREME COURT.
Hatchings v. Scott.
the peace," but without any territorial adjunct of county, city
or state. The sixty-second section of the act constituting courts
for the trial of small causes is perfectly consistent with the con-
stitution.
FORD, J. — This- certiorari, which is directed to Nicholas
Boraem, esq., recorder of the city of New Brunswick, brings
up a judgment rendered by him against John Hutchings, for
fifty dollars and seventeen cents, in favour of Scott and Garret-
son, in an action of debt, by default. The first exception, that
there was no adjournment of the parties to any day for trial,
and that the defendant below was surprised, appears not to be
supported ; there was a regular adjournment, of which the de-
fendant below had proper notice.
The jurisdiction of the recorder to try causes as a justice of the
peace, under the act constituting courts for the trial of small
causes, was then denied. The sixty-second section of that statute
Rev. Laws, 646, enacts, "that the mayor, recorder and aldermen
of any city, town corporate or borough, and any, and each of
them, shall be deemed, esteemed and taken to be a justice of the
peace for the trial of causes hereby authorized, within the true in-
tent and meaning of this act." These words grant to those
officers an express jurisdiction, which this court has no power
to take away.
It was next objected, that their power was restricted to causes
arising between corporators or members of the city, and could
not be extended over other persons. The act provides that
"nothing herein contained shall be construed or taken to en-
large the territorial jurisdiction of those officers, but the same
shall be and remain co-extensive with the limits of the city."
Their process therefore cannot run beyond the limits of the
city, any more than the process of a justice can run beyond the
limits of his county; each has a territorial limit; but their juris-
diction is complete over all persons within their respective terri-
tories; in the city, whether they are members of the city or not,
and in the county, whether they are members of the county or
not. No restriction to persons is imposed in either case, and
consequently there is none.
A question was mooted touching the proper county to which an
appeal from the city should be carried, the city being composed
partly of one county and partly of another. I do not see why the
SEPTEMBER TERM, 1827. 223
Hunt v. Langstroth.
appeal should not be according to the county in which the officer
resides. It is residence which gives the rule for assessments,
taxes, the exercise of the elective franchise, and payment of
tavern licenses. But I give no opinion upon a matter that is not
before us in the cause. The recorder has an express jurisdiction,
and has not exercised it in this case erroneously ; we must there-
fore affirm the judgment ; and if a question touching the proper
county to take cognizance of appeals should ever come up, it will
then be the right time to consider it.
DRAKE J. concurred.
Judgment affirmed.
JAMES HUNT against THOMAS LANGSTROTH.
CEBTIOHAEI.*
1. An affidavit taken before one justice cannot be read to prove the service of
a notice in a cause pending before another justice.
2. A notice of an application to reinstate an action should be written and not
verbal.
Langstroth 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. On a subse-
quent day the plaintiff made application to the justice to have
the action reinstated, and having laid before him a copy of a
notice of the application, together with an affidavit taken before
a justice of another county, proving the service on the defendant
of the notice of the said application, and presented satisfactory
reasons for his non-attendance on the adjourned day, the justice
in the absence of the defendant reinstated the action, tried it in
the absence of the defendant, and rendered a judgment against him.
To reverse this judgment Hunt brought this certiorari.
D. Croxall, for the plaintiff, relied upon the following reasons
for reversal :
* This ca«e was decided in May Term, but was omitted to be published among
the cases of that term.
224 NEW JERSEY SUPEEME COUJRT.
Anonymons.
1. Because the service of the notice of the application to rein-
state the action was not sufficient!}' proved, inasmuch as the affi-
davit of the service of such notice was taken before another justice
of the peace than the one before whom the cause was pending.
2. Because the justice had no right, after dismissing the action,
to reinstate it.
Hamilton, contra, insisted —
1. That the proof of service of the notice of the application to
reinstate the action was sufficient.
2. That the defendant, Hunt, had actual notice of the intended
application to reinstate the cause, for the counsel of the plaintiff
below had met Hunt in the street on the day previous to the
application, and informed him of his intention to make such
application, and of the time and place of making the same.
BY THE COURT. — The state of facts in this case is that the
defendant was brought before the justice upon a warrant, and
an adjournment took place. The defendant attended on the
adjourned day; the plaintiff did not. The justice dismissed the
action, and afterwards reinstated it. Without giving any opin-
ion as to the right of the justice to reinstate the action, yet
clearly he ought not to have done so until it had been shewn
that notice of the application had been given to the defendant.
The affidavit taken before another justice was mere blank paper.
It was voluntary, and perjury could not be assigned upon it.
The verbal notice mentioned by the defendant's counsel, was
not legal notice.
Judgment reversed.
CITED IN Munn v. Merry, 2 Or. 184.
ANONYMOUS.
AFFIDAVITS.
Scott, asked the court, whether when one party obtains a rule
for taking affidavits, that rule is a sufficient warrant to authorize
the other party to take affidavits also?
The CHIEF JUSTICE said, the practice is, when a general rule
is obtained by one party to take affidavits for a specific purpose,
then both parties have leave by virtue of the rule to take affidavits.
SEPTEMBEE TERM, 1827. 225
Den v. Geiger.
JOHN DEN on the demise of CHARLES HADLEY and MARY his wife,
ABRAHAM SCUDDER and BENJAMIN SCUDDER, against HENRY
GEIGEB- EJECTMENT.
1. On the argument of a rule to show cause the party is not confined to the
grounds on which the rule to shew cause was obtained.
2. The notice of taking affidavits, to be used on the argument of a rule to shew
cause should be given to the attorney, and not to the party only.
3. An affidavit taken before one of the counsel in the cause (being a commis-
sioner) cannot be received in evidence.
4. A certificate of acknowledgment of a deed is good if it shews a substan-
tial, though not a verbal, compliance with the requirements of the act respect-
ing conveyances, Rev. Laws 458, sec. 1, 4.
5. A certificate of acknowledgment which omits to state that the grantors
executed the deed voluntarily, and that the acknowledgment of the wife was on
a private examination, and without any fear, may be good if it contain words
equivalent to those omitted.
6. If a person out of possession conveys to a stranger land held adversely by
another, such conveyance is good as against the parties to it, whatever may be
its operations as to third persons.
7. A party is not permitted to impugn a verdict in consequence of the intro-
duction of testimony to which on the trial he raised no objection.
3. A new trial will not be granted to let in a party to the production of new
witnesses for the purpose of discrediting those examined by his adversary ; nor
on account of the discovery of new evidence of a cumulative character.
This was an action of ejectment which had been tried before
his honor the Chief Justice at the Essex Circuit, and a verdict
rendered in favour 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 had.
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.
Chetwood, for plaintiff, objected to the reading of the affidavit,
because the rule to shew cause was not applied for on the ground
of newly discovered evidence, but simply on the ground of mis-
take in the charge of the judge.
EWINQ, C. J. — The party is not confined, on the argument of the
rule to shew cause, to the ground on which the rule was obtained.
Chetwood then offered to read an affidavit, to which Scudder
objected — 1. Because the notice of taking said affidavit had not
been given to the attorney in the cause, but to the party only.
2. Because it was taken before one of the counsel in the cause,
(being a commissioner to take affidavits).
EWING, Cv J. — Wo think, upon both grounds, that the objec-
tion ought to be sustained, and that the affidavit must be rejected.
VOL. rv. p
226 NEW JERSEY SUPREME COURT.
Den v. Geiger.
The rule to shew cause was laboriously argued by Freling-
huysen and Scudder for the defendant, and 0. S. Hoisted and
Chetwood for the plaintiff.
The CHIEF JUSTICE delivered the opinion of the court.
Various reasons were on the argument of this case assigned for
setting aside the verdict which at the Essex Circuit, in April,
1826, was found for the plaintiff.
1. The first reason I shall examine is the alleged inadmissibility
of a deed from John Smith and Elizabeth his wife to Benjamin
Scudder. This deed was offered and read by the plaintiff, for the
purpose of shewing that Elizabeth Smith, who was called by him
as a witness, was not interested, and was therefore competent to
give evidence. The lessors of the plaintiff claimed title under
Benjamin Scudder, junior, as heirs at law. The defendant claimed
under Benjamin Scudder, senior, and denied that the former ever
had title to the premises in question. Some years after the death
of Benjamin Scudder, junior, Elizabeth Smith, formerly his wife,
and then the wife of John Smith, made this deed to Benjamin
Scudder, senior, whereby in consideration of £283 6s 8d, they con-
veyed to him all their estate, right, title, property, claim and de-
mand, " whether of possession, dower or otherwise," in and to the
premises in question, of which she was then in possession, of part
by herself, and of part by her tenant, one Henry Webb. The ob-
jection to the admissibility of the deed is founded on the acknow-
ledgment; for if that be lawful, it is uncontroverted that any
estate or interest she might have had was divested, that she stood
indifferent, and was lawfully admitted and examined. The certifi-
cate of the acknowledgment is in the following words: "Borough
of Elizabeth, Essex county, ss. Be it known, that on this 29th day
of April, in the year of our Lord one thousand eight hundred and
eight, personally appeared before me Caleb Halsted, jun. one of
the judges of the Inferior Court of Common Pleas, holden at
Eli/.ubeth Town in and for the borough aforesaid, John Smith and
Elizabeth his wife, the grantors to the foregoing conveyance,
and acknowledged that they signed, sealed and delivered the
same as their act and deed for the uses and purposes therein
expressed. And the said Elizabeth, wife of the said John Smith,
being by me examined, separate and apart from her said hus-
band, did acknowledge that she s'igned, sealed and delivered the
same, freely and voluntarily and without any threats or compul-
SEPTEMBER TEEM, 1827. 227
Den v. Geiger.
sion from her said husband. Caleb Halsted, jun." The first ob-
jection to this acknowledgment denies the authority of the officer
before whom it was taken. He was mayor, it is said, of the
borough of Elizabeth. Under the act respecting conveyances,
Rev, Laws 458, section 1, an acknowledgment of a deed for the
conveyance of lands maysbe made before "one of the judges of
any of the Courts of Common Pleas of this state." By the
charter of the borough of Elizabeth, Rev. Laws, 100, sect. 6, it is
enacted " that the mayor, deputy mayor, recorder and aldermen
of the said borough and their successors forever [who are ap-
pointed and commissioned in like manner as judges and justices
of the peace throughout the state ; page 98, sect. 2,] shall and may
have and hold in the name of the state of New Jersey one Court
of Common Pleas within the said borough," " before the mayor,
deputy mayor or the recorder for the time being, and any two
or more of the aldermen for the time, or any three or more of
them, whereof the mayor, deputy mayor or recorder to be one."
The mayor of the borough of Elizabeth is within the scope of
the act respecting conveyances in the most strict and literal con-
struction. He is a judge of a Court of Common Pleas of this
state. There is no word or phrase in the act which confines its
powers to the judges of the county Courts of Common Pleas :
Nor docs there appear the slightest reason for any legislative
distinction, or that one class should be less worthy of confidence
in this respect than the other, when both are appointed in the
same manner and commissioned by the same authority. It de-
serves also to be remarked that in the act of December 2d, 1743,
Allinson 132, sect. 2, acknowledgments are authorized to be made
before one of the judges of the county courts for holding of pleas
within the respective counties of this colony." When that act
was passed there were no borough or city Courts of Common
Pleas. It continued until the passage of the act now in force,
which I have already mentioned; and the difference of phrase-
ology may very probably have been induced by the consideration
that one or more borough or city Courts of Common Pleas had
in the meantime been established and were in existence.
The acknowledgment of this deed is further the subject of ob-
jection, because the certificate omits to state that the grantors
signed, sealed and delivered it as their voluntary act and deed ;
and that the acknowledgment of the wife was on a private exami-
nation, and that she acted without any fear of her husband. The
228 NEW JERSEY SUPREME COURT.
Den v. Geiger.
questions here raised areof almost incalculable importance. They
interest in a greater or less degree nearly every freeholder in the
state, so extensively and intimately are acknowledgments of deeds
interwoven with our system of real property. The regulations
concerning them are contained in the first and fourth sections of
the act respecting conveyances, Eev. Laws 458. By the first
section, it is enacted "that if any deed or conveyance of lands,
tenements or hereditaments lying and being in this state," "shall
be acknowledged by the party or parties who shall have execu-
ted it, or be proved by one or more of the subscribing witnesses
to it, that such party or parties signed, sealed and delivered the
same as his, her or their voluntary act and deed, before the
chancellor of this state, or one of the justices of the Supreme
Court of this state, or one of the masters in chancery, or one of
the judges of any of the Courts of Common Pleas of this state,
and if a certificate of such acknowledgment or proof shall be
written upon or under the said deed or conveyance, and signed
by the person before whom it was made, then every such deed
or conveyance so acknowledged or proved and certified shall
be received in evidence in any court of this state, as if the
same were then and there produced and proved." By the fourth
section, it is enacted "that no estate of & feme covert in any
lands, tenements or hereditaments, lying and being in this state,
shall hereafter pass by her deed or conveyance, without a pre-
vious acknowledgment made by her, on a private examination,
apart from her husband, before one of the officers aforesaid,
that she signed, sealed and delivered the same as her voluntary
act and deed, freely, without any fear, threats or compulsion of
her husband, and a certificate thereof written on or under the
said deed or conveyance, and signed by the officer before whom
it was made." The fair and just construction of this section is
satisfied by a substantial fulfilment of its requirements, and
does not demand a verbal compliance and confbrmity. A cer-
tificate is sufficient which shews the substantial matters men-
tioned in these sections, although it does not contain every
word found in them. This position is fully sustained by sev-
eral considerations. The language of the sections requires
no more. It gives no set words, prescribes no particular
form, and merely declares what shall be done, without directing
the precise manner in which it shall be done. While then a rigid
adherence to the substance of the statute should be pursued, a
SEPTEMBER TERM, 1827. 229
Den v. Geiger.
reasonable latitude with respect to mode is allowable. The usage
of all officers in all parts of the state from the passing of the act
to the present time has given to it a practical construction and
sanctioned a liberal exposition with a force not now to be resisted,
and which ought not, without the most imperious motives, to
be, at this day, brought into question. The practice of all our
courts has been to receive in -evidence deeds under acknowledg-
ments substantially though not verbally conformable to the act,
I have examined the books of records in the secretary's office,
where it will be recollected, since the act of 1799, which
required convej'ances to be recorded in the respective counties,
but few comparatively have been recorded. An examination of
the county records would have shewn, I doubt not, a much more
striking result. Of fifty-five deeds taken indiscriminately, the
word voluntary was omitted in forty-six acknowledgments and
inserted in nine. Of sixty-six deeds acknowledged by married
women, the certificate of private examination was inserted in
twenty-eight, was wanting in twenty-five, most of which stated
the examination to have been " separate and apart from her
husband," and in thirteen, the certificate was " being by mo
privately examined according to law." Of all the acknowledg-
ments there recorded taken before justices of this court, I found
but one which literally complied with the act, and of the
acknowledgments of femes covert before them, not one. In
some the word "voluntary," in others the words "act and
deed," were omitted. In some the married women were said to
have been examined "separately according to law," in others
to have been examined " separate and apart from their husbands,"
and in others that the married woman " executed the same of
her own free will, without any threats or compulsion from her
said husband." If the force of contemporaneous exposition and
long usage ever found place, it should be felt here. If a judge
may ever look to consequences he should do so here. If ho be
ever permitted to pause in the march of duty, he may here bo
allowed to reflect on the wide spread havoc and desolating ruin
which would result from requiring for the first time a literal com-
pliance with the statute. The fancy of the poet and the imagina-
tion of the fabulist, at the opening of the box of Pandora, would bo
more than realized, for here not even Hope would be left at the bot-
tom. The courts of our sister states have with great unanimity
adopted the same liberal rule in the construction of their statutes.
230 NEW JERSEY SUPEEME COUET.
Den v. Geiger.
In M'Intire v. Ward, 5 Binney 301, Chief Justice Tilghman, of
Pennsylvania, says, No particular form is necessary. The words
of the act need not bo used if its directions are strictly complied
•with. The court would be departing from the line of its duty
if it were studious to avoid conveyances by objections founded
merely upon form. In Shaller v. Brand, 6 Binn. 435, the
acknowledgment as to the wife was in these words "she the
said C. being of full age, separate and apart from her said
husband by me examined and the full contents made known to
her, voluntarily consenting thereto." The statute of Pennsyl-
vania is thus, "And if upon such separate examination she shall
declare that she did voluntarily and of her own free will and
accord seal and as her act and deed deliver the said deed or
conveyance without any coercion or compulsion of her said
husband, every such deed or conveyance shall be good,"
&c. The acknowledgment was held sufficient. The same judge
said, "It is insisted by the counsel for the defendant that the
form prescribed by law should be strictly pursued, but such has
never been the opinion of this court. We have always declared
that it was sufficient if the law was substantially complied with,
and on any other construction the peace of the country would
be seriously affected. It is not straining the expressions " vol-
.untarily consenting thereto" too far to say that they imply that
she declared that she executed the deed voluntarily, and that is
sufficient, for if the execution was voluntary it was without
coercion or compulsion." In Luffborough v. Parker, 12 Serg. and
Raw. 48. Chief Justice Tilghman said " this act for proof, &c.
of deeds, must be substantially complied with, but when the
substance is found, it is neither the duty nor the inclination of
the court to defeat conveyances by severe criticism on language."
In Maryland, where the statute required that the feme covert
be privately examined out of the hearing of her husband," it
was held, Webster v. Hale, 2 Har., and M'Hen. 19, that a certifi-
cate that "she being privately examined did declare" &c.
was sufficient. In New York, the statute requires that the officer
taking the acknowledgment "shall know or have satisfactory
evidence that the person making such acknowledgment is the
person described in and who executed such deed," &c. And in
the case of Jackson v. Gumaer, 2 Cowen 552, the Supreme Court
of that state sanctioned a certificate in these words; "came D.
E. to me known, and acknowledged," &c. Chief Justice
SEPTEMBER TEEM, 1827. 231
\
Den v. Geiger.
Savage said "The form used in this case has been in very gen-
eral use, and the practice in this respect may perhaps amount
to a construction of the act." In Battin v. Sigelow, Peters1 Hep.
452, on objection to a deed for lands in New Jersey made in
the Circuit Court of the United States for this district, Wash-
ington, Justice, delivering the opinion of himself and Judge
Pennington, who sat for several years in this court, said, " as to
the second objection, the court is of opinion, that the omission
of the word voluntarily, is substantially supplied by the expres-
sions that 'she freely executed the deed, without the threats,'
&c. of her husband." In Hende v. Longivorth, 11 Wheaton 205,
Justice Thompson in delivering the opinion of the Supreme
Court of the United States on the sufficiency of the acknowledg-
ment of a deed of lands in Ohio, said, "It ought to appear with
all reasonable certainty that the requisites of the law had been
complied with." In Talbot v. Simpson, Peters' Rep. 188, a certifi-
cate of acknowledgment in these words, "she being of full age,
knowing the contents and freely consenting thereunto," was
held sufficient under the statute of Pennsylvania of 1770, which
directs that the officer shall read or otherwise make known
to her the full contents of such deed." Judge Washington
said "the form of the certificate is immaterial provided the
directions of the law are substantially complied with. In
Delancy v. M'Keen, in the Circuit Court of the United States
for the Pennsylvania district, 1 Wash. Rep. 525, the following
remarks, very applicable to the matter before us, were made
by Judge Washington. "What influences my opinion more
than any thing else is, that courts, lawyers, conveyancers and
all others, seem to have concurred in the opinion that the
exemplifications of deeds like the present, recorded as this
was, were evidence. If one solitary decision affirming the
practice had taken place, all would have agreed that it would
bind us, and yet the uniformity of practice and of conduct re-
specting such deeds operates more powerfully with me because
they amount to a contemporaneous exposition of the act of 1715,
fortified by subsequent unvarying usage. The practice is in-
corporated with the land titles of this state; and if it be an error
it is common and uniform, and a decision now against the prac-
tice would bo mischievous in the extreme." This case came
tii'terwards before the Supreme Court of the United States on a
writ of error, 5 Cranch 22. One of the counsel said "It had
232 NEW JEESEY SUPEEME COUET.
Den v. Geiger.
been the contemporaneous and uniform practice from the year
1715, to the date of this deed to acknowledge deeds before a
judge of the Supreme Court of Pennsylvania. That practice
had never been questioned." Judge Livingston observed, :'If
the practice be so, I think it puts an end to the question."
In delivering the opinion of the court, the Chief Justice said,
"Were this act of 1715 now for the first time to be con-
strued, the opinion of this court would certainly be that the
deed was not regularly proved. A justice of the Supreme
Court would not be deemed a justice of the county and the
decision would be that the deed was not properly proved ;
and therefore not legally recorded. But in construing the
statutes of the state, on which land titles depend, infinite mis-
chief would ensue should this court observe a different rule
from that which has long been established in the state. It is
of some weight that this deed was acknowledged by the Chief
Justice who certainly must have been acquainted with the
construction given to the act, and that the acknowledgment
was taken before another judge of the Supreme Court. It is
also recollected that the gentleman of the bar who supported
the conveyance, spoke positively as to the universal under-
standing of the state, and that those who controverted the
usage on other points did not controvert it on this. But what
is decisive with the court is that the judge who presides in
the Circuit Court for the district of Pennsylvania reports to
us that this construction was universally received. On this evi-
dence the court yields the construction which would be put on
the words of the act."
Holding then the position to be unquestionable, that a sub-
stantial compliance with the act respecting acknowledgments is
sufficient, it remains to examine the acknowledgment before us.
The grantors acknowledged that they signed, sealed and deliv-
ered the conveyance as their act and deed. The term voluntary
is omitted. But the idea seems to be clearly and essentially em-
braced in the phrase. Without freedom of will, it was not their act
and deed. If they executed it under coercion, it was the act and
deed of another. When they appeared before the officer and avowed
it to be their act and deed, it is assuming nothing but what is
fairly, naturally and necessarily implied, if not indeed fully ex-
pressed, to receive it, as all concerned manifestly intended it, as
a fulfilment in this respect of the directions of the statute. The
SEPTEMBER TERM, 1827. 233
Den v. Geiger.
certificate states that the acknowledgment of the wife, Elizabeth
Smith, was made to the officer on an examination by him sepa-
rate and apart from her husband, but does not use the precise
words of the statute "on a private examination apart from her
husband." On the effect of this omission more doubt may justly
be entertained than on either of the others. It is insisted that
the examination must not only be apart from the husband but
apart from all other persons. On much reflection however, I am
satisfied that such is not the sound construction of the statute,
that the design of the legislature was to exclude the husband,
and him only, from this examination. The phrase "private ex-
amination " is qualified and explained by the superadded words
"apart from her husband." Otherwise these words are without
purpose and meaning; for if by "private" is meant the absence
of all persons whatever, why add "apart from her husband,"
who, unless man and wife were literally as well as figuratively
one, must necessarily be excluded? Substitute instead of the
words in question, the meaning attributed to them, and its im-
propriety will perhaps be more obvious. At the examination all
persons whatever, and also her husband, shall be absent. The
design of the legislature in this examination was to protect the
woman from the control of the husband and him alone. She is
to declare herself free from fear, threats or compulsion, not in
general, or of all persons, but of her husband. He only then needs
be excluded. It may be objected that this construction supposes
the legislature to have used more words than were necessary to
express their meaning, for that the words "apart from her hus-
band" would have sufficed. This objection, however, finds its
answer in the same section ; .for if the feme covert executed the
deed freely, she must have done it voluntarily and without fear,
threats or compulsion. Hence it appears they were very prop-
erly not sparing of words when these might tend more fully or
clearly to express their meaning. The censure cast on this ac-
knowledgment for tho want of the word "fear" is entirely too
severe a criticism, if a substantial compliance satisfies the act. It
is very possible, as remarked by counsel on the argument, that
fear may exist without threats, but it is not very easy to suppose
there can bo fear if there be no compulsion ; and if the wife exe-
cuted the deed "freely and voluntarily," shemuHt necessarily have
been without fear. These expressions negative in tho most un-
equivocal and exclusive manner the presence of fear.
234 NEW JERSEY SUPREME COURT.
Den v. Qeiger.
2. Another reason assigned for setting aside the verdict is, that
the court overruled the objection of the defendant's counsel to
the reading of two deeds offered by the plaintiff, one of them
from Thomas Poynear and Sarah, his wife, to Benjamin Scudder,
the elder, dated 2d April, 1811, by which, in consideration of
$205, they conveyed to him all their estate and interest in the
premises in question; and the other of them, from the same per-
sons to Benjamin Scudder, one of the lessors of the plaintiff,
dated 15th April, 1826, whereby they conveyed to him all their
estate and interest in the premises. To understand the questions
raised by this reason, it is necessary to refer to some of the facts
of the case. Benjamin Scudder, the youngei, left at his decease
five children, to whom as his heirs at law the premises in ques-
tion descended, as the plaintiff alleged. Three of them are les-
sors; and the shares alleged to have descended to them were the
premises sought to be recovered. The share which descended
to Sarah Poynear, one of the children, was not claimed, for she
had convej-ed it by the deed of the 2d of April, 1811, to Benja-
min Scudder, the elder. Nor was the share which was said to
have descended to Eliza, another daughter, claimed, for she had
died after the date of the demises in the declaration; and the
intent of the deed of 15th April, 1826, was to convey to Benja-
min Scudder, her brother, one of the lessors of the plaintiff, that
part of the share of Eliza, which by her decease intestate and
without issue, was supposed to have fallen to the said Sarah
Poynear, her sister. Sarah Poynear was called by the plaintiff
to give evidence, and these deeds were produced to shew, the
former, a recognition by Benjamin Scudder, the elder, of the
right of Benjamin Scudder, the second, so far forth as the same
might thus operate; and both, that Sarah Poynear had no inter-
est, and was therefore a competent witness.
The objection raised on the trial to the first of these deeds,
brought in question the acknowledgment, and was on the same
grounds as have been already examined in regard to the deed of
Elizabeth Smith. I shall therefore, referring to what I have
already said, make no more remarks on that subject.
The objection to the second deed is, that neither grantor nor
grantee were in possession at the time of making it, but a third
person, the defendant in this cause, holding adversely, and the
deed therefore is said to be void. It is not necessary to examine or
decide the question which was made, by the defendant's counsel,
SEPTEMBEE TERM, 1827. 235
Den v. Qeiger.
the foundation of this objection, whether in New Jersey, one
out of possession and during an adverse possession, but having
title, may mate a conveyance which shall be valid and operative
against him in possession. For, whatever may be the true reso-
lution of that q'uestion, the deed before us was valid as between
the parties to it, and hence it was competent, and sufficient for
the purpose for which it was offered in evidence, which was not
to deduce title to the premises in the plaintiff and to establish
his claim against the defendant, but merely to shew that Sarah
Poy near had no interest either in the cause or the question. In
estimating the pi-opriety of evidence, the use to be made of it,
the purpose intended to be accomplished by it, must always be
borne in mind. If Benjamin Scudder, the grantee, by this or
any other action, recovered possession of the premises, Sarah
Poynear could not treat this deed as a nullity and demand them
of him. If using her name he should recover the share which
fell to her by the decease of her sister, the recovery would by
force of this deed and as between them, be for his, not her, benefit.
A person who has executed a deed is estopped as to him to whom
the deed is made, to say he had no title when he made it. 4
Com. Dig. 76, 81. Estoppel, A. D. Cro. Car. 110. In the Year
Book, 27 Hen. 8, page 23, B. 1, Fitzherbert, Justice, is reported
to have said, The statute 1 Rich. 2, ch. 1, is that feoffments made
by maintenance to great men shall be void; but in such cases
it is a good feoffment between the feoffor and feoffee, but as to
strangers the feoffment is void. In Upton v. Basset, Beaumond,
Justice, said, A feoffment upon maintenance or champerty is not
void against the feoffor but against him who hath right, Cro.
Eliz. 4J5. Feoffments made to great men by maintenance are
void by the statute 1 Rich. 2, but it is as to strangers, and not
between the feoffor and feoffee. Bro. Abr. tit. Feoffment, 332, pi. 1.
Marvin, in his reading, says that by the statute 1 Rich. 2, where
a disseissor makes a feoffment by maintenance and takes the
profits, the feoffment is void by the statute to all intents; but
by Fitz James, Chief Justice, and by Englefield, Justice, and
divers others, it is not void between the feoffor and feoffee, but
it is void as to a stranger. Bro. Abr. ibid pi. 19. The cases which
were read byiho defendant's counsel on the argument from the
New York reports, do not impugn the doctrine I have stated.
They merely prove that the rule is there considered to bo set-
tled that the deed of a person out of possession is not valid as to
236
Den v. Geiger.
a stranger. But in other cases in those reports the validity as
between grantor and grantee is explicitly recognized. In Jack-
son v. Demont, 9 John. 55, Chief Justice Kent says' "It is a well
settled principle of law that if a person out of possession con-
veys to a stranger land held adversely by another, the convey-
ance is void, so that the stranger cannot maintain an action npon
it." And again, "It might possibly be a question whether the
acceptance of the deed from Lathrop to Miller was not an act
of maintenance in Miller. We mean not however to discuss and
decide this point in the present case, for even admitting the sale
to have been an act of maintenance, yet the deed was effectual
as between the parties to it. Bufus Lathrop cannot recover
in opposition to his deed to Miller." In Jackson v. Sherwood, 2
John, cases, 41, Kent said "It appears that the lessor of the
plaintiff claims by mesne conveyances under the patent of 1786,
and that at the time of those convej-ances the premises must
have been held adversely by the defendant, so that nothing
passed by the deeds. This objection however, would only serve
to turn the plaintiff round to a new suit in the name of the per-
sons from whom he derives his title."
From this view of the subject it clearly results that the deed
from Sarah Poynear was property admitted.
3. The next reason for setting aside the verdict is that
illegal evidence was admitted, "because Elizabeth Smith was
allowed to prove that her husband read to her a deed to
him for the mill property, and because Elias Wade and Isa-
bella Wood were permitted to give in evidence declarations
of Benjamin Scudder, senior," which were in substance that
the property in question belonged to the children of his son
Benjamin. I place these together because they admit in my
opinion, of a common answer. If the merits of this reason
were to be examined it would not fail to be observed, that
evidence was given that the deed of which Elizabeth Smith
spoke had been improperly obtained from her by Benja-
min Scudder, the elder, and the return of it refused ; and
that his declarations testified by Wade and Wood were be-
fore his sale to Geiger, and while his son's widow and chil-
dren were in actual possession. But a conclusive answer to this
reason is that no objection was made on the trial of the cause
to the testimony now alleged to be illegal and inadmissible. A
party is not permitted to impugn a verdict in consequence of the
SEPTEMBER TEEM, 1827. 237
Den v. Qeiger.
introduction of testimony to which on the trial he raised no
objection. The admission of such testimony is no error of the
judge. He may indeed spontaneously interpose, and clearly
possesses power and right to exclude testimony he finds irrele-
vant or illegal. In many instances, especially where the matter
is plain and palpable, to do so is commendable. But duty does
not invariably require it, and the eye of interest or friendship
oftentimes fancies bias in a judge who thus interferes when the
party against whom the evidence is offered, is silent and therefore
presumed acquiescent. The party must make his objection to the
evidence in due season or else forego it forever. To suffer him
to be silent and take the chance of a verdict in his favour, and
if unsuccessful, set it aside because evidence was admitted which
on his objection would have been excluded, would be a gross
perversion of justice. In Horford v. Wilson, 1 Taunton 12, an
objection of this nature being made, Mansfield, Chief Justice,
observed, "I do not remember that any such objection was made
on the trial." Neither will the court set aside a verdict on
account of the admission of evidence which ought not to have
been received, provided there be sufficient without it to authorize
the finding of the jury. In Goodtitle v. Welford, Doug. 139, on
motion for new trial on the incompetency of a witness, Lord
Mansfield said "on such a motion as the present no objection to
a witness should be received which was not made at the trial;"
and by Justice Willies, " The objection on this ground was not
made at the trial, which is a reason for not setting the verdict
aside." In Clymer v. Little, 1 W. Bl. 345, among other reasons
for rejecting an application for a new trial on the ground of
inadmissible evidence, Lord Mansfield said no objection wa&
made to its production." In The Queen v.Helston, 10 Mod. 202, a
book said indeed by Lord Mansfield to be of little authority,
although he afterwards on another occasion cited a case from it,
a point in law was started by the judge and the counsel did not
take it up, but insisted on other facts which were found against
them, whereas had the counsel insisted upon the matter of law
started by the judge, the verdict must have passed for them,
but it was held there was not sufficient cause for a new trial.
Eyre, Justice, said, "Mistake of judge or jury, a good cause of
granting a new trial, but never yet heard that the mistake
of counsel was so. The counsel stands in the place of his
client, and therefore if the counsel waive a point it is the same
238 NEW JERSEY SUPREME COURT.
Den v. Geiger.
as if the client did it himself." In Petre v. White, 3 D. & K
8, Lord Kenyon said, In ordinary cases a person who has an
opportunity of making a defence at the trial, which he neglects
to do, is not entitled to a new trial in order to let him in to
that defence. In Turner v. Pearte, \ D. & E. 717, on appli-
cation for new trial on allegation that some of the witnesses
examined were interested, Justice Buller said "there never
yet has been a case in which the party has been permitted
after a trial to avail himself of any objection which was not
made at the time of the examination." In Hinde v. Longworth,
11 Wheat. 209, Thompson, Justice, in delivering the opinion
of the court, "As a general rule we thinl^the party ought to
be confined in examining the admissibility of evidence to tho
specific objection taken to it. The attention of the court is
called to the testimony in that point of view only, and to admit
an enquiry afterwards whether the evidence might not have
been admissible for some other purpose would be sanctioning a
course of practice calculated to mislead." In the case of The
Palmyra, 12 Wheat. 18, on appeal, the Supreme Court of the
United States say, " however well founded this objection may
be as to his competency on the point of damages, having been
admitted both in the District and Circuit Courts without objec-
tion we think there was a waiver of the objection and it cannot
now be insisted on."
4. The next reason for new trial is, that the plaintiff after hav-
ing examined a witness, Elizabeth Smith, in the early part of the
trial, was permitted afterwards, near the close of it, to examine
the same witness on a new and distinct subject. The plaintiff
claimed title, as his counsel stated in opening, on two grounds, an
adverse possession for more than twenty years, and a deed from
Benjamin Scudder, senior, to his son Benjamin Scudder. Upon
the first of these grounds, the plaintiff among his earliest witnesses
examined Elizabeth Smith. After he had rested, and after tho
defendant had examined sundry witnesses, theplaintiff again called
Elizabeth Smith, and examined her to prove the existence of the
alleged deed. In strictness, this course of procedure wus irregu-
lar. A plaintiff should in the first place and before he rests, exam-
ine all his witnesses and to all his points, except such witnesses
and such points as are made proper by the defendant's evidence
and defence. The evidence to be given on the part of the plain-
tiff after the defendant has been heard, should be confined to
SEPTEMBER TERM, 1827. 239
Den v. Geiger.
rebutting evidence. It is not proper to give just so much evi-
dence as may save a nonsuit, and bring in a corps de reserve
toward the close. Neither convenience, nor economy of time,
nor candor of practice will permit. To bring out the defendant,
as one of the plaintiff's counsel expressed, himself, cannot be
countenanced. In this warfare nothing is admitted but fair, open
and honorable combat. No feints, no stratagems, no ambuscades.
Gilpin v. Consequa, Peters' Rep. 89. It is however -well known
that in our practice this strict rule has been by no means rigidly
enforced. On the contrary, a laxity perhaps censurable, has
long prevailed. In the present case, the rule, whether of a more
strict or less rigid nature, ought not to be applied. No objection
was made by the defendant's counsel. Had an objection been
made, the evidence would perhaps have been overruled. The
defendant has no ground therefore of complaint. If the ad-
mission of evidence in itself illegal is not sufficient cause for
setting aside a verdict when not resisted, much less can evidence
clearly legal be so, because not offered and received in proper
order and time.
5. Another reason for setting aside the verdict is, the discovery
of new testimony. On the argument were read affidavits of Sarah.
Scudder, Sarah Hibbard and Silas Betts, persons not examined on
the trial, and of whose ability to give evidence the defendant swears
he was then ignorant. The first two state they have at different
times heard Elizabeth Smith say her husband had no deed for the
property. The object of their testimony is solely to discredit Eliza-
beth Smith, to shew that on other occasions she had made repre-
sentations different from her relations to the jury. For unless she
were examined as a witness, it is obvious their testimony would be
wholly inadmissible. Silas Betts in his affidavit states he heard
Benjamin Scudder, junior, say while in possession of the propcrt}',
that it belonged to his father, and he bad no deed for it. Hia
testimony is of the kind called cumulative, or further evidence of
matters already testified on the trial; for Robert Young, a wit-
ness called by the defendant, swore that Benjamin ^cuddcr, jun.
told him he had never got a deed for it from bin father, and Samuel
Dow testified that one day while working at the mill he said ho
did not know that he should ever get any thing for it. Such
being the character of the newly discovered evidence, it cannot
sustain the present application. A new trial will not be granted
to let in a party to the production of new witnesses for the purpose
240 NEW JERSEY SUPREME COURT.
Den v. Geiger.
of discrediting those examined by his adversary ; nor on account
of the discovery of new evidence of a cumulative character. Both
these rules have been decided in this court, and I shall rely on
the cases here, without a review of the decisions elsewhere, which
however, in England, Massachusetts and New York, notwith-
standing some apparent aberrations, are entirely accordant with
our own. In Jessup v. Cook, 1 Hoist. 434, application was made for
new trial on the ground that the defendant had discovered new
O
and important evidence. The affidavit of one Blackwood who
had not been previously examined was read to shew that Jessup
the plaintiff had admitted to him a particular fact. The court
overruled the application. Chief Justice Kinsey said, "It appears
from my notes of the trial that this fact was attempted to be
proved, that it was the subject of enquiry then, that evidence
was given to the jury on the point, but that it was not made
out." Boudinot, Justice, said, "At the trial both parties adduced
evidence to this particular point, I think it would be introducing
a new rule and establishing an extremely bad precedent to set
aside the verdict and grant a new trial because one party has
since discovered evidence which he thinks entitled to more
weight than any which he had produced at the trial. If the
law were established according to the views of the defendant
not one verdict in ten would stand. Some corroborating evi-
dence may alwaj-s be found or made, and in deviating from the
rule by which courts have heretofore been guided, the trial by
jury would become the most precarious of all trials." In Deacon
v. Allen, 1 South. 388, the court held that the discovery of evi-
dence merely additional to and corroborative of what was given
upon the trial, was not ground for a new trial. Justice Southard
in delivering the opinion of the court intimated that it would be
of dangerous consequence to the rights of parties and the safe
administration of justice, and that the court ought not to grant
a new trial to a party merely to correct his error when he has
discovered where he was deficient, and that he had mistaken the
necessary amount of testimony. In Price v. Ward, 2 Halst. 127,
Chief Justice Kirkpatrick said, "I take it to be a principle
clearly settled, that a new trial will not be granted upon the
discovery of witnesses who will swear against the credit of
those sworn on the trial."
6. The remaining reason for granting a new trial is, that the
verdict was against evidence. When the cause went to the jury
SEPTEMBER TERM, 1827. 241
Den v. Geiger.
there was little else than matters of fact in controversy. In the
summing up of the counsel of the parties there was little, if any,
difference as to principles of law. With an explanation of the
few plain legal points which were involved, the judge submitted
the issue to the jury, as chiefly within their province, without
intimating the faintest opinion as to the relative weight of the
evidence. On both sides, facts and circumstances of much
weight, and entitled to great respect, were proved. It is not
my intention to examine them at large. A brief view of those
exhibited on the part of the plaintiff, for whom the verdict was
given, I shall extract from the charge, which will be found fully
supported by the case. "On the part of the plaintiff these mat-
ters are relied on. 1. That Benjamin Scudder, junior, repaired
the mill and premises from time to time. 2. That he rented
them to different tenants and received the rents, and that his
wife did the like after he went on his unfortunate voyage. 3»
That he built a large and valuable house on the premises. On
this point some dispute was made. If he did not himself build,
I mean at his expense, the house, this point is of no weight. If
he did build it, at his expense, you will then take it into consid-
eration, and give it such influence as it deserves*. 4. The pay-
ment made by Benjamin Scudder, junior, to Mrs. Smith, for her
claim of dower. 5. The taking by Benjamin Scudder, senior, of
a release from the widow of Benjamin Scudder, junior, of her
interest in the premises. 6. The taking by Benjamin Scudder,
senior, of u release from his grandchild, Sarah Poyncar, and her
husband. 7. Various acts of Benjamin Scudder, sen.; thus, Sam-
uel Dow says, he built a porch at the tavern house, for part of
which the widow paid him, and for the rest she gave him an or-
der on the old gentleman, who allowed it out of vondue money
duo to the estate of Benjamin Scudder, junior, so that it was
paid out of his estate. Again, the balance duo to Samuel Sayro
for his work at the house was paid by Benjamin Scudder, tho
elder, as the administrator of his son. 8. Various declarations
made by the old gentleman. To Captain Elias Wade, that the
property belonged to the children. To Mrs. Post, that ho
was going to sell Benjamin's property and put tho money
out at interest for his children when they should come of age;,
and when asked where would the widow bo, he said ho would
pay her her thirds. To Samuel Sayre, that tho property be-,
longed to the children." A verdict on questions of fact, fully.-
VOL. IV. Q
242 NEW JEESEY SUPREME COUET.
The State v. Parker.
discussed by counsel, unexceptionably explained by the judge,
and where strong evidence was given on both sides, ought not
lightly to be disturbed, especially on a comparison of the weight
of testimony made here, deprived of the important advantages
possessed by the jury, Upon the relative strength of the evi-
dence it appears to me most proper to express no opinion, be-
cause not strictly necessary, and because we have reason to
believe the cause, whatever may be our determination on this
application for a new trial, will go before another jury, where
our opinion might, unhappily, prejudice; for we were told by the
defendant's counsel that a new ejectment would be immediately
brought if judgment should be rendered against him. It is
enough in my opinion that the weight of evidence, if on the
side of the defendant, is not so palpable and preponderating as
to justify us in depriving the plaintiff of the verdict. I wish
however not to be misunderstood to intimate that the weight
of evidence is on the side of the defendant. On this subject I
intend, for the reason I have suggested, cautiously to abstain
from any expression.
Upon the whole, there are, in our opinion, no grounds for a
new trial, and judgment should be rendered for the plaintiff.
Judgment for the plaintiff.
CITED IN Den. v. Wintermute, 1 Or. 182. Nichols v. Mechanics Fire Ins. Co.,
1 Harr. 413. Den, Cox v. Tomlin, 4 Harr. 81. State v. Bergen, 4
Zab. 550. Den, Osborne v. Tunis, 1 Dutch. 659. Van Riper v.
Dundee Manu'f Co., 4 Vr. 152. Thayer v. Torrey, 8 Vr. 341.
THE STATE against LEWIS PARKER.
The Orphans' Court has no authority (under the 12th section of the act, Rev.
Laws, 779) to appoint commissioners to make division of lands held between
the heirs of a tenant in common on the one part, and the person who had been
the tenant in common with their ancestor on the other part.
This was a certiorari to the Orphans' Court of the county of
Burlington, to remove a division of real estate made on the ap-
plication of the heirs of George Parker.
In the term of May, 1826, Lydia Parker, as guardian of Mar-
garet Parker, George Parker and Lewis Parker, children of
Goorge Parker, made application by petition to the Orphans'
Court of the county of Burlington, setting forth that the said
G»orge Parker died intestate, seized of real estate in the town-
SEPTEMBER TEEM, 1827. 243
The State v. Parker.
ship of Nottingham, in the county of Burlington, whereby the
same descended to the partitioners, and they then held one half of
the same, undivided, as tenants in common with Lewis Parker,
senior ; and that by reason of the minority of the petitioners no
division by agreement could be made ; and praying a decree for
a division between the petitioners and the said Lewis Parker,
in metes and bounds, to be held severally in manner prescribed
by law. The court thereupon appointed commissioners, who
made a division between the petitioners and the said Lewis
Parker, which was confirmed by the Orphans' Court in the term
of August, 1826.
Watt, for Lewis Parker, assigned for error —
1. The want of jurisdiction in the Orphans' Court.
2. The commissioners were not sworn.
BY THE COURT. — The jurisdiction of the Orphans' Courts over
the partition of real estate is given and defined by the twelfth
and thirteenth sections of the act of 1820. Rev. Laws 779. And
the remark is so obvious as to make the mention of it almost
superfluous, that those courts have jurisdiction over this matter
only so far as it is expressly given to them. The thirteenth
section relates to real estate held by devise undivided, and needs
not here "be further adverted to. The twelfth section gives juris-
diction, any one or more of the heirs being under the age of
twenty-one years, to direct partition of real estate, held undi-
vided by reason of descent, among the heirs or persons claiming
under them, in such shares and proportions as they may be
entitled to under the laws directing the descent of real estates ;
and extends only to authorize " the metes and bounds of each
child's or other heir's share " to be ascertained by the commis-
sioners whom the court are to appoint. The application in the
present case was for partition between heirs on the one part, and
him on the other part who had been a tenant in common with
their ancestor, and the division was accordingly made by the
commissioners. The case presented by the application was not
within the jurisdiction of the Orphans' Court. They had not
authority by the statute to make an order for such partition.
Let the partition be set aside.
244 NEW JEESEY SUPBEME COUET.
Obert v. Whitehead.
THE STATE against JACOB FOX.
When an indictment purports to be on the affirmation of some of the grand
jurors, it must appear that they alleged themselves conscientiously scrupulous
of taking an oath.
Dayton moved to quash the indictment in this case, (which had
been brought into this court by certiorari) because it did not
appear by the caption of the indictment, nor by the indictment
itself, that the individual grand jurors who affirmed, alleged
themselves to bo conscientiously scrupulous of taking an oath ;
and cited Rev. Laws 429, sec. 3; The State v. Sharp, 1 Hals. Hep.
341, and The State v. Harris, 2 Ibid 361.
Jeffers, contra, contended that the cases cited, being founded
upon the statute of 1728, Allinson's edition of New Jersey Laws, 74,
the phraseology of which was different from the act of 1799, cited
by the defendant's counsel, ought not to govern the present case.
EWINO, C. J. — We are all satisfied that the indictment must be
quashed. As the law stood at the time of Sharp's case, all the
jurors were required to be sworn, except such as were of the
people called quakers, who by statute were entitled to take an
affirmation ; and the point decided in that case is that the grand
juror who takes the affirmation must be shewn on the indict-
ment or caption to be within the exception. The same principle
was decided in The State v. Harris, and in the recent case of
The State v. Vanarsdalen. The difference of phraseology between
the statutes of 1728 and 1799 is that the former allows the affir-
mation to quakers only, the latter extends it to all persons who
allege themselves to be conscientiously scrupulous of taking an
oath. This difference does not affect the principle ruled in these
cases, all of which are direct authority.
Indictment quashed.
CITED IN Clark v. Collins, 3 Or. 473.
OBERT against WHITEHEAD.
CEBTIOBAEI.
1. It is not necessary that the Court of Common Pleas should state upon the
record their reason for dismissing aa appeal.
SEPTEMBER TERM, 1827. 245
Obert v. Whitehead.
• 2. When the Court of Common Pleas have dismissed an appeal, this court on
certiorari cannot look into the proceedings of the justice.
3. After argument and decision on a motion to reyerse a judgment, it is too
late to move a rule upon the Court of Common Pleas to shew the ground of
their decision.
This was a certiorari to the Court of Common Pleas of Middle
sex, to bring up the proceedings on an appeal from the judgment
of a justice of the peace. Upon the coming on of the appeal,
the Court of Common Pleas had ordered it to be dismissed.
Scott moved to reverse this judgment of the Court of Common
Pleas—
1. Because there was no matter stated on the record which
•would authorize a dismissal.
2. Because the state of demand set forth no legal cause of
action.
3. Because the entry of the judgment of the justice was in
figures.
Wood, contra.
EWINQ, C. J. — We are not to presume that the Court of Com-
mon Pleas erred. The party wishing to set aside the judgment
must shew the error. The court dismissed the appeal; but do
not set out their reasons for so doing, nor is it necessary they
should ; they need only enter the judgment, and the party moving
to set it aside must shew it to have been erroneous, either upon
the record or by matter dehors. No error is shewn to us in the
Court of Common Pleas in dismissing the appeal. But it is said
that there was error before the justice. "VVe are all of opinion,
that when the Court of Common Pleas has dismissed an appeal,
wo cannot look into the proceedings of the justice; because, if this
could be the case, the party might bring his appeal and suffer it
dismissed, and then bring a certiorari simply to review the pro-
ceedings of the justice, and thereby defeat the act prohibiting a
certiorari to remove directly the judgment of the justice. The
motion to reverse the present judgment must therefore bo refused.
Scott then applied for a rule upon the Court of Common Pleas,
to certify the reason for which the appeal was dismissed.
EWINQ, C. J. — The application is entirely too late. The plain-
tiff' has thought proper to move the certiorari, and an argument
and decision have taken place.
246 NEW JERSEY SUPREME COURT.
The State v. Salem Pleas.
SKILLMAN ads. COOLBAUGH.
IH DOWER.
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.
Saxton applied to the court for leave to enter a rule to shew
cause why the writ of dower issued in this case should not be
quashed, without entering an appearance; and for leave to take
affidavits to sustain the rule.
EWING, C. J., enquired whether the application was made on
behalf of the defendant, and said, we do not all suppose that it
is necessary that you should enter an appearance in order to move
to quash the writ, but then you must move on the part of the
defendant himself. If such be the fact you may take the rule.
THE STATE against THE JUDGES of SALEM PLEAS.
1. Where a road has been laid out and recorded, though never opened, the
Court of Common Pleas may on application, appoint surveyors to vacate the same.
2. And if the Court of Common Pleas refuse to make an appointment of sur-
veyors on proper application, for the purpose of vacating such road, a mandamus
will be ordered.
3. It is not a sufficient reason for refusing to appoint surveyors in such case,
that a rule for an alternative mandamus for the opening of the road was at 'the
time pending in the Supreme Court.
A certain road, commonly called the Hook road, was laid out
in the townships of Upper and Lower Penn's Neck, 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 appoint-
ment 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.
In opposition it was made to appear, that the road, although laid
out, had never been opened, notwithstanding that the time ap-
pointed for opening the same had passed; and further, that an
alternative mandamus had been issued out of the Supreme Court
SEPTEMBER TERM, 1827. 247
The State v. Salem Pleas.
at the May Term next previous, directing the township com-
mittee 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 shew cause, &c. The application for
the appointment of surveyors was refused.
It was agreed by the parties that if this court, upon this state-
ment 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.
Dayton moved for a mandamus upon the foregoing case, and
contended —
1. That it was the duty of the court to appoint the surveyors,
the proper application having been made, and all the prerequi-
sites having been complied with.
2. That there was no mode of* compelling the court to do this
duty, except by mandamus; and unless this court by its general
superintending power over all courts of inferior jurisdiction
could enforce the performance of such duty, the whole discretion
would be left with the Court of Common Pleas, without control
and without appeal, and they would be left to judge exclusively
of the expediency of a road.
3. That if there was any other specific remedj^ except a manda-
mus, it would be incumbent on the adverse counsel to point it out.
Jeffers, contra, did not deny the power of this court to issue a
mandamus in this case, but objected, as he had done before the
Court of Common Pleas, to the appointment of the surveyors;
that there was no road to bo vacated ; the road never having
been opened. The statute, Rev. Laws 615, sec. 2, contemplated a
road, and there was in reality no road until it was opened. The
mere laying out the road and recording it, and the passing of tho
time when it should bo opened, did not make a road.
2. Tho same road having been laid out and recorded, a combi-
nation had existed between the officers of Lower Penn's Neck
ever since the year 1822 to defeat tho road.
248 NEW JERSEY SUPREME COURT.
Hann v. Gosling.
EWING, C. J. — We are all of opinion that the Court of Common
Pleas ought to have made the appointment. The return was
made and recorded; the time appointed for opening the road
had passed ; and after the lapse of a year an application was
made to vacate it. The first objection is, that it was not a road.
But the statute makes it a road "from the time appointed for
the opening of the same." Rev. Laws 617, sec. 4. When a road
has been laid out, arid the time for opening it has elapsed, it may
be vacated. It is not necessary that it should be opened. The
other objections are, that this court had ordered an alternative
mandamus for the opening of the road, which was pending at
the time of the application to the Court of Common Pleas for
the appointment of surveyors, and that there had been a combi-
nation to produce delays But although there have been delays,
they have been sanctioned by law ; and the existence of the
application for a mandamus was no reason why the Court of
Common Pleas should not have made the appointment. The law
required the court to make the appointment, and they were not
bonnd to suspend the making it because there was an application
to this court for a mandamus.
Let a mandamus issue.
AZARIAH HANN against JOHN GOSLING.
CERTIORABI.
If on the record of the court there is an omission of the sum for which the
judgment is ordered, and a blank space left for the purpose of filling up the
eame, the record is incomplete, and the judgment will be reversed.
This was a certiorari to the Common Pleas of the county of
Salem to reverse the judgment of that court, rendered on an
appeal from the judgment of a justice.
R. P. Thompson and W. Halsted, for the plaintiff in certiorari,
relied upon a variety of reasons for the reversal of the judgment.
The only one necessary to notice is the following, viz. : Because
the amount of the debt and costs for which the Court of Common
Pleas rendered judgment is not entered in the minutes of the
court, but the same left in blank and incomplete. The record sent
up from the Common Pleas was as follows: " The counsel of the
SEPTEMBER TERM, 1827. 249
Chew v. Thompson.
parties having summed up, the court do affirm the judgmentof the
justice below, with costs of increase. Whereupon it is considered
that the said John Gosling, appellee, do recover of the said Azariah
Hann, the appellant, the sum of debt, and costs of suit."
EWING, C. J. — The judgment is not properly entered. No sum
is mentioned. Therefore let it'be reversed. We give no opinion
upon the other points.
CITED IN Woodruff v. Badgley, 7 Hal. 367. Saxton v. Landis, 1 Harr, 304.
Ivins v. Schooley, 3 Harr. 270. Cook v. Brister, 4 Harr. 74.
FRANCIS S. WIGGINS and THOMAS S. WIGGINS against PETER
KLIENIIAN3.
In an action against two defendants, one of them cannot, in the absence of
the other, confess judgment against both; and a judgment rendered against
both upon the confession of one only, without evidence, will be set aside.
This was a certiorari brought to reverse a judgment entered
by a justice of the peace, against Francis Wiggins and Thomas
Wiggins, by confession of one of them in the absence of the other,
upon a promissory note alleged to have been drawn by both.
Armstrong, for the plaintiffs in error, assigned as a reason for
the reversal of the judgment, that the justice rendered judg-
ment against both of the defendants below, upon the confession
of one, and in the absence of the other. This fact appearing by
the transcript of the justice's docket —
EWING, C. J. said — This judgment is rendered against two
persons, without any evidence as to one of them. It is irregu-
lar. One man cannot thus make a confession which will author-
ize the entry of judgment against another.
Let the judgment be reversed.
JONATHAN CHEW against JOSEPH B. THOMPSON.
In an action to recover a penalty incurred under the statute for the preserva-
tion of game, the state of demand must shew that the person seeking to main-
tain the action is clearly within the provisions of the statute, set out clearly the
offence, and the nature of it. If it do not the judgment will be reversed.
250 NEW JERSEY SUPREME COURT.
Chew v. Thompson.
This was a ccrtiorari brought to reverse the judgment of
a justice, rendered against the plaintiff in certiorari, for a
penalty alleged to have accrued against him, under the statute
for the preservation of de.er and other game. Rev. Laws 26,
sec. 1, 2.
Armstrong, for the plaintiff in certiorari, among other reasons
for the reversal of the judgment, relied upon the following, which
is all that it is necessary to notice.
Because the state of demand sets forth and alleges that the
acts of the defendant below, the plaintiff in certiorari, are con-
trary to the first and second sections of the act of the legisla-
ture, on which the suit is brought; whereas the first and second
sections of the said act relate to different matters and describe
and define different offences, and affix a separate penalty to each
offence; and therefore the said state of demand is uncertain,
and no legal judgment can be rendered thereon.
The state of demand was as follows: "The plaintiff demands
of the defendant five dollars and thirty-three cents, for a pen-
alty under the act of the legislature of the state of New Jersey
entitled 'An act for the preservation of deer and other game,'
passed the 21st day of December, 1771, for that the said Stille
Chew, on the thirtieth day of December, 1825, on a certain
tract or piece of land, situate in the township of Deptford,Jn
the county of Gloucester, bounded by lands of George Ward,
Isaac Hinchman and others, owned by Samuel Webb, and in
the possession of the said Joseph B. Thompson, with a gun
and dog, did enter and travel over, for the purpose of hunting
game on said premises, to which land the said Stille Chew
had not any right or title, nor had he obtained leave of the
owner of the same, or of the said Joseph B. Thompson, who then
was and now is in possession of the said land, to enter on the
same as the said Slille Chew then and there did, with a dog,
and carrying a gun, as aforesaid, on the said land, 'contrary to
the form of the first and second sections of the above men-
tioned act of the legislature of the state of New Jersey in
such case made and provided, by reason whereof the said Stille
Chew hath forfeited forty shillings, whereby an action hath ac-
crued to the said Joseph B. Thompson, to demand and have of
the said Stille Chew forty shillings, whereby the said Joseph B.
SEPTEMBER TERM, 1827. 251
Weaver v. Wallace.
Thompson saith that he is injured, and hath damages five dollars
and thirty-three cents, for which he praystjudgment.
EWING, C. J. — The state of demand is uncertain and defective;
therefore take a reversal.
HENRY WEAVER against HENRY L. WALLACE.
An action cannot be maintained merely for a false affirmation in the sale of
property. The plaintiff must shew iu his state of demand that he sustained
some injury thereby.
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 de-
fendant 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 Raven moun-
tain, 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. de-
fendant had no right to sell the said wood to the plaintiff, and
falsely and fraudulently sold the said wood to hint the said plain-
tiff 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."
The justice after hearing the proofs and allegations of the par-
ties, rendered a judgment in favour of Wallace. From this judg-
ment Weaver appealed to the Court of Common Pleas of the
county of Bergen, and upon the trial of the appeal, the Court of
Common Pleas affirmed the judgment of the justice. Weaver
then brought this certiorari.
252 NEW JERSEY SUPREME COURT.
Clayton v. Tonkin.
Frelinglmysen, for the plaintiff in certiorari, moved to reverse
the judgment of the«Common Pleas —
Because the state of demand was uncertain and contained no
legal cause of action.
W. Pennington and Ifornblower, contra.
EWING, C. J. — The state of demand sets forth no legal cause of
action. The plaintiff does not shew that any injury was done to
him. It may be, for aught that appears in the state of demand,
that he has turned the wood into coal, and sold it, and put the
money in his pocket. He cannot recover merely for a false af-
firmation. On a warranty of title, if there was none, the pur-
chaser could not immediately turn round and sue the vendor, nor
until some injury was sustained.
Let the judgment be reversed.
THOMAS CLAYTON against WILLIAM C. TONKIN and EDWARD
TONKIN, Executors of SAMUEL TONKIN, deceased.
It is the duty of the justice to enter in his docket the names of the plaintiff
and defendant. Stating the initials only of the plaintiff's name is insufficient.
This was a certiorari to a justice of the peace, to reverse a judg-
ment rendered by him against Clayton, the plaintiff in certiorari,
in favour of the defendants, as executors of Samuel Tonkin, de-
ceased. Upon the return of the certiorari a rule was taken on
behalf of the plaintiff in certiorari, upon the justice, to certify
whether "the words, executors of Samuel Tonkin, deceased, are
on his record of proceedings, and if there, whether the same were
not added to the record after the certiorari was presented to him."
In obedience to this rule the justice certified that the entry of
the above action was in the following words, viz: "William C.
Tonkin and Edward Tonkin, Executors of S'l. T. dec'd, vs.
Thomas Clayton;" and that no word had been added to the record
after the certiorari was presented.
SEPTEMBER TEUM, 1827. 253
Camman v. Perrine.
W. Ilalsted and White, for the plaintiff in cortiorari, relied upon
the following reason for the reversal of the judgment, viz : That
the justice had not entered on his docket the true names or
character in which the plaintiffs below brought their action.
Armstrong, contra.
EWINQ, C. J. — It is the duty of the justice to enter on his docket
the names of the plaintiff and defendant. Here the justice has
neglected to do so. The initials S. T. may stand for a variety of
names as well as that of Samuel Tonkin. It is impossible to tell
from the record what was the name of the deceased person these
executors intended to represent.
Judgment reversed. .
AUGUSTUS F. CAMMAN against JONATHAN PERRINE.
If the summons issued by the justice is for the defendant to " appear at two
o'clock — noon," it is defective.
If the justice adjourn the cause in the absence of the defendant, the summons
not having been duly served, and give him no notice of the adjournment, and
try the cause in his absence, the judgment will be reversed.
This was a certiorari brought by Camman to reverse a judg-
ment obtained by Perrine against him before a justice of the peace.
The reasons relied upon for the reversal of the judgment by
Vroom, for the plaintiff in certiorari, were —
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.
2. Because the justice adjourned the cause in the absence of the
defendant, and gave no notice to the defendant of such adjourn-
ment, and tried the cause in his absence. To verify this reason
ho referred to the transcript of the justice, which stated "that tho
plaintiff appeared, filed his state of demand, and adjourned until
254 NEW JERSEY SUPEEME COURT.
Den v. Lanning.
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.
EWING, C. J. — The justice tried the cause in the absence of the
defendant; and it did not appear that the summons had been
duly served. The return does not shew that it was served in
proper season, without which the justice was not authorized to
proceed. The summons is also defective. It is to appear at two
o'clock — noon.
Let the judgment be reversed.
DEN against LANNING.
The notice at the end of the declaration in ejectment may be amended after
service, by striking oat one day and inserting another.
Wall, for the plaintiff, moved to amend the declaration in eject-
ment which had been served in this case, by striki ng out the
words "ninth day" in the notice at the end of the declaration,
addressed to the tenant in possession, advising him when and where
to appear and cause himself to be made defendant, and inserting in
lieu thereof the words "first Tuesday;'1 the ninth day of Septem-
ber, being Sunday, and having been inserted by mistake; and it
appearing from the affidavit of service endorsed on the decla-
ration by the sheriff, that he had notified the tenant to appear
"on the first Tuesday of September," the amendment, he said,
could be no surprise or injury to the defendant.
W. Halsted, contra.
EWINO, C. J. — The doctrine of amendment is a very salutary
one. \Vhen the amendment may be made without producing to
the adverse party any injury whatever, it ought to be allowed;
and we apprehend it may be done here. In New York the
doctrine of amendment as to declarations in ejectment is very
liberal. Adams on Eject. 202, note 6. In this court an amend-
SEPTEMBER TERM, 1827. 255
Den v. Lanning.
ment in the demise was ordered to be made, after trial, in the
case of Den ex dem. Hoover v. Franklin and Sharp, 2 South. Hep.
850. The amendment now applied for is fully supported by the
case of Doe ex dem. Bass v. Roe, 7 Term Rep. 469. In the present
case the defendant will be precluded from no defence; he will
not be compelled to go to trial one moment sooner, by allowing
the notice to be amended. Therefore let the notice be amended
by striking out the words " ninth day," and inserting the words
second Tuesday.
CASES DETERMINED
15 THE
SUPREME COURT OF JUDICATURE
OF THE
STATE OF NEW JERSEY
AT NOVEMBER TERM, 1827
THE STATE against JOHN W. HALL.
If, after the jury are sworn in a criminal case and depart from the bar, one
of the jurors separate from his fellows, whereby the court are compelled to dis-
charge the jury, without the consent of the defendant, he may be again put upon
his trial on the same indictment.
Hartwdl, for the state.
The CHIEF JUSTICE delivered the opinion of the court.
The defendant was brought to trial at the Court of General
Quarter Sessions of the Peace of the county of Somerset, in June,
1827, on an indictment for assault and battery. After hearing the
evidence, the jury withdrew to consider of their verdict, at about
the hour of eight in the evening. Not agreeing, they came into
court two or three times, and once requested to be discharged ; but
were sent back to their room ; and at about half after eleven they
came into court, and being called, eleven only appeared, one of
them having left the room and his fellow jurors without the per-
mission of the officer attending them, and gone home; whereupon
the court, without the consent of the defendant, discharged the
;nrv. At the Court of Oyer and Terminer, in October last, the
NOVEMBER TERM, 1827. 257
The State v. Hall.
prosecuting attorney called the defendant, and moved for another
trial. The defendant moved to be discharged ; and that court
have asked onr advice and direction.
The doctrine on which the decision of this case depends, has
undergone, within a few years, the most full and thorough inves-
tigation. In the case of The People v. Denton, 1 John, cases 275,
the defendant was indicted for a misdemeanor in neglecting
his duty as inspector of an election, and on trial, the jurj7, having
heard the evidence, retired, and after 'being out all night, came
into court with a verdict of not guilty, but on being polled, three
of them dissented, and after being sent out several times they
informed the court there was no prospect of their agreeing on a
verdict. The Court of Sessions, without the consent of the de-
fendant, discharged the jury, and the indictment being removed
into the Supreme Court, it was there held that the power to,
discharge the jury existed, although to be exercised with great
caution, and only after every reasonable endeavor to obtain a
verdict had been found unavailing; that the discharge in the case
in question was necessary and proper; and that the defendant
should be again tried by another jury on the same indictment.
In the case of The People v. Olcott, 1 John, cases 301, the indict-
ment was for a conspiracy to defraud the Bank of New York
and was tried in the Court of Oyerand Terminer of the county
of New York. The jury remained out a long time, and being
unable to agree, a juror was withdrawn, by the order of the
court, without the consent of the prisoner, and the jury dis-
charged. The defendant having been brought by habeas corpus
before the Supreme Court, and a motion made for his discharge,
it was determined that the Court of Oyer and Terminer had
power, in their discretion, to discharge the jury without the
consent of the prisoner, and that he might be brought to trial a
second time upon the indictment. In delivering the opinion of
the court, Justice Kent said, "If the court are satisfied that the
jury have made long and unavailing efforts to agree, that they
are so far exhausted as to be incapable of further discussion
and deliberation, this becomes a case of necessity and requires
an interference." In the case of Goodwin, indicted for man-
slaughter, and tried in the Court of General Quarter Sessions
of the Peace of the city and county of Now York, the jury were
out seventeen hours and unablo to agree on a verdict, and the
legal duration of the sessions being about to expire, and the
VOL. IV. B
258 NEW JERSEY SUPREME COURT.
The State v. Hall.
jury declaring there was not the least probability of their agree-
ment, they were, without the consent of the defendant, dis-
charged. The question whether he could be again put on his
trial on the indictment was argued before the Supreme Court,
and the opinion of that court was delivered by Chief Justice
Spencer. He said, " upon full consideration, I am of opinion
that although the power of discharging a jury is a delicate and
highly important trust, yet that it does exist, in cases of extreme
and absolute necessity, a"nd that it may be exercised without
operating as an acquittal of the defendant, that it extends as
well to felonies as misdemeanors, and that it exists and may be
discreetly exercised in cases where the jury, from the length of
time they have been considering a cause, and their inability to
agree, may be fairly presumed as never likely to agree, unless
compelled so to do from the pressing calls of famine or bodily
exhaustion. Much stress has been placed on the fact that the
defendant was in jeopardy during the time the jury were de-
liberating; it is true that his situation was critical, and there
was, as regards him, danger that the jury might agree on a
verdict of guilty, but in a legal sense, he was not in jeopardy so
that it would exonerate him from another trial. He has not
been tried for the offence imputed to him;. to render the trial
complete and perfect, there should have been a verdict either for
or against him. In a legal sense therefore, a defendant is not
once put in jeopardy until the verdict of the jury is rendered for
or against him, and if for or against him he can never be drawn in
question again for the same offence." A second trial was ordered
and took place. 18 Johnson 187. To avoid misunderstanding,
it is proper here to remark, that the generality of expression
of the learned judge should be taken with due qualification,
for in the case of Casborus 13 John, 351, the same court held"
that the arrest of judgment, on a conviction upon an indict-
ment for a i'elony, was not a bar to a second indictment and
conviction for the same offence, although the second indictment
•was in all respects similar to the first. In the case of The United
States v. Coolidge, 2 Gallison 364, on an indictment for a misde-
•meanor, a witness called on the part of the government having
refused to be sworn, was committed for contempt. Justice Story
decided that the court had power to discharge the jury without
the -consent of the defendant, and to try him again at another
day. In Bowden's case, 9 Mass. 494, on a trial of an indictment
NOVEMBER TERM, 1827. 259
The State v. Hall.
for robbery, the jury after being together a night and part of a
day and being unable to agree, were discharged by order of the
court, without consent of the prisoner, and afterwards in the
eame term another jury was impannelled for his trial who found
him guilty. On exception taken, on motion in arrest of judg-
ment, the Supi-eme Court of Massachusetts said, the practice of
withdrawing a juror where there existed no prospect of a ver-
dict had frequently been adopted at criminal trials in that court,
and decided that the exception taken ought not to prevail. In
The Commonwealth v. Purchase, 2 Pick. 521, a motion was made
in arrest of judgment. The defendant was tried on an indict-
ment for murder, and after a deliberation of eighteen hours, it
appearing to the court that there existed a difference of opinion
among the jury upon the evidence, which any further delibera-
tion would have no tendency to remove, they were discharged.
He was afterwards tried on the same indictment and convicted
of manslaughter. The court overruled the motion in arrest.
Parker, Chief Justice, who delivered their opinion, said it was
an incontrovertible principle "that a jury charged with a cause
on an indictment for felony, may be discharged of it, without a
verdict in cases of necessity. By necessity cannot be intended
that which is physical only. It is a moral necessity arising from
the impossibility of proceeding with the cause, without produc-
ing evils which ought not to be sustained. Where they have
applied their minds to the case as long as attention can be use-
ful, and have come to a settled opinion resulting in a disagree-
ment, the cause must be taken from them, arid public justice
demands that another trial should be had." In the case of The
United States v. Perez, 9 Wheat. 579, the prisoner had been put
upon trial in the Circuit Court of the Southern District of New
York, for a capital offence, and the jury being unable to agree,
were discharged by the court from giving a verdict, without the
consent of the prisoner, or the attorney for the United States.
The prisoner thereupon claimed his discharge as of right, and
the opinions of the judges being divided, the matter was certi-
fied to the Supreme Court of the United States. That court said,
"We are of opinion the facts constitute no legal bar to a future
trial. The prisoner has not been convicted or acquitted, and
may again be put upon his defence. We think that in all cases
of this nature the law has invested courts of justice with the au-
thority to discharge a jury from Diving any verdict, whenever
260 NEW JEESEY SUPREME COUIiT.
The State v. Hall.
in their opinion, taking all the circumstances into consideration,
there is a manifest necessity for the act, or Che ends of justice
would otherwise be defeated. They are to exercise a sound dis-
cretion on the subject, and it is impossible to define all the cir-
cumstances which would render it proper to interfere. To be
sure the power ought to be exercised with the greatest caution,
under urgent circumstances, and for very plain and obvious
causes, and in capital cases especially, courts should be ex-
tremely careful how they interfere with any of the chances of
life in favour of the prisoner. But after all. they have the right
to order the discharge." " We are aware that there is some diver-
sity of opinion and practice on this subject in the American
courts, but after weighing the question with due deliberation,
we are of opinion that such a discharge constitutes no bar to
further proceedings, and gives no right of exemption from being
again put upon trial." The case of The King v. Edwards was
argued in 1812, before the twelve judges of England. The pris-
oner was indicted for maliciously shooting at a man with intent
to kill him. On the trial one of the j.urors was taken with a
fit, and found incapable of proceeding with his duty, whereupon
the court directed a new jury to be sworn, and the prisoner was
convicted. His counsel argued that "a judge having charged a
jury in a criminal case, could not discharge that jury and try
the prisoner again, on the same indictment before another jury."
But the judges stopped the counsel who was to have argued for
the crown, and said it had been decided in so many cases, that
it was now the settled law of the country, and ordered judg-
ment against the prisoner.
In some of these cases, and especially those of Olcott, Good-
win and Purchase, the subject was examined at length, and all
the authorities, ancient and modern,* were reviewed by those
enlightened judges, Kent, Spencer and Parker. A repetition of
them on this occasion would be, at the least, superfluous.
In the case of The Commonwealth v. Cook and others, on indict-
ment for murder, reported in 6 Serg, and Rawle, 577, a most
elaborate investigation was made by Chief Justice Tilgbman
and Justice Duncan, of the Supreme Court of Pennsylvania.
They agree on the general rule, and in almost the same terms, as
stated by Chief Justice Spencer in Goodwin's case. The former
saying "there is indeed one principle which cannot be contra-
dicted, and that is, that the jury may be discharged in cases of
NOVEMBER TEEM, 1827 261
The State v. Hall.
absolute necessity." The latter saying " there are cases of posi-
tive, absolute and extreme necessity, which produce the impos-
sibility of proceeding with justice to the prisoner or to the
state." " There is at this day a settled and uncontroverted rule,
that, in case of life or member, a jury sworn and charged can-
not be discharged before they give a verdict, unless with the
consent of the prisoner and where it is for his benefit, or in cases
of extreme necessity." But both those judges determined that
the absence of the jury for fifteen hours, their repeated returns
to court with declarations of inability to agree and requests to
be discharged, and their ultimate declaration that there was
not the least probability they ever should agree and they
might as well attempt to see out of the same eyes, did not,
in a capital case, furnish ground sufficient to justify their
discharge.
If it be supposed the rule sanctioned by these cases is in some
degree a departure from the ancient principles of the common law,
by something like judicial legislation, a careful perusal of the dis-
cussions to which I have referred will satisfactorily shew that those
principles are in accordance with the liberal and just spirit of our
day, which will neither require a juror to decide between his con-
science and starvation, nor justify him in yielding the sincere
dictates of his reason and judgment to the necessity of uniting in a
verdict contrary to his convictions of right and duty, or remaining
enclosed in the jury room until released by a power which neither
jurors nor judges may withstand. And whatever may be said in
books, for in practice I am slow to believe it ever occurred, of
carting a jury, it certainly belongs to a time when courts were
much less tender of the rights of jurors; and the judge who in our
day should be found movingfrom county town to county town with
a conscientious and resolute jury in his train, would bo exposed
to ridicule, if not to contempt, and might feel himself incumbercd
with a most inconvenient appendage, before he would find author-
ity to open a court or receive a verdict in a remote count}'. Nor
indeed does so unreasonable a rule seem to have prevailed in for-
mer times; for in that highly respected treatise, called Doctor and
Student, first published in 1518, in answer to a question of the
doctor, whether itstand with conscience to prohibit a jury of meat
and drink till they be agreed, tho student says, "I take not the
law of the realm to be that the jury after they bo sworn ma}* not
eat nor drink till they be agreed of tho verdict, but truth it is
262 NEW JERSEY SUPREME COURT.
The State v. Hall.
there is a maxim and old custom in the law, that they shall not
eat nor drink after they be sworn till they have given their ver-
dict, without the assent and license of the justices; and there-
fore, if the case happen that thou now speakest of, and that the
jury can in no wise agree in their verdict, and that appeareth
to the justices by examination, the justices may in that case
suffer them to have both meat and drink, for a time, to see
whether they will agree, and if they will in no wise agree, I
think that the justices may set such order in the matter as shall
seem to them by their discretion to stand with reason and con-
science, by awarding of a new inquest, and by setting a fine on
them that they shall find in default, or otherwise, as they shall
think best, by their discretion, like as thejT may do if one of the
jury die before verdict, or if any other like casualties fall in that
behalf." Doctor and Student 271. In all these cases then, the
principle is uniformly recognized, that a power is vested in the
court, to be exercised however only with the greatest caution,
to discharge the jury in cases of necessity, as it is termed, and
to put the defendant on another trial. But the cases which have
been referred to, it may be said, differ in one circumstance from
the case before us. In them, the whole jury came into court,
one of them was by the direction of the court withdrawn, or, in
other words, when called did not answer or appear, and the resi-
due were discharged; here, one of the jurors was absent with-
out the consent or authority of the court. This difference in point
of fact exists, but if there be any difference in principle, it is
merely that the propriety of the discharge is more manifest
•where one has wrongfully departed and thus made the render-
ing of a verdict impracticable.
It was conceded by the counsel of Hall, on the argument, that
on the principle of the modern cases, if a juror be seized with a
fit, the jury may be discharged and another trial ordered. Why?
because a necessity exists — the cause cannot proceed. But is
there not an equaf necessity, to say the least, when one of the jury
has absconded from his fellows? — the cause cannot proceed — a
verdict cannot be rendered. In legal contemplation a verdict is
as impossible where a juror has departed, and eleven only remain,
as where one is suffering from a visitation of Providence, or as
if he were actually dead. Moreover, in the one case the discharge
of the jury is the act of the court, done deliberately, and with
a view to all legal consequences; in the other the discharge, is
NOVEMBER TERM, 1827. 263
The State, v. Hall.
effected without the consent of either the court or the prosecu-
ting attorney.
On this pojnt however we have the direct authority of Sir
Matthew Hale, and of a case cited by him. In his history of
the Pleas of the Crown, he says, "If after the jury are sworn
and departed from the bar, one of them wilfully goes out of
town, whereby only eleven remain, these eleven cannot give any
verdict without the twelfth, but the twelfth shall be fined for
his contempt, and that jury may be discharged and a new jury
sworn, and new evidence given, and the verdict taken of the
new jury, and thus it was done by good advice at the goal
delivery at Hertford, August 15, Car. 1, in the case of Hanscom
the departing juryman." 2 Hale P. C. 295. So in the case of
Cook and others, above mentioned, Justice Duncan considers the
absconding of a juror as one of the instances of extreme neces-
sity, in which the jury may be discharged even in case of life
or4 member.
It was remarked on the argument,with propriety and force, that
the punishment of crime would be placed at great hazard, and a
most dangerous temptation be held out to a juror favorable to the
prisoner, if by departing from his fellows he could produce an
effect equivalent to a verdict for the prisoner, and thus ensure
his safety. It was answered, that the reverse of the picture should
be viewed ; the power placed in the hands of a single juror who
contrary to the opinion of the others, might desire a conviction.
But there is a wide difference to be seen between the two cases.
In the one, he who seeks to favour the prisoner would, by departing,
with certainty effect it; he who sought a conviction however,
could only induce, not a conviction, but simply a second trial. It
was insisted by the counsel of Hall, that punishment should bo
inflicted on the absenting juror for his misconduct, and the pris-
oner go forever quit. It is true the juror ought to be punished,
und it Is to be recommended that our courts should, whenever
such instances occur, impose exemplary punishment, until the
custom said to bo common in some parts of the state, shall bo
completely repressed. But will .such punishment satisfy the
demands of public justice? Suppose a murder committed. Shall
the offender return to society with impunity ? Though the juror
is fined or imprisoned, will the innocent blood which has been
spilled cease to call aloud from the ground for vengeance?
Upon the whole wo are of opinion, that in the present case, and
26-L NEW JEKSEY SUPEEME COUKT.
Griffith v. Clute.
beyond it we mean to express no opinion, the jury were rightfully
and legally discharged, and the defendant may be again put upon
trial on the same indictment, and his application for discharge
ought not to prevail.
FORD J. and DRAKE J. concurred.
JOHN GRIFFITH against GERARDUS G. CLUTE.
CEBTIORARI.
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 rate he may deem proper.
When a creditor sues, although the principal and interest calculated at sixj>er
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.
Clute, the defendant in certiorari, sued Griffith before a justice
of the peace, in August, 1824, and filed the following state of
demand. " The plaintiff demands of the defendant the sum of one
hundred dollars, for that whereas the said plaintiff, on the 19th of
November, 1818, obtained a judgment in an action of debt, before
James Dunham, esquire, a justice of the peace of the county of
Middlesex, for the sum of ninety-two dollars and five cents,
besides costs of suit fifty-three cents, against Sarah B re water,
John Brewster, George Brewster and Nathaniel Brewster, execu-
tors of Timothy Brewster, deceased ; and for that on the 17th
March, 1819, an execution was issued by the justice for the above
sum, and put into the hands of the defendant, he being one of the
constables of the county of Middlesex ; and for that the defend-
ant received the whole amount of the moneys due on said
execution, or might and ought to have levied and made the same,
and paid the same to the plaintiff, but hath hitherto wholly neg-
lected and refused to pay over the same, whereby an action hath
accrued to the plaintiff, to have and demand of and from the
defendant the above sum." Upon the trial before the justice a
judgment was rendered against Griffith, the defendant. He
thereupon appealed to the Court of Common Pleas, who affirmed
NOVEMBER TERM, 1827. 265
Griffith v. Clute.
the judgment of the justice. And to reverse this judgment of the
Common Pleas the present certiorari was sued out.
Nevius, for the plaintiff in certiorari, contended that the
amount of Clute's claim, interest at seven per cent, being added,
exceeded one hundred dollars, and that therefore neither the
justice nor the Common Pleas had any jurisdiction.
Hardenbergh, contra.
The CHIEF JUSTICE delivered the opinion of the court.
Clute, the plaintiff below, in his state of demand, alleges that,
having obtained a judgment in a plea of debt, in a court for the
trial of small causes, on the 19th November, 1818, for ninety-two
dollars and five cents of debt, and fifty-three cents of costs, he
placed the execution issued thereon in the hands of Griffith, one
of the constables of the county, to be executed ; that Griffith
received the amount of the said execution, or might and ought
to have levied and made it, and paid it to him ; but had neglected
and refused to pay over the same to him or to any person for his
use ; whereby Griffith was guilty of neglect of duty as a consta-
ble, for which he demanded one hundred dollars; and upon tho
trial, judgment for that sum, with costs, was rendered in favour
of Clute. It is contended here, by the counsel of the plaintiff in
certiorari, that Clute might have demanded and recovered more,
for that the interest on tho debt and costs, at seven per cent.,
added to them, would have exceeded one. hundred dollars; and
hence neither the justice nor the Court of Common Pleas had
jurisdiction, and the judgment should be reversed.
Upon this subject, decisions have heretofore been made in this
court; and the matter is now brought up again, in consequence
of an alleged discrepancy between those decisions. An examina-
tion of them however, proves that no discrepancy exists, nor any
inconsistency in tho principles on which they are respectively
founded. When 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 either to
demand or take at any lower rate ho may deem proper. When
therefore a creditor sues, although the principal with interest
calculated at six percent, would exceed one hundred dollars. y.-i
if in bis state of demand he actually demands for principal and
266 NEW JERSEY SUPREME COURT.
Griffith v. Clute.
interest no more than that sum, a court for the trial of small
causes has jurisdiction. But if he demand the principal and
interest of his note, or bond, or debt, without naming any rate
of interest, which is therefore presumed to be six per cent., and
gives no credit, as the sum exceeds the jurisdictional limit, an
objection to the jurisdiction must be sustained. Thus, in Hopper
v. Steelman, Pen. 907, the state of demand set out a note, "dated
llth November, 1809, for ninety-four dollars and sixty-one cents,
on which was due fourteen months' interest, which together with
the principal makes the sum of one hundred dollars." It was
contended by the counsel of the plaintiff in certiorari, that by
calculation it would appear that fourteen months' interest added
to the principal would exceed one hundred dollars. But the
court said, no rate of interest is set out in the state of demand ;
a creditor may take any rate of interest under seven* per cent.;
the defendant had no cause of complaint. And the judgment was
affirmed. In Saddle River v. Colfax, 1 Halst. 115, the plaintiff,
after setting out his cause of action in the state of demand, alleged
that there remained due to him for principal and interest, the sum
of one hundred dollars; Justice Ford, in delivering the opinion
of the court, said, and on this point there seems to have been no
diversity of opinion although on another there was ; " The amount
due to the plaintiff will certainly exceed one hundred dollars, if
interest be calculated at seven* per cent., but the law mentions
this rate only to prohibit men from taking more. In Pen. 907,
this court decided that a creditor might take less if he pleased,
and this creditor says he asks no more interest than with -the
principal amounts to one hundred dollars." In the case of Van
Geisen v. Van Houten, 2 South. 822, the decision supposed to be
inconsistent with the others, the action was instituted on the 22d
March, 1817, upon a promissory note dated 24th May, 1816, for
one hundred dollars, payable in sixty days. The defendant filed
a plea to the jurisdiction, insisting that upon the plaintiff's own
shewing, his demand exceeded one hundred dollars, and that no
credit being allowed to reduce it, the case was not within the
jurisdiction of the court. And this court decided that the justice
ought to have sustained the plea and dismissed the suit.
It was further insisted that to allow a party to demand less than
the full rate of interest, and thereby to institute a suit before a
*At that time the legal rate of interest, since reduced, was seven per cent.
NOVEMBEE TEKM, 1827. 267
Griffith v. Clute.
justice of the peace, which, if the full sum were claimed, could
not be brought there, is inconsistent with the principle adopted
in a train of cases, where a plaintiff after exhibiting his account
or demand in detail, amounting to more than one hundred dollars,
has not been permitted to make a fictitious credit, or a reduction
in general terms, for the purpose of giving jurisdiction. Between
the two cases, there is however, we apprehend, a difference of
principle which may well warrant a different rule. In the one,
the plaintiff makes no claim for the surplus of interest. In the
other, he actually claims the whole debt, making however a shew
of the relinquishment of a part. We have lately had occasion, in
the case of Haggerty v. Vankirk, to look into the decisions on the
subject of fictitious or general credits. We found the rule estab-
lished by repeated adjudications, so as to make it, in our opinion,
our duty to follow it, without very full satisfaction of its original
propriety, and without any disposition to enlarge its operation
or extend its sphere, to embrace cases not clearly and expressly
within it.
It was further said, that although it be true a-man may waive
his rate per cent., yet he may not do it to give jurisdiction. But
we apprehend there is no reason, nor are we bound, in order to
defeat the action, to seek for the motive ; especially when it does
not, as in the case of fictitious or general credits, shew itself on
the face of the state of demand. Nor is the motive much to be
condemned, which enables the plaintiff to prosecute at an inferior
expense, subjects the defendant in cases perhaps not contested, to
very small costs, and does not deprive him, if contested, of a fair
and impartial trial, for we cannot presume he will want such trial,
in any court lawfully constituted.
To shew there can be no waiver of right in order to give juris-
diction, the doctrine maintained in the courts of the United
States was mentioned, and the case of Maxwell's lessee v.
Levy, 2 Dall. 381, referred to, where an action of ejectment
was dismissed, upon the fact that although the grant to the
lossor of the plaintiff appeared absolute, yet he was a trus-
tee only for the grantor, who was a citizen of the same
state in which the suit was brought. But there was no waiver
of right. The ownership really remained the same. Had the
grant been absolute, had the owner actually transferred all
interest in the property to the grantee, the court would have
entertained the suit, although it had been conclusively shewn,
268 NEW JEESEY SUPEEME COUKT.
Prest v. Mercereau.
or openly admitted, that the real motive of making the con-
veyance was to give jurisdiction. In the case of Catlet v. The
Pacific Insurance Company, Paine's Cir. Co. Hep. 594, Justice
Thompson decided that the removal of a party from one state
to another, if done with intention of permanent residence and
not to return, though for the avowed purpose of giving jurisdic-
tion to the Circuit Court of the United States, and of prosecuting
a suit there, is not an evasion of the law.
On the whole we are of opinion that the reason assigned for
reversal is not sustained by either precedent or principle.
Let the judgment be affirmed.
CITED IN Howell v. Burnett, Spen. 267.
MATTHIAS PREST against DAVID MERCEREAU.
A mere entry made in a man's book of account, of a settlement with another,
is not, as against such other person, legal evidence of a settlement.
This was a certiorari to the Court of Common Pleas of Middle-
sex, to reverse a judgment of said court, on appeal affirming the
judgment of a justice, rendered against Prest, the plaintiff in cer-
tiorari. 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 defend-
ant, 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 affi-
davits 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, jus-
tice, 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. No witness was
offered before the justice on the part of Mercereau, to prove tho
books of Prest incorrect; nor were the books or any of the items
in Prest's account impeached or disputed by Mercereau. A short
NOVEMBER TERM, 1827. 269
Prest v. Mercereau.
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 bis 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 byeither
of the parties at the time above spoken of. He sat close by them
during the time, and 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
favour, 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.
The affidavit of Samuel S. Cain, was also token 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 the 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 rot settle at that time. Witness* recollection of the
facts that took place at the time this attempt was made, is the
eamo 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 witness and
270 NEW JERSEY SUPREME COURT.
Prest v. Mercereau.
Francis. 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.
The state of demand tiled by Prest, and the set-off by Mer-
cereau, 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."
Wood, for the plaintiff in certiorari, moved to reverse the
judgment of the Common Pleas, because the court had allowed
the whole of Mercereau's account, including the item of "a
balance due on settlement," when there was no evidence of a
settlement of book account produced on the trial, except the
defendant's book of account.
Hardenbergh, for defendant.
The CHIEF JUSTICE delivered the opinion of the court.
The reason assigned for the reversal of the judgment in this
case is, that one of the items of the account of Mercereau, ex-
hibited by way of set-off and for which he obtained judgment, is
for a specified sum, " a balance due on settlement of book account,
November 5th, 1824;" and that on the trial in the Court of
Common Pleas, Mercereau gave no evidence of a settlement of
book account, or of a balance due him on such settlement.
In M' Henry v. Forsyth, Penn. 1002, this court decided that such
a charge in an account or state of demand is sufficiently specific;
to support it, however, proof of an actual settlement must be
made.
From the affidavits read before us it appears, that on the trial
Mercereau produced in evidence his book of accounts, and ex-
amined three witnesses, one of whom, Adam Smith, proved his
book and nothing more. The other witnesses Charles Francis
and Samuel Cain, so* far from proving a settlement, testify they
were present at an attempt between the parties to settle their
book accounts, but that no settlement was made. And it appears
that Mercereau did not offer or endeavor to prove any other
settlement than that attempted to be made in the presence of
Francis and Cain.
It was said, the books of Mercereau are not brought here, and
there may have been in them an entry of a settlement. But if
NOVEMBER TEEM, 1827. 271
The State v. Atkinson.
there be, a mere entry made by a man on his book of a settlement
with another, is not, as against the other,, legal evidence of such
settlement.
It was correctly stated by the counsel of the defendant in cer-
tiorari, that this court will not weigh the evidence given in the
court below, nor enquire whether that court decided rightly upon
controverted matters of fact. But that rule does not apply on
the present occasion. Evidence of a particular character was
required to support the demand as stated. No such evidence was
produced. The judgment was founded on evidence of a different
nature. The question here is, whether the facts, as proved, were
sufficient in law to support the demand. We are of opinion they
were not, and the judgment should therefore be reversed.
Some objections were raised on the argument to the manner in
which the case is brought before us, being by the affidavits of per-
sons who were examined as witnesses in the court below. In
this respect we find. nothing illegal. No state of the case having
been made, the affidavits were taken, under a rule of this court,
of two of the witnesses called by Mercereau in the Court of
Common Pleas, who relate what evidence was produced there.
Let the judgment be reversed.
CITED IN Oram v. Bishop, 7 Hal. 158. Carter v. Lackey, Spen. 610. Inslee V.
Prall, 3 Zab. 460.
THE STATE against GEORGE W. ATKINSON.
1. The return list of delinquents which is required by the first section of the
militia act, Rev. Laws 508, to be made out by the major and furnished to the
justice by the battalion paymaster, as the authority upon which the justice is to
issue his execution against the delinquents, must shew that a fine has been
imposed upon said delinquents, or the execution will be quashnd.
2. The battalion court have no original jurisdiction. If no fine has been
imposed by the company court the battalion court can impose none.
This was a certiorari directed to a justice of the peace, requir-
ing him to send to this court "a certain return list of delinquents
of the first battalion of tho third regiment of the Burlington bri-
gade of militia, and of tho fines imposed by the company court of
tho first company of the said battalion, on certain delinquents
in tho said return list of delinquents named, and the execution
issued by him against tho persons named in the said return list."
272 NEW JERSEY SUPREME COURT.
The State v. Atkinson.
In obedience to this certiorari, tho justice sent to this court the
execution and the original return list of delinquents which was
handed to him by the paymaster of the battalion, and upon which
the said execution was issued. This return list was as follows:
" I do certify this to be a true list of all the delinquents returned
in the second company of the first battalion of the third regiment
of the Burlington brigade. August 1, 1825.
" JOSEPH STACK HOS, Major.
" ABRAHAM ZELLY, 1 DAVID STEPHENSON, 3
" BENJAMIN NAILOR, 1 GEORGE ATKINSON, 3
" CLAYTON HANCOCK, 3 JOSEPH MILLS, 3
and pi'oceeding to give in this manner the names of all the
delinquents.
W. Halsted, on behalf of G. Atkinson, the prosecutor of the
certiorari, moved that the execution issued against the delin-
quents be quashed, because it did not appear from the face of the
proceedings that any fines had been lawfully imposed upon them.
Wall, contra.
The CHIEF JUSTICE delivered the opinion of the court.
By the certiorari issued in this case, and directed to John Atkin-
son, esquire, one of the justices of the peace of the county of Bur-
lington, he was required to certify to this court ''a return list of
delinquents of the first battalion of the third regiment of the Bur-
lington brigade of militia, and of the fines imposed by the com-
pany court of the first company of the said battalion, on certain
delinquents in the said return list of delinquents named, and also
the execution issued by him against the persons named in the
said return list of delinquents." In obedience to the writ, the
justice has sent here a copy of the execution issued by him, tested
on the twenty-ninth day of October, 1825, together with the orig-
inal return list, handed to him by the paymaster, and upon which
is endorsed these words, "Returns for militia fines by George
Aai-onson, paymaster, filed October 29th. 1825." The execution
is in the form prescribed by the fourteenth section of the act
establishing a militia system, Rev. Laws 582. The paper an-
nexed, and called the return list, is as follows. At the top is a
certificate in the following words: "I do certify this to be a true
list of all the delinquents returned in the second company of the
NOVEMBEK TERM, 1827. 273
The State v. Atkinson.
first battalion of the third regiment of the Burlington brigade.
August 1st, 1825. Joseph Stackhos, Major."1 Beneath this cer-
tificate are a number of names, standing in two columns, and
opposite to some, the figure one, to others the figure two, and to
others the figure three, in a single column, and without the
slightest letter, or mark, or indicium, to shew whether days of
absence, or dollars of fine, or whatever else, theee figures may
have been intended to denote.
By the act of the legislature already mentioned, the course of
proceeding to entitle a paymaster to claim, and a justice of the
peace to issue, an execution against -persons delinquent in the
performance of militia duty, is very plainly and distinctly pre-
scribed. On every day of training, the orderly or first sergeant
of every troop or company, in the presence of the captain or
commanding officer,- one hour after the time appointed for the
meeting, and also after the exercise is over and before the men
are dismissed, is to call over the muster-roll of the troop or com-
pany, noting those who are absent at each roll-call, and those
who are deficient in arms or equipments, and the particular arti-
cle or articles for want of which they are liable to be fined. Six
days prior to the day appointed for the meeting of the company
court, the sergeant is to put up in three public places within the
bounds-of the company, written or printed notices, of the names
of the delinquents, of the amount of the fine or fines by them,
incurred, and of the day when and the place where the com-
pany court will meet. A true and particular return of all the
delinquents and deficiencies is to be made, to the president of
the company court, by the sergeant, under oath or affirmation,
the form of which, at length, is prescribed in the eighth section
of the act. The company court is composed of the commis-
sioned officers of each company; the officer first in rank to bo
president; and in case but one officer shall attend, he is to call
to his assistance two respectable enrolled persons from the list,
of the company. The persons composing the court are to take
an oath or affirmation, the form of which is also given at largo
in the ninth section. This court is to assemble on the fourth
Monday of June in every year; and to hear the testimony and
allegations of all such parties, appearing by themselves or repre-
sentatives, as have been returned delinquent at the preceding
trainings, and to impose such fines and forfeitures, as in justice'
and equity, tho act for the regulation of the militia requires..
VOL. iv. ft
274 NEW JERSEY SUPKEME COURT.
The State v. Atkinson.
Within ten days thereafter, the president of the court is to make
"an accurate return to the major or commanding officer of the
battalion, of the names of all delinquents, and the sum imposed
on each by the said company court." On the first Monday of
August in every year,. is to meet, a court called the battalion
court of appeal, and to be composed of the major or command-
ing officer of the battalion, the surgeon or surgeon's mate, and
the senior captain, or in case of his absence, sickness or in-
ability, the next captain in rank, of the battalion. With the
exception of the case of permanent inability, when this court
may give to an applicant a certificate of discharge from military
duty, the functions of this court are strictly those of appeal.
They have no original jurisdiction to impose fines for absence
or defect of equipment. If no fine has been imposed by the com-
pany court, this court can impose none. "All persons believing
themselves aggrieved by fines and forfeitures imposed on them
by the company court, may, by himself or friend, apply to the
said battalion court of appeal, who are vested with full power
and authority to hear and decide upon the excuses offered, and
to remit any fines and forfeitures, for reasons which shall appear
to them reasottable." Within ten days after holding the battalion
court, the major or president of the court is to make two accu-
rate returns of the names of delinquents, and the fine imposed
on each, one of which he is to deliver to the battalion paymas-
ter, and the other to the brigade paymaster. The return thus
to be made by the major or president of the battalion court, is
to contain a schedule or list of the names of all the delinquents
of that battalion, with a statement of the sum imposed on each,
and will be composed from the returns made by the respective
presidents of the company courts, with such alterations as are
rendered necessary by the remissions, if any, of fines and for-
feitures made by the battalion court; and to the list is to be pre-
fixed or subjoined, a certificate, to be signed by the major or pre-
siding officer, that the names therein contained are the names of
the persons delinquent and deficient in military duty and equip-
ments in that battalion, (which should be properly designated);
that the sums set opposite to their names are the fines imposed
upon them respectively; and that the persons named in the said
schedule or list have been duly adjudged for deficiency in military
duty and equipments to pay the fines to their names respectively
subjoined. Immediately after the first Monday of September then
NOVEMBEE TEEM, 1827. 2.75
The State v. Atkinson.
next ensuing, the battalion paymaster is to deliver to a justice of
the peace, the said return list, first writing thereon the word,
paid, opposite the names of those persons who shall have dis-
charged their fines; and the justice is forthwith to issue execu-
tion against the person or persons named in the said return list,
opposite to whose names shall not be written as aforesaid, paid,
for the fines annexed to their respective names, with costs.
From this review of the provisions of the act and of the pro-
cedure thereby directed, it will be seen that before the justice is
authorized to issue execution against the delinquents, a proper
return list, as it is called, such an one as I have described, must
be delivered to him by the proper officer. The mere form of
this list is not essential, but the substance of what has been
stated is indispensable. A due certificate must be made to the
justice, of the names of the delinquents and of the fines imposed
on them respectively. No verbal information from the pay-
master can supply its absence or defect. The return list, with
its proper accompanying certificate, is the evidence, and the only
competent evidence, to him, of the recital contained in the exe-
cution according to the form prescribed in the act, that the per-
sons against whom the execution is issued, have been duly
adjudged to pay the fines subjoined to their names. Without
such evidence before him, the justice has no authority to issue an
execution. The execution would have no legal basis to sustain
it. Such is the rule sanctioned and adopted in the case of The
State v. Kirby, 1 Halst. 143, and it is sustained by the clearest
and most certain principles of law.
In the case before us, no such return list as is contemplated by
the act, was made by the major, or delivered by the paymaster
to the justice. The latter issued the execution which is brought
before us, upon a paper which is neither in form nor substance a
compliance with the act. The major simply certifies the list to
be a true list of all the delinquents returned in a particular com-
pany. He does not certify that any fine was imposed upon any
one of them, or that any one of them had been adjudged to pay
a fine. The orderly sergeant, it has been seen, is to mako a
return of al1 the delinquents of his company. The delinquents
thus returned may b-a " -he delinquents returned," as mentioned
in the certificate of the major. The certificate may be literally
true, and yet no fine may have been imposed, and no court, either
of company or buttalion, may have assembled. The execution
276 NEW JERSEY SUPREME COURT.
Knowlton v. Independence.
therefore, was mar.iibstly issued irregularly, without proper
authority, and ought, an to the person complaining, to be quashed.
Let the execution as to George W. Atkinson, the prosecutor
of the certiorari, be quashed.
CITED IN City of Camden v. Mulford, 2 Dutch. 49.
KNOWLTON against INDEPENDENCE.
When an order is made for the removal of a pauper from one township to
another in the same county, 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 adju-
dication was made.
Vroom, for Knowlton.
Attorney- General, for Independence.
EWINQ, C. J. delivered the opinion of the court.
The removal of the pauper in this case was determined to have
been illegally made and the order of removal was quashed, because
a copy of the evidence on which the adjudication of settlement
was founded was not delivered with the pauper to the overseers
of the township of Independence. The Court of Quarter Sessions
erred. The transmission and delivery of a copy of the evidence
is not required when the removal is made from one township to
another, in a county where no poor-house is erected. The fourth
section of the supplement to the act for the settlement and relief
of the poor, passed 20th June, 1820, Eev. Laws 764, relates to the
removal of a poor person who needs relief, and has a settlement
in any township of the county where he seeks it, to the poor-house
of the county, if there be a poor-house ; and also to the removal
of a pauper from a township in one county to a township in an-
other county; but does riot relate to a removal from one township
to another in the same county where there is no county poor-
house. Such is the just construction of the section. It treats of
a removal to a poor-house, and of the delivery of a pauper to the
steward of a poor-house, and directs the delivery of a copy of the
evidence on which the adjudication of settlement was founded,with
the pauper, to the steward of the poor-house. The words are pre-
cise, and are not suscept ible in themselves of extension to the case
of a removal to a township, or a delivery to the overseers. Wo
cannot say that a copy of the evidence shall be sent to the overseers
NOVEMBER TERM, 1827. 277
Den v. Hull.
of a township where there is no county poor-house, or I ho removal
be deemed illegal, when the legislature have not thought proper
to say so. The probability is that the legislature in this part of
the section intended simpl}1- to provide a mode whereby paupers
might be sent to the poor-house; for by the previous IHWS no
mode had been provided. It is asked, if there be not I he same
reason for sending a copy of the evidence with the pauper to
the overseers, as to the steward, on removal? It may so appear
to us. But the legislature may have thought very differently.
And when the legislature have enacted a rule for a specified
case, we are not thereby authorized to apply the same rule to
some other case not within the reach of the language they have
used, because we may think the rule would be equally wise and
judicious in such other case. In another section of the same
act certain relations are required to provide for the maintenance
of each other. Will any one say, the sessions might order some
other relative, not named, to pi-ovide maintenance, because they
should be of opinion humanity or sound policy equally required
the assistance of such other relative ?
Let a mandamus issue.
DEN on the demise of VANARSDALEN against JAMES HULL.
A judge at the circuit has no power to order an amendment to be made in the
circuit record. .
If a nonsuit has been granted at the circuit, in consequence of a variance
between the evidence offered and the circuit record, such nonsuit may be set
aside, if it appear that the mistake occurred in copying the record.
This was an action of ejectment between the parties above
named brought down for trial to the Middlesex Circuit, Decem-
ber, 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 nonsuited.
After the argument had concluded, it was observed by the
judge and suggested by him, that in the transcriptof the pleadings
sent down for trial, the premises were described to bo situate in
278 NEW JERSEY SUPEEME COURT.
Den v. Hull.
the township of South Araboy, in the county of Middlesex, and
that by the evidence of the plaintiff it appeared that the premises
to which he claimed title and sought to recover, were situate in
the township of South Brunswick, in the said county. The coun-
sel of the plaintiff then produced the declaration which had been
served on the defendant as tenant in possession, the same being
handed by the attorney of the defendant to the attorney of the
plaintiff, at his request; and then moved that the plaintiff be
permitted to alter and amend the said transcript, so that the
words South Amboy therein written, should read South Bruns-
wick. To this the counsel of the defendant objected, and for the
variance as above named,the judge ordered the plaintiff to be called.
A rule to shew cause why this nonsuit should not be set aside
was argued in writing, by
Ifardenburgh, for plaintiff, and
Green, for defendant.
The CHIEF JUSTICE delivered the opinion of the court.
Upon the trial of this cause, at the Middlesex Circuit, after
the plaintiff had closed his evidence, it appeared that the prem-
ises to which he exhibited a claim of title, andv which he sought
to recover, were situated in the township of South Brunswick,
in that county, and that the premises mentioned in the tran-
script or Nisi Prius roll, were described to be situated in the
township of South Amboy.
This variance being suggested, the counsel for the plaintiff pro-
duced the declaration which had been served on the defendant,
as tenant in possession ; the same being handed to the attorney
of the plaintiff, at his request, by the attorney of the defendant;
and moved to amend and alter the transcript so as to conform
thereto, and to the evidence, by inserting the words — South
Brunswick instead of South Amboy. The alteration was objected
to by the defendant's counsel, and not sanctioned by the court.
And for the variance between the transcript and the evidence,
the court ordered a nonsuit.
The postea being returned, a rule to shew cause why the non-
suit should not be set aside was entered, and submitted upon
written arguments.
It is now seen by a recurrence to the declaration de novo, on
NOVEMBER TERM, 1827. 279
Den v. Hull.
the files of this court, that the premises are there correctly de-
scribed to be in the township of South Brunswick, which fact
however was unknown at the trial, so that the error occurred in
making out the transcript, which, without adding more, it may
be satisfactory, proper and just to state, was not made out by the
clerk, or in his office.
The first question to be examined, is, whether the nonsuit was
rightly ordered. The propriety of a nonsuit for a variance
between the premises described in the pleadings and those to
•which the plaintiff may, on the trial, exhibit evidence of title,
is so clear, so certain, and has been so repeatedly adjudged,
that it will not be controverted, but be promptly and unequivo-
cally conceded.
But ought the judge at the circuit to have permitted and sanc-
tioned an alteration of the transcript? In answer to this enquiry,
we observe, in the first place, that no single judge in vacation has
authority to make or allow amendments of pleadings. These are
to be made and allowed only by the court at bar, and upon appli-
cation and order in term time. In the second place, although it
now appears that the declaration de novo was correct, yet at the
trial it was wholly unknown whether the error existed in it or in
the transcript; whether the declaration was wrong or the trans-
cript wrongly copied. It could not therefore be specified whether
the amendment sought for was to be made in the transcript, or in
the pleading upon the file. The production of the declaration
served on the tenant, proved no more than its correctness, unless
it may be also added, that the defendant was not injured by sur-
prise. In the third place, there was no evidence, presumptive or
otherwise, that the declaration on file was right, but there was
evidence to the contrary, and of the highest order, and which the
judge was bound to respect, the transcript of the pleadings, au-
thenticated by the certificate of the clerk, and the seal of the
Supreme Court. In the next place, if the alteration had been made,
the judge might thereby have caused the clerk to certify, and the
seal of the court to attest, what was untrue, that the transcript
when made to read South Brunswick, was a true copy of the
declaration on file. Again. The transcript having been filed and.
the jury sworn, it may well be doubted whether the judge could:
suffer it to be withdrawn and another substituted, without the
consent and contrary to the will of the defendant; and however
a long and very convenient practice, and commendable because
280 NEW JEESEY SUPEEME COUET.
Den v. Hull.
convenient, from which no injury can result, and which I have not
the slightest wish to disturb or discountenance, has warranted
the judge at the circuit in receiving a transcript purporting to
be, what, however, we all know it really is not, under the signa-
ture of tlio clerk and the seal of the court, yet the judge on tho
trial in this case could not be so officially blind or so utterly
overlook both time and space, as to suppose that a new transcript
had in the twinkling of an eye been made out and sealed by the
clerk, and transmitted there. Again. If the amendment had
been allowed, that jury must necessarily have been discharged
by nonsuit or otherwise, and either sworn anew or a new jury
called, for they had been sworn to try the issue contained in that
transcript, and by the alteration a new and different issue, by a
material change, would have been formed. In the last place, it
has been seen that an amendment in the declaration on file
could not have been made by a single judge at the circuit, and
the cases to be found in the books prove that an amendment in
the transcript, if that alone had been required, was not justifi-
able. It will be right for us here to recollect, that the Circuit
Court is organized as auxiliary only to the Supreme Court, and
merely for the trial of issues of fact; that the mutual pleadings
of the parties are filed, not there, but in the office of the latter
court ; and that the Circuit Court becomes possessed of tho cause,
if the expression may be allowed, only by the transcript sent
there according to the provisions of the act of the legislature.
The rule or limit of amendment is thus stated by Bacon. "As to
the Nisi Prius roll, which is only a transcript of the plea-roll, to
carry the issue into the country, if it differs from the plea-roll in
any matter which does not alter the issue, it may be amended ;
but if it differs in any matter which alters the issue, it cannot
be amended by the plea-roll, because it does not give the judge
of Nisi Prius authority to try the matter which is in issue be-
tween the parties on the plea-roll." 1 Bac. Abr. tit. Amend, and
Jeof. D. 4. The nature and meaning of the rule here laid down
will perhaps be illustrated by the contrast of two cases cited and
stated in Blackmore's case, 8 Go. 321. The one of them is thus,
"As to tho writ of Nisi Prius, it is to be known that the mispnsion
of the clerk of the treasury who writes it is also therein amend-
able by this statute, and to be made according to the record, but
with this caution, that the record of Nisi Prius have sufficient
jaatter in it, either expressed or implied, to give authority to the
NOVEMBER TERM, 1827. 281
Den v. Hull.
justices of Nisi Prius to try the issue, for they cannot try any
issue by force of the statutes made thereof, without authority
given to them by writ of Nisi Prius, and so it is adjudged in 11
Hen. 6, 11, a. b. In debt against J. I. husbandman, issue was
taken if he was husbandman on the day of suing out the writ;
and the writ of Nisi Prius was whether he was husbandman,
omitting these words, on the day of suing out the writ, which was
the material point of the issue, but the roll was well and the
jury passed for the plaintiff, and found that the defendant was
husbandman on the day of suing out the writ, and the writ of Nisi
Prius could not be amended by the statute of 8 Hen. 6, because
the justices of Nisi Prius have no power to try the issue con-
tained in the record, because, on the day of suing out the writ, was
omitted in the Nisi Prius ; and if the justices of Nisi Prius had
taken the verdict according to the issue in the writ of Nisi Prius,
that he was husbandman generally, without saying, on the day
of suing out the writ, it had been contrary to the roll; where-
fore it was awarded that the plaintiff should sue a venire facias
de novo." The other of the cases is thus, "If a man declare of
damages of one hundred pounds, and the record of Nisi Prius is
one hundred shillings, and the jury give damages twenty pounds,
the Nisi Prius shall be amended and made one hundred pounds
according to the roll, for it is the misprision of the clerk, which
doth not change the issue." In the case of Paine v. Bustin, 1
Starkie N. P. 74, the counsel of the plaintiff moved to amend
the declaration by omitting the profert, and alleging that the
bond was in the possession of the defendant, but Lord Ellen-
borough held that the alteration proposed was matter of ma-
terial allegation, and not the subject of amendment at Nisi
Prius. In Murphy v. Marlow, 1 Campb. 57, an amendment in
the record was made at Nisi Prius of an error which was dis-
covered and suggested by the judge ; but it was done by consent,
both parties wishing to waive the objection and that the trial
might proceed. In James v. Walruth, 8 John. 410, the decla-
ration, which was in debt on an award, as set forth in the Nisi
Prius record, varied from that delivered to the defendant in the
••.mount awarded. The variance was objected at the trial, and a
••erdict taken subject to the opinion of the court. The court
~uid "The judge could only apply the testimony to the pleadings,
,,a they were contained in the record." So in Wood v. Bulkley, 13
John. 486. an offer on the trial at Nisi Prius by the defendant's
282 . NEW JERSEY SUPREME COURT.
Den v. Hull.
counsel, to prove a variance between the copy of the declaration
served and the Nisi Prius record, as to the name of the defendant,
was overruled by the judge; and by the court was held to have
been done rightly. "The judge at the circuit," say they "must
be governed by the Nisi Prius record, and any variance if ma-
terial must be made the subject of an application to the court."
In Lion v. Burtis, 18 John. 510, in ejectment, an application was
made, to amend, after the trial, the time of the demise; the
court say, "We do not intend to carry the practice so far as
to amend at the trial, but we mean to say, that when a plaintiff
has been nonsuited for a variance in the date of the instrument
declared on, or for any other variance arising from clerical mis-
take, that we will set the nonsuit aside, and give leave to amend
on payment of costs." In Howard v. Pollock, 1 Yeates 509, in
ejectment at Nisi Prius, the plaintiff's counsel moved to alter
the day of the demise and to enlarge the term. The court
refused, saying, "We cannot .entertain such motions at Nisi
Prius, which is peculiarly appropriated to the trial of causes."
On the part of the plaintiff in the case before us, and to evince
the propriety- of an amendment at the circuit, was cited the
case of Blackwell v. Patton, 7 Granch 411. In ejectment, on trial
before the Circuit Court of the United States for the district of
Tennessee, it appeared that the time of the demise, as laid, was
prior to the accruing of the plaintiff's title. The court allowed
the plaintiff to amend the declaration by altering the time, and
the Supreme Court of the United States held that the amend-
ment was properly allowed. This case, however, it will readily
be perceived, can have no weight in the enquiry before us,
because the Circuit Court of the United States bears no analogy
to our Circuit Court, being not merely a Nisi Prius Court, or
tribunal for the trial of issues of fact, but a court of original
and final jurisdiction, and a trial there resembling a trial at the
bar of this court. From these considerations it results that the
nonsuit was legally ordered.
The next question then occurs : May this court set aside the
nonsuit and order another trial ? The nonsuit was granted at the
trial with reluctance, because it was obvious that the merits of the
controversy were left undecided, and the parties open to further
litigation ; it was possible the error might be, as it really is, a
mistake in the copying of the declaration ; and it was certain that
the defendant was under no surprise, but well understood the
NOVEMBEB TEEM, 1827. 283
Ben v. Hull.
premises really demanded from him. Under such circumstances,
it is not unpleasant to find that the plaintiff may be permitted to
pursue his claim, without exposing either party to the expense
incident to the commencement of a new suit. The power of the
court to set aside, on proper ground, a nonsuit ordered at the
circuit, and not voluntarily sought by the plaintiff, cannot be made
a question. The propriety of such a measure, where the variance
which has been the cause of the nonsuit is a mistake like the
present, into which we are all so apt to fall, and from which the
most sedulous care does not always protect, will readily approve
itself to even slight reflection. Our books afford us abundant
precedents to sustain us in making absolute the rule for setting
aside the nonsuit. In the case already mentioned, cited iti 8. Co.
from the Year Book, 11 Hen. a venire facias de novo was awarded.
In Holland v. Hop/cms, 2 E. & P. 243, a nonsuit having been
ordered because the evidence offered did not conform to the
bill of particulars delivered, the court held that the nonsuit
had been rightly ordered, yet set it aside and gave the plaintiff
leave to amend his bill of particulars on payment of costs.
Halhead v. Abrahams, 3 Taunton 81, was an action on a replevin
bond. The judge on the trial, on comparing the record with the
bond produced in evidence, himself discovered and suggested a
variance ; three dozen chairs being mentioned in the bond and
four dozen in the declaration, and directed a nonsuit. The
court, although approving the nonsuit, ordered it to be set aside,
and the declaration amended, on payment of costs. In Jackson
v. Bailey, 2 Coicen 265, in ejectment for land in the town of Moriah,
tried at the circuit of Essex county, the plaintiff was nonsuited
on the ground that the declaration described the land as lying
in the town of Crownpoint, in that county. On motion of the
plaintiff, and on affidavit that the mistake was not discovered
until after the jury were sworn, the court set aside the nonsuit,
and ordered the declaration to bo amended, on payment of costs.
An avowry was amended after a verdict against the defendant,
and the verdict set aside in the case of Wright v. Williams, 5 Cowen
501. In Den v. Fran/din and Sharp, 2 South. 850, on tho V-i<il
at the circuit, tho court ordered tho plaintiff to be no BL:.to£
because at tho time when tho demise was laid tho lessor of th
plaintiff was a married woman. Tho plaintiff answerer wher.
called, and tho defendant having given his evidence to th
jury, a verdict was found for tho plaintiff; at bar. tho court
284 NEW JEESEY SUPEEME COUET.
Bank of New Brunswick v. Arrowsmith.
ordered the posted to be amended so as to return the nonsuit, and
afterwards, on motion of the plaintiff, ordered tbe declaration to
be amended by making the time of the demise an earlier day and
before the marriage of the lessor, on payment of costs.
Upon setting aside the nonsuit what rule should be made as to
costs? One reason for examining the propriety of the nonsuit
was its bearing on this subject. If erroneously ordered, costs
should not be granted. If rightly, they should be allowed.
Let the nonsuit be set aside on payment of costs.
CITED IN Den v. Snowhill, 1 Or. 23. North River Meadow Co. v. Christ Church,
3 Gr. 53.
THE PRESIDENT AND DIRECTORS OF THE BANK OF NEW
BRUNSWICK against NICHOLAS ARROWSMITH.
1. If a plaintiff sue out a writ of summons against two or more defendants, ho
cannot regularly declare against one, and proceed to judgment against him only.
2. A defendant may avail himself of a variance between the writ and decla-
ration, either by oyer and plea, or by a motion to set aside the proceedings for
irregularity.
3. The best method for the defendant to avail himself of the variance, is by
motion to set aside the proceedings, inasmuch as upon oyer and plea in abate-
ment he recovers no costs against the plaintiff if he succeeds.
4. The allegation usual in the commencement of a declaration " that the
defendant is in custody," may be safely dispensed with ; as may also the formal
words "of a plea of trespass," used in the writs issuing out of this court.
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 hewasimpleaded with Wilson).
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.
Sardenbergh, for the plaintiff —
This is a summons in truth against one. The name of Wilson,
it seems, was put in the summons just as it was handed to the
sheriff, but it is not carried through the writ, and as service was
not made on Wilson, that part was treated as a nullity.
Wilson, though not summoned, entered an appearance, and
Arrowsmith pleaded a variance.
NOVEMBER TEEM, 1827. 285
Bank of New Brunswick v. Arrowsmith.
But is there an incurable irregularity?
Summons and capias are the first process in New Jersey, and
there is no other.
In England the commencement of the action strictly is the origi-
nal writ, a precipe, or si te fecerit securum. 3 Black. 274. In non-
bailable actions the wi'it was considered the mere authority to
get defendant into court, and you might sue several defendants
and declare against one. 1 Chitty 248, 252. Tidd's Pr. 83. 1 Sel-
lon Pr. 236. And no variance between the original writ and
declaration could be taken advantage of by plea in abatement.
The first process in England after the original, in actions not
bailable was a summons, and then a distress infinite. Our sum-
mons here answers to that process, and is the mere authority to
bring the defendant into court, and if a cause of action be sev-
eral }*ou may declare against one. 16 John. 44. 4 ibid. 484. 3
ibid. 531.
But again. No one can bo declared against unless in court.
By our statute, Rev. Laws, 416, sec. 21, the party must bo re-
turned summoned to be in court. If there be a several cause of
action, and a summons against several, and ono be not served
with process, may you not proceed against those summoned?
If not, how is the plaintiff to get on? There can bo no outlawry
in New Jersey.
The form of our process does not contemplate it.
By statute, Rev. Laws, 305, in case of joint debtors, a remedy
is given if any be served with process. The words in that
statute, sec. 3, "in the same manner as if they had been all
taken," seem to infer a remedy against those only served with
process in ordinary cases, and in the case of joint debtors to
supply what was effected by outlawry.
In this case the suit is on a bond payable jointly and severally.
When one defendant is not in court you may then declare
severally against the other.
Wood and Green, contra.
In this case the summons issued against Arrowsmith and Wil-
son jointly. It was served on' Arrowsmith and returned, nonest,
&c. as to Wilson.
The declaration is against Arrowsmith alone, stating that h
is impleaded with Wilson. It proceeds upon a bond, &c. stated to
have been executed by Arrowsmith alone.
286 NEW JERSEY SUPREME COURT.
Bank of New Brunswick v. Arrowsmith.
This proceeding is not warranted. See Rev. Laws, 305. s^a. 3.
Although the act speaks of the separate liability of the joint
debtors, yet the mode of proceeding is specially pointed >ut.
The defendants brought in are to answer, but the judgment and
execution is to be against all, including those not brought in.
This declaration does not warrant such a judgment and execu-
tion. It does not follow the writ. It ought to set forth a bond
which justified joining the defendant Wilson in the suit.
The proper mode of taking advantage of this defective pro-
ceeding, being a departure in the declaration from the writ, is
by praying oyer of the writ and pleading in abatement.
Formerly the writ was set out in the declaration. When that
practice ceased oyer was demanded. 2 Wils. Rep. 394-5.
The modern practice of refusing oyer of the original, arose out
of a rule of court, and resulted from the power a court has in
supplying an original writ. Gray v. Sidney, 3 Bos. & Pul. 398.
Murray v. Hubbart, 1 ibid. 645-6, and 71. 1 Chit. Plead. 439.
In 1 E. & P. 646, n. the court say they cannot strictly refuse
oyer, but may direct a new writ.
The forms of such pleas may bo seen in 1 Went. 9, Story's
Pleadings 62. Under our practice acts the fiust process is im-
peratively directed. The court have no control over it. There
can be no declaration by the bye, or de bene esse.
If the declaration departs from the writ, the suit is radically
defective and should be quashed. The regular mode to get at it
is by plea in abatement.
The CHIEF JUSTICE delivered the opinion of the court.
The declaration in this action is in the usual form, on a bond
from the defendant to the plaintiffs. The defendant prays oyer
of the writ, and sets out at length a summons in a plea of debt
at the suit of the plaintiffs, against him and John S. Wilson,
then alleges that the declaration is against himself alone, and
for the variance in this respect prays that the writ and declara-
tion may be quashed. To this plea the plaintiffs have demurred ;
and the question presented to us is, whether a plaintiff, having
sued out his writ of summons against two or more defendants,
may regularly declare against one and proceed to judgment
against him only.
It may, at the outset, be observed, that this mode of proceeding
NOVEMBER TEEM, 1827. 287
Bank of New Brunswick v. Arrowsmith.
can find no support in our statute, Rev. Laws 305, section 3, which
enables u creditor to sue out process against joint debtors, and in
case an}' of them be taken and brought into court, by virtue of
such process, such of them so brought into court shall answer
to the plaintiff, and if judgment pass for the plaintiff, he shall
have judgment and execution against all the joint debtors, as if
all had been taken and brought into court. A plaintiff proceed-
ing under this section, must in his declaration shew a joint cause
of action. To such cause of action only, the mode of proceed-
ing authorized by this statute extends. In the case before us, a
separate cause of action against Arrowsmith is set out.
It is an ancient, reasonable and sound principle of the common
law, that the declaration should be conformable to the writ, and
in the language of Lord Coke, must not be either "narrower or
broader." Co. Lit. 303, a. At the earliest period of written
pleadings of which we have clear and distinct traces, either in
books of precedents or reports, the declaration when the action
was commenced by original writ, contained a recital of it at
large. If therefore, an objectionable variance existed between
the writ and the declaration, it appeared on the face of the lat-
ter, and the defendant availed himself of it by demurrer, plea
in abatement, motion in arrest of judgment, or upon writ of
error. Com. Dig. tit. Pleader. C. 13, 2 Wils. 293. Such contin-
ued the form of pleading until, in the year 1654, a rule was
made in the Court of Common Pleas, in order to dispense in
most cases with the useless repetition of the writ, that the
nature only of the action should be stated. After the adoption
of this rule it was held that the only mode whereby the defend-
ant could avail himself of a variance between the writ and count
was by praying oyer of the writ, whereby the writ as well aa
the declaration would be placed on the record. Salk. 658, 701. 2
Wils. 85, 293. Oyer of the writ continued to be granted in the
court of King's Bench, until the case of Boate v. Edwards, in the
year 1779, Doug. 227, when Lord Mansfield, delivering the opin-
ion of that court, said, the practice was used for delay, and/rom
thenceforth plaintiffs might proceed as though the demand of oyer
had not been made. Since that time, oyer of the writ, for the
purpose of setting aside the proceedings, has been uniformly
refused in both courts; and in those cases where a defendant may
avail himself of a variance between the writ and declaration, be
js permitted to do so by motion to set aside the proceedings for
288 .NEW JERSEY SUPREME COURT.
Bank of New Brunswick v. Arrowsmith. t
irregular! t}'. Gray v. Sidneff, C. P.3B.& P. 399. Spalding v. Mure,
K. B. 6 D. & E. 363. 7 £hs* 383. 1 Chit. Plead. 248. Chapman
v. 2ftan<Z, 2 JViw /&/>. 82. Holland v. Johnson, 4 J>. <fc #. 61)5.
In the Court of King's Bench, in bailable actions commenced
by bill of Middlesex or latitat, the most usual mode of institut-
ing a personal action in that court, if the writ be against two
or more defendants, the plaintiff must afterwards declare, not
against one only, but against all, or the court will on motion
set aside the proceedings for irregularity. Holland v. Richards,
4 D. & E. 697, n. Moss v. Birch, 5 D. & E. 722. 1 Archb. Pr.
60, 308. In actions not bailable, the names of four defeodanda
may be inserted in one writ, and the plaintiff may afterwards,
without irregularity, declare against all, or only one, or each
separately, and for any cause of personal action. Foster v. Bon-
ner, Cowp. 455. Hoe v. Cock, 2 T. Rep. 257. Yardley v. Burgess,
4 D. & E. 697, n..
The principles, however, on which this practice depends, are
peculiar to that court. By its original constitution it has juris-
diction, in civil cases, of actions of trespass only, by reason of
the force or breach of the peace, whereby they are in fact or
contemplation of law, accompanied. But it was held that when
once a person was brought within the jurisdiction of the court,,
he was liable to be proceeded against there for any cause what-
ever of personal action. The plaintiff, therefore, in ancient
times, actually exhibited, and in more modern times was sup-
posed to file, his bill, or plaint as it was called, for an alleged
trespass; upon which a precept issued against the defendant to
answer in a plea of trespass; and upon this precept, the defend-
ant being arrested and thus brought within the jurisdiction
of the court, the plaintiff, after the return day, exhibited a
bill, or in other words, declared, against the defendant, for a
trespass, if he bad sustained such injury, and if not, for any
cause of personal action ; and any other person might also
exhibit his bill, or declare against him for any tort or breach
of contract. Hence resulted the admissibility of including sev-
eral defendants in one writ, the purpose being simply to bring
them within the jurisdiction of the court. Hence, too, resulted
the necessity of continuing the clause of trespass in the process,
when the English statute required the cause of action to be
inserted in the writ.
From the organization of this court, and from the rules of
NOVEMBER TERM, 1827. 289
Bank of New Brunswick v. Arrowsmith.
x
procedure enacted by the statutes regulating our practice, we
can find in the practice of the English courts little for our guide
in the matter before us, beyond the principle requiring con-
formity between the writ and declaration, and the mode whereby
a party may avail himself of a departure from that principle.
By ordinance in the first place, and afterwards by act of the
legislature, the jurisdiction of this court is established. We need
not, therefore, to confer authority, a writ emanating from, the
Court of Chancery, as in the English Common Pleas, nor the
fictitious trespass of the King's Bench, or quo minus of the
Exchequer. In personal actions we have no original writ, as
technically called, supposed to be sued out; no plaint in trespass
supposed to be filed ; but the first process is required to be,
where the plaintiff is not entitled to bail, a summons, and where
he is so entitled, a capias ad respondendum. Rev. Laws 415, sect.
18. Neither the plaintiff nor any other person is permitted to
declare by the bye against the defendant in any action, sect. 57;
and if the defendant be in actual custody, the plaintiff, if ha
have other cause of action, or any other person • having cause-
of action, against the defendant, must issue process against him*
in the same manner as if he were at large and not in custody or
prison. The principles, therefore, which warrant the course of
proceeding adopted in the King's Bench, in actions not bailable,
have no place here.
From the view which has been taken of the practice in the
Court of King's Bench, to which the proceedings of this court
have most nearly approached, and to which wo have been accus-
tomed to resort for precedent, when regulations of our own wero
wanting, it appears that at and prior to the year 1776, oyer of
the writ was constantly granted ; and I am not aware that in
this court the practice has since been abrogated or denied, either
by rule, by decision, or in consequence of legislative enactment.
A defendant may therefore avail himself of a variance between
the writ and declaration, cither by oycr and plea, as has been
done in the present case, or by a motion to set aside the proceed-
ings for irregularity, The latter method, being more expeditious
and less expensive, is certainly to be preferred, and will, it is
presumed, be most usually adopted, inasmuch as by oyer and
plea the defendant will necessarily increase his own costs, for
which ho can receive no return, as in case of abatement tho
defendant recovers no costs from the plaintiff.
VOL. IV. T
290 NEW JERSEY SUPREME COURT.
Coleman v. Warne.
Inasmuch then as the rule of the common law requires the
declaration to conform to the writ; as the declaration here is
narrower than the writ ; and as the defendant may legally avail
himself of the variance in the mode he has adopted, we are of
opinion judgment should be rendered for him.
The occasion affords us a fit opnortunity to remark, although
it may in some measure wear the semblance of an obiter dictum,
that the allegation usual in the commencement of declarations,
in ordinary cases, that the defendant is in custody, may be dis-
pensed with properly and safely. In most instances it is wholly
untrue, as the defendant has been summoned only, and is neither
in actual nor supposed custody; and in all cases it is entirely
unnecessary. The allegation may well be consigned to the same
neglect as John Doe and Richard Roe, who formerly appeared
very regularly at the foot of our declarations as the sureties of
the plaintiff's prosecution, but who have for some time past
silently withdrawn their useless services, and ceased to pledge
their airy responsibility. Our writs too, should simply state the
real nature of the action the defendant is called to answer,
without the useless addition, " of a plea of trespass," where no
complaint of that nature is intended to be made.
Let the writ and declaration be quashed.
CITED IN Schenck v. Schenck, 5 Hal. 327. Beardsley v. Southmayd, 2 Gr. 544.
Bennington Iron Co. v. Rutherford, 3 Harr. 165. Harker v. Brink,
4 Zab. 348.
, PETER COLEMAN against ABRAHAM WARNE.
On an appeal from the judgment of a justice founded on a report of referees,
the affidavit required by statute (of November, 1821.) must be filed with the
justice at the time of filing the appeal bond; presenting a bond to the justice
one day, and an affidavit at a subsequent day, though prior to the next court,
to which, the appeal must be made, is not sufficient.
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 state-
ment 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. Peter Coleman, defendant, appeared before
NOVEMBER TEEM, 1827.- 291
Coleman v. Warne.
me and demanded an appeal, and having produced a bond exe-
cuted according to law, I did accept the said appeal bond.
February 12th, 1827. Peter Coleman, defendant, appeared and
made oath that the appeal was not for delay, &c.
And on the same day, being the day preceding the term to
which the appeal was to be made, the justice certifies as follows,
viz: "I do hereby certify to the Court of Common Pleas for the
county of Warren, that the foregoing is a true transcript of the
proceedings in my docket, in the above action, which, together with
the appeal bond, I do transmit to the said court." The affidavit
was transmitted with the appeal bond and transcript to the court.
On the appeal being called in its turn, the counsel for the appel-
lee moved to dismiss the appeal, because the affidavit was not
filed with the justice at the time of filing the appeal bond, although
it was filed before the first day of the term, and before the jus-
tice had certified his proceedings. The court dismissed the
appeal, with costs.
It is agreed by and between the parties and their counsel in the
appeal, tbat application may be made at the next September Term
of the Supreme Court, for a peremptory mandamus to be directed
to the Court of Common Pleas of Warren county, commanding
them to restore the said appeal ; and in case the same be ordered
to bo restored, that it be done as of course; and in case the Su-
preme Court shall refuse such mandamus, that it be also submitted
to the Supreme Court, to determine, if by law they have power
under thin application so to do, whether in such case of a dis-
missal of an appeal, the Court of Common Pleas can render
judgment for costs in favour of the appellee. August 30th, 1827.
WM. HALSEY, for appellant.
P. D. VROOM, jr. for appellee.
The CHIEF JUSTICE delivered the opinion of the court.
•
The judgment of the justice in this case, founded upon a report
of referees, was rendered on the first day of December, 1826. On
the sixteenth of that month, the appellant delivered to the justice
an appeal bond, and demanded an appeal. On the twelfth of Feb-
ruary, 1827, ho made before the justice an affidavit that the ap-
peal was not intended for delay. And on the next day the justice
transmitted to the Court of Common Pleas the transcript, appeal
bond and affidavit. That court dismissed the appeal, because the
292 NEW JEESEY SUPREME COURT.
Coleman v. Warne.
affidavit was not filed with the justice at the time of the filing of
the appeal bond. The appellant has applied to this court for a
mandamus to restore the appeal and insists that the affidavit
having been filed before the justice had made return of his pro-
ceedings, and before the first day of the term next succeeding
the judgment, until which time ho was allowed by law to
demand an appeal, was filed in due season.
The legislature have prescribed certain terms upon which an
appeal is to be granted. If these terms are not fulfilled the appeal
ought not to be sustained. The act of November, 1821, author-
izes an appeal from a judgment obtained on a report of referees
"within the same time, in the same manner, and upon the same
terms, as in other cases where an appeal i^ granted." The act
of February, 1818, requires the appellant to deliver to the justice
a bond with proper security, conditioned duly to prosecute the
appeal. The act of November, 1821, provides " that no appeal
shall be granted to remove a judgment rendered upon the verdict of
a jury, oron the report of referees, unless the party demanding the
appeal shall at the time of filing the'appeal bond with the justice,
also file with him an affidavit, made by the said party, slating
that the said appeal is not intended for the purpose of delay, and
that he verily believes that he hath a just and legal defence to
make upon the merits of the case." The language of this clause.
is too plain and explicit to admit of doubt or controversy as to
its meaning. The affidavit shall be filed at the time of filing the
bond. No appeal shall be granted unless the affidavit be so filed.
Such are the expressions used by the legislature. But it is in-
sisted that a meaning different from the plain import of the words,
and a rule variant from what is thus distinctly prescribed, should
be adopted by the court, because many inconveniences may other-
wise result. Some of these anticipated inconveniences are more
imaginary than real. For instance, if the appellant should file
a bond without filingan affidavit, he might, notwithstanding, after-
wards, within the period allowed for demanding an appeal, file
another bond with a proper affidavit, and thereby entitle himself
to the appeal. But whatever disadvantages may flow from the rule
prescribed in the act, we cannot substitute another rule which
might, in our view, be more suitable and convenient. As we re-
marked in the case of Miller v. Martin, 3 Hoist. 204, " We are
not at liberty to say the legislature did not intend what they
have clearly and unequivocally expressed, or that they could not
NOVEMBER TERM, 1827.
The State v. Rickey.
impose such a condition, since they might have wholly denied
the appeal." If serious inconveniences exist, wo have no doubt
the wisdom of the legislature will promptly remove them.
Upon the question whether the Court of Common Pleas
rightly ordered costs on the dismission of the appeal, we express
no opinion. The point is not regularly before us.
The application for mandamus is overruled.
CITED is Tichenor v. Hewson, 2 Gr. 29.
THE STATE against LAMBERT RICKEY and others.
1. An indictment for conspiracy may be quashed-.
2. A motion to quash comes in the place of a demurrer, and therefore can
only be made for causes apparent on the indictment or caption.
3. The panel of the grand jury returned by the sheriff, or the caption thereto,
should shew the purpose for which, the authority by which, and the court to
which, the persons named in the panel were summoned.
4. Although the panel returned by the sheriff, by which the grand jury are
called and sworn, is defective, yet it may, by order of the court, be amended, or
a new one substituted, at any time during the day on which it is returned,
previous to the presentment of any bills of indictment.
5. The conspiring together to commit a crime of an indictable nature is a
crime, and the offence is complete when the conspiracy is made, though no act
be done in consequence of it.
6. An indictment will not lie for a conspiracy to commit a civil injury of any
description, that is not in itself an indictable offence.
7. It is not an indictable offence for several persons to conspire to obtain money
from a bank, by drawing their checks on the bank when they have no funds there.
This was an indictment presented by the grand jury of the
county of Ilunterdon, to the Court of Quarter Sessions of said
count}*, in the term of February, 1827, against Lambert Rickey
and others, charging tbat " Lambert Rickey, J. S., J. II., J. D. and
J. A., being evil disposed persons, wickedly designing and intend-
ing to injure and defraud the president, directors and company,
of the Slate Bank at Trenton, on the first day of May, in the
year of our Lord one thousand eight hundred and twenty-five,
with force and arms, at the township aforesaid, in the county
aforesaid, did amongst themselves conspire, combine, confederate
and agree together, to obtain large sums of money and bank
bills, the property of the president, directors and company of
the Stale Bunk at Trenton, by means of the several checks and
294 NEW JEKSEY SUPEEME COUET.
The State v. Rickey.
drafts of the said Lambert Eickey, J. S., J. H., J. D. and J. A.
respectively, to be drawn on the cashier of the said the presi-
dent, directors and company of the State Bank at Trenton, when
they the said L. E., J. S., J. H., J. D. and J. A. respectively, had
no funds in the said bank of the said the president, directors and
company of the said State Bank at Trenton, for the payment of
the said checks and drafts. And the jurors aforesaid, upon
their oath and affirmation aforesaid, further present, that L. E.
afterwards, to wit, on &c. at &c. in pursuance of, and according
to, the said conspiracy, combination, confederacy and agreement
amongst them the said L. E., J. S., J. H., J. D. and J. A., had as
aforesaid, did obtain from the said the president, directors and
company of the State Bank at Trenton, a large sum of money,
to wit, the sum of five thousand three hundred and thirteen
dollars, in bank bills of the said the president, directors and
company of the State Bank at Trenton, to the great damage of
the said the president, directors and company of the State Bank
at Trenton.
"And the jurors aforesaid, upon their oath and affirmation
aforesaid, further present, that J. S. afterwards, to wit, on &c.
at &c. in pursuance of, and according to, the said conspiracy,
confederation and agreement amongst them the said L. E., J. S.,
J. H., J. D. and J. A., had as aforesaid, did obtain from the said
the president, directors and company of the State Bank at
Trenton, a large sum of money, to wit," &c. &c. [as in the pro-
ceding count]. And the indictment specified in the same manner
the several sums obtained from the bank by each of the defendants
above mentioned. The indictment was removed by certiorari
into this court; and upon the return thereof a rule was taken
upon the clerk of the Quarter Sessions, to send to this court
the original panel or list of the grand jurors returned by the
sheriff. In obedience to this rule the clerk returned two
panels, or lists, both of which were marked by him as filed on
the first day of the term at which the bill of indictment was
found. The first panel was nothing more than the names of the
grand jurors, with the words '"Quarter Sessions, February Term,
1827," and signed by the sheriff. The second panel contained
the names of the grand jurors, preceded by a caption, in
substance as follows: "I, G. H. sheriff of the county of Hun-
terdon, do hereby return to the Court of Quarter Sessions of
the said county, that I have duly summoned the following
NOVEMBEB TERM, 1827. 295
The State v. Rickey.
persons to make a grand jury for the state of New Jersey,
in and for the county of Hunterdon, by virtue of the statute
in such case made and provided." It appeared by the admission
of the attorney for the state, that this second panel was not
filed until after the grand jury were called and sworn, and
had retired to their room to attend to their business, but that it
was filed on the same day that the grand jury were sworn, and
before any bill of indictment had been presented by them to the
court. By virtue of a rule of court which had been previously
granted for the purpose, a number of affidavits had been taken to
prove that some of the grand jurors who had presented the indict-
ment, had, before they were sworn as jurors, made up and ex-
pressed opinions unfavoi'able to the defendants, and that one of
the grand jurors was a stockholder in the bank mentioned in the
indictment.
Wall, Vroom and L. H. Stocldon, for the defendants, moved to
quash this indictment —
I. Because it did not appear that the grand jury, by whom the
indictment was presented, had been legally convened.
1. It was necessary, they said, that it should appear by the
sheriff's return, that he had duly summoned the grand jurors. The
first panel was totally defective; it did not shew that the persons
therein named, were summoned as grand jurors, nor by what
authority they were summoned; and it was precisely like the
case of The State v. Arrowsmith, decided in this court in Septem-
ber, 1826, in which an indictment was quashed for the want of
a sufficient panel and return.
2. That if the first return was void the second could not alter
it. It was necessary that the grand jury should bo convened by
proper authority, and if the authority is not complete, then all
their proceedings are void. The panel and return of the sheriff
lay at the foundation of the whole proceeding, and after it had
been once made, the sheriff's authority terminated, and ho had
no right to alter it. It was not like the caption to an indict-
ment, which could be amended ; this return was a statutory
proceeding, and could not be dispensed with. Previous to tho
statute, Rev. Laws 658, process was regularly issued to summon
the grand jury ; and an indictment was quashed for want of
such process. 2 South. Hep. 542.
II. The second reason relied upon by the counsel of the
296 NEW JERSEY SUPREME COURT.
The State v. Rickey.
defendants, was that some of the grand jurors had formed and
expressed opinions unfavorable to the defendants, previous to
their being sworn on the grand jury; and in support of this
reason they offered to read certain affidavits taken in pursuance
of a rule of this court.
W. Halsted, for the state objected to the reading of the affi-
davits, that they did not contain matter which could be properly
used upon a motion to quash. A motion to quash had been re-
cently resorted to, instead of the more ancient and usual modes
of demurring, or moving in arrest of judgment, and could there-
fore only be allowed for matters appearing on the record, and
not for extrinsic causes. 1 Chit. Or. L. 204. 1 Stark. Cr. L. 299.
1 El. Rep. 275. The objection as to the qualification or interest
of a juror could only be taken advantage of in this stage of the
proceeding by plea in abatement. 2 Halst. Rep. 322. 2 Hawk.
296. 2 Hale P. C. 155. 1 Chit. Cr. L. 252.
FORD, J. — This is a motion to quash an indictment, and comes
in the place of a demurrer, and therefore I see no reason why
we should depart from the rules applicable to demurrers. If a
defendant makes objection to the form of the indictment he
must take issue on the fact or the law ; he cannot do both. And
so on a writ of error. If the indictment is sufficient upon th.o
face of it we cannot quash. I think therefore that the affidavits
cannot be read.
DRAKE, J. — I have not expressly formed my opinion whether
we can quash for matter of fact. But as the fact is not admitted,
I think the party must be put to his plea. Affidavits rejected.
The counsel for the defendants then contended that the indict-
ment was defective in form and substance. It did not set forth
any offence for which an indictment would lie. For a man to
overdraw his account in a bank was not an indictable offence, but
a mere civil injury, for which a civil remedy was given, and that
therefore an agreement or combination between several persons
to overdraw their accounts was not such a conspiracy as was
indictable. 13 East 220.
As to the form of the indictment they contended that wherever
the crime consisted, not in the confederacy, but in the manner in
NOVEMBER TERM, 1827. 297
The State v. Rickey.
which it was done, the specification should set out particularly
the manner in which the crime was committed, and that the
specification contained in this indictment did not state in what
way the money was to be taken out of the bank; and cited 6
Went. Plea, 387 319. 4 ib. 90, 121. 4 BL Com. 175. 3 Chit. Cr.
L. 1145. Arch. Cr. L. 395.
W. Ilalsted, for the state, contended —
1. That the first panel, or list of grand jurors, returned by the
sheriff, was sufficient. That it contained the substantial requisites
contemplated by the statute, .Rev. Laws C58, which was intended
to do away all formal process for summoning or returning the
grand jury, and distinguished the present from the case of The
State v. Arrowsmith, in which the panel was not signed by the
sheriff.
2. That if the first panel and return were defective, they might
be amended at any time during the term, or at least before any
indictment was presented ; and that the second panel and return,
which had been made out by the sheriff and filed the first day
of the term, was perfect and complete.
3. That the indictment was good, both in form and in sub-
stance. As to the first, that the conspiracy, or illegal combina-
tion, was the gist of the offence, and that it was quite sufficient
to state the fact of the conspiracy, and its object, without setting
out the specific means by which it was to be accomplished. 2
Mass. Rep. 329. 2 Barn, and Aid. 204. The King v. Gill and
Henry, 1 Leach, cases 39. 2 Russel on Crimes 1820, 1819. 9 Coke
Rep. 57. 6 Mod. 187. That an indictment would lie for conspir-
ing to do an act, which, if done by a single individual, would not
be an indictable offence, Rex v. Cope, 1 Str. 144; and upon the
subject of conspiracies generally, ho cited 8 Mod. Rep. 10. 6
Term Hep. C28. The King v. Mawbrey, 9 Mass. Rep. 415. 1 John,
cases 301. 3 Serg. and Raid. 320. 3 Maule and Sel 67. 2 Campb.
Rep. 358, 372. 1 Criminal Recorder 143. 2 Stark. Cro. Law 724,
note. 3 Chit. Cr. L. 904. 2 Arch. Cr. L. 309.
The CHIEF JUSTICE being one of the stockholders in the State
Bank at Trenton, gave no opinion in the cause.
<
FORD, J. — The defendants, having been indicted for conspiracy
at the liunterdon Quarter Sessions of February, 1827, caused the
298 NEW JERSEY SUPREME COURT.
The State v. Rickey.
record of the indictment to be removed into this court, and hero
moved to, quash it upon certain objections in point of law, which
were submitted upon argument to the consideration of the court.
The first objection to the record is that the grand jury were
not lawfully impanelled or I'eturned to the sessions. It appears
that the sheriff presented two panels for a grand jury; that
he filed both of them on the first day of the term ; in each of
which the names of the grand jurors are the same ; and that the
only difference between them lies in their caption ; the caption
to the first pam*l being no more than these three words, "Feb-
ruary Sessions, 1827 ;" not shewing that the persons were re-
turned to make a grand jury, nor by what authority, nor for what
county, nor for what court. The caption given to the second
panel is complete in all these particulars, and runs as follows:
"I, Gabriel Hoff, sheriff of the county of Hunterdon, by virtue
of the statute in such case made and provided, have caused to
come before the Court of General Quarter Sessions of the Peace
for said county, on the first Tuesday in February, 1827, to
make a grand jury, to enquire for the state of New Jersey in
and for the said comity, the following good and lawful men."
The prosecutor on the part of the state conceded that the first
was the only panel that existed at the time the grand jury was
sworn, and that the sheriff made out the second panel afterward;
but it was filed in court on the same day, before any bills were
presented. The counsel for the state endeavored to sustain
the caption to the first panel, and referred to the act of the
second of November, 1822. It provides "that the respective
sheriffs of the several counties shall cause to come before the
Courts of General Quarter Sessions of the Peace of the several
counties in this state, at the times and places of holding their
respective courts, twenty-four good and lawful men to serve as
grand jurors, and so many good and lawful men to serve as
petit jurors as shall be necessary, and that without any precept
being issued for those purposes." This statute did away the old
precept, which had always shewed the authority for convening
the grand jury, and substituted the statute itself in place of that
precept ; but it did not do away the established practice of shew-
ing on record the authority by which the jury were convened;
and that omission in the record cannot be cured by any guess
worK, intendment or presumption. In criminal prosecutions,
where men are in jeopardy as respects their reputation, estate,
NOVEMBER TEEM, 1827. 299
The State v. Rickey.
personal liberty, and life itself, nothing can be supplied by way
of intendment or presumption, that ought to appear on the
record. The statute substitutes itself in place of the precept
that was formerly issued; and the sheriff must make his return
in obedience to the statute, just as much as he made it formerly in
obedience to the precept. In the case of The State v. Nichols, 2
South. 543, this court declared, that a grand jury has no au-
thority to enquire and present, unless they appear to be legally
impanelled. Now the caption of the first panel does not shew
that the grand jury were returned by the authority of the statute;
nor for what county they were returned; nor that they were re-
turned to make a grand jury; nor for what court they were
returned; for though one of the three unintelligible words at
the head of the panel is "sessions," there are Sessions of Oyer
and Termincr as \vell as Sessions of the Peace, and this does not
specify either. It was said that the entry of the clerk on the
minutes would shew that they were returned for a grand jury;
that it would shew likewise the county and the court. But the
clerk cannot supply these deficiencies; the statute commits these
high powers to the sheriff, and no more authorizes the clerk to
officiate in them than it does the cryer or the constable. The
late decision of the court in The State v. Arrowsmith -was in per-
fect accordance with these sentiments, and would rule the pi-esent
case. There the caption contained only four words, "Somerset
Sessions, such a term;" it was in the handwriting of the sheriff
himself, but it had not his name subscribed to it, nor was it
called in the caption a grand jury, nor was it alleged to be re-
turned by authority of the statute; and the court held it to be
insufficient in toto, and quashed the indictment. I have been the
more particular in these objections to the caption of the first
panel, and its incompetcncy in point of law, lest any one should
suppose that it had received the countenance or sanction of this
court, and so a highly reprehensible mode of returning grand
jurors, which lies at the foundation of the record, should creep
into use at the Sessions or the Ctyer and Terminor.
But there is a second panel connected with this record; it was
filed as a record of sessions the same day as the former; together
with a caption shewing that it was a list of names returned for a
grand jury to the Court of General Quarter Sessions of the Peace
for the county of Hunterdon, by the sheriff of I hat count}', in virtue
of the high authority of the statute; and it id complete in all its
3(K NEW JERSEY SUPREME COURT.
The State v. Rickey.
parts. What good reason has been offered for the rejection of
this valid panel, and the adoption of one altogether worthless
and void? The sessions have made it a regular record of their
court, without their order, verbal or written, nothing can go law-
fully on their files; and they have returned this as part of their
record. It is said that the jury was called and sworn by the
first panel: but if they were lawfully impanelled and returned,
it is evidently unimportant from what list they were called; the
clerk might do it from the first or the second, or a copy of either,
or from memory if he was able, provided that he called and
swore the right persons. If there is a good caption, and the
right jurors appear to be sworn, the court will not enquire what
list the clerk hud before him. But it is objected that the second
panel was not in existence at the time the grand jury was sworn.
I insist that it did exist, in contemplation of law at the very
time; and that it was the only panel acted upon in court. The
sheriff returned a void panel; the court refused to accept it in
that form, as is frequently the case at Oyer and Terminer, and
ordered it to be amended according to law; this amendment was
made the same day, and as soon as the clerical execution of the
order could be accomplished. All this is plainly inferrable from
the record before us. In the meantime the court considered*the
amendment, and the order for it, as one and the same thing, and
on every principle of amendments they had a right to do so.
It was not necessary to stop the business of the court and arrest
the swearing of the grand jury while the sheriff was making the
amendment ordered, and in contemplation of which the court
was acting. The record is therefore complete as respects tho
impanelling and return of the grand jury, and there is no good
ground for quashing the indictment on this account.
Secondly. The defendants object to the charge in the indict-
ment. They sa3T, that admitting everything alleged in it to bo
true, it does not amount to an indictable offence. The charge is,
that the defendants, intending to defraud the State Bank at Tren-
ton, conspired together to obtain large sums of money from it, by
means of their several checks to be drawn on the cashier, when
the}' respectively had no funds in the bank for the payment of said
checks; then it charges, that in pursuance of such conspiracy each
defendant did obtain a certain large sum of money from the bank,
and the indictment concludes, to the great damage of the bank.
Now if a conspiracy to defraud the bank, by drawing their
KOYEMBER TERM, 1827. 301
The State v. Rickey.
checks on the cashier when they had no funds there, be an indict-
able offence, the defendants may be convicted of it, although they
never put ihc conspiracy in execution. If two or more persons
conspire to murder I. S., they may be indicted and convicted of
the conspiracy, though the murder of I. S. never ensued, and
though the conspirators took no step towards putting the con-
spiracy in execution. The carrying of a conspiracy into execution
is a great aggravation of it. but makes no constituent part of the
offence. In 2 Hawk. ch. 72, sec. 2, it is declared that not only they
who cause a man to be falsely indicted, are indictable; but they
•who conspire to cause it to be done, whether it be done or not. So
Holt, C. J. sa}'8, in Rex v. Best, 6 Mod. 186, a conspiracy, without
more, is a crime ; the very agreeing together to charge one falsely
with a crime, is a consummate offence. In Rex v. Edwards, 8 Mod.
321, he says, a bare conspiracy is a crime though no act be done
in consequence of it. In Saville v. Roberts, 1 Ld. Raym. 1179,
he says, conspiracy though it be not put in execution, is a crime,
and punishable in the leet. In The Commonwealth v.Judd,2
Mass. 329, Parsons, C. J. saj's, the offence is complete when the
conspiracy is made; any act in pursuance of it is no constituent
part of the crime, but merely aggravation. Wo may therefore
lay out of present view that part of the indictment which is
merely in aggravation of the crime, in order to fix our attention
more clearly on the crime itself.
The charge then is that of conspiracy ; and the counsel for the
state insists that the very term conspiracy, is always taken, in
maid parte, in an evil or criminal sense. 2 Bur. 997. Itmaybeso
when taken by itself; butwhen used in connection itasstimes, either
an evil or innocent meaning according to the nature ofit*object,or
the means it <neditales to employ. A combination of persons to
commit murder must be considered in an evil sense on account of
the wickedness of its object; so a combination to obtain the public
reward by prosecuting a person to conviction for high way robbery
is lawful in its object ; but if the means to bo employed are per-
jury and the subornation of witnesses, the combination becomes a
shocking evil, on account of the turpitude of the means; and in
both cases the term conspiracy is to be taken in mala purte. But
on the other hand, if a combination meditates the attainment of a
lawful object, by honest means, as if two or more combine and
conspire to carry on a lawful manufacture, by means of their in-
dustry and credit, such combination or conspiracy is never taken
302 NEW JEESEY SUPEEME COTJET.
The State v. Rickey.
in an evil sense. We can determine nothing therefore from the
mere word itself, without investigating the object of the con-
spiracy, and the means that were to be used by the persons
conspiring. This brings us to an immediate consideration of the
object in the present case, and of the means that were to be em-
ployed. The object charged in the indictment is to defraud tho
president, directors and companj7, of the State Bank at Trenton;
the means charged are, by checks to be drawn on the cashier,
when the defendants had no funds in that bank for the payment
of their drafts. And the question is, whether this object, con-
sidered in itself, or in connection with those means, constitutes
an indictable offence. One argument in proof of its being indict-
able, was attempted to be drawn from the abstract meaning of the
word to defraud; and it was shewn that Walker explains it by
approximating terms, signifying to rob, to deprive, to cheat. It is
clear, however, that this charge is not for a robbery of the bank
by putting in fear; it is no less clear that an indictment for
depriving the bank of money could not be maintained. The last
meaning given by Mr. Walker is to cheat; but cheating is not
always indictable; it is never so unless when effected by false
tokens, or such methods as people cannot by any ordinary care or
prudence be guarded against. It must be a cheat that affects
the public, such as selling by false weights and measures or the
use of false tokens; therefore the selling of an unsound horse as
and for a sound one, though it be a cheat, is not indictable; the
buyer should be more on his guard. 2 Bur. 1129, Rex v. Wheatley.
So where a defendant pretending to be sent by S. for twenty
pounds, obtained the money, whereas S. did not send him, the
court said it was no crime unless he came with false tokens;
shall we indict one man for making a fool of another? let him
bring his action ; and the indictment was quashed. Rex v. Jones,
2 Ld. Raym. 1013 ; 1 Salk. 379, and 6 Mod. 105, the same case.
If, therefore, to defraud means to cheat, it affords one conclusive
argument; because to cheat a private person is not indictable,
without it is connected with false tokens; and drawing a bill on
a banker in whose hands the drawer h^d no funds, was decided
not to be a false token, in Rex v. Lard, 6 Term Rep. 565. A con-
spiracy to cheat the public in general is an indictable offence.
This may render it necessary to enquire to what class of persons
the president, directors and company, of the State Bank at
Trenton, belongs in law; whether they are public or private
NOVEMBER TEEM, 1827. 303
The State v. Rickey.
persons. They are a corporate body in law; they may sue and
be sued, contract and be contracted with ; but their actions at
law are private suits, their agreements stand on the looting of
private contracts, and are enforced only by civil actions ; offences
against them stand on the footing of offences against an individ-
ual person, a citizen, or number of citizens doing business under
a firm ; and they are distinct from the state and all its political
subdivisions, such as counties and townships; their agents are
not public officers, and they have no political or judicial powers;
a conspiracy to defraud a mercantile house or a private banker,
would be just as indictable as one to defraud the president, direc-
tors and company of the State Bank at Trenton ; and they are
private persons to all the purposes of the present case.
The question now fairly arises, whether an indictment lies for
a conspiracy to defraud an individual, or to injure him in his
property, trade or reputation. In 3 Inst. 144, we find that it ,
will not; conspiracy is there represented to be an agreement
between two or more, to indict an innocent person falsely and
maliciously; and the great learning of Lord Coke, together with
the numerous authorities there cited, lead to a firm belief that
the common law as understood in his time, carried conspiracy
no further than to the single act of getting an innocent man
indicted by malice and false evidence. It is also very remarka-
ble, that in that accurate and celebrated work entitled "Com-
mentaries on the laws of England," Judge Blackstone, even so
late as his time, should have adhered to the same doctrine, and
represented conspiracy in no other light than a combination to
indict an innocent man falsely and maliciously, of felony. 4 SI.
Com. 135. It is no less remarkable that our own penal code,
Rev. Laws 258, sec. 53, should carry the offence no further, and
merely represent conspiracy to be a combination to get a person
indicted by means of malice and false evidence ; as if purposely
to maintain the doctrines expressed in the Institutes and Com-
mentaries, and not to embrace any other kinds of conspiracy.
It is certain that our statute did not create a new offence ; it was
always indictable to conspire to get an innocent man indicted
by malice and false evidence; the statute is only declarative of
the common law. What strengthens the idea that our own leg-
islature intended to admit of no other kind of conspiracy than
that mentioned in the fifty-third section, arises from their hav-
mg enacted, Rev. Laws 462, sec. 1, that no person convicted of
304 NEW JERSEY SUPEEME COIU1T.
The State v. Rickey.
conspiracy shall ever afterward be sworn as a witness in any
cause; whereas there are a great many cases of conspiracy ia
the English books, where the loss of liberam legem, does not
ensue a conviction. See note 4, by Mr. Christian, in 4 El. Com.
135. Persons convicted of conspiracy in this stale cannot bo
sworn as witnesses afterward, and by necessary consequence
cannot be sworn or serve on juries; they lose their liberam
legem, that is, the qualities of good and lawful men forever after.
How far this awful disqualification affords an argument against
extending the offence of conspiracy beyond the limits assigned
to it in the Institutes, the Commentaries and our own penal
code, is well worthy of consideration. On the other hand it is
not to be denied that there are decisions in some of the English
books, before our revolution, and a multitude since that period,
which carry the doctrine to an almost infinitely greater extent.
Thus an indict ment has been maintained for a conspiracy to
accuse one of being the father of a bastard child, 6 Mod. 185; to
get a person to run booty in a foot race, 6 Mod. 42; to get a
parish pauper married to a man who was a pauper in another
parish, 8 Mod. 311 ; to raise workmen's wages, 8 Mod. 11 ; to sell
a base mixture as and for port wine, 2 Ld: Raym. 1179; to put
grease in a card-maker's paste, 1 Stra. 144; to seduce a female
to prostitute her innocence, 3 Bur. 1344; to bribe commissioners
of the treasuiy, 2 Campb. 230; to cause themselves to be reputed
persons of property in order to defraud tradesmen, 1 Campb. 399;
to personate another in marriage, 1 Leach 38. It is useless to
enumerate more cases. The immeasurable extent to which
conspiracy has been carried beyond the limits of our penal
code,'may be estimated from a passage in 3 Chit. Cr. L. note p.
•wherein the author arranges conspiracy last in the whole cata-
logue of crimes, because it appertains to every other crime. There-
fore according to the English books, an indictment lies for a
conspiracy by two or more, to commit murder, homicide, treason,
arson, rape, burglary, forgery, assault, battery, mayhem, larceny,
escape, rescue, extortion, bribery, malicious mischief, offences
against the public health, the public peace, public police and oacon-
omy, and every species of public crime and misdemeanor, though
such crime or misdemeanor was never perpetrated, but only
meditated and conceived in the mind. Now, whether conspiracy
is limited in New Jersey to the single case mentioned in the Insti-
tutes, the Commentaries, and our own penal code, or compre-
NOVEMBER TERM, 1827. 305
The State v. Rickey.
hends every possible case of crime or misdemeanor that the human
mind can, conceive, are questions worthy of mature consideration ;
but they are questions which I mean neither to discuss at present,
nor to intimate an opinion upon them. But I do mean to say
that such are, at least the outside limits, the very ne plus ultra
of the doctrine. Conspiracy is limited, at least, to combinations
to commit an act, which, if committed, would be an indictable
offence. There are authors who push the doctrine beyond even
this limit; who say that a combination to prejudice a private
person, either in his property, trade or reputation, is indictable as
a conspiracy. Thus in 3 Chit. Crim. Law. 903, he says that "all
confederacies wrongfully to prejudice another, are misdemeanors
at common law, whether the intention is to injure his property,
his person, or his charactei'." And Archbold, 390, follows him
in this respect, and says the same thing. It is this extension of
conspiracy to private injuries not otherwise of an indictable
nature, and in which the public have no concern, to which I object,
and insist that it cannot be maintained, neither on the principles
of the common law, nor by adjudged cases. The principles of
the common law have clearly distinguished between public and
private wrongs from the eai'liest ages to the present time. Thus
Blackstone understood it; he says, "wrongs are divided into
two species, the one private and the other public." 4 Bl. Com. 1.
Again he says: "the distinction of public wrongs from private
consists in this, that private wrongs are an infringement of the
civil rights which belong to individuals; public wrongs are a
breach of the public rights and duties due to the whole com-
munity." Id. 5. And again, " wrongs are divisible into two sorts
or species ; private wrongs and public wrongs." 3 Bl. Com. 2.
Therefore to convert mere private injuries into public wrongs,
is contrary to the very first principles of the common law. And
I say, after a full examination, that there is no adjudged case
of authority, where conspiracy has been held to lie, unless for
an indictable offence independent of the conspiracy. Mr. Arch-
bold, in page 390, collects all the cases supposed to maintain
the contrary doctrine, but they fall infinitely short of his prin-
cipal ; they are all for offences of an indictable nature, inde-
pendent of the conspiracy ; none of them were maintained on any
other groun'd. This will clearly appear from the cases them-
selves, which I shall examine in the order ho adduces them.
The first is that of Rex v. Macarty and another, 2 Ld. Eaym. 1179;
VOL. iv. u
306 NEW JERSEY SUPREME COURT.
The State v. Rickey.
it was a conspiracy to impose pretended wine on a man, in ex-
change for one hundred and eighteen pounds worth of hats; one
of the defendants pretended to be a wine merchant, the other to
be a London broker. The court had great difficulty in making
this out to be an indictable offence, or anything more than a
private injury. It was twice argued before them. The same case
is reported in 6 Mod. 301. Finally Chief Justice Holt declared it
was a cheat in the hats by means of false tokens. Now, independent
of all conspiracy, it is an indictable offence, by statute as well as
at common law, to cheat by false tokens, and on that ground alone
the indictment was maintained by the court. How surprising
it is that Mr. Archbold should cite this as an instance of con-
spiracy maintained for a mere private injury, in which there was
no semblance of public wrong but the conspiracy itself. He is
equally unfortunate in the next case, of Rex v. Robison and Taylor,
1 Leach. 38. Mary Robison, the servant of a batchelor, conspired
with Taylor, a porter, to personate her master and marry her;
she stole the batchelor's coat, shirt, neckcloth and wig; they
were assumed by Taylor, together with the name of Mr. Hol-
land, the batchelor, and in this false name, supported by these
false tokens, he was married by the name of Holland to Mrs.
Robison, in order to defraud and injure the batchelor. Who does
not see in this a fraud by false tokens indictable at the common
law, independently of the conspiracy and of the private injury.
The next is the case of Rex v. Eccles, for which he cites 1 Leach.
274, but this is a mistake ; the case is to be found in 13 East 230,
note a. It was a conspiracy to prevent one H. B. from exercising
the trade of a tailor. Lord Ellenborough, C. J. saj-s, "The King
v. Eccles was considered a conspiracy in restraint of trade, and so
far, a conspiracy to do an unlawful act affecting the public." Seo
Rex v. Turner, 13 East 231. The next case is cited from 1
Hawk. ch. 72, sec. 2, but more fully stated in Rex v. Best et al.,
6 Mod. 185 : a conspiracy to charge a man with being the
father of a bastard child; in other words, to charge him with
fornication, which is an indictable offence by our statute. In
England it is punishable in the spiritual court as a crime ; Holt,
C. J. said, " If it be a crime by any law the conspiracy is indict-
able." The next is from 3 Maul, and Selw. 67, a conspiracy to
raise the prices of the public funds as being a fraud upon the public.
This speaks for itself. Rex v. Roberts and another, I Campb, 399,
was a conspiracy by the defendants, who were in low circum-
NOVEMBER TERM, 1827. 307
The State v. Rickey.
stances, to cause themselves to be reputed men of property, in
order to defraud tradesmen. Lord Ellenborough called it a con-
spiracy to carry on the business of common cheats; which is an
indictable offence against the public, independently of the con-
spiracy. The next is Rex v. Henry and another, 2 East P. C. 858, a
conspiracy to issue and negotiate bills in the name of a fictitious
and pretended banking firm to defraud the public; here was an
indictable offence independent of the conspiracy; an offence
against the public ; and the case speaks for itself. Rex v. Tarrantf
4 Bur, 2106, was not a case of conspiracy, for there was but one
defendant ; it was an information against him for a public offence
against a parish. There are other cases in the books not cited
under this head by Archbold; but they are all resolvable into
public wrongs: such as journeymen combining not to work till
they get an advance of M'ages, an offence in restraint of trade:
so conspiring to hiss at a theatre, in order to put down an
actor, obstruct the performance of a play, or compel the mana-
gers to lower the price of tickets, which amounts to a. 'riot and
breach of the peace. So far is it from being true that conspir-
acy will lie for a private injury, which is no public wrong independ-
ently of the conspiracy, that these authors have not cited a single
case which maintains such a doctrine. There is one, however,
which I consider a perfect anomaly, as variant from the com-
mon law as from the principle of every other adjudged case. It
is Rex v. Cope and others, 1 Stra. 144. The prosecutor was a man-
ufacturer of playing cards; he is called the king's card maker;
the defendants were indicted of a conspiracy to ruin the trade
of the prosecutor, by hiring his apprentice to put grease into the
paste, which spoiled his cards; and the defendants were con-
victed for what appears to mo to bo a mere civil injury. If this
can be maintained, conspiracy may take the place of almost
every civil action. We shall have conspiracies against two or
more for non-payment of a note at its maturity, whereby the
creditor suffers a private prejudice in b'iBproperty or trade; against
two or more for conspiring to break their covenant; for the con-
version of goods, and for agreeing to take a walk over their
neighbor's grounds; and judgments inflicting legal infamy will
pprend through the state. A foresight of those consequences led Mr.
Chitty to exclaim, with evident alarm, "that there are, perhaps,
li-\v things left so doubtful in the criminal law, as the point at
which a combination of several persons in a common object
308 NEW JERSEY SUPREME COURT.
The State v. Rickey.
becomes indictable." 3 Chit. Cr. L. 905. If private injuries,
(in themselves not public wrongs) are, according to Mr. Chitty,
indictable as conspiracies, his complaint is but too well founded ;
but his doctrine is not only unsupported by any adjudged case,
but the reverse of it was established by a solemn decision in the
case of Rex v. Turner and others, 13 East 228, which has settled
the point in England, perhaps forever. The defendants conspired
and combined together to invade by night a preserve for hares
belonging to Of. and to arm themselves with weapons, in order
to resist any attempt to arrest them in snaring the hares of the
owner; which conspiracy they carried into execution, and were
indicted and convicted. It was moved in arrest of judgment
that this was a mere trespass on property, at most only an
injury of a private nature, and was not an indictable offence. The
counsel on the other side cited the leading cases collected in
Archbold. EJlenborough, C. J. delivered the opinion of the court
that judgment be arrested. He took notice of the distinction "be-
tween private injuries and public wrongs. He said that Spragg's
case was a conspiracy to indict another of a capital crime, which
no doubt is an offence. That Eex v. Eccles was considered as a
conspiracy in restraint of trade, and therefore an act affecting the
public. Then as to civil injuries, he said, I should be sorry that
the cases of conspiracy against individuals, which have gone far
enough, should be pushed still further. I should be sorry to
have it doubted whether persons agreeing to commit a civil tres-
pass, should be in peril of an indictment which would subject
them to infamous punishment. Now, a stronger case of mere pre-
judice to an individual and his property can hardly be conceived;
it has the double aggravations of being done by night, when
honest men are asleep, and with weapons avowedly prepared to
break the peace in case they were attacked within the preserve;
nay the destruction of game by unqualified persons in England
subjects them to a penalty on conviction before a magistrate. I
concur most fully in the principles of this case. Indictments are
appropriated to public wrongs ; and civil actions to private in-
juries. If therefore it be true, which at present I neither admit
nor deny, that an indictment will lie for a conspiracy to com-
mit ever}* species of offence against the public, however small
or trivial, such is, at least, the uttermost extension of the doctrine ;
beyond these limits no indictment for a conspiracy will lie. This
is evident from the principle of every decision to be found in the
NOVEMBER TEEM, 1827. 309
The State v. Rickey.
books, except the anomalous case of the king's card maker, which
is pointedly overthrown by the last decisive case of Rex v. Turner.
Arid it may be laid down as a settled rule, that an indictment will
riot lie for a conspiracy to commit a civil injury of any description
that is not in itself a public offence.
The conspiracy in this indictment is for the commission of no
crime or misdemeanor against the public; the fraud, if it be such,
is against a private company, without the employment of false
tokens, and is such as ordinary care on the part of the president,
directors and company, would have guarded them against, and.
for which they may have a civil remedy. If they lent the
money to the defendants without exacting security, and upon
their individual credit, they took checks, which are as good as
notes of hand or bills for the money. Every trading firm over-
drawing its funds in the bank, would be liable to an indictment
for conspiracy, on the same principle, and to lose their liberam
legem, their right ever to be sworn as witnesses, or to serve on
juries, and would become, as it is termed, infamous in law. It is
not an unusual thing for traders and dealers to overdraw their
funds in bank, nor for directors to permit it to be done. It may
be redressed as a private wrong by an action of debt or assump-
sit, to recover back the money; but in all its features it is a
private transaction, which cannot, on any known principle, bo
wrought up into a crime or misdemeanor against the public. For
these reasons the indictment cannot be sustained, and in my
opinion must be quashed.
DRAKE, J. — A preliminary question has been raised, as to the
mode in which this indictment is presented to the consideration
of this court. It is said that the English courts will not quash in
cases of conspiracy, but leave the defendants to demur, move in
arrest of judgment, or bring a writ of error. It is true that they
appear unwilling to encourage this form of objecting to indict-
ments. They say it is not ex debito justifies ; and in the exercise
of their discretion they refuse it in many cases of misdemeanors,
and almost uniformly in cases of enormous crimes, as treason,
forgery, perjury, &c. But the practice of this court is different.
In 2 South. 541, it is laid down, that the court will never compel
a defendant to file a demurrer to the insufficiency of an indict-
ment. Nor is it easy to be seen why defendants should bo com-
pelled to move in arrest of judgment, or bring a writ of error.
310 NEW JERSEY SUPREME COURT.
The State v. Rickey.
The proper administration of the laws requires, on the one hand,
that nice and technical objections should receive no more atten-
tion than the safety of the innocent, and the settled principles of
adjudged cases i-equire; and on the other, that where objections
are worthy of notice, defendants should be permitted, if not
required, to raise them at the earliest stage after their nature is
full}' disclosed, and in the most easy form in which they can be
fully and fairly discussed, and correctly decided.
There are several reasons relied upon to quash this indictment,
only part of which I shall notice. The substance of the sixth,
seventh and eighth is comprised in one of them, which is,
"Because the said indictment is vague, uncertain, illegal and
defective, in form and substance." Under this reason, counsel
have taken a wide range in argument, inquiring into the natui-e
and extent of this class of crimes, and the manner in which they
should be charged in indictments. It has not pretended, that in
New Jersey, the crime of conspiracy is confined to the single
class mentioned in our statute law ; which notices only conspiracies
falsely and maliciously to indict other persons. But reference
has been made to the statute, 33d Edward 1st, de conspiratoribus,
as the foundation of the offence, or as defining it, if it existed at
common law. This idea has been frequently started in England,
and in our sister states, and has been put down as often as raised.
Conspiracy is a common law offence, and embraces many, but
not all combinations to injure individuals in their property, per-
sons or character, and also cases where the object is to injure pub-
lic trade, affect public health, violate public police, insult public
justice, and to do other illegal acts. Nay, it seems not in all
cases to be necessary that the act Intended should be illegal, or
even immoral, provided it is calculated to affect the public at large.
But many of the general definitions to be found in the books, are
too broad, and embrace cases which have been decided not to be
indictable. " VV^e can rest with safety," says a good author, "only
on the individual adjudged cases, which depend, in general, on
particular circumstances;" and which, according to the opinion
of an eminent judge, in a recent case, are not to be extended.
13 East 231.
From these it may be collected, that an indictable conspiracy
is a combination between two or more persons "to do an unlaw-
ful act, or to do a lawful act for an illegal, fraudulent, malicious
or corrupt purpose, or for a purpose which has a tendency to
NOVEMBER TERM, 1827. 311
The State v. Rickey.
prejudice the public in general." When the purpose is fraudu-
lent, if the act be effected by an individual, the decisions are
uniform, that some false token or pretence is necessary to consti-
tute it an indictable offence. But it is said, and there are many
respectable authorities in support of it, that a conspiracy to effect
such purpose is criminal, without any such token or pretence;
and that the conspiring together for such purpose constitutes the
offence without the doing of the act.
Having premised these principles relative to the nature of the
offence, let us enquire what is necessary to be shewn in the
indictment. "Every indictment must charge the crime with
such certainty and precision that it may be understood by
every one, alleging all the requisites that constitute the offence.
And it must be sufficiently explicit to support itself, for no lati-
tude of intention can be allowed to include any thing more than
is expressed." Chitty 1139, &c. Now, an indictment for a con-
spiracy affecting an individual, or private corporation, should set
out an unlawful act, or a lawful act to be accomplished by un-
lawful means, or aver an illegal, fraudulent, malicious or corrupt
purpose. Let us examine this indictment, and see whether it is
sufficient in these particulars. And first, with respect to the
purpose or object of the conspiracy. It is said that the defend-
ants, (naming them) "on the first day of May, in the year of
our Lord one thousand eight hundred and twenty-five, with force
and arms, at the township aforesaid, in the county aforesaid, did
amongst themselves conspire, contrive, confederate and agree
together, to obtain large sums of money and bank bills^ the
propertj' of the president, directors and company, of the State
Bank at Trenton."
The object of the conspiracy is then, to obtain the money and bank
bills of the State Sank at Trenton. Prima facie, there is nothing
illegal or immoral in this. The drawer and endorser of every
accommodation note enter into a conspiracy .of this kind. It is
the object of the corporation to have its bills obtained, used and
circulated by others. But let us look a little further. Docs the
illegality consist in the means used? The indictment proceeds —
"by means of the several chocks of the said (defendants) respec-
tively to be drawn on the cashier of the said the president,
directors and company of the State Bank at Trenton, when they
(the defendants) had no funds in the said bunk for the payment
of the said checks and drafts." Upon this statement, not only
312 NEW JEESEY SUPKEAIE COUET.
The State v. Rickey.
no illegal purpose is discoverable, but the means are fair, and in
the usual course of business. To draw a check upon an indi-
vidual or a corporation is a perfectly lawful ac.t, whether the
drawer have funds in the hands of the drawee or not. A check,
or draft, is a request to pay money to the drawer, or his order,
as a right, if he have funds, but in some measure a matter of
favour, if he have not. If there be funds belonging to the drawer,
it is a demand of them; if not, it is a request of credit to that
amount; and if advanced according to the request, a contract
to repay is implied, and assumpsit will lie for it. It is like any
other contract, verbal or written, whereby the property of one
person goes into the hands of another upon credit. And it is as
much an indictable offence to purchase goods of a merchant with-
out paying in advance or at the delivery, as to draw a check and
obtain money without having funds in the hands of the drawee.
But it is said that if the act of overdrawing by an individual be
not unlawful, combining to do it is. It is true that combinations
make some acts indictable which would not be so if committed
by an individual. But these are cases either affecting the public,
as conspiracies to raise the price of wages, &c. or the act must be
immoral at least, if directed merely against an individual. If an
act be entirely innocent and not injurious to the public, combining
to do it cannot be criminal. I am aware that there are dicta in
the books in opposition to this. Chitty, in his Treatise on Crim-
inal Law, p, 1140, says that "it may be inferred from the deci-
sions that to constitute a conspiracy it is not necessary that the
act intended should be illegal, or even immoral; that it should
affect the public at large; or that it should be accomplished by
false pretences." But an examination of the cases will not jus-
tify this inference. Indeed he acknowledges that it is impossible
to conceive a combination, as such, to be illegal."
I have thus considered the end or object of this conspiracy, and
the means used, an4 nothing criminal appears. But what acts
were done in pursuance of it? " The offence is complete when
the confederacy is made, and any act done in pursuance of it is
no constituent part of the offence, but merely an aggravation of
it." 2 Mass. 329. But where the object stated is innocent, or
ambiguous, perhaps we may look into the acts stated, to see if the
uncertainty in the direct averment of the purpose is removed, and
if any thing can be there discovered in the acts or purpose, of a
character decidedly criminal. The indictment goes on to aver, in
NOVEMBEE TEEM, 1827. ' 313
The State v. Rickey.
substance, that Lambert Eickey, in pursuance of said conspir-
acy, did obtain from the said company, a large sum of money,
to wit, five thousand three hundred and thirteen dollars, in bank
bills of the said company, to the great damage, &c. This last
expression, "to the damage, &c." is used in indictments of this
description; but I conceive it to be mere matter of form, if it
be true that the offence is complete when the conspiracy is
entered into. But whether formal or substantial, it is stated
simply as the result of an act, and not as contemplated by
the actor. It is not here alleged as the object of the conspir-
acy, nor even of the individual who overdrew, and can con-
stitute no part of the offence. Similar allegations are made with
respect to the other defendants; but nothing is said or insinu-
ated in this part of the indictment, of any improper design in
this overdrawing. A purpose to appropriate the funds without
accounting for them is not averred. It is not said to be done
for the purpose of cheating or defrauding the bank. It is not
even alleged that the drawers knew that they overdrew their
accounts. We look in vain through the general statement of
the conspiracy and its object, and all these specifications of acts
done, for the slightest circumstance which can stamp the char-
acter of criminality on this transaction.
But there is yet another part of this indictment which remains
to be considered. It is the inducement, or prefatory part, in which
it is said that the defendants, (naming them), " being evil disposed
persons, wickedly designing and intending to injure and defraud
the president, directors and company, of the State Bank at Tren-
ton, did amongst themselves consph'e," &c., and proceeding as
before stated. It is said that the word defraud, here used, im-
ports crime, and it is intimated that the fraudulent purpose of the
confederacy is here sufficiently charged. If this indictment can
be supported consistently with established and sound principles, it
is very desirable that it should lie. And feeling the importance
of the subject, I have attentively examined all the cases of conspir-
acy, and forms collected by writers of reputation, and I find none
whore an allegation of fraudulent purpose is made in this manner;
although the idea that this will answer appears at first view to re-
ceive some countenance from cases of another nature rcporU'd in
Croke James 610; 2 Mod. 128; 2 Strange 902; 6 East 474, and
other authorities, where it is decided that thoscienter is sufficiently
averred by the word sciensor knowing; where being of a certain
314 NEW JERSEY SUPREME COURT.
The State v. Rickey.
trade is necessary to constitute the crime, it is sufficient to aver
it in those words in the introductory part of the indictment;
and where a particular intent is a component part of a crime, it
may be alleged in the prefatory part, "intending," &c. Yet as
in these cases the other component parts of the crime must be
stated, so in conspiracy it must be laid as an agreement to do
something. "The law does not punish a mere unexecuted inten-
tion. It is not the bare intention, but the act of conspiring, which
is made a substantive offence by the nature of the purpose, or
object intended to be effected;" and that purpose or object must
be averred. In a conspiracy to cheat, that must be expressly
alleged as the purpose, end, or object of the conspiracy, and not
as the motive operating on the individuals, inducing their com-
bination. They may come together with a view to a certain
object, and may there conspire to effect quite a different one.
The only question has been as to the degree of particularity with
which the purpose or acts done should be set forth. This will
depend upon the nature of the particular case. It has been de-
cided that in a conspiracy to cheat and defraud, it may be laid in
those words, without setting out the means. But it has never
been decided that it is not necessary to set out the purpose or
object either generally or particularly. Surely this would not be
a good indictment if it terminated with the words, "conspire, con-
federate and agree together." If the word conspire imports a crimi-
nal or indictable agreement, yet no one in his senses could contend
that it is sufficiently descriptive. It is quite enough to put defend-
ants to answer to the general charge of conspiring to cheat and
defraud ; they never can be called upon to answer to the far more
indefinite charge of conspiring together. And yet this part of the
indictment must stand alone if it is sustained. It can receive no
assistance from what follows. Nay, in that part where a descrip-
tion of the crime with distinctness and certainty, and by positive
averment is looked for, we find the transaction described to bo
of an ordinary business nature, without the shadow of crime,
and such in principle as many of the best men in the country are
daily engaged in. It is. evident that if in stating the object of
the conspiracy, its character is wholly innocent, or if immoral
or illegal, yet of that character where conspiracy will not lie,
as in case of an ordinary trespass, such for instance as the case
of hunting hares, reported in 13 East 228, the indictment cannot
be sustained by the formal expressions as to intention, contained
NOVEMBEE TEEM, 1827. 315
Mulford v. Bowen.
in the introductory part. It is true that if the intention be there
distinctly stated, it may be made the foundation of the express
averment of the purpose, and save the necessity of repetition,
being introduced into the description of the object by the words
"for the purposes aforesaid," or other equivalent words ; but this
prefatory part of the indictment cannot stand alone, much less
can it convert into a crime a combination the object or purpose
of which as stated, is entirely innocent. I am of opinion, there-
fore, without considering the other points raised, that this indict-
ment must be quashed.
Let the indictment be quashed.
CITED IN State v. Hageman, 1 Or. 323. State v. Chase, Spen. 222. State v.
Norton, '6 Zab, 33. State v. Dayton, Id. 56. State v. Donaldson, 3
Vr. 152.
See later decision in State v. Rickey, 5 Hal. 83.
JOHN S. MULFORD against SMITH BOWEN.
If there is a substantial variance between the agreement set forth in the state
of demand and that which is proved to have been entered into by the parties,
the variance is fatal, and the plaintiff cannot recover.
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 favour 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 a certain agreement, in writing, as.
follows :
" I promise to pay John S. Mulford twenty-five dollars, if a
certain hog that is now owned by Isaac Sutton, should after
being cleaned and dressed in the usual manner, weigh eight
hundred and fifty pounds. If said hog docs not weigh as above
stated, then I, John S. Mulford, promise to pay Smith Bowen
twenty-five dollars. The said hog is to bo killed by the twentieth
day of March, one thousand eight hundred and twenty-four; tho
money to be paid in thirty days of the twentieth of March, 1824.
[Signed] " SMITH BOWEN,
" JOHN S. MULFORD."
" It is understood by the parties that if the above hog should
die, then the above to be void."
316 NEW JEESEY SUPEEME COUET.
Mulford v. Bowen.
Which agreement so made as aforesaid, of the tenor and
effect aforesaid, and signed as aforesaid, plaintiff now brings
into court. And plaintiff says he has done all on his part to bo
done under or by virtue of said agreement, and plaintiff says
that said hog was killed by the twentieth day of March, 1824,
viz. on the first day of January, 1824, and that he did not
weigh as above stated, after being cleaned and dressed in the
usual manner, eight hundred and fifty pounds, but only about
seven hundred pounds; of all which premises defendant had due
notice, and by reason of which premises an action hath accrued
to plaintiff to have and demand the said sum of twenty-five
dollars, with interest from the twentieth of April, 1824, in all
thirty dollars. And plaintiff also avers that said hog did not
die by accident or sickness, as meant in the note annexed to
said agreement as above shewn, in which case said agree-
ment was to be void, but that he was killed as aforesaid, for
the purpose of making pork of him, according to the true intent
of said agreement.
The following is the statement of the case agreed upon by the
counsel of the parties to be used upon the argument of the
certiorari, viz.:
Ephraim Dayton, a witness on the part of Bowen, the plaintiff
below being duly sworn, said, The agreement produced is my
handwriting. I can't say certainly that I saw both the parties
sign it. I was in the bar when it was done. I wrote it at their
request. I think it was about the first of April, 1823. It was
some time after Norton Harris' big hog was killed. It was after
Sutton had concluded to keep his hog over another season. I
don't know Mulford's handwriting. The name, Smith Bowen,
to the agreement, is the plaintiff's writing.
And being cross-examined by defendant —
I don't recollect any thing about the memorandum at the bottom.
There was considerable talk between the parties at the time of
the bet. Can't recollect what was particularly said by them. I
did not hear Mulford say he did not consider it as a bet unless the
hog was kept till the twentieth of March, 1824, or any thing of
that kind. I don't know what Mr. Bowen's hog weighed when he
killed him. Mr. Harris' hog was killed about the fourth of March,
and this bet was afterwards three or four weeks. I knew some
time before Harris killed his hog, that Mr. Sutton had talked
about keeping his hog over, but soon afterwards I understood he
NOVEMBER TEEM, 1827. 317
Mulford v. Bowen.
had concluded to do so. I can't recollect who was present when
the agreement was signed, but about that time Mr. John Johnson
came in, and after it was signed it was given to him to keep. I
handed it to Johnson before it was signed, and I believe he saw
them sign it.
John Johnson, sworn for plaintiff, said, I came into the hotel
and Ephraim Dayton handed an agreement to me; it was not
then signed. Both parties then signed it on the, desk, after telling
me what it was and so forth. They signed it on the desk. At
their mutual request I took up the paper. I wrote the note at
the bottom. I do not recollect that either of them particularly
requested it to be done, but it was according to the talk and
agreement at the time. It was what they agreed upon. I don't
remember whether I read it to them afterwards or not. There
was a good deal of talk, but the agreement was finally as it
reads, note and all. I don't think Isaac Sutton was there. No
exception was made unless the hog was taken sick and died by
accident, which is what the note means. I thought is as fair an
agreement as ever was made, and that they understood it.
And being cross-examined by defendant, says, I did not hear
Mulford say, if the hog was killed before the twentieth of March,
1824, it was to be no bet. Nor did I understand it so. It was
after Harris' hog was killed, and about the last of March or first
of April. From their talk and agreement I should say, if the
hog had been killed for pork in one week afterwards, I should
have considered the bet as lost by Mulford, if he did not weigh
the amount. I expected him and Sutton had an understanding
or dependence on each other, and perhaps he thought Sutton
would keep his hog over till the twentieth of March. It was
thought the hog was going to be kept over another season at
that time, by most people. I do not know as it was known cer-
tainly by Mr. Bowen. He was willing however ho should be
kept over one season more, but no longer; and that was what I
understood was meant by putting in the date. The hog was
kept over; he was killed the next new years.'
Isaac Sutton was examined as a wijtness on the part of th€
plaintiff. His testimony was not necessary to bo stated here.
The defendant on the trial of eaid appeal objected to the admis-
sion of Ephraim Dayton, John Jo-hnson and Isaac Sutton, as
witnesses, upon their being offered to prove what they depose
318 NEW JERSEY SUPREME COURT.
Mulford v. Bowen.
so in their several examinations in chief by the plaintiff; and
likewise objected to the admission in evidence on the part of the
plaintiff of the said agreement or paper, contending the same
was illegal, incompetent and inadmissible evidence in this cause,
and variant from the state of demand ; which objections were
overruled by the court.
L. Q. C. Elmer argued for the plaintiff in certiorari.
Wall, for the defendant.
The reasons relied upon by the plaintiffs counsel for the
reversal of the judgment of the Common Pleas, were —
1. That the demand was insufficient.
2. That the court admitted illegal evidence.
3. That there was a material variance between the contract
declared on and that given in evidence.
The CHIEF JUSTICE delivered the opinion of the court.
The objection taken in the court below, on account of the
variance between the agreement set forth in the state of demand,
and that which was proved to have been entered into by the par-
ties ought to have been sustained. The variance is fatal. The
plaintiff did not undertake to set out the agreement according to
its legal effect, but by its tenor. He alleged that a certain speci-
fied agreement was expressly and in writing entered into by the
parties. On his evidence it appeared that the agreement actually
contained but part of what he had alleged, and the part not
proved was a condition on which the contract might become void.
It is no answer to say this part was in a nota bene, and after the
signature of the parties; for the plaintiff not only set it forth as
part of the agreement actually made, but among his averments to
shew his right to recover, he has introduced one founded upon
this part of the agreement. Nor does it avail any thing to say
this clause contains no more than a qualification which the law
itself annexed to the contract. For it is set forth as expressly
made, and not as implied by law. The written agreement of the
parties is described as having actually contained this clause.
Lot the judgment be reversed.
NOVEMBEK TERM, 1827. 319
Grover v. Bruere.
JOHN HAWK and others against GEORGE W. ANDERSON.
If judgment is rendered for a sum exceeding the amount demanded in the
state of demand, it will be reversed.
This was a certiorari to the Common Pleas of the count}7 of
Warren, brought by Hawk and others to reverse a judgment
rendered against them on an appeal.
Ryerson, for the plaintiffs in certiorari, assigned as a reason for
reversal, that the Court of Common Pleas rendered judgment in
favour of the plaintiff below, for a sum of money, which, exclu-
sive of costs, exceeded the sum demanded by the plaintiff in his
state of demand. The judgment was for twenty dollars, and
the sum claimed in the state of demand was fifteen.
This reason being verified by the record and state of demand,
THE COURT reversed the judgment.
CITED IN Lake v. Merrill, 5 Hal. 342. Glover v. Collins, 3 Harr. 232.
RICHARD GROVER against WILLIAM BRUERE.
CERTIOKAKI.
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 aban-
donment 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.
When parts of the testimony of a witness are overruled, the parta overruled
should be distinctly stated by the court to the jury.
Green, for plaintiff.
Hamilton, for defendant.
The facts in this case sufficiently appear in the opinion of the
court, delivered by EWINO, C. J.
Bruere sued Grover in an action of trover and conversion for a
mare. On the trial ho proved that the mare had for some timo
been in the possession of one William Tilton, from whom ho pur-
chased her for sixty dollars, to be paid one-half in money and the
residue by the ironing of a wagon ; and that for some time after-
ward ho had used and possessed the mare. One of the witnesses
called by Bruero testified that he had understood the maro had
been formerly owned by one Howell Hendrickson and one
320 NEW JEKSEY SUPREME COUET.
Grover v. Bruere.
Edmund Tilton, in partnership, and that William Tilton had
purchased her of Edmund; and that he had heard Hendrickson
say Edmund had a right to sell her, and he had no claim on herl
Another witness testified he borrowed the mare of Bruere to go
to a race; while there, Hendrickson by pretext got her into his
possession, and went away with her to another part of the race
ground. After some time, Hendrickson returning without her,
and being asked for her by the witness, slapped his hand ob his
pocket; on which the witness remarked that Hendrickson had
brought him into a scrape by selling the mare which he had bor-
rowed. The next day the mare was seen in the possession of
Grover, who, she being demanded by Bruere, said he had bought
her and would not give her up.
The defence of Grover was, that upon a subsequent meeting
of the respective claimants, Bruere had relinquished to him his
claim, on receiving from Hendrickson an engagement of in-
demnity in case he should have to pay for her, and had there-
upon delivered the mare to Grover. And Nathaniel Labaw, a
•witness called by Grover, on his examination and cross-examina-
tion, testified among other things, in substance, that some time
after the mare went into Grover's possession, at the race ground,
he, as constable, took her from Grover by virtue of a search
•warrant issued at the instance of Bruere. Whereupon Grover
sued out a search warrant, which seems not to have been
executed. On the next day Michael Forman, a constable,
arrested Bruere on a warrant, issued at the instance of Hen-
drickson, for taking a false oath, in swearing that Hendrickson
stole the mare. Forman also took the mare to his own stable,
and there locked her up. Thereupon Bruere and Grover went
to Hendrickson, and they tried to settle it. Bruere said if he
bad not to pay for her, he did not want her. Hendrickson then
agreed, if Bruere had to pay for her, he would pay him thirty
dollars. Bruere said he would give her up and the whole should
be dropped. Hendrickson agreed to proceed no further with his
warrant for taking a false oath. The whole was agreed to be
dropped. Bruere and Grover and Forman went to the stable
and brought the mare to Hendrickson's, where she was delivered
to Grover, and taken away by him.
After the examination of Labaw was finished, Bruere moved
the court to overrule "such parts thereof as related to any com-
promise or agreement to surrender the mare upon the terms stated,
NOVEMBEK TERM, 1827. 321
Grover v. Braere.
after and while Bruere was under arrest, as being the compound-
ing of a felony; and the same was overruled accordingly."
• This decision of the court is the cause assigned for reversal of
the judgment.
On the part of the plaintiff in certiorari it is insisted, the
evidence ought not to have been overruled, because the relin-
quishment by Bruere and his delivery of the mare to Grover,
were the result of a general adjustment of the disputed claims
of property and of the indemnity given to him by Hendrickson ;
and that the abandonment of the warrant was the consequence,
not the causej of the arrangement agreed upon. On the other
hand, it is contended the agreement not to prosecute for perjury
was the consideration of the relinquishment and delivery by
Bruere, which were therefore inoperative and void.
Under these circumstances then a question of fact was fairly
raised, which, in our opinion, ought to have been submitted to
the jury with proper instructions as to the principles of law.
By withdrawing the evidence from the jury, the court virtually
decided that the consideration of the arrangement under which
Grover claimed the property was the compounding of a felony ;
whereas this was certainly a question of fact, and was so argued
by the counsel here, who differed on this question only, and not
on the rules or principles of law which would be applicable, the
fact being ascertained.
Moreover, it appears to us, the application to the court and'
their determination were erroneous, because vague and uncertain.
The parts of the evidence overruled should have been specified.
By the course adopted it was left to the jury to say what parts
were or were not within the opinion of the court,- to determine
what parts were or were not overruled, instead of having this
matter decided by the court and distinctly stated to them. They
were open to error ; nor if they misunderstood what was excluded
by the court, is it extraordinary, since the counsel here differed,
one side insisting that the whole of Labaw's testimony was over-
ruled, while the other side said, not so, but only the evidence of
attempts to compromise while Bruere was under process.
Let the judgment be reversed.
VOL. iv. V
322 NEW JERSEY SUPREME COURT.
Patterson v. Tucker.
JOSEPH PATTERSON against THOMAS TUCKER.
Where the subscribing witness to an instrument denies his handwriting or
attestation, other evidence of the execution of the instrument may be received :
and proof of the handwriting of the subscribing witness by other persons
acquainted therewith, will in such case, be sufficient to authorize the reading of
the instrument to the jury.
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. The first on a promissory note from the defendant to
the plaintiff, dated on or about the first day of April, 1817, for
one hundred dollars, payable at twelve months with interest, and
which note the plaintiff alleges that the defendant afterwards,
and before the commencement of the suit, without having paid
the same or any part thereof to the plaintiff, and against his
consent, cancelled, tore up and destroyed.
2d Count for work and labour.
3d Count for other work and labour with a quantum meruit.
4th Count for money lent and advanced, paid, laid out and
expended. —
5th Count for interest
6th Count on account stated.
The defendant pleaded. 1. The general issue. 2. A general
release from the plaintiff to him made after the issuing of the
summons and before the return of the same, to wit, 17th Feb-
ruary, 1823.
To the second plea the plaintiff replied that the release was not
his deed ; and that it was obtained from him by imposition and
management, while he was intoxicated and under the influence
of ardent spirits administered to him by the defendant for the
purpose ; and that it was obtained by fraud. The jury found a
verdict in favour of the plaintiff for the sum of one hundred and
forty dollars damages, and six cents costs. — The following is a
copy of the bill of exceptions sealed at the trial and sent up to
the Supreme Court.
BILL OF EXCEPTIONS.
This cause came on to be tried on this eighth day of January,
in the year of our Lord one thousand eight hundred and twenty-
NOVEMBEK TEEM, 1827. 323
Patterson v. Tucker.
four, before the judges of the Inferior Court of Common Pleas
in and for the county of Somerset, on the issues joined between
the parties, and a jury duly impanelled and sworn to try the
said issues, and thereupon the plaintiff in support of the issues
joined, offered in evidence Peter Welsh, who being duly sworn,
testified as follows : — That he was acquainted with Joseph Pat-
terson and Thomas Tucker, the defendant and plaintiff in this
action — that Joseph Patterson is a tanner, and Tucker worked
in his employ in the years '1816, 1815 and 1814. In the year
1817, he thinks in April, 1817, and on a Saturday evening, witness
was at the house of Patterson, the defendant, and the plaintiff
•was also there. Patterson told the plaintiff if he would come
and work for him again, he would settle with him — Patterson
made very free with his wiskey. The plaintiff, Thomas Tucker,
is fond of wiskey. The parties then settled. Patterson then
kept his book lying on the table in the entry. Witness went
with the defendant into the entry to look at the books, and at
the account of Tucker, the plaintiff. The account of the plain-
tiff for work was at eleven dollars per month. Patterson said,
d — n him, I don't allow him eleven dollars a month, but by one
and another jawing I shall be obliged to allow it to him. Pat-
terson then struck a balance and there was due to Tucker one
hundred and twenty dollars. Patterson then closed the book
and went out of the entry into the front room. He paid the
plaintiff also, at the time, twenty dollars in two ten dollar bills,
and gave him his note for one hundred dollars, payable, he thinks,
in twelve months after date. He is sure of the amount of the
note. Patterson said we will leave this note in Welsh's han4s,
to which Tucker replied, I would as leave Welsh should keep it
as myself, and witness then took the note himself. The Wednes-
day evening after, Patterson came to the house of witness and
asked him for the note. They took a candle and went into
another room together alone. Witness handed Patterson the
note who took it and tore it in pieces, and said d — n him, now
let him get his money as well as he can. They then went into
the room with the family. The said Peter Welsh, being cross-
examined by the counsel for the defendant, further testified that
he thinks that the note was payable to Tucker alone and not to
order — to the best of the knowledge of the witness it was pay-
able without defalcation or discount — but don't know whether
payable with interest or not — thinks it likely it was, as the money
324 NEW JERSEY SUPREME COURT.
Patterson v. Tucker.
was all due. The note was destroyed within three or four days
after it was given; there never was any article of agreement
between the parties put into his hands for safe keeping, nor any
other paper but the note in question. The note was given for
the balance due on the books of Paterson to Tucker; thinks
that he first mentioned the destruction of the note to Patterson's
relations. Don't remember whether he told it to Tucker, the
first time he saw him afterwards. Tucker worked at the time
above mentioned with Samuel King — Witness thinks Tucker
was not sober the whole of the time when the settlement was
made. Witness did not object however to the settlement going
on. Witness lived at that time not far from Patterson — knows
of no other settlement with Tucker, but that one — Patterson is
by marriage a relative of witness — Don't remember %that he
called on Mr. Hamilton respecting the present suit, before Mr.
Hamilton wrote witness a letter on the subject — There has not
been for some time a good understanding between witness and
the defendant. A receipt purporting to be a receipt in full from
the plaintiff to the defendant for the sum of twenty dollars for
tanning done by the plaintiff for the defendant, dated llth
October, 1817, purporting to bo signed Thomas Tucker, his
mark, and witnessed by Peter Welsh, was produced by the
defendant's counsel, and the witness being asked whether the
name Peter Welsh, as a subscribing witness to said receipt, is the
handwriting of him the witness — the said witness testified that
he did not believe the same to be his handwriting.
The plaintiff having rested, the defendant offered in evidence
Luke Nevius, who being duly sworn, testified as follows : — That
Joseph Patterson, the defendant, called upon him at a religious
meeting on a Sabbath evening, sometime during the last winter,
to go with him to New Brunswick on business of importance — he
did not mention his business till they got into the sleigh. He
understood then, that it was to see Tucker, the plaintiff, about this
suit. When they reached New Brunswick, Patterson went to
Eunyon's tavern, and witness went to see Tucker — It was in the
morning — they had not breakfasted. Witness found Tucker at.
home — Tucker was perfectly sober. Witness requested Tucker
to walk with him to Runyon's to see Mr. Patterson — Tucker con-
sented, and on the way to the tavern, witness asked Tucker if
Patterson owed him any thing — Tucker replied, that Patterson
owed him nothing. When they reached Runyon's they went into
NOVEMBER TERM, 1827. 325
Patterson v. Tucker.
the front room on the right side of the entry — Tucker was glad
to see Patterson ; said that the defendant owed him nothing; that
they had had a settlement; he recollected that, and that twenty
dollars had been paid by the defendant to him, on that settlement.
There was something said about a receipt, and I understood from
them, that a receipt was given — The paper purporting to be a
release, executed by the plaintiff to the defendant, dated 17th
February, 1823, (pro ut the same) was then read by the defend-
ant to the plaintiff, and afterwards by the witness to the plain-
tiff, and Tucker said, that he was willing to sign it, and placed
his mark to the paper and the said Luke Nevius signed it as a
witness. No liquor had been called for before the execution of
the release, and Tucker was perfectly sober. — Tucker said that
Peter Welsh had told him that he had a note in his possession.
Tucker further said, that at the time of the settlement something
was said ubout an article of agreement for the work of another
year, and that he was to work another year for Patterson, but
did not go to Patterson according to agreement. Tucker did not
appear to know distinctly what had taken place the evening of
the settlement. The said Luke Nevius, further testifies, that he
has seen Peter Welsh frequently write, and has seen frequently
of his writing — Mr. Welsh taught a school in the neighborhood —
He thinks, that the signature as witness to the paper purporting
to be a receipt in full for work done by Thomas Tucker to Joseph
Patterson, dated October llth, 1817, is in the handwriting of
Peter Welsh, but will not swear it positively. Upon being cross-
examined on the part of the plaintiff, he the said Luke Nevius
says, that the release is in the handwriting of Mr. Green. Wit-
ness does not know that Mr. Patterson had any other business at
New Brunswick the day they went down to see Tucker. Tucker
executed the release and Patterson paid him one dollar. Patter-
son said it would not be good unless he paid him the dollar.
Witness knows that Tucker was in the employ of Patterson.
Witness had heard of the loss of the note for two years. Witness
does not recollect the day of the month the release was executed ;
he supposes it was on the day it bears date — it was on a Monday.
Patterson called upon him to go with him to New Brunswick.
Ho said that ho was sued by Tucker on a note. Ho said there
was no note, but an article of agreement. Patterson did not take
witness along with him as a constable; there was no arran^i1-
ment between witness and Patterson. Upon being interrogated
326 NEW JERSEY SUPREME COURT.
Patterson v. Tucker.
what Patterson said to him on the way to Brunswick, wit-
ness replied, that Patterson told him that he had a receipt from
Tucker, but wanted to get a release. Witness called upon Tucker
at his own option, as he did not want to have anything to do with
it, unless it was right. No threats were used, nor was it stated
that Patterson was a rich man. Tucker said that he was rather
persuaded to commence the suit. Tucker said that he recollected
signing the paper left with Peter Welsh. Witness has seen Tucker
in a drunken frolic, but on that morning he did not appear as a
man coming out of a frolic. Tucker said, when asked if he would
take some brandy, that he had not drank in some time, and said
that he wouH drink a little gin, and then drank d small glass of
gin. — This was after executing the release, and he drank no more
at Runyon's. The witness and Patterson then got into the sleigh
and invited Tucker to ride with them, and he rode with them as
far as Brinson's tavern, two or three miles out of Brunswick,
and witness and Patterson staid there not longer than ten min-
utes. After the release was executed, the dollar was paid by
Patterson to Tucker. He declined receiving it, saying that Pat-
terson owed him nothing. Tucker was told that the paper he
was to sign was to release the suit then commenced. The wit-
ness upon being asked, if Tucker knew the meaning of the words,
remise, release and quit claim, said, that Tucker understood, he
thought, the meaning of the words "quit claim." Tucker can-
not read nor write; but has good understanding, though much
addicted to intemperance. Witness cannot say that Tucker is
of easy disposition, or easily persuaded. — Witness has heard from
two or three persons about the note. Upon being asked by the
counsel for the defendant, what Mr. Patterson said in the sleigh
as they were going to Brunswick, about the note, Patterson
denied that he ever gave Tucker a note — it was an article of
agreement left with Welsh.
John Vantilburgh was then offered as a witness on the part of
the defendant, and testified as follows: That about a year ago
Welsh told him that a note had been left with him, Welsh; but
thinks that Welsh had told witness previous to that time, that the
paper left with him, Welsh, was an article of agreement, and that
Patterson had come and taken it up without the consent of Tucker.
Witness does not recollect that Welsh said any thing about rub-
bing it in his hands. Witness never beard of the note, or agree-
ment, till after the dispute between Welsh and Patterson ; both
NOVEMBER TERM, 1827. 327
Patterson v. Tucker.
resided within two or three miles of the house of the witness.
The dispute between Welsh and Patterson commenced in the
year 1820.
Upon being cross-examined on the part of the counsel for the
plaintiff, the witness said that Welsh first told him that the paper
left with him was an article of agreement as witness thinks. Tucker
had worked for witness. Tucker was illiterate, but had shrewd
notions — very fond of liquor. The plaintiff and defendant hav-
ing closed the parol evidence on both sides, the counsel for the
defendant offerdd and read the release sworn to by Luke Nevius,
dated February 17, 1823, (pro ut the same) and then offered to
read in evidence a paper in the words and figures following:
"Received of Joseph Patterson tw3nty dollars in full for work
done at tanning for said Patterson. — October 11, 1817.
his
Received by. me THOMAS X TUCKER.
mark
Witness
PETER WELSH.
Being the receipt to which Peter Welsh and Luke Nevius refer in
their testimony. To which evidence the plaintiff objected and
prayed that the same might be overruled, and the defendant in-
sisted that the same was lawful and admissible. Whereupon the
said judges of the said court did then and there declare and deliver
their opinion that the said evidence was unlawful and inadmissi-
ble, and overruled the same. To which opinion of the said judges,
the said defendant did then and there except, &c.
Upon the return of the writ of error. — The following errors
were assigned. 1st. That the declaration aforesaid and the matters
therein contained, are not sufficient in law for the said Thomas
Tucker to have or maintain bis aforesaid action thereof against
the said Joseph Patterson. 2d. That by the record aforesaid, it
appears that the judgment aforesaid, in form aforesaid given,
was given for the eaid Thomas Tucker against the said Joseph
Patterson; whereas by the law of the land the said judgment
ought to have besn given for the said Joseph Patterson against
the said Thomas Tucker. 3d. That tho court below overruled
and rejected legal and competent testimony.
Green, for plaintiff in error.
Hamilton and W, Ealsted, for defendant.
328 NEW JEESEY SUPEEME COUET.
Patterson v. Tucker.
The CHIEF JUSTICE delivered the opinion of the court.
Error is assigned in this case upon the matters contained in a
bill of exceptions, and is said to consist in the overruling by the
court below, of a receipt offered in evidence by the defendant
there, the plaintiff in this court.
Tucker declared on a promissory note, alleged to have been
made by Patterson, and afterwards, and without payment
by him, improperly cancelled and destroyed. To prove his
case he called and examined one Peter Welsh. Patterson,
admitting that Tucker had been in his employ as a tanner,
denied the making of a note, insisted that it was an article
of agreement relative to the further employment of Tucker,
which had not been fulfilled by Tucker, and sought to disprove
the testimony of Welsh, and to shew the writing signed by
him, to be merely an article of agreement, by circumstances
and by antecedent declarations of Welsh himself. He also
produced and gave in evidence a full release, executed by
Tucker soon after the commencement of the action. He far-
ther alleged that long before the commencement of the action,
he had settled with Tucker, and paid him all that was due to
him, and offered in evidence a receipt bearing date llth October,
1817, after the date of the note, for $20 "in full for work done
at tanning for said Patterson," subscribed Thomas (his ><j mark)
Tucker, and bearing the name of Peter Welsh as a subscrib-
ing witness. Welsh being asked, whether the name thus sub-
scribed was his handwriting, testified that he did not believe
it was. On the part of Patterson a witness testified that Welsh
taught school in the neighborhood — he had frequently seen him
write, and seen frequently of his writing, and he thought the
signature to the receipt was the handwriting of Welsh, but
would not swear to it positively. The same witness also tes-
tified, that on the day and before the release was executed,
in a conversation Tucker told him, on being asked if Patter-
son owed him anything, that Patterson owed him nothing, and
again in the presence of Patterson, Tucker said he owed him
nothing; that they had a settlement, and that $20 had been
paid to him by Patterson on that settlement. Something was
said about a receipt, and the witness understood from them
that a receipt had been given. Afterwards the release was
executed which, Tucker was told was to release the suit then
commenced. Upon being offered one dollar, the consideration
NOVEMBER TEEM, 1827. 329
Patterson v. Tucker.
mentioned in it, he declined receiving it, saying that Patterson
owed him nothing. The Court of Common Pleas refused to
permit the receipt to be given in evidence to the jury.
On the part of the defendant in error, it is insisted the over-
ruling of the receipt was legal and proper, because the subscrib-
ing witness, having denied his signature, there was not sufficient
evidence to warrant the court in submitting it to the jury.
The general rule of evidence, requires the production and ex-
amination of the subscribing witness, whenever there appears
one on the face of the instrument. But when the witness can-
not be had, the reason of his absence being satisfactoi'ily ex-
plained; or when, if had, legal impediments to his examination
exist; or when, if present and examined, he is unable or unwill-
ing to prove the execution of the instrument, as if he denies his
attestation, or in other words, that he was present at the execu-
tion, and subscribed- as a witness, or if he admit his subscription,
but deny that he saw the instrument executed, other evidence
will then be received. The law prudently calls for th« testimony
of the witness, but is too wise and too conscious of human im-
perfection and frailty, to rest in confidence, to limit its inquiry,
and to conc'ude the rights of the parties solely by the recollec-
tion or forgetful ness, the integrity or waywardness, of any witness.
In Dayrell v. Grlasscock, Skinner 413, it was ruled that if there
are three subscribing witnesses to a will, and on the trial, one
of them would not swear he saw the testator seal and publish
it as his will, yet if it be proved to be his hand, and that he set
it as a witness to the will, it is sufficient. In Blurton v. Toon,
Skinner, 639, an action of debt on an obligation and non est fac-
tum pleaded, one of the subscribing witnesses was dead, and
the other being sworn said his hand was subscribed as a wit-
ness, but that ho did not see the obligation sealed and delivered ;
upon evidence of the handwriting of the other witness, the obli-
gation was held to bo sufficiently proved. The case of Pike v.
Badmarring, cited in Andrews 236, and 2 Str. 1096, was an eject-
ment tried in the King's Bench at bar upon a will — "and
every one. of the three subscribing witnesses to the will," says
Andrews, "denying the execution, there was an endeavor ou
the side of the devisees to maintain the will without culling any
of them; but the court insisted upon hearing these first and they
all denied their hands: whereupon it was urged that the party
could not call other persons in opposition to his own witnesses.
330 NEW JEESEY SUPEEME COUET.
Patterson v. Tucker.
But the court admitted other evidence, for that a man shall not
lose his cause through the iniquity of his witness." And
Strange says the will was supported. In Goodtitle v. Clayton,
4 Burr. 2224, Justice Yates said, there are cases where one wit-
ness has supported a will by swearing that the other two
attested, though those other two have denied it; and Lord
Mansfield said he had several cases both upon bonds and wills,
where the attestation of witnesses had been supported by the
evidence of the other witnesses, against that of the attesting
witnesses who denied their own attestation ; — and in Abbott v.
Plumbe, Doug. 216, he held that though the subscribing witness
deny the deed you may call other witnesses to prove it, and said
that it had often been done. In 10 Vez. 174, the Master of the
Eolls said, "If there is the attestation and he confesses himself
to be the attesting witness, prima facie, the presumption is, that
what he has attested has taken place in his presence; if he
denies that, other evidence is admissible, from circumstances,
as where there were no attesting witnesses, or the person
whose attestation appears, does not exist, proof of the hand-
writing is sufficient to enable a jnry to presume in such a case,
that sealing and delivery took place though the handwriting
alone does not of itself import sealing and delivering." In
Fitzgerald v. Elsee, 2 Campb. 635, the subscribing witness to an
indenture of apprenticeship having testified that he did not see
it executedj it was objected that it must be taken, never to
have been executed with due formality ; but Lawrence S. said,
it was then to be treated as if there were no attesting witness,
and he adrnittted other proof of its execution. In Lemon v. Dean,
ibid. 636, it was held that if the subscribing witness cannot prove
a note by reason of not having seen it drawn, it may be proved,
by other witnesses. In Rex v. Harringworth, 4 Maule and
Selwyn 353, it was said by Lord Ellenborough " a party who
would prove the execution of any instrument that is attested,
must lay the ground work by calling the subscribing witness
to prove it if he can be produced and is capable of being ex-
amined. His testimony indeed, is not conclusive, for he may
be of ouch a description as to be undeserving of credit, and then
the party may go on to prove him such, and may call other
witnesses to prove the execution." In Talbot v. Hodson, 7 Taunt.
251, by Gibbs, C. J. "Where an attesting witness has denied
all knowledge of the matter, the cause stands as though there
NOVEMBEE TEEM, 1827. 331
Patterson v. Tucker.
were no attesting witness, and other evidence may be admitted.
Here the attesting witness who attests the sealing and delivery
says, she saw nothing of it, and the attesting witness being
thus got rid of, it is open for the jury to consider of the effect
of any evidence that may be adduced." In Sigfried v. Levan,
6 Serg. and Eawl. 310, Justice Duncan delivering the opinion
of the court, said " The signature, sealing and delivering are
mattei-s of fact, to be tried by the jurors. If the subscribing
witness denies the attestation, or is unable or unwilling to
prove 'the execution of the deed, collateral circumstantial
evidence, proof of handwriting of the attesting witness, or
acknowledgment are admissible. Where there is proof of the
handwriting of the attesting witness this is evidence of all he
professed to attest by his signature, the sealing and delivery of
the bond." In Pearson v. Wightman, 1 Hep. Con. So. Ca. 310,
Justice Cheves delivering the opinion of the court says,
" Where subscribing witnesses cannot be produced, or where
when produced, they deny their signatures, or otherwise fail to
prove the due execution of the will, circumstantial evidence
may be adduced to supply this deficiency. Of this description
of evidence, proof of the handwriting of the subscribing wit-
nesses is the most direct and usual." And speaking of one of
the subscribing witnesses who, like Welsh in the present case,
did not positively deny the name to be his writing, but
doubted it, he says — " I then think the testimony of this
witness himself would have authorized the verdict of the
jury as it regards him. But the testimony of the witness
already mentioned proves satisfactorily his handwriting " — and
he thought, therefore, that the verdict as it regarded him ought
to stand.
The case of Phipps v. Parker, 1 Camp. 412, was cited and
relied on by the counsel of the defendant in error. In that case,
which was an action for words, it became necessary to prove a
policy of insurance, which had the names of two of the directors
of the Sun Fire Insurance office affixed to it, and purported to be
executed by them in the presence of I. S. as attesting witness.
I. 8. swore it had not been executed in his presence by either of
the gentlemen whose names appeared at the bottom of it. It was
then proposed to prove the execution of the policy, by evidence of
the handwriting of the directors who had signed it, and by shew-
ing that they had subsequently acknowledged it to have been their
332 NEW JERSEY SUPREME COURT.
Patterson v. Tucker.
deed : Lord Ellenborough is reported to have said, " The policy
purports to bave been executed in tbe presence of tbe witness.
1 must therefore, take it to have been executed in his presence
if it was executed at all. If it was not executed in his pres-
ence the conclusion of law is that it was never executed as a
deed, although it may have been signed by these two directors.
Nor can I admit evidence of their acknowledgment, since
the attestation points out the specific mode in which the execu-
tion is to be proved. Being issued as an attested deed, and
now certainly appearing not to have been executed in the
presence of the attesting witness, I think it must be considered
as invalid." Of this case it may bo said, it is entitled to no
weight. It has either been misreported, or it proves that a
very able and learned judge may err. For it is inconsistent
with a series of well considered adjudications, and Justice Parke,
speaking of it in 7 Taunton, 251 says, "The same high authority
which decided Phipps v. Parker, has since held otherwise,'*
alluding probably to Rex v. Harringworth, already mentioned.
The admissibility of other evidence then upon the denial or
failure of proof by the subscribing witness, is abundantly
shewn. But it was insisted, on the argument at the bar, that
when the subscribing witness denies his handwriting, the mode
of proof is confined to the handwriting of the party making
the instrument, and that no case is to be found, where proof of
the handwriting of the witness was received or deemed suffi-
cient. Now it is manifest that if such a rule exist it must utterly
exclude all proof of an instrument to which a party, unable to
write, had made his mark. The observation that no such case
is to be found, appears from the books already referred to,
evidently too broad. But the law is not a mere collection of
precedents. It is a science of principles, and he must be a very
timid judge who is fearful to tread where he has the solid
ground of principle to support him, because he cannot see the
print of the footsteps of some predecessor. In Newbold v, Lamb,
2 South. 450, it was recognized as a settled principle and not now
to be questioned, that proof of the death and of the handwriting
of a subscribing witness to a deed is sufficient to pass the deed to
the consideration of the jury. A.nd it has been held that when tho
witness is out of the jurisdiction of the court, 12 Mod. 607 ; 2 East
250 ; 4 John. 461 ; 5 Cranch 13 ; or become blind, 1 Lord Raym. 734 ;
or insane, 3 Campb. 283 ; or convicted of an infamous crime us
NOVEMBER TERM, 1827. 333
Patterson v. Tucker.
forgery, 2 Str. 833 ; or has become interested, 5 T. JR. 371 ; 1 Sir.
346; Binney 45 ; or upon due and strict enquiry cannot be found,
12 Mod. 607 ; 5 Cranch 13, proof of the handwriting of the attest-
ing witness is prima facie evidence of the execution of the
instrument. Now it is said the signature of the attesting witness
when proved is evidence of every thing on the face of the instru-
ment, on the principle that what a man has attested under his
hand is true, or that the witness would not have subscribed his
name in attestation of that which did not take place. — If then
such be the rule in these cases, and such the principle on which
it is founded, the very same presumption must arise and of course
the same rule exist, where the handwriting is satisfactorily
proved to be that of the witness, although from imperfection or
defect of memory, he may have forgotton it, or from undue
influence or bad motives he may wilfully and wickedly deny it.
In such case, a greater quantity of evidence to prove his hand-
writing may be demanded, but when the fact is established, the
consequence must be the same. Another instance may strongly
illustrate and support my argument. In the case of'Gaston v.
Mason, Coxe 10, where the witness admitted. his signature, but
had no recollection of the execution of the instrument, the same
presumption had its effect and the instrument was held sufficiently
proved to go to the jury. It is true where the witness admits
his signature, but expressly testifies that he did not in fact see the
execution, the presumption is repelled and resort is had to proof
of the handwriting of the party, or to 'collateral proof and the
evidence of circumstances. And in the present case it will be
recollected beside the testimony of Nevius as to the handwrit-
ing, were the release, and the admission of Tucker respecting
the settlement and receipt, and his repeated declarations that
Patterson owed him nothing. Hero then were some proof of
the handwriting of the witness, and independent thereon, some
evidence of circumstances, tending to produce a belief that the
contents of the receipt were true. Whether these matters were
such as should have satisfied the jury that the receipt was
genuine, it is not necessary to examine. It is enough that they
were sufficient fairly to raise a question of fact, which ought to
?• are been submitted to the jury, for their determination. Where
there is no evidence of the due execution of an instrument, it is
the duty of the court to reject it. Where there is some evidence,
the opinion of the jury ought to be taken. The remarks of Justice
334 NEW JERSEY SUPREME COURT.
Patterson v. Tucker.
Dunaan, in Sigfried v. Levan, a case not dissimilar to the present
in many circumstances, are very appropriate. " The mistake
arises from supposing that the court in suffering the deed to go
in evidence to the jury decide the issue. Nothing can be more
unfounded. All that is done by the court in admitting the deed
as evidence, is, that if the execution of the deed is proved by the
subscribing witness, the party has made out a, prima facie case,
not a conclusive one; or in cases where recourse is had to the
secondary evidence, the collateral proof is such that a jury might
presume the execution, and then these facts are submitted to
the jury, to exercise their own judgment, to draw their own
conclusions, of sealing and delivery. The facts and circum-
stances were of that nature that the bond should have been
received in evidence, open to all evidence that might be adduced
to lessen the weight of these facts and circumstances, and in
withholding the bond from the jury, the court decided that issue
of fact which could only be decided by the jury."
In opposition to the admissibility of the receipt it was farther
insisted, upon the argument at the bar, that the court might have
rejected it, not that they actually did so, for their reason is not
stated on the bill of exceptions, because irrelevant and inapplica-
ble to the note. But this conclusion can find no appearance of
support except in a partial view of the circumstances of the case.
The receipt, it is said, does not mention the note, and is in full for
tanning done for the defendant. It must, however, be recollected
that whether a note had been given or had existence, was a
subject of controversy. And the purpose of the defendant was
as well to repel the allegation that he had made such a note, as
also to shew by the release, and the receipt, and the declarations
and admissions of the plaintiff, that whatever might have been
due to him at any time, had actually and fully been paid. In
this point of view a receipt given some months after the alleged
date of the note, purporting to be in full for work, and more
especially if, as may be fairly inferred from the matters set forth
in the bill of exceptions, no tanning had been done by the
plaintiff for the defendant in the intermediate period, was clearly
relevant and competent.
Let the judgment be reversed.
CITED IK Meeker v. Boylan, 4 Dutch. 274, 294.
NOVEMBER TERM, 1827. 335
Den v. Kimble.
DAVID JAMES ads. SARAH COX.
15 DOWER.
A general authority to an attorney to sign the sheriff's name, will not author-
ize him to appoint a deputy to serve process.
W. Hoisted moved to quash the writ of dower which had been
served in this case by a person, not the sheriff of the county, by
virtue of a special deputation, endorsed upon the writ by the
attorney of the plaintiff, he having a general authority from the
sheriff to make such deputations, and sign the sheriff's name there-
to ; and he contended that the attorney could not, by virtue of this
general power, appoint a deputy to serve process ; that the maxim
of the law was that "a delegated power could not be delegated."
Wall, contra.
FORD, J. delivered tne opinion of the court that a general
deputation to an attorney was insufficient to enable him to author-
ize a person to serve process, and that he could not transfer his
authority to another.
Service of the writ quashed.
CITED IN Meyer v. Bishop, 12 Or. Ch. 143.
DEN ex dem. EDWARD SMITH against RICHARD FEN, HENRY B.
KIMBLE, tenant. The same against LEWIS SMITH, and others.
EJECTMENT.
In an action of ejectment brought upon a mortgage, the court will not allow
the money due upon the mortgage to be paid into court, if there is a bill in equity
pending on the mortgage.
The court will order a consolidation of several actions of ejectment where
there is the same question and defence in all the cases.
These were several actions of ejectment brought by the lessor
of the plaintiff upon a mortgage against a number of defendants.
Wall moved for leave to pay into court the amount of money
due upon the mortgage.
L. Q. C. Elmer objected to the motion, and stated, that there
was a bill in equity, pending upon this mortgage, and that there-
fore the money could not be paid into court, and cited Itev. Laws
162, Sec. 1.
EWINO, C. J. — We can only adopt this course when no bill in
equity is pending. Leake v. Chambers, 1 South. 33.
Motion refused.
336 NEW JERSEY SUPREME COURT.
Den v. Kimble.
Wall then moved to have these suits consolidated.
Elmer objected that a consolidation of the actions could not be
made, until appearances had been entered, and consent rales ex-
changed ; and the court being of that opinion, Wall, thereupon
moved that David C. Wood be permitted to defend as landlord,
together with the tenants. The court having granted his applica-
tion, he then moved to consolidate the said several suits, and read
an affidavit of David C. Wood the landlord, stating that all the
premises in question, for which the above suits are respectively
brought, are all held under one and the same title, and have
been bought and sold as one and the same tract ; that the decla-
rations in said suits are on the demises of the same person.
That the lessor of the plaintiff, as deponent believed and was
informed, sets up a claim under two mortgages, that the last of
the two mortgages, as claimed by the lessor of the plain-
tiff, covers the whole of said premises ; that the said Henry
B. Kimble, Lewis Smith, and others, hold the property in
their possession as the tenants at will of the said deponent;
that the whole of said premises are used for carrying on the
business of the deponent, which is conducted under his direction,
and that the said tenants occupy different parts of said prem-
ises for the purpose of conducting said business and of con-
tributing their labour and services to the same, and which is
done accordingly by them ; that all said persons named as the
tenants at will of the deponent, are laborers at a furnace, except
Henry B. Kimble, who is the manager of said furnace for
deponent, and that all said persons live in a short distance from
said furnace, and that none of said persons pay this deponent
any rent for the property occupied by them ; and further that
one of the said mortgages under which the lessor of the plaintiff
claims title, hath this day been paid and satisfied by deponent.
This affidavit, Wall contended was sufficient to sustain the motion,
and cited Barn, notes 176. It shewed, he said, that the ejectments
\vere brought upon the same demise, the whole of the tenements
being necessary to the conducting of the works, and all were
included in one mortgage.
Elmer objected, that this property was derived from different
sources, and there may be different defences.
CHIEF JUSTICE. — Does the affidavit shew that the defence is
the same in all the cases?
NOYEKBEE TEEM, 1827. S37
D( n v. "JfimbL.
Wood said, ws will add tlot to ths affidavit.
It was accordingly done, aai the affidavit re-sworn.
CHIEF JUSTICE. — The principle upon which consolidation is
ordered is, that the same question is to arise in all the actions.
The object of consolidation is laudable. It is to save costs; and
if we can secure to the parties all their rights, and at the same
time prevent unnecessary costs, it is desirable. The doctrine on
this subject in the English books is somewhat incongruous. There
is a case in 2 Strange 1149, Smith v. Crabb, where the court refused
to consolidate several declarations in ejectment, although it was
suggested that the title was the same in all, assigning as a reason
for refusal that the lessor might have sued the defendants at
different times, and it would be obliging him to go on against all,
when perhaps he might be ready, in some of them only. But in
the case of Grimstone v. Burgers and others, Barnes1 Notes 176,
the Court of Common Pleas ordered sixteen ejectments to be
consolidated into one. And in the case of Doe ex dem. Pultney and
others v. Freeman and others, on a rule to shew cause why the
proceedings in thirty-seven actions of ejectment, brought against
the occupiers of so many houses in Sackville street, should not be
stayed, and abide the event of a special verdict, Lord Kenyon
said it was a scandalous proceeding ; that all the causes depended
on the same title and ought to be tried by the same record ; and
ordered the rule to be made absolute. 2 Sell. Prac. 229. 2 Arch*
Prac. 180. All these cases assert the power of the court to con-
solidate in actions of ejectment. Our practice act, Rev. Laws
421, sec. 58, gives a general power to consolidate unnecessary
actions. The authority of the court extends to ejectment as well
as other actions, but in its exercise in the former more difficulty
exists and greater caution is required ; for though the title of tho
lessor be the same, yet where the defendants are different, they
may have different defences. And if the actions are consolidated
and the plaintiff recover, and afterwards obtain judgment for the
mesne profits, one of the defendants, if another bo unable, will
be compelled to pay tho whole. Notwithstanding, however, these
difficulties, the court have the powen> and ought in a proper case
to consolidate. We think this is such a case, and shall thoreforo
make tho order, imposing on the defendants proper terms. There
are two modes in which this purpose is effected ; the one whore
the actions are actually consolidated, and the other which may
VOL. iv. W
338 NEW .ms.^Y SUP'^lifi COUP/!1.
Th;. Sla*,» > . 0 u •'/ ,r.
be called a quasi consolidation, wbero ons, action Is trie ", and ihe
rest are ordered to abide its ev3..t.
Let these actions be consoli "atei.
The following is the rule which was entered in the above cases
and sanctioned by the court.
Upon application in behalf of David C. Wood and said persons
above named, as tenants in possession, the court having heard
the affidavit of said David C. Wood, and having also heard the
arguments of counsel, do order that the several actions of eject-
ment against Eicbard Fen, in which the above defendants except-
ing said David C. W'ood, were respectively notified as tenants in
possession, be consolidated into one action in the manner above
stated, and that the said David C. Wood, the landlord of said
defendants, be admitted defendant in such cause with said tenants,
upon these terms, viz. — That the same defences on the trial of
said cause be set up by all the defendants, and not diverse and
separate defences by the several defendants respectively — that
the said defendants admit themselves to be in possession of the
premises in question, and that no objection shall be taken on the
ground that the defendants are not jointly possessed of the prem-
ises in question. On motion in behalf of James D. Westcott,
jun. attorney for the said defendants.
CITED is HendricJcson v. Hendrickson, 3 Gr. 107. Surnham v. Dalling, 1 Or.
Ch. 312. Hamilton v. Dobbs, 4 Or. Ch. 227.
THE STATE against PETER G. CONOVER and CHARLOTTE his wife.
It is the doty of the Orphans' Court making an order for the sale of real estate
.tinder the act " making lands liable for the payment of debts," Rev. Laws 430,
435, sec. 19, 20, 24, to ascertain and decide whether a sale of the whole of the
real estate is necessary, or whether the sale of a part will suffice ; and if they find
ihat the sale of part only will suffice, and ought to be made, then to ascertain and
decide what part ought in legal propriety and sound discretion to be sold.
It is the duty of the Orphans' Court, before making the order for sale, to
•examine and ascertain that the personal estate which came to the hands of the
executor or administrator, has been applied by him in the course of administration.
This was a certiorari to the Orphans' Court of the county of
Monmoutb, to remove the proceedings and decree of said court,
on the application of John Stillwell, acting executor of John Lyell,
NOVEMBER TEEM, 1827. 339
The State v. Conover.
deceased. In the term of July, 1824, John Stillwell, acting execu-
tor of John Lyell, deceased, presented a petition to the Orphans'
Court of Monmouth, stating "that he had filed an oath* of the
situation of the estate of the said deceased, together with an
account of the settlement of the said estate by him, by which it
appeared that the personal estate of the said deceased was insuf-
ficient to pay the debts and discharge the demands against tho
same, and praying an order and decree of said court to sell and
dispose of so much of the real estate of the said decedent as may
be sufficient and necessai*y to pay the said debts, together with
all proper expenses." The court thereupon "ordered, that all
persons interested in the lands, tenements, hereditaments and
real estate of the said John Lyell, deceased, should appear and
shew cause, if any they had, on the first day of the next term,
why so much of the real estate of the said deceased should not
be sold as would be sufficient to pay his debts." And in the
term of October ensuing the said court made the following order.
"The order of this court made at the last term requiring all per-
sons interested in the lands, tenements, hereditaments and real
estate of John Lyell, deceased, to appear and shew cause at this
time, why so much of the real estate of said deceased should not
be sold as would be sufficient to pay his debts, having been duly
advertised according to law, and no person appearing to shew
cause as aforesaid, and the court having heard the proofs and
allegations of the said executor, do find on full examination that
the personal estate of the said deceased is insufficient to pay his
debts, it is therefore ordered and decreed by the court that the
said executor sell tho whole, or such and so much of the real
estate whereof the said John Lyell died seized, in the county of
Monmouth, as will be sufficient and necessary to pay his debts,
together with all reasonable costs and charges, the said executor
firfci entering into bond to tho ordinary in manner prescribed by
law, and that he make report of his proceedings thereon to this
court at the next term after such sale, agreeably to law." Tho
executor advertised for sale a part of the real estate, and at the
term of January following, on the application of Peter G. Con-
over and Charlotte his wife, persons interested in that part of the
real estate so advertised, the court granted a rule to shew cause
why tho said order of the term of October last should not bo set
*See the substance of this oath, stated in the opinion of the Chief Justic«,
delivered in this case.
340 NEW JERSEY SUPREME COURT.
The State v. Conover.
aside, so far as related to the real estate of the said Peter G.
Conover and Charlotte his wife, until the personal assets and
residuary devises were first applied to the payment of the balance
alleged to be due the said executor. On the argument of this
rule before the Orphans' Court in the term of April, 1825, the
court discharged the rule to shew cause, and confirmed the decree
and order for sale made in the term of October.
Conover and wife thereupon brought this certiorari. Upon
the return of the certiorari a rule for leave to take affidavits
was obtained, and under this rule an affidavit was taken stating
in substance, that Benjamin Micheau and Mary Micheau and
Fenwick Lyell sold and conveyed to Joseph A. Taylor and John
A. Taylor an undivided moiety of a certain tract or parcel of
land which had been devised to the said Mary Micheau and
Fen wick Lyell by the last will and testament of said John
Lyell, deceased, and received therefor the sum of one hundred
and ten dollars ; and that Fenwick Lyell and Catharine his wife
and Benjamin Micheau and Mary his wife, conveyed to Richard
Stout, for the sum of sixty-two dollars and fifty-two cents,
another parcel of land which had been devised to them by the
said John Lyell, deceased, and that the said premises were at
the time of making the affidavit in the possession of the pur-
chasers; and also that during the lifetime of John Lyell,
deceased, Paul Micheau bad a set of cabinet maker's tools and
patterns, the property of said John Lyell, and that he used said
tools as his own, and that said tools were bequeathed to said
Paul Micheau by the last will of said John Lyell, deceased, and
that the said Paul Micheau was at the time of making said
affidavit in the possession of the said tools.
Wall and Ryall, for Peter G. Conover and wife, the prosecutors
of the certiorari, assigned a number of reasons for the reversal
of the order of sale made by the Orphans' Court, among which
were the following:
1. Because the said executor should have first applied the per-
sonal estate to the payment of the debts before application could
be made, agreeably to law, to the said Orphans' Court for the sale
of the real estate.
2. Because the said order for the sale of real estate upon the
application of the said executor, should have specified the part
to be sold, as it was manifest after the application of the personal
NOVEMBER TEEM, 1827. 341
The State v. Conover.
assets to the payment of the debts, the deficiency, if any, would
be trifling.
3. Because the general order of the said Orphans' Court, for
the sale of the real estate of the said deceased, was contrary to
law.
R. Stockton, contra.
The CHIEF JUSTICE delivered the opinion of the court.
Certain of the subjects brought before us by the discussion of
this case have recently undergone an examination by Chancellor
Williamson, and an opinion respecting them was delivered by
him in March last, in the case of the administrators of Daniel
Wilmurt, deceased, against Jonathan H. Morgan; from which
the following extract is made:
" The first objection which I shall notice is one that lies at tho
foundation of the sale, and which, if well taken, would render it
unnecessary to consider any other of the objections made by the
defendant ; and is, that the order of the court directing the sale
is irregular and insufficient to enable the administrators to con-
vey the legal title to the estate. After looking into the order,
I have no hesitation in declaring that I consider it erroneous
and irregular, and that in my opinion it might have been set
aside if a certiorari had been brought within the time limited by
law, and the proceedings removed into the Supreme Court. I
consider it irregular in not designating the particular part of the
intestate's estate which was to be sold, and that it is contrary
to the provisions of the act of the legislature to make a general
order, as has been done in this case, for administrators to sell so
much of the real estate as shall be necessary to satisfy the debts
without specifying the part to be sold. The legislature have
not thought proper to leave it to administrators or executors to
judge of the necessity of selling the whole or a part of the real
estate or what part to sell. But these matters are to be settled
and determined by the court, for the act says, tho court shall
order and direct the executors or administrators to sell tho
whole if necessary of tho lands, &c., or so much thereof as will
bo sufficient for that purpose, and when a part only is sufficient,
such order shall specify tho part to be sold ; and if a part can-
not be sold without manifest prejudice to tho persons iutore.stcd,
342 NEW JEESEY SUPREME COUET.
The State v. Conover.
the court may at their discretion order the whole, or a greater
part than is necessary to pay the debts, to be sold, &c. Rev.
Laws 435, s. 20.
" In my opinion also it was the duty of the court to examine
and ascertain that the personal estate which had come to the
hands of the administrators, has been applied by them in the
course of administration, before making the order for sale. And
this, by the express language of the twenty-fourth section, which
is introduced as a proviso to the four preceding sections, and
intended to limit and restrain the power therein given. By the
nineteenth section, when executors or administrators discover
that the personal estate is insufficient to pay the debts it is made
their duty as soon as convenient to make and exhibit under oath
a just and true account of the personal estate, and of the debts
as far as they can discover the same, to the Orphans' Court of
the county where the lands lie. And the Orphans' Court are
then to make an order directing all persons interested to appear
before them as directed by the act. This first order may be
applied for and made as soon as it is discovered that the personal
estate is insufficient for the payment of all the debts. But to
prevent an abuse of this power by a sale of more of the real
estate than may be necessary, the legislature by the twenty-fourth
section expressly provide that no part of the lands, tenements
and real estate of any testator or intestate, shall be ordered by
the said Orphans' Court to be sold as aforesaid, until the executor
or administrator shall have applied the personal estate, or such
part thereof as may have come to his hands, towards payment
of the debts of such testator or intestate. The sections and pro-
visions are perfectly consistent, and I cannot but consider the
twenty-fourth section as a very salutary provision and one which
ought strictly to be adhered to, and that no order for sale ought
to be made as long as the executors or administrators have
assets in their hands, which ought to be applied by them to the
payment of debts. To obtain the order for a sale it is not
necessary that all the personal estate should be collected and
applied in payment of debts, but it is necessary that it should be
ascertained by the court, upon examination, that the personal
estate is insufficient, and that it should be made to appear that
so much thereof as has come to the hands of the executor or
administrator, has been applied. As there is too much reason to
believe that these salutary provisions of the act are not suffi-
NOVEMBER TEEM, 1827. 343
The State v. Conover.
ciently attended to, I have thought it. my duty not to pass in
silence over the objections taken to the proceedings of the court
making the order."
Upon full consideration of the act of the legislature, our opin-
ions entirely coincide with the doctrine thus laid down by the
chancellor. It is the duty of the Orphans' Court making an order
for the sale of real estate, under this act, to direct, in and by their
order, a sale of the whole of the real ewtaie, if a sale of the whole
be in their opinion nooetisary ; and to order a sale of a part, if
the sale of part will in their opinion be sufficient for the payment
of the debts; and if they direct the sale of a part, they are to
specify and direct, in and by their order, what part is to be sold.
It is the duty of the court to ascertain and decide whether a
sale of the whole is necessary, or whether the sale of a part
will suffice ; and if they find that the sale of part only will
suffice, and ought to be made, then to ascertain and decide what
part ought, in legal propriety and sound discretion, to be sold.
The examination and adjustment of these important matters
have been committed by the legislature to the impartiality,
integrity and intelligence of the court, and not to the choice vr
judgment of the executors or administrators, however worthy of
confidence they may be. Nor can the court delegate the perform-
ance of these powers and the discharge of these duties to other
persons. The policy of the provision, if necessary to be sought,
is obvious. To increase the amount of sale is always the direct
interest of the executor or administrator, and concerned in
the real estate or connected or related to those who are, as they
oftentimes are and always may be, an independent tribunal has
been erected to direct their conduct in these respects, in which
interest or partiality might unintentionally mislead or bias their
judgment. The language of the act is so plain and explicit as
to leave no serious doubt or difficulty respecting its true meaning
and just construction. It was remarked, on the argument, that
the making of general orders to sell the whole estate or so much
as might be sufficient to pay the debts has prevailed very exten-
sively in the Orphans' Courts, and that much mischief may
ensue from now declaring them to be erroneous and liable to
be set aside. A loose and careless practice, it is to be lamented,
has prevailed ; but if indeed, general, it is by no means univer-
sal. The balance of mischief, if an account could be accurately
stated, would, it is believed, be greatly to the credit of a eon-
344 NEW JEESEY SUPEEME COUET.
The State v. Conover.
tinuance of the practice. The hazard of declaring such orders
irregular will be found too, on mature reflection, to be much less
than at first sight may be supposed. But whatever weight might
justly be due on a doubtful statute to a general practice affording
a practical and contemporaneous construction, or to anticipated
consequences, such considerations seldom avail any thing against
clear and unambiguous expressions.
It is the plain duty of the court also, as a preliminary to an
order for sale to ascertain and decide, not only that the per-
sonal estate is insufficient to pay the debts, but that such part
thereof as may have come to the hands of the executor or
administrator has been applied to that purpose. An appli-
cation for the order may be made soon as convenient after
the executor or administrator shall discover or believe that the
personal estate is insufficient, and the order to shew cause and
ether steps preparatory to the order for sale may be made and
taken ; but the order for sale should not be made until it has
appeared to the court on the full examination which according
to the terms of the act they are directed and bound to make,
that the personal estate which has come to the hands of
the execuior or administrator has been applied towards
payment of the debts. By this -rule we are not to be under-
stood to mean that if an executor or administrator has mis-
applied o* wasted assets which may have come to his hands,
and thar^y rendered totally irrecoverable and inapplicable
to the payment of debts, that the power of the Orphans' Court
to mane a sale for the actual honest deficiency which the real
estate c.ght to supply, is thereby destroyed. In such case
the general r>cwer of the court remains ; but in the exercise of
it due care should be taken that the executor or administrator
may not cover his own delinquency under the sale which he
may make.
Upon comparing the order brought before us by the present
certiorari, with the rules and provisions thus established by the
act of the legislature it is found irregular and erroneous in two
important particulars.
1st. In the first place the order was prematurely made.
From the papers returned here, and which were exhibited to
the Orphans' Court by the executor himself, it appeared that he
had not applied towards the payment of the debts the personal
estate which had come to his hands : — nay, if any thing certain
NOVEMBEE TEEM, 1827. 345
The State v. Conover.
can be understood from such vague and indefinite proceedings,
the court have authorized and ordered a sale of real estate to
satisfy a deficiency, a large portion of which was created by an
application of assets to the payment of legacies instead of debts,
and to satisfy interest accruing upon debts claimed by the execu-
tor, and remaining unpaid in consequence of such application.
John Stillwell, the executor, had exhibited an account in the
Orphans' Court, on which a decree of allowance was made in
July, 1819. In this account he claimed and obtained allowance
for certain specific legacies of personal estate, amounting to
$269.50, and at the foot a balance of $507.51 is found, and
declared to be due to the accountant. In July Term, 1824, he
presented a petition stating that he had filed an oath of the
situation of the estate of the deceased, together with an account
of the settlement of the estate by him ; from which it appeared
that the personal estate of the deceased was insufficient to pay
the debts and discharge the demands against the same, and
praying a decree. The account referred to has been already
mentioned. The oath states that his account was settled and
allowed in July, 1819, by which a balance of $507.51 was reported
to be due to him, on which interest was due and owing from the
time of the settlement ; and that since the settlement he had not
received any personal estate of the testator, nor did he know of
any that was not settled and allowed in the said account, to pay
the balance. At October Term, 1824, the decree for sale was
made. It was said on the argument at the bar, that certain
cabinet maker's tools and other articles, specifically bequeathed
to Paul Micheau, had been in his possession some time before the
decease of the testator, and doubts might justly be entertained
whether they belonged to the latter. No claim to them however
as his property appears to have been set up by Micheau, and the
executor in his account asks allowance for their value, not as
chattels improperly inventoried, or otherwise irrecoverable, but
as bequeathed and delivered to Micheau.
Expressing, however, no opinion on this matter, wo observe that
the residue of personal estate specifically bequeathed is clearly
applicable to the paymcntof debts; for there is nothing in the will
of the testator to take the case out of the general and well settled
rule, that the personal estate is the primary fund, and to bo first
applied for the payment of debts, and not to bo exempted unless
by express words or clear intention in tho will of tho deceased.
346 NEW JERSEY SUPREME COURT.
The State v. Conover.
In the second place. The order is erroneous because of its
uncertainty. It authorizes the executor to sell " the whole or such
and so much of the real estate whereof the said John Lyell died
seized in the county of Monmouth, as will be sufficient and neces-
sary to pay his debts, together with all reasonable costs and
charges." The important duties which ought to have been per-
formed by the court, are by this order wholly referred to the
executors. If part be sufficient; and on the argument the suffi-
ciency of part was not controverted, but rather conceded, the
order has not specified, nor the court directed, as the act plainly
requires, what part should be sold.
In order to prevent any misunderstanding or misapplication of
the foregoing observations, and of the decision we are about to
render, we think it proper explicitly to state, in the first place,
that neither has reference to the course of proceeding prescribed
in the act concerning the estates of persons who die insolvent,
Rev. Laics 766 ; and secondly, that we express here no opinion on
the validity, effect or operation of such an order as is now before
us, when produced in evidence in the deduction of title in the
prosecution or defence of an action of ejectment, or in any other
case where the order may come incidentally or collaterally in
question. In the case in the Court of Chancery already mentioned,
the chancellor decided that the order under his examination,
although in his opinion erroneous and irregular, yet being "the
order of a competent court, made in a matter of which they had
jurisdiction, until reversed or set aside, could not be disregarded
or treated as a nullity, when incidentally brought into question,
in another court, but must be considered as valid and effectual"
to sustain a sale made under it. The point is not before us ; and
we are therefore only at liberty ,to say, that no conclusion ought
to be drawn that we differ from the chancellor.
Order of Orphans' Court reversed.
CITED IN Taylor v. Hanford, 6 Hal. 344. Den, Obert v. Hammel, 3 Har.
80. Stiers v. Stiers' Ex., Spen. 54. Bray v. Neill's Ex. 6 Gr. Ch.
349.
CASES DETERMINED
IN THE
SUPREME COURT OF JUDICATURE
OF THE
«
STATE OF NEW JERSEY,
FEBRUARY TERM, 1828.
DAVID REED against WILLIAM ROCAP.
1. If a plaintiff appeals from a judgment rendered against him in favour of the
defendant, he cannot, on the appeal, move the court for a judgment of nonsuit,
and thereby get rid of the judgment against him.
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.
3. The admission of a party made in the progress of the trial of the cause be-
fore the justice, may be proved on the appeal by one of the witnesses examined
before the j ustice, who heard the admission.
Wall, for plaintiff.
L. Q. C. Elmer, for defendant.
The CHIEF JUSTICE delivered the opinion of the court.
Eeed sued Eocap, in an action of debt, in the court for the
trial of small causes. Kocap filed an account by way of off-set —
and after a trial by jury, judgment was rendered by the justice
in favour of Eocap for 810.76 of debt and costs. Eoed appealed ;
and judgment in the Court of Common Pleas was givdn for
Eocap for $16.36 debt and costs.
1st. When the hearing of the appeal came on, Eocd moved the
(847)
348 NEW JEESEY SUPEEME COUET.
Reed v. Rocap.
Court of Common Pleas that the judgment of the justice should
be reversed, and that judgment of nonsuit should be entered
against him. The court overruled the application and ordered
the trial to proceed ; and herein is the first reason assigned for
the reversal of the judgment of that court.
A question might perhaps be raised, without entering into the
merits, whether the court did not rightly overrule the motion.
A motion to render judgment of nonsuit against a party actually
present in court, and even himself making the motion, is, to say
the least, somewhat novel. Jf he intended to put the matter
fairly to, the test, should he not have withdrawn from the court?
If it be said he could not safely withdraw, as he had by .his
appeal bond bound himself to appear and prosecute the appeal,
does not this furnish an argument against the propriety of the
procedure? It is not, however, necessary to enter further into
this matter, as it may be expedient to use the present oppor-
tunity to examine and decide the principal question. Nor is it
necessary for us to consider an affidavit read by Keed, on inn king
the motion for nonsuit. The affidavit may shew that he had
Bound reasons for wishing success in the motion, and that it was
not made for vexation or delay. But it cannot strengthen his
legal grounds, nor in any wise change the real question, which
is, whether a plaintiff below against whom a judgment, in conse-
quence of an off-set, has been rendered, becoming appellant, may
legally require the court to give judgment of nonsuit against
him, the consequence of which is, that by his own will, and at
his own choice, and without shewing it unfounded or illegal, ho
avoids the judgment which has been obtained by the defendant
below.
It is obvious that we can find no precedent to guide us in the
decision of this question in the proceedings at common law.
It is equally certain that our statute furnishes no explicit rule.
We must therefore have recourse to principle, and to such lights
as the provisions contained in the statute may afford, to disclose
the design and intention of the legislature.
A party who, as plaintiff, has instituted a suit, may during a
certain period of its progress, voluntarily withdraw, cease to
follow it, and submit to have judgment entered that he doth not
further prosecute, which however is always rendered, not at his
instance but that of his adversary. The principle on which this
permission to withdraw is founded, is that the procedure on the
FEBRUARY TERM, 1828. 349
Keed v. Rocap.
part of the plaintiff is his own, instituted for his own benefit;
that in abandoning it he affects or abridges the right of no other
person ; and as ho must pay costs to his adversary, he is thereby
deemed, in legal contemplation, to make him indemnity for call-
ing him into court : so long then as he can exercise control over
the proceedings without interfering with the established rights
of another, he is permitted to do so. But whenever such pro-
ceedings have occurred, or the suit has so far advanced that any
right of the adverse party has been legally established, or may
be abridged by a relinquishment of further proceedings, the
power of the plaintiff has ceased.
Thus, for example, during all the stages of the suit, antecedent
to the trial, the plaintiff may, at his pleasure, cease to prosecute.
So even on the trial, when the jury are ready to pronounce their
verdict, he may withdraw. But the verdict being rendered
against him, his control is at an end. If he even obtain a rule to
shew cause why a new trial should not be granted, he cannot, at
his will or by his choice, arrest the further progress of the defend-
ant. Take for illustration the example of a verdict or judgment
actually rendered in favour of a plaintiff, but for a less sum than
he believes himself entitled to recover. By a rule to shew cause,
or by writ of error, he may seek relief. He may indeed in both
cases voluntarily abandon his suit ; but he cannot, in either, obtain
what is technically called a nonsuit, or in any wise at his own
•will entitle himself to prosecute his claim in another action as i,n
open and undecided matter. These principles apply with equal
force to the case under our consideration. By the verdict and
judgment in the court for the trial of small causes, the original
defendant has acquired a right, of which, if the plaintiff should
be allowed at his mere pleasure to deprive him, the law would bo
not only inconsistent with itself but unjust and impolitic. By the
verdict and judgment the situation of the parties have undergone
an essential change. The plaintiff below would doubtless on tho
appeal be entitled first to exhibit the evidence of his claim ; but
to a certain extent both parties are actors, and the original plain-
tiff could not cause at his pleasure the judgment below to be
reversed and all further proceedings to cease, without abridging
the rights of tho other party. If such power be allowed to the
plaintiff it would be far better that he should at once, before the
justice, annul the judgment, without the useless expense and idle
ceremony of the appeal.
350 NEW JERSEY SUPEEAIE COUET.
Reed v. Rocap.
An obscurity in the examination of this subject has arisen
from the omission to fix and bear in mind the precise time when
the judgment of the justice ceases to exist. Its existence does
not cease when the appeal is granted, nor when entered in the
Court of Common Pleas, nor when the hearing of the cause in
that court has commenced. It ceases only when it is by an act
of that court destroyed. It remains until reversed. If the
appellant does not appear and prosecute, the appeal is dismissed,
the judgment stands. If he does appear and the hearing comes
on, the court having heard "the documents, proof's and wit-
nesses," shall, if they find the judgment of the justice correct,
affirm it; if incorrect, they shall first reverse it and then give
such judgment as the law and fact of the case require ; or if the
judgment has been rendered for the plaintiff below, and the
defendant having appealed, appears, but the plaintiff, then
appellee, refuses to appear, or to produce, when the onus pro-
bandi is on him, evidence to support his demand, the court are
in like manner first to reverse the judgment below, and then to
render such judgment, of nonsuit or otherwise, as the occasion
requires. In all cases however the judgment remains, and the
Court of Common Pleas will not and ought not to reverse it
antil its illegality has been either directly or virtually acknowl-
edged by the party in whose favour it has been rendered, or
until such illegality has been ascertained by the court upon an
examination of the merits.
An appeal from the chancellor to the Court of Appeals pre-
sents some points analogous to the case before us. The decree
appealed from remains in force, its execution only suspended,
until disposed of in the Superior Court. On the hearing of the
appeal the decree is either affirmed, or is first reversed, and
then a new and proper decree made. During the progress of
the suit in chancery the complainant would be permitted by the
chancellor to withdraw his complaint antecedent to the estab-
lishment of any right in favour of the defendant. But if, after
an hearing before the chancellor on the merits, a decree is ren-
dered for the defendant, or in other words, the complainant's bill
is dismissed, and an appeal is then made by the complainant, the
Court of Appeals would not sustain an application in the nature
of a motion for nonsuit, nor permit the complainant to escape
from the decree without first evincing its departure from the
principles of equity.
FEBRUARY TEEM, 1828. 351
Reed v. Rocap.
Our statute, as already remarked, contains no express provision
for the present case. Certain parts however have a strong bear-
ing upon it. By the condition of the appeal bond the appellant
is bound to appear and prosecute the appeal in the Court of
Common Pleas. Yet by the procedure now sought to be estab-
lished, he may, contrary to his obligation, decline to appear and
cease to prosecute. He is further bound to stand to and abide
the judgment of that court. Does he abide that judgment by
withdrawing from it? Further. To entitle himself to appeal
after a verdict, the appellant must make oath that he believes
he has a just and legal defence to make upon the merits of the
case. Does not this requisition clearly shew that the purpose of
the appeal is to give him an opportunity to be again heard upon
the merits of the case, before another tribunal. Why compel
him to declare that he has a defence on the merits, if- he need
not exhibit such defence or bring into view those merits upon
the appeal?
On the whole I am fully satisfied the Court of Common Pleas
were right in overruling the motion for nonsuit.
The application by the appellant to dismiss the appeal after
the parties had been fully heard, and when the court was about
to pronounce judgment, was also properly rejected. It came
too late. Had this application been made in place of the motion
for nonsuit, it would, it may be presumed, have then prevailed.
The appellant might then have been entitled to success in the
motion, submitting to the consequences.
The second reason for reversal is that the account filed by the
defendant is not sufficient in respect to the charge contained in
these words: "May 23, 1823. To a note of hand I gave plain-
tiff to collect, against one Ivy Corson, for the sum of twelve
dollars, which this plaintiff recovered before Nathaniel Foster,
justice, September 3d, 1823, which has not been accounted for,
$12.00." The substance of the charge is here expressed in a
manner plain, intelligible, and not by any means liable to misap-
prehension. It is objected that the date of the note is not stated.
If the time given, May 23d, 1823, is not, as may be presumed, the
date of the note, but the time when it was delivered to Reed for
collection, and as Rocap had not the note in his possession, he
may have been unable to set forth the true date, other circum-
stances served sufficiently to identify it. He states that a suit
had been brought on it, and names the justice and tho time.
352 NEW JERSEY SUPREME COURT.
Sharp v. Teese.
This charge, although not very formal, is clearly sufficient accord-
ing to the principles repeatedly recognized by this court in
respect to the state of demand.
3d. Another reason assigned for reversal is that illegal evi-
dence was admitted.
1st. The proof of the admission made by Rocap on the trial
before the justice, that he had received the amount of Corson's
note. The admission of a party is evidence for his adversary,
and not the less so because made in the progress of a trial before
a court and jury. Rocap then had a right to use such admission
in his favour before the justice, and equally so upon the appeal.
The proof of this admission on the trial of the appeal was made
by one of the witnesses examined in the court below. The mode
of proof then was unobjectionable, as the justice was not
required to record such matters in his docket. ': The same and
no other proofs and witnesses were produced and examined" in
the one court as in the other.
2d. Evidence was, it is said, improperly admitted to prove what
had been testified before the justice by one Carral, a witness,
•who ought himself to have been called. This objection is not
supported by the state of the case in point of fact. Branson, a
witness examined in the Court of Common Pleas, testified, among
other things, that Carral had been sworn before the justice to
prove a particular matter, " but I can't," said Branson, " tell what
he swore to."
The reasons assigned for reversal are insufficient.
Let the judgment be affirmed.
CITED ITS Williamson v. Brown, 5 Hal. 352. Lum v. Price, 1 Har. 195. Meeker
v. Garland, Id. 486. Denny v. Quentin, 4 Dutch. 137. Howell v.
Vanness, 2 Vr. 444.
ISAAC SHARP and FREDERICK SHARP against CONRAD TEESE.
CERTIOEAEI.
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.
An attempt to contravene the policy of a public statute is illegal, though the
statute contains no express prohibition of such attempt.
FEBRUARY TERM, 1828. 353
Sharp v. Teese.
Gifford, for plaintiffs.
A. S. Pennington, for defendant.
The facts in this case sufficiently appear in the opinion of the
court, delivered by EWINQ, C. J.
This case conies before us by certiorari to the Court of Common
Pleas of the county of Essex. The plaintiffs prosecuted a suit
in the court for the trial of small causes, on a promissory note
given to them by the defendant. Judgment having been rendered
there against them, they appealed, and on the trial of the appeal
the Court of Common Pleas also rendered judgment for the de-
fendant. From a slate of the case agreed on by the parties, it
appears that Teese was indebted to the Sharps; that he applied to
the Common Pleas of Essex in September, 18^3, for his discharge
under the insolvent law; that the Sharps opposed his discharge;,
that Teese offered if they would withdraw their opposition he*
would pay them down about one-half of their debt and give them
his note for the balance, to be dated the next day after the discharge,,
payable in one year. To this they agreed; the note now in question,
was given that day, dated the subsequent. The sum to be paidi
down was on that day secured to be paid. The opposition was.
withdrawn; the defendant was discharged; and the next day the
money secured to be paid down was actually paid. The attorneys
of both parties were present when the arrangement was made.
In the discussion of this case at the bar two questions were
proposed. 1st. What was the consideration of the note? 2d.
Was the consideration legal?
1st. On the part of the plaintiffs it was insisted, that the ante-
cedent debt, not the withdrawing of the opposition, was the
consideration. But the converse of this proposition is most,
clearly the truth. The consideration of a contract, says Black-
stone, is the reason which moves the contracting party to enter
into it. Now the antecedent debt, or the existence of that debt
was not the reason which induced Teeso to give this note. With-
out other motive he would not have given it. Had no opposition
been made, or when made had it not been withdrawn, this note
would not have existed. The language and conduct of Tecso are,
not, I owe you a debt and I will therefore give you a note to show
or to secure it; but, withdraw your opposition and I will there-,
fore give the note. The reason which induced Teese to give, and,
VOL. IV. X
354 NEW JEESEY SUPKEME COUET.
Sharp v. Teese.
the plaintiffs to accept the note, was beyond all doubt the with-
drawing of the opposition, which, agreeably to the provision of the
insolvent law, they had interposed to his application for discharge.
2d. Was such consideration legal ? The policy of our insolvent
laws is that a full and fair disclosure and surrender of the pro-
perty of the debtor shall be obtained ; that on such disclosure
and surrender he shall be, without further impediment, liberated
from confinement; and that all the creditors shall be placed on
an equal footing, without preference, except where liens exist,
and shall equally partake of the property which by such dis-
closure and surrender is subjected to the control and disposal of
the law. Any transaction or arrangement which tends to defeat
either of these purposes is inconsistent with the policy of the
law. The attempt to contravene the policy of a public statute
is illegal. .Nor is it necessary to render it so that the statute
should contain an express prohibition of such attempt. It always
contains an implied prohibition ; and to such attempt the prin-
ciples of the common law are invariably and deadly hostile, not
always by an interference between the parties themselves, or by
enabling the one to recall from the other, where in pari delicto,
what may have been obtained ; but by at all times refusing the
aid of the law to carry into effect or enforce any contract which
may be the result of such intended contravention. The giving
of the note, and the arrangement made in the present case, are,
on almost every point, inconsistent with the policy of the insol-
vent law. First. It places one creditor, perhaps in no wise more
meritorious than the rest, on much more favorable ground. One-
half his debt, probably much more than the dividend of the others,
was paid him in money, and this note, free, if valid, from the effect
of the discharge, was given for the residue. Second. It serves to
stifle enquiry and to protect fraud and concealment from success-
ful disclosure and developement. The just presumption is that
the debtor had reason to fear the investigation resulting from,
the opposition to him. Conscious of integrity he would have
Bought, not shrunk from, scrutiny; he would have boldly defied
it, not purchased exemption at a heavy charge. Either then,
fraud existed, which the giving of the note forever hid from
detection., or if no fraud tainted the conduct of the debtor, and
the creditor had not, as his opposition avowed, some grounds of
censure, then was the note obtained by oppression, extortion and
false and fraudulent pretensions, and in either event ought to be
FEBRUARY TERM, 1828. 355
Sharp v. Teese.
condemned. In the third place. To sustain a note or contract
under such circumstances is to encourage causeless opposition;
to raise up illusory barriers; and to impede the honest but
unfortunate debtor by greater difficulties than the law ever
designed. He may perhaps oftentimes be induced to bribe into
silence a powerful and wealthy creditor, who by a shew of
opposition has no other design than to obtain an illegal preference.
In mercy to the debtor himself then, the law will protect him
from such jeopardy. These principles are sanctioned by a number
of cases, to which it may suffice to give a general reference, with-
out a particular review in detail. Jackson v. Duchaire, 3 T. R.
551. Cockshot v. Bennet, 2 T. R. 765. Nerot v. Wallace, 3 T. R.
17. Jackson v. Lomas, per Buller, 4 T. R. 170. Blackford v. Pres-
ton, per Ashurst and Lawrence, 8 T. R. 93. Smith v. Bromley,
Doug. 696, note. Holland v. Palmer, per Eyre, C. J. 1 B. and P.
95. Leicester v. Rose, 4 East 380. 1 Leonard 180. Yelv. 197.
1 Atk. 352. Cowp. 39. Callagan v. Hallet, 1 Caines 104. Payne
v. Eden, 3 Caines 213. Waite v. Harper, 2 John. 386. Bruce v.
Lee, 4 John. 410. Yeomans v. Chatterton, 9 John. 295. Wiggin v.
.Bush, 12 John. 306. Tuxbury v. Miller, 19 John. 311. Sterling
v. Sinnickson, 2 South. 756. Of some of these cases, when cited
on the argument at the bar, it was said they arose on the bank-
rupt laws in England, and the statutes in New York, whereby
both the person and the debt were discharged. But these cases
are worthy of respect and attention, not more for their peculiar
circumstances than as illustrations of great principles of the
common law, principles as powerfully applicable to a statute
concerning insolvents as to a statute respecting bankrupts. For
to contravene the policy of a statute, to defeat by artful con-
trivance the just aim of legislative wisdom, is equally to be
reprehended whether the statute relates to those who are or are
not traders; whether it discharges the person only, or both debt
and person. To the remark, that in the English bankrupt
system there is an express provision by Stat. 5 Geo. 2, ch. 30, s.
11, which makes void every security for the payment of any debt
due before the party became bankrupt, given as a consideration
to a creditor to sign his certificate, the observation of Lord
Mansfield, in Smith v. Bromley, is a sufficient answer. "The
taking money for signing certificates is either an oppression on
the bankrupt or his family, or a fraud on his other creditors. It
was a wrong thing in itself before any provision was made against
356 NEW JERSEY SUPREME COURT.
Sharp v. Teeae.
it by statute." With respect to some of the New York cases it
was remarked, that under one act the debtor, and under another
the creditors, must make oath that no preference had been given.
But the prescribing of this oath is only a method of preventing
the preference which the act seeks to deny, and of securing tho
equality which is one of its leading objects. It has nothing to
do with the effect of such preference when given or attempted.
It was further objected by the counsel of the plaintiffs, that
tinder the New York insolvent laws the sanction of a certain
number and value of the creditors must be obtained by making
application for or assenting to the discharge, and that here any
one creditor may make opposition, so that no one is here, as
there, dependent on another. But in the case of Payne v. Eden,
the note declared void was given to the last of the petitioning
creditors, and who signed after there was a sufficiency in number
and value to exonerate the debtor; and in the cases of Waite v.
Harper; Bruce v. Lee; Wiggin v. Bush, and Tuxbury v. Miller, the
withdrawing of the opposition merely, and not the signing of
the petition, was the consideration.
The consideration of the note in question, or the reason which
moved -Teese to give and the plaintiffs to accept it, was in my
opinion illegal; the note was void, and the judgment of the
Court of Common Pleas was right.
It may not be improper to observe, that this opinion does not in
the slightest degree conflict with the case of Hendricks v. Mount
and Crane, 2 South. 738, where the purpose of the sale of the goods
was to satisfy or secure an existing debt ; where in the opinion of
tho court the bill of sale had been made before the petition under
the insolvent act had been presented ; and where certainly no
opposition had been made or was withdrawn. Nor does the opinion
in any measure interfere with the settled and just principal that an
insolvent or bankrupt may, after his discharge, and when free from
restraint, make a valid promise to pay an old debt ; and that the
old debt is so due in conscience, notwithstanding the discharge, as
to afford a sufficient and legal consideration for the promise.
Let the judgment be affirmed.
CITED IH Smith v. Applegate, 3 Zab. 356. Church v. Muir, 4 Vr. 318. State
v. Jersey City, 5 Vr. 397.
FEBRUAKY TEEM, 1828. 357
The State v. Jones.
THE STATE against JOHN I.JONES.
1. The caption to an indictment may be amended after it has been removed
into the Supreme Court by-certiorari, and the amendment may be made upon
proper evidence of the facts and entries on the minutes of the Oyer and Ter-
miner; or the certiorari may be returned to that court and the amendment made
there.
2. The oral allegation or certificate of the prosecuting attorney, that there are
material* in the court below from which the amendment may be made, and that
the minutes and records and files of that court will supply the alleged deficiency,
is sufficient to warrant this court in granting a rule to return the certiorari to
the Oyer and Tertniner for the purpose of making the amendment.
3. It is not necessary that it should be stated in the caption, in express terms,
that the grand jurors were summoned and returned as such.
4. If an offence be committed in the county of S., and after the commission of
the offence the county of S. is divided, and that part of the said county in which
the offence was committed is created a new county, and called W. the otience is
indictable in the county of W.
This was an indictment removed into this court by writ of
certiorari returned to February Term, 1827, and was in the
words following:
WARREN, to wit : Be it remembered, that at a Court of Oyer
and Terminer and General Jail Delivery, holden at the house for-
merly 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 Gabriel II. Ford, esquire, one of the jus-
tices of the Supreme Court of Judicature, and Robert Thompson,
Charles Carter, Job Johnson and William Kennedy, esquires, and
others their fellows, judgesof the Inferior Courtof Common Pleas,
in and lor the said county, according to the form of the statute in
such case made and provided, by the oath of Daniel Swayze, &c.
[naming them] good and lawful men of the said county, sworn, and
charged to enquire for the state in and for the body of the said coun-
ty, it is presented in manner and form following, that is to say —
Warren Oyer and Terminer, June Term, 1826.
Warren County, ss. The grand inquest of the state of New
Jersey in and for the body of the county of Warren, upon their
respective oath and affirmation present, those who were affirmed,
alleging themselves to be conscientiously scrupulous of taking an
oath, that John I. Jones, late of the township of Hardwick, in the
county of Warren, on the twenty-eighth day of August, in the year
of our Lord one thousand eight hundred and twenty-four, at the
township of Mansfield, the said township of Mansfield then being
in the county of Sussex, and now being in the count}' of Warren
358 NEW JEESEY SUPEEME COUET.
The State v. Jones.
aforesaid, and within the jurisdiction of this court, feloniously did
utter and publish as true a certain false, forged and counterfeited
acquittance and receipt for money, which said false, forged and
counterfeited acquittance and receipt for money, is as follows:
"Eeceived, January 2th, 1814, from John I. Jones, by the
hands of Henry Founu, twelve dollars and fifty cents, in full the
debt and cost entered on a judgment in the docket of Jacob Carr,
esq. what I have obtained agensts said John I. Jones in June
last, 1813, and said Jones take a certiorari in the Supreme Court
to Trenton, for which I promise to discharge said John I. Jones
from said certiorari for ever, and whatsoever in said Supreme
Court, all cousts, dues, debts, demands, and all damages is witness
my hand January 2th, 1314.
" SAMUEL BROTMAN. JONATHAN OLIVER."
With intent to defraud the said Jonathan Oliver, he the said John
1. Jones, at the time he so uttered and published the said false,
forged and counterfeited acquittance and receipt as aforesaid,
then and there well knowing the same to be false, forged and
counterfeited, against the form of the statute in such case made
and provided, and against the peace of this state, the govern-
ment and dignity of the same.
To this indictment the defendant pleaded not guilty, and then
presented a certiorari to remove the indictment into the Supreme
Court. In obedience to this certiorari the clerk of the court of
Oyer and Terminer sent to the Supreme Court a copy of the
proceedings as above stated, and annexed thereto a certificate
" that the foregoing is a true copy from the minutes and files of
said court upon the said indictment."
After the return of the writ, with the indictment and pro-
ceedings as aforesaid, in the term of February, 1827, the defend-
ant by his counsel moved the court for leave to withdraw his plea
of not guilty, and to file exceptions to the said indictment and
proceedings as returned with the said certiorari ; which being
ordered by the court, the defendant on the second da}r of March,
1827, and during the said term of February, 1827. filed the follow-
ing exceptions to the said indictment and proceedings.
First exception. Because Ijy the indictment it appears that
the crime charged, was committed, if committed at all, in the
county of Sussex, whereas the indictment appears to have been
found in the county of Warren.
FEBKUAEY TEEM, 1828. 359
The State v. Jones.
Second exception. Because by the return made to the said writ
of certiorari, it does not appear that the persons supposed to bo
the grand jury, had been summoned and returned as such persons
to the court in the term in which the said indictment appears to
have been found.
Third exception. Because by the said return it docs not
appear when and where the said persons supposed to bo the
grand jury were sworn.
Fourth exception. Because by the said return it is stated that
the persons supposed to be the grand jury were sworn and charged,
whereas by the indictment it appears that all the persons sup-
posed to be the grand jury were not sworn, and it does not appear
that the other persons, not sworn, were duly affirmed ; nor does
it appear which persons of the said supposed grand jury were
sworn and which affirmed.
Fifth exception. Because the said indictment states that the
said John I. Jones feloniously did utter and publish as true a cer-
tain false, forged and counterfeited acquittance and receipt for
money, with intent to defraud Jonathan Oliver in the said indict-
ment named ; whereas by the said indictment it manifestly
appears that to utter and publish the said supposed acquittance
and receipt could not defraud the said Jonathan Oliver.
Sixth exception. Because by the said indictment it is stated
that John I. Jones, late of the township of Hard wick in the county
of Warren, on the twenty-eighth day of August, 1824, at the town-
ship of Mansfield, the said township of Mansfield then being in the
county of Sussex but now in the county of Warren, feloniously
uttered and published the said supposed acquittance and receipt;*
whereas on the said twenty-eighth day of August, 1824, there
was no such township as the township of Hardwick in the county
of Warren, nor was there any such person on the twenty -eighth
day of August, 1824, as John I. Jones of the township of Hard-
wick in the county of Warren.
Seventh exception. Because the said indictment is defective in
form and in substance, and insufficient to charge the said John I.
Jones upon. And for these, and for various other exceptions,
apparent upon the said indictment and proceedings, the said John
1. Jones prays the judgment of the court that he may be dis-
charged from the said indictment, and that the same and tho
return thereto annexed may be quashed.
During tho said term of February, 1827, on tho motion of
360 NEW JEESEY SUPEEME COUET.
The State v. Jones.
William C. Morris, prosecuting attorney of the count}7 of Warren,
and on bis allegation that the records and files of the Court of
Oyer and Ttrminer contained all the materials for amendment,
the court made the following order. On allegation of diminu-
tion in the return sent up in this cause it is ordered that the
certiorari and return in this cause be remitted to the said Court
of Oycr and Terminer of the county of Warren, to the end that
the caption returned with the said certiorari may be amended,
according to the fact, in the two following particulars. First,
that the said caption may set forth whether any and which of
the grand jurors mentioned in the said caption were duly affirmed,
and whether prior to such affirmation they declared themselves
conscientiously scrupulous of taking an oath ; and, second,
whether the said grand inquest was then and there sworn and
affirmed.
This order was opposed by the counsel of Jones.
To the term of September, 1827, the certiorari was again
returned, with a schedule annexed containing a copy of the
indictment and the proceedings thereupon as before, with a
caption as follows :
WARREN, to wit: Be it remembered, that at, &c. [as before];
before, &c. [as before], by the oath of Daniel Swayze, &c. [naming
them] and by the solemn affirmation of Charles S. Eobeson and
Samuel Laing, alleging themselves to be conscientiously scrupu-
lous of taking an oath, good and lawful men of the said county,
then and there, sworn and affirmed, and charged to enquire, &c.
[as before].
The schedule also contained a copy of the rule of the Court of
Oyer and Terminer, ordering the amendment, as follows:
At a Court of Oyer and Terminer and General Jail Delivery,
holden at Belvidere, in and for the county of Warren, of the term
of June, in the year of our Lord one thousand eight hundred and
twenty-seven.
The State v. John 7. Jones. Sur indictment and certiorari and
rule to amend.
On motion of William C. Morris, prosecutor for Warren, the
•court order that the clerk of this court amend the caption of the
indictment returned with the said certiorari, in the particulars
set forth in the said rule, and return the same as he is required
»by law to do.
At the foot of the schedule is a certificate from the clerk of the
FEBKUAEY TERM, 1828. "361
The State v. Jones.
county of Wsirren, that "the foregoing is a true copy from the
minutes and files of said court upon said indictment."
Another schedule returned with the certiorari contains the
certified copy of the rule of the Supreme Court, of February
Term, 1827, above mentioned, with an answer, signed by the
clerk, "by order of the court," in these words —
"In obedience to the command of this rule AVO herewith send
annexed a new caption to the indictment herein named, to the
honorable the justices of the Supremo Court of Judicature of the
state of New Jersey."
Scudder, for the defendant, objected to the return and insisted
that the same could not be considered by the court as any return
made to them of or concerning the said indictment —
1. Because the Court of Oyer and Terminer of the county of
Warren, in the term of June, 1827, ordered the clerk of that
court to amend the caption of the indictment in the particulars
set forth in the said rule, which were, first, that the said caption
may set* forth whether any and which of the grand jurors
mentioned in the said caption' were duly affirmed; and second,
whether the said grand inquest was then and there sworn and
affirmed. It therefore appears that the clerk of the Oyer and
Terminer of Warren was ordered to amend the said caption
in the said particulars, whether he had any thing to amend
by or not; and because the said return annexed to the said
order does not state that there was any thing to amend by,
or that any thing had been omitted in the first return; nor
does the said return annexed to the said order amend the said'
caption.
2. Because by the return annexed to the said order it appears
that the said clerk of Warren made a new caption, and did
not in any manner amend the caption returned with the said
certiorari.
3. Because a new caption cannot be made, nor can the caption
returned be amended, except to correspond with the original.
1 Chit. Ciim. Law 335. 4 East 175.
Against the indictment, Scudder urged several of the above
exceptions.
Sixth exception. John I. Jones, late of the township of Hard-
wick in the county of Warren, on the 28th August, 1824, [on that
362 NEW JERSEY SUPREME COURT.
The State v. Jones.
day there was not any such township or county, and therefore
there could not be such person or place as the indictment would
give the court to understand; for the count}' of Sussex had not
then been divided ;] at the township of Mansfield, the said town-
ship of Mansfield then being in the county of Sussex, but now in
the county of Warren, feloniously uttered and published the said
supposed acquittance and receipt.
By the indictment it appears that the supposed offence was
committed at the township of Mansfield, in the county of Sussex,
on the 28lh August, 1824, and the indictment is found in the
county of Warren.
The act dividing the county of Sussex was passed November
20th, 1824, without any provision on this subject. Therefore
the case, suppose the facts true, is that John I. Jones committed
an offence in the county of Sussex, and for that same offence is.
indicted in another county, and in a foreign jurisdiction ; that
the township of Mansfield was then in the county of Sussex,
and now in the county of Warren, is of no avail. The legis-
lature had the power to cede the place in question to
Pennsylvania, or to some other "foreign jurisdiction ; and the
consequence is, that the indictment cannot be found in Sussex,
though the offence was committed there, nor in Warren, with-
out legislative provision, for the offence was not committed in
Warren.
That the county of Warren had jurisdiction over the place
when the indictment was found, is no answer. It is enough for
the defendant to say the offence was not committed in Warren.
That the offence was committed at a place within the county
of Warren, is nothing; for the county then had no existence,
and consequently no offence could be committed within that
jurisdiction.
The grand jury can only enquire of facts done in the county,
at the common law; and to be done in the county there must
be such county.
Where a man was wounded in one county, and died in
another, by statute the offender may be indicted in either
county, but not without the aid of the statute, for if the
offender could have been punished without, there would have
been no necessity for the statute. Stat. 2 and 3 Edw. 6, C. 24.
2 Geo. 2, C. 21. Rev. Laws New Jersey 297. 1 Esp. N. P. B. 273,
Wilson v. Clark.
FEBEUAKY TEEM, 1828. 363
The State v. Jones.
All courts are confined to their particular jurisdictions, which,
if they exceed whatever they do is erroneous. 3 Jac. Law Die.
564, word, Jurisdiction. 3 Lill. Abr. 315. A court shall not be
presumed to have jurisdiction, where it doth not appear. 2
Hawk c. 10. 3 Lill Abr. 151.
Fourth exception. This is fatal unless the second return is
considered good; and if the second return is received by the
court as part of the return, still it is submitted that the matter
of exception is not done away. Rev. Laws 429, sec. 5, 7, 8.
Second exception. It ought to appear that the persons com-
posing the grand jury were summoned and returned as such.
Can a grand jury be made of the by-standers, called by the
clerk, without having been summoned and returned by the
proper officer?
A list of the grand jury must be returned by the sheriff under
his official name ; and tliis is as necessary as before the statute
it was to have jury process and return made thereto.
Froom, contra. As to the first reason, it is admitted that in
the act dividing the county of Sussex, there is no provision
made for a case of this kind. The township of Mansfield, where
the crime is alleged to have been committed, is now in the county
of Warren. The crime, as it relates to the place of trial, is local.
It is an offence against the state, to be tried in the proper county,
that is, in the county having jurisdiction of the place where the
offence was committed. That was at the titno the county of
Sussex ; but by the division of that county it is now thrown
into the county of Warren.
Of necessity and right, the courts in the new count}T, coming
in place of the old, have power to try offences and all other
local mutters, in the same way as those of the old count}", with-
out the division, would have done. If the offence was com-
mitted within the territory of tho county of Warren, the
right of trial and punishment necessarily follow. The samo
principle applies to other local matters — as in ejectment. -If
an ejectment is brought in Warren, and the demise and ouster
is laid in tho township of Greenwich, of a time prior to
tho division of tho county, the ejectment may be well tried
in Warren.
This is not like tho case of a county or place under foreign
jurisdiction ceded to the state.
364 NEW JERSEY SUPREME COURT.
The State v. Jones.
• This crime was always an offence against the state, and the
only difficulty is as to the place of trial.
By the act dividing the county of Sussex, it is provided that
all suits then commenced shall be carried on to their final termi-
nation in the county of Sussex. It follows that all other matters
are to be tried in the respective counties where the cause of
action arose, or the offence was committed.
The English and American statutes relative to crimes not
completed in any one county, (as where a man is wounded in
one county arid dies in another) have no analogy. The crime
here is completed in one place.
The second, third and fourth exceptions are all answered by
the new or amended return of the Court of Oyer and Terminer.
But the new caption is objected to.
This matter has been incidentally before the court twice
already.
In the first place this court ordered the original return to be
remitted for the purpose of amendment ; and allowed it to bo
amended by the court in two particulars, agreeably to the facts
as they existed. After the amendment was made and the new-
return came up, a rule was applied for by defendant's counsel to
ascertain whether the amendments were really warranted, that
is, whether there was really any thing to amend by; and this
was refused.
The fifth exception needs no answer.
Sixth exception. The residence of the defendant, (late of the
township of Hard wick in the county of Warren) refers to the
time of finding the bill, not the commission of the offence.
The seventh exception is only formal.
The CHIEF JUSTICE delivered the opinion of the court.
In this case exceptions are taken to an indictment, and the
caption accompanying it, which was found at the Court of O}rer
and Terminer of the county of Warren, in June, 1826, and
removed into thist court by certiorari, sued out at the instance
of the defendant.
Briefs have been submitted to us by the respective counsel.
Some of the objections contained in the brief on the part of the
defendant relate to an amendment of the caption, and ought not
now to have been raised. The points involved in them have been,
FEBRUARY TERM, 1828. 365
The State v. Jones.
in substance, twice decided by this court in this cause. To urge
them again was not regular, and they might with perfect pro-
priety be passed without further remark. But our wish is not
only to do right, but to give satisfaction; not merely to decide
causes, but to shew forth the reasons and grounds of our deter-
minations. We shall therefore examine these objections some-
what at large.
The caption of an indictment is no part of the indictment itself.
It is not presented by, nor does it receive the sanction of, the
grand jury, nor the signature of their foreman. It is an history
of the proceedings previous to the finding of the indictment;
and sets forth the style of the court; the time and place of its
session; by whom held, and their title and authority; by whom
they are to enquire ; the names of the grand jurors ; their qualifi-
cations ; whether sworn or affirmed, and who of them are sworn
and who affirmed, and if affirmed the reason of it, that they
alleged themselves to be conscientiously scrupulous of taking an
oath ; and then follows their presentment. It is drawn up by the
prosecuting attorney, or by the clerk of the court. Many reasons
evince the propriety of drawing up and filing the caption at the
term when the indictment is found, but however commendable,
it is not always so done, either in the English courts or in our
practice, but is oftentimes postponed until after judgment, when
the trecord is to bo made up, or until a certiorari being presented,
it becomes necessary, in order that the whole proceedings may
bo duly certified according to the exigency of the writ, to the
Supremo Court. From this view of the nature of a caption, its
capability of amendment, and the reason and propriety of it,
may be readily perceived. Even when returned into the Court
of King's Bench, on certiorari, the schedule, for so this part of
the return is in some of the- books called, being according to
them, the materials from which the caption is to be drawn, and
the caption itself, after that appellation, is according to all of
them properly assumed, have always been deemed to bo amend-
able. For a time indeed, it was held that an amendment could
only be made in the term of the return of the writ, and not at
any subsequent term, as will be seen from 2 Hale. P. Ct 168, and
by the cases of Rex v. Brandon, Comb. 70. Faulkner's case, \
Saund. 249. Regina v. Hoskins, 2 Ld. Raym. 9G8. Regina v.
Franklin, ibid. 1038. Rex v. Glover, 1 Sid. 259. But in the
timo of Lord Mansfield the subject underwent a thorough
366 NEW JEESEY SUPEEME COUET.
The State v. Jones.
investigation, and it was found that the caption was not only
liable to amendment in the term of its return, but afterwards,
and even after verdict. A recurrence to the case of Rex v.
Atkinson, a report of which is given by Sergeant Williams, in
his note to 1 Saund. 249, will be useful from its analogy to the
case before us, and because, having been affirmed in the House
of Lords on a writ of error, it is considered to have settled the
law on this subject in the courts of Westminster. Atkinson was
indicted for perjury at the Over and Terminer of the county of
Middlesex. The indictment was removed at his instance by
certiorari into the Court of King's Bench. At a subsequent
term, and after the defendant had been tried and found guilty,
his counsel moved in arrest of judgment on two objections to
the caption ; first, because from the caption it appeared the
indictment was found before justices of the peace, who had no
jurisdiction of perjury at common law; second, because the
names of the grand jurors did not appear upon the record. For,
in making up the entry roll in the treasury, and the Nisi Prius
record in the Court of King's Bench, the officer had not only
followed the caption as returned in respect to the style of the
court, but had omitted the names of the grand jurors. After-
wards, in the same term, the attorney -general moved to amend
the return to the certiorari, by inserting the commission of
Oyer and Terminer and the names of the justices before whom
the indictment was found, according to the fact appearing by
the said commission and the minutes of the court; in other words,
to amend so as to cause it to appear that the indictment had been
found, as in truth it was, before a Court of Oyer and Terminer
having jurisdiction, and not before a Court of Quarter Sessions
of the Peace. On this application a rule to shew cause was made.
a copy of which is to be found in a note in 4 East 175, the
material part of which is as follows: "upon reading the affi-
davits of J. B. and J, P. and also on reading the commission
of Oyer and Terminer for the county of Middlesex, and the
minutes of the court before which the indictment in this case was
found, now produced and shewn to this court, it is ordered that
Wednesday next be given to the defendant to shew cause why
the return to the writ of certiorari should not be amended by
inserting therein the commission of Oyer and Terminer by virtue
of which, and also the names of the justices by whom, the above
mentioned court was holden, at the time when the said indict-
FEBRUARY TERM, 1828. 367
The State v. Jones.
ment was found, according to the truth of the fact appearing
by the said commission and minutes above mentioned ; and
also "why the caption of the said indictment should not be
thereby amended, and made agreeable to the said return when
so amended as aforesaid, and also that the defendant shall
upon the same day, shew cause why the aforesaid caption
should not be likewise amended by inserting therein the names
of the jurors by whom the indictment was found as stated
in the return already made to the said certiorari." After
argument, in which the authorities to be found in the books
were examined, the rule to shew cause in both branches was
made absolute, the caption contained in the return was
amended, and another rule was also entered to this effect,
" that the entry roll in the treasury, and also the record of
Nisi Prius, bo amended as to the caption of the indictment,
by making the same agree with the amended caption lately
returned into this court by the clerk of the peace of the county
of Middlesex, and filed in this court." Lord Mansfield, in
delivering the opinion of the court, said, among other things,
"The doubt is whether the authority is properly set out; and
perhaps, without prejudice to the question it would be defective.
Who are the commissioners of Oyer and Terminer? The
return says, four, of whom Shcppard is the last: but not four
only; it says, and others. Then does there remain in the
original minutes enough to amend by? Beyond a possibility
of doubt, I think, there does. There appear the names of the
jurors sworn under the commission of Oyer and Terminer.
There appear the names of the justices, whom the clerk swears
were there. What then is to impeach it? Nothing. No oath
that any of them was not there. Therefore if by law a re-
turn to a certiorari can be amended after the term in which
the indictment comes in, there can be no doubt but these
circumstances wi ' bo sufficient to amend it." He then, after
a review of the authorities on this point, saj's, "We think
these authorities alone, not contradicted by any determination
whatever, would bind us to make the amendment prayed.
The application is not to alter any part of the charge; not
to vary the verdict or finding of the jury; it is not to cure
any original defect; but to make the return of the proceed-
ings in the inferior court conformable to what they really
"have been, and to make that return speak truth which now
368 NEW JERSEY SUPREME COURT.
The State v. Jones.
by mcro blunder of the officer is contended to contuiiva false-
hood."
This subject came again before the Court of King's Bench,
in the case of Rex v. Darley, 4 East 174. An indictment for
assault and battery was found in the Court of General Quarter
Sessions of the Peace of the county of Sussex, was removed into
the Court of King's Bench by certiorari, and upon trial at the
assizes, the defendant was found guilty. Afterwards the counsel
of the prosecutor obtained a rule to shew cause " why upon
reading the affidavit of W. E. and a parchment writing thereto
annexed, and the minutes of the court before which the indict-
ment in this prosecution was found, now produced and shewn to
this court, the return to the writ of certiorari issued by this court
at the instance of the defendant should not be amended by
inserting, in the return of the caption, the time when the General
Quarter Sessions of the Peace at which the said indictment was
found, was holdcn, and the names of the justices by whom the
said session was holden, and the names of the jurors by whom
the same was found, according to the truth of the fact ; and why
the entry roll in the treasury, and also the record of JVisi Prius,
should not be amended as to the caption of the indictment, by
making the same agree with the caption when so amended."
Upon making this rule, it appears from the report that the clerk
of the Court of Quarter Sessions attended with the book of
minutes of that court, that it might be inspected. On a subse-
quent day, that eminent lawyer, Erskine, who was the defendant's
counsel, admitted that he could not oppose the amendment prayed,
and the rule was made absolute.
In the case of John Bell, indicted for murder, upon motion in.
arrest of judgment for a defect of the caption, President Addison,
of Pennsylvania, held that the caption was amendable ; and that
it was to be considered not so much an original, as a formal tran-
script of other materials in the records, or during the term, in
the breast of the court, and when occasion requires, made up in
form by the clerk from the materials necessarily before him.
Addison's Rep. 180.
In the case under our examination, upon the return originally
made to the writ of certiorari, it appeared in the caption that "by
the oath of D. S. &c. [naming the grand jurors] good and lawful
men of the said county, sworn and charged to enquire, &c., it is
presented," &c. And in the body of the indictment it is thus:
FEBEUAKY TEEM, 1828. 369
The State v. Jones.
"upon their respective oath and affirmation present, those who
were affirmed alleging themselves to be conscientiously scrupu-
lous of taking an oath, that," &c. On the motion of the prose-
cuting attorney of the county of Warren, we made a rule "that
the certiorari and return be remitted to the Court of Oyer and
Terminer of the county of Warren, to the end that the caption
returned with the certiorari may be amended, according to the
fact, in the two following particulars, to wit, that the said cap-
tion may set forth whether any, and which, of the grand jurors
mentioned in the said caption, were duly affirmed, and whether
prior to such affirmation they declared themselves conscientiously
scrupulous of taking an oath ; and second, whether the grand
inquest was then and there sworn and affirmed." At a subse-
quent term the certiorari was sent back to us, and the return
contains, among other things, a caption amended in the particu-
lars mentioned in the rule, and stating that "by the oaths of D.
S." and others, naming them, "and by the solemn affirmations of
C. R. and S. L., the said C. R. and S. L. alleging themselves to
be conscientiously scrupulous of taking an oath, good and lawful
men of the said county, then and there sworn and affirmed and
charged to enquire," &c. 'fit is presented," &c. From a rule of
the Court of Oyer and Terminer, set forth in the return, it
appears the caption was amended under the sanction and by the
direction of that court ; and the whole is then certified to us to be
truly copied from the minutes and files of the said Court of Oyer
and Terminer.
From the authorities which have been cited, it is clearly shewn
that the amendments to the caption returned with the certiorari
might have been made in this court, upon proper evidence of the
facts and of the entries on the minutes of the Oyer and Terminer.
Propriety, convenience and congruity, however, dictated the re-
mission of the certiorari and return to that court, that the amend-
ments might be made there. And it is to be observed, our rule
did not direct the court to make the amendments, but simply
placed the return again in their hands, that they might make
them if there were before them grounds and documents to war-
rant the measure.
By the course we adopted, the inconvenience and risk of the
actual production in this court of the original minutes by the
clerk of the county of Warren, as was done in the case of Rex v.
Darley, were saved.
VOL. IV. Y
370 NEW JERSEY SUPREME COURT.
The State v. Jones.
It is however objected by the counsel of the defendant, that
the rule of this court "was made without any evidence on the
part of the state that the said caption was not a true copy from,
the minutes and files of the said county of Warren upon the
said indictment, and -that there was diminution in the said
.return." This remark results from an omission to notice the
difference between making amendments here, and submitting
the matter to the court below. If made here, plenary evidence
of the facts which entered into the amendments would doubtless
have been required ; but such evidence was not necessary for the
measure adopted by us. The oral certificate of the prosecuting
attorney, that there were materials in the court below from
which amendments might be made, that the minutes and records
and files of that court would supply all alleged deficiency, and
that the truth would be thereby attained and public justice
saved from discomfiture by the mere blunder of the officer who
had made out the caption, was sufficient. Let the uniform
language of our entries be recollected. "Upon allegation of
diminution." Nor is there any weight in another objection of
the defendant's brief, that our rule was made against the express
certificate of the clerk of the county of Warren, that the original
return was a true copy from the minutes and files. No precedent
or principle has been cited, or can be shewn, which shall give to
the certificate so conclusive and uncontrollable an influence as
is here claimed for it. The certificate was doubtless true at the
time it was made. But will any one say, after consideration of
the authorities, that an amendment of the return is thereby
precluded?
It is further objected that the Court of Oyer and Terminer
ordered their clerk to amend the caption, whether there was any
thing to amend by or not; that the return does not state there
was any thing to amend by ; -and that the clerk has not amended
the caption at first returned with the certiorari, but has made out
and sent a new caption. The first of these remarks is founded
on a misconception of the matters contained in the return. The
court did not order the amendment, whether there was or was not
cause for it, and ground to warrant it; but on the motion of the
prosecuting attorney, and after due examination, and upon proper
evidence, as we are bound to presume, they ordered the caption,
contained in the return to be amended. Is there indeed on our
part any great presumption in supposing that the minutes of the
FEBIIUAEY TERM, 1828. 871
The State v. Jones.
court distinctly shewed that the jurors were then and there sworn
and affirmed ; and who were sworn, and who affirmed ; and that
the latter alleged themselves to be conscientiously scrupulous,
which indeed they have themselves set forth on the face
of the indictment ? The court do not in their rule express
the causes or reasons for it. Nor did practice or conveni-
ence require it, and hence the answer to the second topic
of remark is also given. It is true the clerk did not alter
or amend, by interlineations and erasures, the caption which
had been in the first instance annexed to the certiorari, but
adopted a much more discreet and judicious mode by making
out and sending here a new copy containing such alterations
as had been made by the direction of the court; and this mani-
festly is what the clerk means by the expression he has used,
"new caption," for he certifies that it is truly copied from the
files of the court.
Upon the whole, on a careful and deliberate review, we find
nothing irregular or illegal in the rule of this court, in respect
to the amendments ; nor in the proceedings of the Court of Oyer
and Tertniner consequent upon that rule.
By the return to the certiorari, as it now stands, certain of the
exceptions originally taken and since renewed, are not sustained
in point of fact. They need therefore no further examination.
Another exception is "that it does not appear that the persons
supposed to be the grand jury had been summoned and returned
as such." The answer to this exception is given by most, if not
all, the precedents of captions to be found in the books. 2 Hale
P. C. 165 ; Foster 3 ; 1 Saund. 249 ; Crown Cir. Comp. passim ;
4 Chit. 189, et seq.; Archbold Cr. PL 6, and especially the prece-
dent sanctioned by this court, The State v. Gustin, 2 South. 746.
To all these the present caption is conformable. It is not set
forth that the grand jurors were summoned, or the manner of
it, other than in the words, "by the oath of A. &c. good and
lawful men of the said county then and there sworn and charged
to enquire for the king and for the body of the said county." In
a very few of the precedents, the words " impannelled, sworn and
chiir^cd," are used, but in a case reported in 3 Salk. 191, in the
second of Anno, an exception to a caption for the want of the
word "impanelled" was overruled, and the word held to be
be unnecessary.
Another exception is " that the indictment charges the publica-
372 KEW JERSEY SUPREME COURT.
The State v. Jones.
lion of the forged acquittance and receipt to have been with
intent to defraud Jonathan Oliver, and it appears by the indict-
ment that to utter and publish it could not defraud him." No
reasoning is given in the defendant's brief in illustration of this
exception, and the manner in which it was intended to be
enforced is not readily seen. The rule in respect to this allega-
tion in indictments is well understood. It is not necessary
to prove that the person intended to be defrauded was actu-
ally defrauded. If from circumstances the jury can presume
it was the intention of the defendant to defraud him ; if
in fact he might have been defrauded had the forgery suc-
ceeded, this allegation is satisfied. Now in the present case
the instrument alleged to be forged, and the publication whereof
is charged on the defendant in the indictment, purports to
be a receipt given by Oliver to Jones, the defendant, for a
certain sum of money, in full of the debt, interest and costs,
of a judgment obtained by Oliver against Jones before a justice
of the peace, which Jones had removed by certiorari into the
Supreme Court. If this forgery had succeeded, can we say,
especially at this stage of the cause, that Oliver might not have
been defrauded ?
Another exception is, "that the defendant is described in the
indictment to be, late of the township of Hardwick in the
county of "Warren, and that on the 28th of August, 1824, the
time when the offence is charged to have been committed,
there was no such township, and consequently no such per-
son as John I. Jones of that township." This objection is
founded in error. The description of place has reference to
the time of the finding of the indictment, not of the commis-
sion of the crime. At the time this indictment was found
there was, and for nearly two years had been, the township
of Hardwick in the county of Warren, and Jones was and
had been a resident there.
The remaining exception is, " that by the indictment which was
found in the county of Warren, the crime charged appears to
have been committed in the county of Sussex." In the month of
November of that year, the county of Sussex was divided. Anew
county, called Warren, was set off from it, of which the township
of Mansfield composed part, and after the division was called the
township of Mansfield in the county of Warren. The indictment
charges that the offence was committed on the 28th day of August,
FEBKUAKY TEEM, 1828. 373
The State v. Jones.
1824, at the township of Mansfield, the said township of Mans-
field then being in the county of Sussex and now (at the time of
finding) being in the county of Warren. The description is
strictly conformable to the fact. In the act of the legislature
setting off the county of Warren from the county of Sussex, there
is no express provision that offences previously committed in that
part of the ancient county of Sussex created into the new
county, should be cognizable in the courts of the latter. It con-
tains a provision that all suits then commenced should proceed
in the county of Sussex, which carries a strong implication that
new suits should be commenced and prosecuted within the
proper and respective counties. But no such express provision
was necessary. It followed from the principles of the common
law that the crime should be prosecuted in the courts of the county
of Warren. Crime, as to the place of trial, is local ; and the court,
being a court of the same state which has jurisdiction over the
place where the crime was committed, has cognizance and may
hold plea of the crime. No rule or principle of the common law
is thereby infringed. At common law a grand jury may not
enquire of facts committed without the territorial limits of the
county in which they sit, and the petit or traverse jury should
be convened de vicineto. In the present case, the crime, if com-
mitted, was perpetrated within the bounds" of the county of
Warren, and the whole township of Mansfield being in that
county, the jury may be brought from the vicinage, even if that
term be used in its most ancient and restricted signification. The
erection of a new county is erroneously supposed to create in
this respect some new relation. The offence is against the state,
not against the county ; and as we find here, a grand jury sitting
to enquire for the state, and for the body of the county within
which the matter occurred, a petit jury of the neighbourhood,
and a court having cognizance of offences of this nature, we
perceive every requisition of the common law fulfilled, and are not
compelled to deplore the spectacle of a criminal pointing in scorn
at the figure of justice with her sword broken and her orm palsied.
Suppose the legislature had created a new court for the trial of
crimes, the county of Sussex remaining the same, could any doubt
of its jurisdiction exist because of its creation subsequent to tke
perpetration of the offence? The argument drawn by the
defendant's counsel from a supposed cession of the township to
Pennsylvania or some foreign jurisdiction, even if sound, has no
374 NEW JEESEY SUPEEME COUET.
The State v. Berry.
force, for the place here remains in the same state, under the same
government, and the offence, as already remarked, is against the
peace of the state, and there is thei'efore no incongruity in either
describing or punishing it, as there might be in averring it to be
against the peace of Pennsylvania, or in prosecuting a crime in
a state different from or foreign to that in which it was committed.
Nor is there any analogy to another case mentioned in the brief
of the defendant's counsel; a murder, when the stroke was
inflicted in one county, and the death happened in another,
which could not be indicted in either at common law. The reason
is given in the preamble of the ancient statute, 2 and 3 Edw. 6,
ch. 24, "By the custom of this realm, the jurors of the county
where such party died of such stroke, can take no knowledge of
such stroke, being in a foreign county. Nor the jurors of the
county where the stroke was given cannot take knowledge of
the death in another county; " in other words, one of the facts
necessary to constitute the crime occurred without the territorial
jurisdiction of each grand jury, and of it they could therefore
receive no proof; but in the case before us, all the ingredients
of the crime, if they occurred anywhere, took place in the
county of Warren.
The exceptions are overruled. Let the defendant plead to the
indictment.
CITED IN Berrian v. State, 2 Zab. 29.
THE STATE against ABRAHAM I. BERRY.
An indictment for an assault and battery will not be quashed because it does not
conclude " contrary to the form of the statutes in such case made and provided."
The 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 dura-
tion of the imprisonment, but in no wise attaches the penalty or punishment to
the offence.
This was a rule to shew cause why an indictment for assault
and battery should not be quashed.
Dodd, for the defendant, said, the indictment concludes, " contra-
ry to the statute; " it ought to conclude, " contrary to the statutes"
FEBKTJARY TEEM, 1828. 375
The State v. Berry.
Concluding contra formam statuti for statutorum or the contrary
may be made the subject of a demurrer, or perhaps of a motion
in arrest of judgment, or writ of error. Arch. Grim. Plead. 28.
There are two statutes on this subject in New Jersey.
The first enacts that assaults, batteries, &c. shall be deemed
and taken to be misdemeanors, and punished, &c. by fine or
solitary imprisonment at hard labour, or both, at the discretion of
the court, before whom the conviction shall be had. Rev. Laws
262, s. 68.
The second limits the punishment for the offence under the
former act ; the fine not to exceed one hundred dollars, nor the
imprisonment six months. Rev. Laws 735, sec. 4.
Whei-e one statute is relative to another, as where one creates
the offence and the other the penalty, an indictment for the
offence must conclude " against the form of the statutes." Arch.
Crim. PL 28. 2 Bale's Pleas of the Crown 173, s. 3. Cro. Eliz.
750. Cro. Jac. 142. 3 Levinz 61. Plowd. 206. Com. Dig. tit.
Indictment, letter G. 6, 399. Yelverton Rep. (edition of 1820) 116,
in note. 2 East R. 333.
Contra formam statuti is not surplusage. 2 Hale 171.
This is not an indictment for an aggravated assault, (only a
common assault) and the words introduced in the indictment,
" by then and there striking and beating him with a club" will not
make it an aggravated or atrocious assault and battery, and it
does not therefore come within the exception in the fourth section,
Rev. Laws, 735, which is, " mayhems and atrocious assaults and
batteries excepted." There is a difference between an indict-
ment for a common assault and an aggravated assault. Arch.
Crim. PI. 241, 245.
To maintain a count for an aggravated assault, the assault
must bo such that if death had ensued it would have been mur-
der. Rex v. Milton, 1 East P. C. 411. Hence the necessity of a
second count for a common assault. Arch. Or. PL 246.
The count for an aggravated assault generally contains these
words, " so that his life was greatly despaired of."
The distinction as to the indictment's concluding in tho sin-
gular or plural is this —
Where an offence is merely at common law, and concludes
contra formam, &c., it may be rejected as surplusage.
But where the offence is indictable at common law or statute,
and concludes contra formam, &c. then the conclusion is not sur-
376 NEW JEESEY SUPEEME COUET.
The State v. Berry.
plusage and it cannot be sustained as a good indictment at com-
mon law.
Frelinghuysen, attorney-general, on the part of the state, said
that the conclusion of the indictment, " contrary to the statute,"
is correct.
The law relied on by the defendant does not apply to his
case. There are not two statutes in New Jersey, the one creat-
ing the offence of assault and battery, and another affixing the
penalty.
Both the statutes regulate the penalty.
And in truth neither of the statutes creates the offence. It
was an existing common law offence before the statute.
The whole may be rejected as surplusage. The old doctrine
was otherwise, but it is now settled that the words " contra for-
mam stat." may be rejected, if the matter charged was an offence
at common law. 1 Chitty G. Law 195, 196, and notes s. and t.
And even if it could not be rejected, according to later opin-
ions a conclusion in the singular number is valid. 1 Chitty Crim.
Law 197, and notes.
The CHIEF JUSTICE delivered the opinion of the court.
The defendant stands indicted for an assault and battery on
one Terence Brady, " to the great damage of the said Terence
Brady contrary to the statute in such case made and provided,
and against the peace of this state, the government and dignity
of the same."
The defendant has moved to quash this indictment, because it
concludes " contrary to the statute," instead of " the statutes," in
such case made and provided; and he refers to two acts of the leg-
islature. Of these, the first, Rev. Laws 262, sect. 68, enacts that
assaults, batteries, false imprisonments, mayhems, affrays, riots,
routs, unlawful assemblies, nuisances, cheats, deceits, and all other
offences of an indictable nature at common law, and not provided
for by this or some other act of the legislature, shall be deemed
and taken to be misdemeanors, and punished by fine or imprison-
ment according to the discretion of the court, and without any limi-
tation as to time or amount. The other act is in the Revised Laws
735, sect. 4, and enacts that all crimes enumerated and expressed
in the above mentioned section, the punishment of which not being
otherwise provided for in said act or some other law of this state,
FEBRUARY TERM, 1828. 377
The State v. Berry.
mayhems and atrocious assaults and batteries excepted, shall be
punished by fine or imprisonment, or both, the fine not to exceed
one hundred dollars, nor the imprisonment six months.
The books afford us a number of cases, and some curious
learning, upon the subject matter of this exception. At one time
it seems to have involved the jurisperiti in considerable per-
plexity; and it was gravely proposed to conclude, contra forma m
statut. predict, omitting the last syllable, so that the termination
might be made either singular or plural, and be read tfatuti pre-
dicti or statutorum predictor 'urn , as the exigency of the case might
require, or as might be found eligible to support the indictment,
ut res magis valeat quam pereat. But the statutes which directed
the indictment to be in the English language, and in words at
length, defeated this ingenious device. »
Amid all the difficulty however which the books exhibit, I find
no case to support the principle on which the objection before
us is founded. The second act relative to assaults and batteries
simply abridges or limits the extent of 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. It merely declares that the court in graduating
the punishment prescribed for the offence by the former act, shall
not exceed a fixed limit. The present indictment, then, is clearly,
not within any of those ancient cases, which, when one statute
created the offence and another added the penalty, required the
indictment to conclude against both ; nor within any of those,
where an offence is punishable by virtue of two statutes taken
together, and not by virtue of either singly, as where by a sub-
sequent statute it is enacted that the former shall be executed in
a new case, or that an additional penalty shall be inflicted ; nor
within those cases where an offence at common law is made a
crime of an higher nature, as where a misdemeanor is made felony
or a felony treason. The rules adopted in many of the old cases
have upon subsequent examination been found to bo unsound and
have been rescinded. But it is unnecessary minutely to review
them, as they do not apply to the case before us. And it is con-
sidered in the books at all times to be settled law, that if a statute
be made perpetual by a second statute, a conclusion in the singular
will be sufficient. So if one statute adopt and continue the pro-
visi9ns of a former. Hex v. Morgan, Sir. 1066. 1 Saund. 135, n. 3.
1 Lutw. 212. So when a second statute regulates or restrains the
S78 NEW JEESEY SUPEEME COUET.
Coxe v. James.
operation of the first ; as if an offence is a felony at common
law, and a statute takes away clergy from such offence when
committed under particular circumstances, the indictment need
not conclude against the form of the statute because it was a
felony before, and the statute only takes away a privilege which
the common law allowed ; and if it does so conclude, the indict-
ment is nevertheless good. 2 Hole's P. G. 190, 192. Page v.
Harwood, Styles 86. 1 Lord Raym. 150. 1 Salk. 212, 213. In the
case of Andrews v. The Hundred of I/ewknor, Cro. Jac. 187, Yelv.
116, the plaintiff declared on the statute of Winton, 13 ed. 1, and
shewed that he had performed the limitations and ordinances in
the stat. 27 Eliz. and concluded, against the form of the statute
aforesaid. To arrest the judgment it was objected that the
plaintiff had declared on two statutes, and ought to have con-
cluded, against the form of the statutes aforesaid.
But the court refused to arrest " because the action is given and
grounded only on the stat. 13 Edw. 1, and the stat. 27 Eliz. is
rather in restraint and hindrance of the action than otherwise,
for whereas before the latter statute, the party might have had
his action generally to have charged the hundred on any robbery,
and since that statute certain circumstances are to be performed
before the party shall have his action, to wit the taking of an
oath that he was robbed, and that he does not know the felons:
And the court further held, that.if the plaintiff had concluded
against the form of the statutes it had not been good, because
the statute of 27 Eliz. did not enable the party to sue."
The present case comes fairly within the principle of these
adjudications, if in the indictment an averment in respect to the
statute is at all necessary. Of such necessity it is not material
to enquire, because if requisite the indictment contains it, and
if not, it is harmless surplusage.
Motion to quash overruled.
CITED i» Clark v. Collins, 3 Or. 474. State v. Townley, 3 Harr. 324. State v.
Dayton, 3 Zab. 61.
SARAH COXE, widow, against DAVID JAMES.
A defendant is not entitled to recover costs on quashing plaintiff's writ, before
an appearance entered, and the court will not stay the proceedings in a second
action until the costs of quashing a writ in a former action be paid, unless the
defendant has entered his appearance to the former action.
FEBEUAEY TEEM, 1828. 379
Van Horn v. Teasdale.
Wall, applied for a rule upon the defendant to plead in thirty
days.
W. Halsted, resisted this motion by making an application to
the court that proceedings in the suit be stayed until the costs
of a former suit, commenced by the plaintiff against the same
defendant, (in which the writ had been quashed for a defective
service,) be paid ; and cited 4 Hals. Rep. 86 ; Ibid. 96.
Wall. The writ in the former suit was quashed on the motion
of the defendant's counsel, before appearance entered. The
defendant therefore was not entitled to costs. The statute Rev.
Laws 168, sec. 2, gives costs to the defendant only after appear-
ance.
FORD, J. — As the statute gives no costs in this case, we can-
not grant the rule to stay proceedings.; the rule to plead must
be ordered.
WILLIAM VAN HORN against THOMAS TEASDALE and ABRAHAM
GARRETSON and MARGARET his wife.
To support an action founded on a devastavit, where the judgment and execu-
tion 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 representa-
tive capacity, is not competent evidence to support such an action.
Van Horn, the plaintiff in certiorari, brought an action of debt
against Teasdale, Garretson and wife, before a justice of the peace,
suggesting a devastavit, and in support of his action ho offered in
evidence a transcript of the docket of M. H. Ogden, esquire, of a
suit in which the said William Van Horn was plaintiff and Marga-
ret Goodsall, administratrix, and Thomas Teasdale, Jr. adminis-
trator, of Uriah Goodsall, deceased, were defendants, in a plea of
debt. By this transcript it appeared that the judgment had been
entered against the defendants generally, and not in their repre-
sentative capacity. The plaintiff also offered in evidence in tho
same suit an execution which had been issued and returned nulla
bona by the constable. Upon this evidence the justice rendered
380 NEW JEESEY SUPEEME COUET.
Van Horn v. Teasdale.
judgment against the defendants, who thereupon appealed to the
Court of Common Pleas. Upon the ti'ial of the appeal in the
Common Pleas, they refused to admit the judgment and execu-
tion above mentioned in evidence, and nonsuited Van Horn, the
plaintiff, who thereupon brought this certiorari. And the rejec-
tion of this testimony was assigned as a reason for the reversal
of the judgment of the Common Pleas.
D. Haines and Scott, for plaintiff.
Ryerson and Vroom, for defendants.
The CHIEF JUSTICE delivered the opinion of the court.
The plaintiff in certiorari brought an action in the court for the
trial of small causes, against the defendants as administrators of
Uriah Goodsall, upon a devastavit. On the trial he produced the
judgment of a justice of the peace, and an execution issued there-
on, with the return, nulla bona, of a constable, and upon this
evidence judgment was rendered in his favour. The defendants
appealed, and upon the hearing of the appeal the Court of
Common Pleas overruled the judgment and execution, and there
being no other proof in support of the plaintiff's demand, rendered
judgment of nonsuit against him. This judgment is brought
here by the writ of certiorari before us, and the rejection of the
evidence is assigned as the cause of reversal.
To support an action founded on a devastavit where a 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 to be
levied, in the first instance, of the goods and chattels of the dece-
dent. No other judgment can supply its absence. This point is
fully established by every precedent of declarations in actions of
this nature, which our books of entries and our records furnish ;
all which invariably recite such a judgment. And the reason of
it appears from this consideration, that the essence or ground work
of theaction is that the executororadministratorhad assets which
might and ought to have been applied to the satisfaction of tho
judgment, but which have been misapplied and wasted. Now un-
less the judgment was to be levied of the assets of the decedent it
•would be absurd to allege that the executor or administrator had
such assets in his hands, and that he had misappropriated them.
FEBEUAEY TEEM, 1828. 381
Smith v. "Van Houten.
For unless the judgment legally required such assets to satisfy it,
what injury could the wasting of them produce to the plaintiff?
what right to complain would such waste give him? It clearly
results then that a general judgment against the administrators,
in other.words a judgment against them in their individual, and
not in their representative capacity, could not be competent and
legal evidence to support the action for a devastavit. Yet such
was the nature of the judgment which was offered in the Court
of Common Pleas, precisely such a judgment as has in a multi-
tude of cases been reversed in this court, because against the
administrator generally, and not to be levied of the goods and
chattels of the deceased.
The Court of Common Pleas in our opinion lawfully rejected
the transcript of the judgment.
It is not necessary to enquire whether the execution was com-
petent, because if it had been received, the plaintiff could not
without the judgment have maintained his action. Nor is it
necessary to decide the question discussed at the bar, whether a
proper judgment, and a return on execution, of nulla bona, are
sufficient in a justice's court to establish the charge of devastavit.
For assuming the affirmative, which is all the plaintiff can require,
he was not, on the evidence he offered, legally entitled to prevail.
Let the judgment be affirmed.
NICHOLAS SMITH and IDO VAN WINKLE .against LEAH VAN
HOUTEN.
If a defendant would take advantage of the infancy of a plaintiff, suing alone,
the proper mode of raising the objection, in courts proceeding according to the
course of the common law, ia by plea in abatement ; but in the courts for tne trial
of small causes it may be given in evidence under the general issue, and may be
taken advantage of by motion to dismiss the suit.
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 EWINO, C. J.
Van Houten sued Smith and Van Winkle, in trespass, for taking
382 NEW JERSEY SUPREME COURT.
Smith v. Van Houten.
and carrying away certain goods and chattels. No plea in writing
was filed. On the trial before the justice, after the plaintiff had
gone through the evidence on her part, the defendants offered
to prove that she was an infant, and therefore not entitled to
prosecute in her own name, without guardian. The evidence
was overruled. The defendants appealed, and the Court of
Common Pleas, on the trial there, overruled a similar offer to
prove the infancy of the plaintiff. Herein is assigned the reason
for reversal.
An infant must sue a civil action by guardian or next friend,
and not in his own name, nor by attorney. The general rule of
law is very familiar, and admits of no dispute. The prosecution
of the suit in this instance by the infant, in her own name, for we
are to presume the fact to be as proposed to be proved, was
unlawful. The question then is simply whether the defendants
could avail themselves of the illegality at the time and in the
manner they sought to do so.
At common law, and prior to the statute of 21 Jac. 1, if an
infant sued in his own name, or by attorney, and judgment
was given for him, it was error and the judgment was liable to
be reversed. Bartholomew v. Dighton, Cro. Eliz. 424. Rew v.
Long, Cro. Jac. 4. By that statute, after verdict, and by the
statute of 4 Anne, after confession and default, the error of
suing by attorney is cured. Similar provisions are contained
in our statute, respecting amendments and jeofails. Rev. Laws
137. The proper mode now to raise the objection, in courts
proceeding according to the course of the common law, is by plea
in abatement. 2 Saund. 213, n. 1 Chit. PL 436. But the pro-
vision in these statutes speaks only of suit by attorney, and not
by the infant in his own name. The ancient rule, therefore is,
on the latter point, our law. And in our courts for the trial of
email causes, where the strict rules of pleading are not required
nor observed, a party is often permitted to avail himself of a
legal exception, which in courts proceeding according to the
regular course of the common law, ought to have been made at
an earlier period, or by a formal plea in abatement. Thus in the
case of Ryerson v. Ryerson, 1 South. 363, the action before the
justice was against one only, when there were two administrators.
The defendant filed no plea, but on the trial moved a nonsuit upon,
that ground, which the justice overruled. This court held that the
error in bringing the suit was fatal, and that a defendant need not
FEBEUAEY TERM, 1828. 383
Hays ads. Williams.
plead it in abatement, in writing, in the court for the trial of
small causes, but might take advantage of it by motion for non-
suit j and the judgment was reversed.
^ In the case of McGiffin v. Stout, Coxe 92, the action was brought
by Stout, upon a contract with McGiffin. McGiffin pleaded be-
fore the justice that Stout was under age when the contract was
made, and requested the suit to be dismissed. Stout's father,
however, swore that he permitted his son to buy and sell, upon
which the justice proceeded with the action. This court on cer-
tiorari decided that Stout being an infant was no objection against
the action, but that he must sue by guardian or next friend ; and
not having done so the judgment was reversed.
In the present case then, the proof of infancy offered by the
defendants ought to have been received -by the justice. If the
fact had been established, and, as already remarked, we are to
presume it would have been, the justice might have admitted a
guardian for the plaintiff, or should have dismissed the suit. The
Court of Common Pleas on the appeal were, according to law, to
give relief to the party aggrieved, "both as to matter of law and
matter of fact." Rev. Laws 798. The Court of Common Pleas
erred in not receiving the evidence of infancy when offered
there.
Let the judgment be reversed.
MICHAEL HAYS ads. DANIEL WILLIAMS.
The party obtaining the taxation of a bill of -costs, must, upon a re-taxation,
prove the items objected to.
But the party moving for a re-taxation must give his adversary notice, and
state the particulars of the bill of costs to which he objects, and the nature of
his objection.
W. Halsted, moved upon notice to re-tax a bill of costs in this
case. The cause had been submitted to referees, and the objec-
tionable items to which he took exception wore the costs of
the circuit at which the cause had, as he insisted, been noticed,
before issue joined ; and also the costs of the referees ; and he
contended that it was incumbent on the party obtaining the
taxation of the bill to support it, upon the re-taxation, by proof.
The CHIEF JUSTICE asked if the bill, as taxed by the clerk,
384 NEW JERSEY SUPREME COUET.
Coxe v. Bobbins.
was not to be considered as prima fade correct ; and whether
the onus of shewing it erroneous was not imposed upon the
party excepting?
Hoisted replied, that the uniform practice, as far as he was
acquainted with it, was for the clerk of the Supreme Court to
rely upon the repi-esentations of the attorney, as to the costs
accruing at the circuit or before referees, and to tax the bill in
this respect as the attorney drew it. His taxation of items of
this character ought not therefore to be entitled to the same
respect as where the performance of the services, or items
charged, appeared by the records of his court.
Besides, it was in many cases impossible for the party object-
ing to the taxation, to .prove that the service charged was not
performed, whereas the party making the charge ought always
to be prepared with the vouchers to prove it. Rev. Laws 493,
sec. 3 and 4.
Wall, contra.
CHIEF JUSTICE. — After reflecting upon the matter, and con-
sidering that the practice has been to tax these items upon the
representation of the attorney, we think the safe course will be
to compel the party obtaining the taxation of the bill to prove
them upon a re-taxation. But then in future we shall require
the party moving for a re-taxation to give notice to his adver-
sary, and state the particulars of the bill of costs to which he
objects, and the nature of his objection.*
JAMES COXE against THOMAS BOBBINS.
When two persons own adjoining closes of improved land, between whom the
partition fence has never been divided, or the portion to be kept np by each in
any wise ascertained, neither can impose on the other the liability, or claim for
himself the protection contemplated oy the statute regulating fences, Rev. Laws
387, and if the cattle of one enter upon the close of the other, an action of tres-
pass will lie against the owner of the cattle.
A party may waive the action given by the statute, and resort to his common
law remedy.
This was an action of trespass quare clausum fregit, brought
*A general rule of practice to this effect has been made by the court.
FEBRUARY TERM, 1828. ' 385
Coxe v. Bobbins.
before a justice of the peace, by Thomas Robbins, against James
Coxe. The state of demand filed before the justice was in the
usual form, setting forth that the cattle of Coxe had broke and
entered the close of Robbins, and trod down and destroyed his
potatoes. The defendant filed a written plea, insisting that the
plaintiff was not entitled to recover, because he had neglected to
build and keep a lawful and sufficient fence around the premises
where he alleged the said trespass had been committed. Upon
the trial before the justice, judgment was rendered in favour of
Robbins, the plaintiff; and Coxe thereupon appealed to the. Court
of Common Pleas of Monmouth ; upon the trial of the appeal
the judgment of the justice was affirmed. To reverse this judg-
ment, Coxe, the appellant and defendant below, brought this
certiorari. By a statement of the evidence taken on the trial
of the appeal, agreed upon by the counsel and sent up to
this court as a state of the case, it fully appeared that there
was no lawful fence between the adjoining closes of the plaintiff
and defendant.
Hamilton, for plaintiff in certiorari.
Wall, for defendant.
EWINQ, C. J. — The action below was brought, in trespass quare
dausumfregit, for damages done by the cattle of the defendant,
in breaking and entering upon a lot of land of the plaintiff and
destroying his crop of potatoes.
The parties were owners or occupants of adjoining closes of
improved land. The defendant, after having mowed his close
of meadow land, turned his cattle upon it. They passed into
the close of the plaintiff, and there committed the injury com-
plained of in the state of demand.
According to the principles of the common law, the owner of
a close is not obliged to fence against the cattle of the occupant
of an adjoining close. Every man at his peril is bound to keep
his cattle on his own close, and prevent them from going on to
that of his neighbour. And if they do pass from the close of
their owner to that of another person, and there commit an injury,
they may be distrained damage faisant, or the owner of the cattle
is liable to an action of trespass, to be brought by the occupant
at the close. Fitz. N. B. 298, n. 22 H. 6, 9. 13 Finer, tit. Fences,
VOL. IV. Z
386 NENV JEilSEY SUPHEME COUET.
Coxe v. Robbins.
A. 2. Dyer 372, pi. 10. 20 Ed. 4, 10. 6 J/orf. 314. Jenkins 161,
case 5. 2 1?. 5. 527. 2 Bl. Com. 209.
We have, however, a statute for the regulation of fences. Rev.
Laws 387. This statute, then, is to be examined, in order to
ascertain whether, as between these parties, any alteration in
the rule of the common law be made ; whether there be any thing
to prohibit the recovery of the plaintiff and to protect the
defendant from an action for the injury done by his cattle, and
for which, independent of any thing to be found in this statute,
he is unquestionably responsible.
This statute, in the first place, describes and declares what shall
be a lawful fence, both of outside and for partition. It then pro-
vides, that where the lands, marshes or meadows of any two or
more persons join, each of them shall make or amend and main-
tain a just proportion of the division or partition fence between
them, except such persons as choose to let their lands lie vacant
and open ; and if any person shall after due notice neglect or
refuse to make or amend his part, the other party may make or
amend it wholly, and recover one-half of the expense. To avoid
any difficulty that may arise touching the placing of any partition
fence, if the parties cannot agree upon the place, two of the town-
ship committee may fix the same. It then provides that the place
where any partition fence is or shall be made, shall be equally
divided, and each party shall take an equal share to make or amend,
and if they cannot agree in making a division, two of the township
committee are to determine the part of each. It then enacts that
if any person to whom any part of any partition fence may be assigned
to make or amend shall neglect or refuse after due notice, so
that his own or the beasts of any other person shall enter on his
neighbour's land over or through the said fence, he is rendered
liable to make good all damages sustained thereby. And if the
b'iast of the person who shall have made and maintained his
part or share of the partition fence assigned to him, or tire beasts
of any other person should trespass on his next adjoining neigh-
.bour, through that part of the fence so by him neglected or
refused to be made and maintained, he shall not be liable to have
his beasts impounded, nor be liable to any action to recover any
damage accruing thereby.
From an examination of this statute it clearly appears that
the regulation it contains respecting the liability to answer i«
-damages in some cases and in others for protection and immunity
FEBKUAEY TEEM, 1828.
Coxe v. Bobbins.
from an action for trespass, extends only to owners of adjoining
closes, between whom a division of the partition fence has been
made, and the part or share to be maintained by each has been
ascertained, by either a voluntary agreement between them or
an assignment by the township committee. When no such
division has been made, when the part and share of each remains
undefined, the salutary regulation designed to be introduced by
the statute has not been called into action, the statute is silent,
the common law prevails.
In the case before us, on the line between the parties there
were standing but very few panels of fence. There was no evi-
dence that the fence. had ever been divided, or the portion to be
kept up by each in any wise ascertained. Neither then can
impose on the other the liability, or claim for himself the protec-
tion contemplated by the statute. The owner of the cattle, by
the principles of the common law, was answerable for the injury
committed by them, as he could find nothing in the statute to
afford him justification or excuse. Hence it results that the
judgment of the Court of Common Pleas was right.
It was objected by the counsel of the plaintiff in certiorari,
that the state of demand is defective, because it is in the com-
mon law form in trespass, and does not contain any averment
of those facts which, under the statute above mentioned, are
requisite to entitle the plaintiff to recover. But the action is
founded on the common law, not on the statute. Hence the
form is complete and the deficient averments are unnecessary.
Moreover, even in those cases which are within the statute, and
where upon it an action might be maintained by the party
whose close has been broken, he may nevertheless, if he think
proper, waive such action and resort to his remedy at common
law. There is nothing negative or exclusive in the statute. It
is true if he sue at common law, he must forego any advantages
the remedy by statute would afford him. The cases cited from
2 Penn. 662, and 3 Halst. 226, do not prove that the plaintiff is
confined to the statute remedy, but that when ho is, or when he
adopts it, he must shew substantially in his state of demand, a
case within the statute.
DRAK'E, J. — This action was brought to recover damages for
a trespass committed by the cattle of the defendant on the lands
of the plaintiff. It appeared by the plaintiff's evidence, that tho
388 NEW JERSEY SUPREME COURT.
Coxe v. Bobbins.
parties were owners of adjoining farms, and that the defendant's
cattle broke through a partition fence between them, no part of
which was lawful.
After the plaintiff had rested his evidence, the defendant
moved for a nonsuit, on the ground that the locus in quo was
not surrounded by a lawful fence and that the plaintiff, as well
as the defendant, was in default, with respect to the partition
fence. The court overruled the motion, and judgment was ren-
dered in favour of the plaintiff.
Upon looking into the act, entitled "An act regulating fences,"
Jtev. Laics 387, we find that the first section points out what shall
constitute a lawful fence, whether partition or outside fence, and
declares, that beasts trespassing through such fences may be im-
pounded, and that the owner shall pay damages in manner and
form as by this act is directed ; which manner and form are par-
ticularly prescribed in the twelfth section.
The second section declares that "when the lands, marshes
or meadows of any two or more persons shall join each other,
each of them shall make, or amend and maintain, a just propor-
tion of the division or partition fence between them, except
such persons as shall choose to let their adjoining lands lie
vacant and open." And this and the succeeding sections to the
ninth, inclusive, provide for every landholder the means of
procuring lawful partition fences to be made; or, if he shall
think proper, after ascertaining and making his part, to leave
the residue unmade, he may impound the cattle of the person
neglecting; or recover damages against him, not merely for
trespasses committed by his cattle, but for those committed by
the cattle of other persons, breaking through such deficient
partition fence.
The present case depends much upon the true construction of
the tenth section, by which it is enacted " that if any owner or
possessor of land shall neglect or refuse to make and keep in
good repair the fence and fences about his land as by this act is
directed, and for default thereof the beasts of any other person
shall break in or enter into or upon the said land, over or through
such fence, then the owner of the said beasts shall not be liable
to any action, nor the beasts be impounded, for any damage
sustained thereby." This part of the section extends to all
fences about the land, and includes partition fences as well as
those where there is no adjoining improvement, and there is by it
FEBRUARY TERM, 1828.
Coxe v. Bobbins.
a total exemption of the beasts trespassing from being impounded,
and of their owner from damages, unless the fence broken through
is lawful. But this, standing alone, would conflict with the sec-
tion immediately preceding, and other parts of the act, which
are intended to impose on owners of adjoining improved lands
equal shares of the burden of maintaining the partition fences
between them, and with the 7th section, which establishes the
validity of private agreements in relation to partition fences,
provided they be in writing; and hence the proviso is added
" that nothing in this section contained shall be deemed to affect
any regulation as to partition fences, or to prevent the recovery
of damages for any beast entering into or -upon any person's
land, over or through such fence, as by this act is directed and
allowed."
Here we find a limited exception to the general provision of
the first part .of the section; the exception not embracing all
partition fences, but confining to any regulation as to partition
fences, meaning, no doubt, the regulations of the preceding sec-
tions, including the private regulations authorized by the seventh ;
and in the clause relative to the recovery of damages, recoveries
are saved, not where given by the common law, but in such cases,
as by this act is directed and allowed.
Upon this construction this proviso coincides with that of the
act of 1730, which it appears intended to preserve in its spirit, but
not in its exact phraseology. That proviso was in these words:
" Provided always, that this last clause shall not be taken or
esteemed to affect partition fences, so but that partition fences
shall be regulated, and damages recovered for creatures entering
into or upon any person's land, over or through such fence, after
the same manner as by this act is directed." Here partition
fences are not exempted entirely from the operation of the first
part of the section, but are embraced, only however, so far as not
to interfere with the regulations of other parts of the same act.
It appears to me that the legislature intended to oblige every
possessor of lands to see that his lands be enclosed by a lawful
fence, and to make that indispensable to the maintaining of an
action, except in such cases, as after ascertaining according to
law, and making his own part of a partition fence, he may chooso
to leave the other part unmade, and look to the adjoining owner
for the payment of all damages to be sustained by trespasses of
his own cattle or of those of third persons, which may be enforced
390 NEW JERSEY SUPKEME COURT.
The State v. Crowell.
by action, or by impounding, if the cattle be his. But in this
case, that is, when the partition fence is deficient, and the cattle
of a stranger enter through it, they cannot be impounded, nor is
the owner liable to any action.
I think, therefore, that the court erred in sustaining the plain-
tiff's action, and that the judgment ought to be reversed.
FORD, J. concurred in opinion with the chief justice.
Judgment affirmed.
CITED is Chambers v. Matthews, 3 Harr. 368. Vandegrift v. Rediker, 2 Zab. 188.
DEN ex dem. VAN ARSDALEN against JAMES HULL.
EJECTMENT.
In all cases where the court have expressed an opinion upon any matter, it
can be reviewed only by a rule to shew cause.
At the last Middlesex Circuit, after the plaintiff had closed his
evidence the court ordered a nonsuit. The posted was returned
and filed, and judgment nisi ordered.
Hardenbergh, now moved to set aside the nonsuit, and for leave
to amend the demise in the declaration, by changing the name
of the township in which the premises were described to lie.
Green, objected that this was a matter that ought to be put upon
the paper of causes. And of that opinion was the court.
FORD J. said, that in all cases where the court had expressed
an opinion upon a matter, it would not be reviewed on motion,
but there must be a rule to shew cause.
THE STATE against WILLIAM M. CROWELL, DAVID CROWELL,
JOHN D. SEE, JACOB HADDEN and others.
QUO WARRANTO.
A person is not entitled to vote as a member of a Presbyterian congregation
•who does not contribute his just proportion according to his own engagements
or the rules of that congregation, to all the necessary expenses of the church.
FEB11UAKY TERM, 1328. 391
The State v. Crowell.
An election of trustees of a Presbyterian church, made by persons not being
contributors to the support of the church (and therefore not qualified by their
rules to vote) is void.
This was an information filed by the attorney-general, at the
relation of John Patrick and Benjamin Maurice, against William
M. Crowell, David Crowell, John D. See, Jacob Hadden, Abraham
Ayres, John Wait and Thomas Griggs, charging that they the
said William, David, John, &c. had usurped, intruded into, and
unlawfully held and executed, within the congregation of the
Presbyterian church of the city of Perth Amboy, in the county
of Middlesex and state of New Jersey, the office of trustees of
the Presbyterian church in the said city.
To this information the defendants pleaded as follows:
And now in this same term of February, in the year of our
Lord eighteen hundred and twenty-five, come the said William
M.-Crovvell, David Crowell, John D. See, Jacob Hadden, Abraham
Ayres and John Wait,* defendants, by George Wood their attor-
ney, and having heard the information read, they complain that
under color of the premises in the said information contained, they
are greatly vexed and disquieted, and this by no means justly,
because protesting that the said information, and the matters
therein contained, are by no means sufficient in the law, and that
they need not nor are obliged by law to answer there to, yet for plea
thereto they say they ought not to be impeached or impleaded by
reason of the premises in the said information contained, because
they say that at the time of the exhibiting of the said information,
and for twelve years last past, and for a long time before, there
was and had been, in the city of Perth Amboy, in the said county
of Middlesex, a religious society or congregation of Christiana,
entitled to protection in the free exercise of their religion by the
constitution and laws of the state of New Jersey, and that during
all the time last aforesaid the trustees of the said religious society
or congregation were and had been a corporation duly incorpo-
rated pursuant to the act of the legislature of New Jersey in such
case made and provided, by the name of The Trustees of the Pres-
byterian Church in the citj'of Perth Amboy; and these defend-
ants in fact further say, that the members of the said religious
society heretofore, viz. on the eleventh day of February, 1823, at
thechurch, being the usual place of meeting for public worship by
* Thomas Griggs died before the plea was filed.
392 NEW JEKSEY SUPEEME COUET.
The State v. Crowell.
the members of the said religious society, assembled together for
the purpose of electing trustees of the said corporation, .due notice
in writing of the time and place aforesaid of such meeting and
Assembling, and of the purpose aforesaid, having been given, by an
advertisement in writing set up in open view at the door of the
said church ten days previous to the said eleventh day of Feb-
ruary, 1823, aforesaid; and these defendants further say, that an
election was held on the eaid eleventh day of February aforesaid,
at the said church, and that at the said election the said William
M. Crowell was by a majority of such of the said members of the
said religious society as did then and there attend for that pur-
pose, elected a trustee of the said corporation ; and these defend-
ants in fact further say, that thereupon the said William M. Crowell
being so elected trustee as aforesaid, afterwards, viz. on the
day of in the year aforesaid, came before a justice of the
peace in and for said county of Middlesex, and before the said jus-
tice took the oath to support the constitution of the United States,
the oath of allegiance prescribed by law, and the oath for the
faithful execution of the trust reposed in him as such trustee as
aforesaid, according to the best of his abilities and understand-
ing, which said oaths were by the said justice then administered
to him, and being reduced to writing were by him subscribed ;
and the said defendants further say, that afterwards, viz. on the
day and year last aforesaid, he the said William M. Crowell did
take upon himself the office of trustee of the said corporation,
and by virtue of the said premises he then and there became and
from thence continued until the time of exhibiting the said infor-
mation was and still is a trustee of the said corporation, and by
virtue thereof he the said William M. Crowell, during all the time
in the said information in that behalf specified, has used and ex-
ercised, and still doth use and exercise, the office of trustee as
aforesaid ; and these defendants in fact further say, that the mem-
bers of the said religious society heretofore, to wit, on the fourth
day of December, in the year of our Lord eighteen hundred and
twenty-three, at the church, being the usual place of meeting
for public worship by the members of the said religious society,
assembled together for the purpose of electing trustees of the
said corporation, due notice in writing of the time and place
aforesaid of such meeting and assembling, and of the purpose
aforesaid, having been given by an advertisement in writing,
Bet up in open view at the door of the said church, ten days
FEBBUAKY TEEM, 1828. 393
The State v. Crowell.
previous to the said fourth day of December aforesaid ; and these
defendants further say, that an election was held on the said fourth
day of December, eighteen hundred and twenty-three, before the
said church and adjacent thereto, the door thereof then being
locked, and the members of the said religious society, attending
for the purpose aforesaid, being prevented from entering said
church ; and that an election of trustees of the said corporation
was then and there made, pursuant to the act of the legislature
of New Jersey in such case made and provided, by a majority of
such of the members of the said religious society as did then
and there attend for that purpose; and that at the said election
the said John Wait was then and there elected a trustee of the
said corporation, in lieu of Alexander Semple, being before and
at the time of the making of said election a trustee, of the said
corporation ; that at the said election the said Jacob Hadden
was then and there elected a trustee of the said corporation in
lieu of James Harriot, being before and at the time of the making
of said election a trustee of the said corporation ; that at the
said election the said Abraham Ayres was then and there elected
a trustee of the said corporation in lieu of Charles Ford, being
before and at the time of the making of said election a trustee of
the said corporation ; that at the said election David Crowell was
then and there elected a trustee of the said corporation, he the
said David Crowell having before and until that time used and
exercised the office of trustee of said corporation as aforesaid ;
that at the said election Thomas Griggs, since deceased, was
elected a trustee of the said corporation, he the said Thomas
Griggs having before and until that time used and exercised the
office of trustee of said corporation as aforesaid ; that at the said
election the said John D. See was then and there elected a trustee
of the said corporation, in lieu of Daniel Latourette, being before
and at the time of the making of said election a trustee of the
said corporation ; the said Alexander Semple, James Harriot,
Charles Ford and Daniel Latourette, having used and exercised
the office of trustee as aforesaid for more than one year next
preceding the said election ; and these defendants in fact further
say, that thereupon the said John Wait, Jacob Hadden, Abraham
Ayres, David Crowell and John D. See, being so elected trus-
tees of said corporation as aforesaid, came before James Skinner,
esq. then being one of the justices of the peace in and for the
said county of Middlesex, and they the said John Wait, Jacob
NEW JERSEY SUPREME COURT.
The State v. Crowell.
Hadden, Abraham Ayres, David Crowell and John D. See, and
each of them respectively, as such trustees as aforesaid, before
the said justice, took the oath to support the constitution of the
United States, the oath of .allegiance prescribed by law, and the
oath for the faithful execution of the trust reposed in them and
each of them respectively as such trustees as aforesaid, accord-
ing to the best of his abilities and understanding; which said
oaths were by the said justice administered to them respectively,
and being reduced to writing were by them subscribed respec-
tively; and the said defendants further say, that afterwards, to wit,
on the day and year last aforesaid, they the said John Wait,
Jacob Hadden, Abraham Ayres, David Crowell and John D. See,
did take upon themselves respectively the office of trustee of the
said corporation as aforesaid, and by virtue of the premises they
then and there became, and on the said fourth day of December,
eighteen hundred and twenty-three, and from thence continually
until the time of the exhibiting of the said information, were
and have been and still are trustees of the said corporation, and
by virtue thereof during all the time in the said information in
that behalf specified, they have respectively used and exercised,
and still do use and exercise, the office of trustees of the said
corporation as aforesaid ; without this, that the said defendants
the said office, privileges, duties and immunities in the said infor-
mation above mentioned, or any of them., have usurped and did
usurp upon the state of New Jersey, in manner and form as by
the said information is above alleged against them; all and sin-
gular which matters and things these defendants are ready to
verify and prove as the court shall award; wherefore they pray
judgment, and that the said office, privileges and immunities by
them claimed in manner aforesaid, may be allowed and adjudged
to them, and they may be discharged by the court here of and
from the premises above charged against them.
And the said attorney-general saith, that for any thing alleged
by the said William M. Crowell, the state of New Jersey ought
not to be barred from having the information aforesaid against
the said William M. Crowell, because he saith that though true it
is that at the time of the exhibiting of the said information and for
twelve years last past, and for a long time before, there was and
had been in the city of Perth Amboy, in the said county of Mid-
dlesex, a religious society or congregation of Christians, entitled to
protection in the free exercise of their religion, by the constitution
FEBRUARY TERM, 1828. 395
The State v. Crowell.
and laws of the state of New Jersey, and that during all the time
last aforesaid, the trustees of the said religious society or congre-
gation were and had been a corporation duly incorporated pur-
suant to the act of the legislature of New Jersey in such case
made and provided, by the name of The Trustees of the Presby-
terian Church in the city of Perth Amboy, and though it may
be true that the members of the said religious society heretofore,
viz. on the eleventh day of February, 1823, at the church, being
the usual place of meeting for public worship by the members
of the said religious society, assembled together for the purpose
of electing trustees of the said corporation, due notice in writing
of the time and place aforesaid of such meeting and assembling,
and of the purpose aforesaid, having been given ; and though it
may be true that an election was held on the said eleventh day
of February, 1823, at the said church, and that at the said elec-
tion the said William M. Crowell was by a majority of such of
the said members of the said religious society as did then and
there attend for that purpose, elected a trustee of said corpora-
tion and took the oaths required by law as such trustee, and
afterwards, viz. on the day and year last aforesaid, took upon
himself the office of trustee of said corporation, as the said Wil-
liam hath by his plea above alleged, yet the said attorney-general
saitb, that by the said act of the legislature of the state of New
Jersey, entitled An Act to incorporate trustees of religious
societies, it is provided and enacted that it shall and may be law-
ful for the members of the said religious society or congregation
to assemble at any time they may think proper, giving notice
thereof as in said act is provided, for the election of the first
trustees or for the election of any other trustee or trustees in
the stead of those or any of those before elected, in case they
see cause for the removal of any of the said trustees, provided*
such removal shall not be in less than one year after his or their
election into office ; and the said attorney-general further .-ait h,
that the said religious society or congregation, more than one
3*ear after the election of the said William M. Crowell as a trus-
tee aforesaid, viz. on the twenty-second day of March, 1824, at
the church, being the usual place of meeting for public worship
by the members of the said religious society, assembled together
for the purpose of electing trustees of the said corporation, due
notice in writing of the time and place aforesaid of such meeting
having been given by an advertisement in writing, set up in
396 NEW JERSEY SUPREME COURT.
The State v. Crowell.
open view at the door of the said church, ten days previous to the
said twenty-second day of March, 1824, aforesaid; and the said
attorney-general further saith -that an election was held on the
said twenty-second day of March, 1824, aforesaid, at the said
church, and that at the said election James Harriot, Daniel Lat-
ourette, John Patrick, Charles Ford, 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 said corporation,
the said William M. Crowell being before and at the time of said
election a trustee of said corporation ; and the said attorney-
general in fact further saith, that thereupon the said Alexander
Semple, James Harriot, Benjamin Maurice and Daniel Latour-
ette, being so elected trustees as aforesaid, afterwards, viz. on the
twenty-second day of March, 1824, and the said John Patrick
and Oliver W. Ogden, being elected such trustees as aforesaid,
afterwards, viz. on the twenty-second day of April, 1824, came
severally before James Skinner, esq. a justice of the peace in and
for the county of Middlesex, and before the said justice took the
oath to support the constitution of the United States, the oath of
allegiance prescribed by law, and the oath for the faithful execu-
tion of the trust reposed in them as such trustees as aforesaid,
according to the best of their abilities and understandings, which
said oaths were then administered by the said justice to them and
each of them, and being reduced to writing were by them sub-
scribed; and the said attorney-general further saith, that after-
wards, to wit, on the day and year last aforesaid, the said
Alexander Semple, .James Harriot, Benjamin Maurice, Daniel
Latourette, Charles Ford, John Patrick and Oliver W. Ogden, did
severally take upon themselves the office of trustees of said cor-
poration, and that from thenceforth the said William M. Crowell
became and was no longer a trustee of said corporation ; and
this the said attorney-general is ready to verify; Wherefore ho
prays judgment for the state, and that he the said William M.
Crowell, of the premises above charged upon him by said infor-
mation may be convicted. And forfurther replication to the plea,
so as aforesaid pleaded by the said defendants, the said attorney-
general further saith, he expressly denies that the members of
the said religious society heretofore, viz. on the fourth day of
December, 1823, at the church, being the place of meeting for
public worship by the members of the said religious society, did
FEBRUARY TERM, 1828. 397
The State v. Crowell.
assemble together for the purpose of electing trustees of said cor-
poration, due notice in writing of the time and place aforesaid of
such meeting and assembling, and of the purpose aforesaid having
been given by an advertisement in writing set up in open view
at the door of said church ten days previous to the said fourth day
of December aforesaid ; and the said attornej^-general further
saith, that though it may be true that an election was held on the
said fourth day of December, 1823, before the said church and ad-
jacent thereto, the door thereof then beinglocked, and persons call-
ing themselves members of said religious society attending for the
purpose aforesaid, being prevented from entering the said church,
yet he expressly denies that an election of trustees of the said cor-
poration was then and there made pursuant to the act of the legis-
lature of New Jersey in such case made and provided, by such of
the members of the said religious society as did then and there at-
tend for that purpose, but that the persons who did then and there
attend for that purpose were not members of the said religious
society or congregation; so that the said John Wait was not
then and there duly and legally elected a trustee of said cor-
poration, in lieu of Alexander Semple, the said Alexander
Semple being before and at the time of making the said election
a trustee of said corporation; and therefore that at the said
election the said Jacob Hadden was not then and there duly
and legally elected a trustee of said corporation in lieu of
James Harriot, the said James being before and at the time
of making said election a trustee of said corporation ; that
therefore at the said election the said Abraham Ayres was
not then and there duly elected a trustee of said corporation in
lieu of Charles Ford, the said Charles being before and at the
tim3 of said election a trustee of said corporation ; that therefore
at the said election the said David Crowell was not then and there
duly and legally elected a trustee of said corporation, the said
David moreover before and until that time not having used and
exercised the office of trustee of said corporation ; and therefore
that at the said election the said John D. See was not legally elected
a trustee of said corporation in lieu of Daniel Latourette, the said
Daniel being before and at the time of making such election a
trustee of said corporation ; and therefore that the said defend-
ants on the day and year aforesaid had no right nor authority to
take upon themselves respectively the office of trustees of said cor-
poration ; and that by virtue of the premises they were not and
398 NEW JERSEY SUPREME COURT.
The State v. Crowell.
are not now trustees of said corporation, and by virtue thereof
have no authority to use and exercise the office of trustees of
said corporation as aforesaid, and that they the said William M.
Crowell, John Wait, Jacob Hadden, Alpraham Ayres, David
Crowell and John D. See, have for the whole time in the said
information above mentioned, upon the said state usurped, intruded
into, and unlawfully held the said offices; and thisthe said attorney-
general is ready to verify; whereupon be prays judgment for
the state, and that the said William M. Crowell, John Wait, Jacob
Hadden, Abraham Ayres, David Crowell and John D. See, of the
premises above charged upon them by said information may be
convicted.
And the said William M. Crowell, David Crowell, John D.
See, Jacob Hadden, Abraham Ayres and John Wait, as to the
said plea of the said attorney-general, for the state of New
Jersey, in reply pleaded, protesting that the said plea and the
matters therein contained are not sufficient in law to convict
them of the premises above charged upon them respectively,
yet for plea thereto by the said William M. Crowell, for him-
self, he saith, that although it may be true that heretofore,
to wit, on the twenty-second day of March, 1824, at the said
church, being the usual place of meeting for public worship
by the members of the said religious society, an election was
held, and at tho said election the said James Harriot, Daniel
Latourette, John Patrick, Charles Ford, Oliver W. Ogden,
Benjamin Morris 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 William M. Crowell saith,
that the notice in writing of the time and place of the last men-
tioned meeting and assembling, and of the purpose aforesaid, was
by an advertisement in writing given and directed only to those
members of the said religious society who were pewholders of the
said church, there being then and there other persons members of
the said religious society, who were not pewholders as aforesaid,
who were not requested or directed by the said notice to attend,
as aforesaid, and to whom the said notice by advertisement as
aforesaid was not given and directed ; and so the said William
M. Crowell saith, that due notice in writing of the time and place
of the last mentioned meeting and assembling, and of the purpose
aforesaid, was not given, and that the last mentioned election waa
FEBRUARY TERM, 1828. 399
The State v. Crowell.
illegal and void; and this be is ready to verify ; wherefore he
prays judgment, and that the said office of trustee of the said
corporation, and the privileges, duties and immunities thereof
by him claimed as aforesaid, be adjudged to him; and that he
be discharged by the court here from the premises above charged
upon him. And the said William M. Crowell in fact further
saith, that due notice in writing of the said meeting and assem-
bling last above mentioned, and of the purpose aforesaid, was
not given for ten days next preceding the said meeting and
assembling, and of the said election; and of this he puts him-
self upon the country; and the said attorney-general doth the
like. And for plea thereto by the said David Crowell, John D.
See, Jacob Hadden, Abraham Ayres and John Wait, they say,
that at the said election held on the said fourth day of
December, 1823, before the said church and adjacent thereto,
the door thereof being locked, and the members of the said
religious society being prevented from entering the said church,
as above in pleading set forth, persons being in fact members
of the said religious society did assemble together for the purpose
of electing trustees of the said corporation, and then and there
an election of trustees of the said corporation, viz. of the said
David Crowell, John D. See, Jacob Hadden, Abraham Ayres,
John Wait, and Thomas Griggs, since deceased, was then and
there duly made, by persons being in fact members of the said
congregation or religious 'society, viz. by a majority of the
members thereof then and there attending for that purpose;
and of this they put themselves upon the country; and the said
attorney-general for the state of New Jersey in this behalf doth
the like.
And the said attorney-general having heard the said plea of
them the said William M. Crowell, David Crowell, John D. See,
Jacob Hadden, Abraham Ayres and John Wait, by them above
pleaded by way of rejoinder in manner and form aforesaid,
saith, true it is that the notice in writing for the meeting and
assembling of the members of the said religious society or con-
gregation on the twenty-second day of March, 1824, at the said
church, beirfg the usual place of meeting for public worship by
the members of the said religious society, when an election 'was
held, at which election the said James Harriot, Daniel Latour-
ette, John Patrick, Charles Ford, Oliver W. Ogden, Benjamin
Maurice and Alexander Semplo were by a majority of such of
400 NEW JERSEY SUPEEME COUET.
The State v. Crowell.
the members of the said religious society as did then and there
attend for that purpose, elected trustees of the said corporation,
was by an advertisement in writing, yet the said attorney-general
saith, that the said advertisement in writing was not given and
directed only to those members of the said religious society who
•were pewholders of the said church, and so that due notice was
given, &c. ; and the said attorney -general further saith, that there
were not then and there other persons, members of the said
religious society as aforesaid, who were not pewholders as afore-
said, who were not requested or directed by the said notice to
attend as aforesaid, and to whom the said notice by advertisement
as aforesaid was not given or directed, but that all the said mem-
bers of the said religious society entitled to vote as aforesaid at
said election were pewholders, and so that due notice in writing
of the time and place of the last mentioned meeting and assem-
bling, and of the purpose aforesaid, was given, and the last
mentioned election was legal and proper, as the said attorney-
general in his said replication hath above alleged ; and this he
prays may be enquired of by the country, and the said William
M. Crowell, &c. (the others) do the like.
After these pleadings were filed, a number of witnesses were
examined and their depositions taken, and divers exhibits were
made, consisting of the minutes of the proceedings of the con-
gregation, and of the two sections into which it became divided,
and of the two sets of trustees, and of the proceedings of the
Presbytery, and of subscription papers, and oaths of office, and
sundry other documents ; and an agreement in writing was made
and signed by the attorneys of the parties, that upon the plead-
ings, depositions and exhibits, to be considered as a state of the
case, the cause should be submitted to the Supreme Court for
determination.
Upon the opening of the pleadings, the court, observing that
issues of fact had been formed, expressed some doubt of the
propriety of hearing the arguments ; but on being informed that
it was the agreement and earnest wish of the parties; that the
case presented no dispute as to matters of fact, but simply
questions of law; and that in this way a more speCdy termina-
tion would be put to a division in a religious society,. the court
directed the argument to proceed.
The reporter has thought it unnecessaiy to extend the report of
FEBEUAEY TERM, 1828. 401
The State v. Crowell.
the case, by exhibiting at length the depositions and exhibits, as
the material parts of them will be found in the arguments of the
counsel and the opinions of the court.
G. L. Hardenbergh, for the relators. This case presents two
issues.
1. The right to supersede William M. Crowell as a trustee;
and therefore the legality of the election of March, 1824.
2. The legality of the election of December, 1823, when D.
Crowell and others, the defendants, were elected.
As to the first issue,Williarn*M. Crowell was properly superseded
by the election of trustees, which took place in March, 1824.
The only objection made to this election is that the notice for
it was directed to the pewholders, and not to the members of the
congregation. The answer is that none others save pewholders
were at that time members. This appears from the exhibits and
from the evidence in thfl cause.
It is conceded that all the members of the congregation have a.
right to vote at such an election.
Who are the members? Those who contribute. Book of Dis*
cipline of Presbyterian Church, pages 374 and 375, sec. 3 and 4.
Pewholders were the only contributors then, and therefore the
only members. That election was legal.
As to the second issue. These defendants ought to be ousted,,
because their election in December, 1823, was illegal. They wero
not elected by the members of the congregation.
In this proceeding, by information, it lies on the defendants to
shew they have a good title to their office.
Whether the other trustees wero properly elected does not
affect this question. The defendants must shew how they hold
their office. The state need only deny their right. This brings
up the question, if they were elected by the members, and tho
qualifications of the voters.
Who were members and voters? This depends on tho rules
and discipline and government of the church. There must bo
eomo rule or anarchy would ensue; some authority to guard tho
pulpit, to prevent error, &c.
The evidence shews that these people refused to acknowledge
an}' authority, Session or Presbytery. They locked tho church
VOL. iv. 2 A
402 NEW JERSEY SUPEEME COUET.
The State v. Crowell.
against the first, and passed a solemn resolution against the
authority of the latter.
If aggrieved, they did not seek redress in the constitutional
way, b}r complaint, &c. but took the power into their own hands.
Let us enquire whether they were legally elected in 1823.
There were at that time trustees legally in office, without dis-
pute, and who had been since May, 1822, viz.: Harriot, Burden,
Griggs, Scmple, Latourette, (1 Ford and D. Crowell.
The defendants were illegally elected —
1. Because not elected by the members of the congregation.
2. Because they were not themselves members, and therefore
were not eligible under the act. Rev. Laws 475, sec. 1.
1. They were not elected by the members of the congregation,
because those who voted for them did not contribute, and refused
to submit to the rules and discipline of the church; and were
therefore disqualified.
The moneys raised for the support of the church were payable
to the trustees then in office, and were legally due. The Crowells
and their party refused to pay them. Their old balances they
refused. All of that party refused. Some paid to December,
1822, when Andrews resigned, and others refused to pay at all.
But all refused from December, 1822. There was no condition
in their subscription that they were to pay to or for Andrews;
nor was it material, for the whole of these sums was necessary
to pay him. The money subscribed was generally for the sup-
port of the gospel. They have refused to pay to this time.
After December, 1822, when Andrews resigned, money was
raised in the usual way, for supplies \)y application to the
Presbytery. They refused to contribute or subscribe. On this
ground then they were not members of this congregation in
December, 1823, when their election took place. Kule on this
subject, Book of Dis. 375. "Those who contribute according to
the rules of that congregation" as if intended to meet this very
case.
What was the rule of this church? By subscription and pew
rent they raised money. See evidence of Latourette.
It is not a right construction of this rule that a man might
subscribe and therefore be a member. He must pay also, and
fulfill his engagements. They not onty refused to pay or con-
tribute, but they were guilty of a breach of their engagements.
FEBRUARY TERM, 1828. 403
The State v. Crowell.
Further, they refused to submit to the censures of the church, regu-
larly administered.
In church government it was intended the first law should be
the law of order, and therefore that every one submit to the ruling
powers or forfeit their privileges.
They commenced by insubordination ;
1. They refused to pay. 2. They refused to subscribe. 3. By
circulating a paper in opposition to the officers of the church, and
without authority. They continued a series of opposition. Ar-
rayed themselves against the Session.
They denied the authority of the Presbytery.
Supplies were applied for, and Andrews amongst the rest. He
was not appointed. They then refused to let the Session use the
pulpit, and locked up the church. They refused to open it to the
Session.
Osborn was appointed a supply; they refused to let him preach.
By refusing to submit to discipline, &c. previous to December,
1823, and since, they have disqualified themselves.
By the fact of going counter to the rules of the church they
disfranchised themselves. Those of that party had no right then
to vote.
2. These trustees themselves were ineligible, not being members
of the congregation. Rev. Laws 475. They were the actors and
leaders in all this business. At meetings they themselves made
the majority. If the above principles apply to any they do so
to them. They were not eligible.
3. Their whole proceedings were irregular. The Session only
can apply for supplies, and they only can legally convene the
congregation for raising moneys for that object. There must be
some rule. Their meeting was self-constituted and without
authority. To what would such proceedings lead?
Hero was a regular body in possession of the franchise. They
must be removed legally, and in a proper way.
Look into their election. At night. How many were there?
Who were they? See evidence of Wood, Latouretto and others.
Who gave authority to circulate their subscription paper? and
at whose request? Their own.
If they were not bound to pay after the resignation of Andrews,
then was their subscription void, because it was afterwards.
404 NEW JERSEY SUFEEME COURT.
The State v. Crowell.
Their subscription was void, however, because money was not
raised to support those whom the Presbytery appointed, but
those whom they refused to appoint.
The spiritual and temporal government of the church go
together.
The sum of the argument then is —
The government of the church prescribes a certain system of
rules, and in this way only can its concerns be legally conducted,
or money be raised. They set all these at defiance.
They were not members of the congregation while refusing
to pay, but were under a disability.
While they set the judicatories at defiance they were disabled,
and are so now.
They bad no right to make members of the congregation by
raising money without authority.
Money for any purposes of preaching can only be raised under
the sanction of the Session.
The old trustees, elected in 1822, without reference to this
dispute, were in office until legally removed, and these new made
ones have no right.
The trustees under the authority of the Session, &c. had right
to direct money raised.
Subscribing and paying are the only test of membership.
These men should have paid something to have kept their privi-
lege, and then in a regular way asserted their rights.
They should have paid their old balances, and then met and
vote not to raise money. Instead of that they met and voted to
put down the Session, &c.
Their proceedings were irregular because their money was
raised for an improper and illegal object; to pay, not regular
supplies, but such as the Presbytery would not appoint, nor the
Session receive.
The fact of subscribing such a paper was an act of insubordi-
nation.
While they thus acted, and refused to submit to the rules and
discipline and constitution of the church and Session, they were
not members of the congregation, and therefore ineligible as
trustees themselves.
Lastly. Their meaning and the result of their conduct are to be
FEBKUAKY TEEM, 1828. 405
The State v. Crowell.
found in the conduct of their leader, Dr. Andrews. See his evi-
dence. Ho denies that he belongs to that church at all. See
minutes of General Assembly. He is silenced, but he still re-
mains there and is the leader of the party.
Wood, for the defendants —
In this church there are two sets of trustees, supported by two
parties. The defendants are trustees, exercising the functions
and duties of the office, and the object of the quo warranto is to
displace them and bring in the other party.
Two points of dispute are substantially presented by the issues.
1st. The validity of the election of the fourth of December,
1823, at which all the defendants excepting William M. Crowell
were elected.
The objection on the part of the relators to that election is that
the voters were not qualified, not being members of the congre-
gation.
Here it may be remarked, that even if it should appear that
some of the voters were not members, yet if a majority were
members the election is valid. They were voted in unanimously.
15 Mas. Rep. 230.
2d. The validity of the election of March, 1824, in which the
defendant, William M. Crowell, an old trustee, was displaced,
and the set of trustees who are substantially the plaintiffs in
this cause were voted in.
The objection on the part of the defendants to that election, is
that the advertisement was directed only to pewholders; there
being other members of the congregation, not pcwholders, enti-
tled to vote.
This church was incorporated under the act of 1799. Rev.
JJaws, 475. Under this act the trustees are to be chosen by the
members of the congregation; and the members are those who
contribute to the support of the gospel.
The precise mode in which contributions to the support of the
gospel shall bo raised, is not pointed out, either in tho statute or
in tho rules of discipline of the Presbyterian church. Each con-
gregation is left to regulate its own mode of contribution, either
by specific rule or general custom ; and in Dr. M'Dowell's
40ft NEW JERSEY SUPiiEME COURT.
The State v. Crowell.
church, according to his deposition', contributions are raised by
pew rent and by subscriptions at regular parish meetings.
The dispute in this church came to a crisis in the spring of 1823.
It will not be disputed that before and until that time, contri-
butions to the support of the gospel in this church were raised
by pew rent, and also by subscriptions by members of the con-
gregation not pewholders; and whenever a sum was to be raised
for the support of the gospel or other purposes, it was done
under a resolution passed at a regular parish meeting, sum-
moned together upon regular notice. It will not be disputed,
also, that up to the spring of 1823, the voters at our election in
December, 1823, were members of the congregation, many of
them not being pewholders.
The acts of the spring of 1823, and subsequent to it, are sup-
posed to have disfranchised our voters.
In the spring of 1823, the party on the side of the plaintiffs,
having a majority among the trustees and elders, but a minority
among the congregation, formed a plan, (very natural with the
lovers of power,) to get and keep the control of the church
affairs in their own hands.
The trustees voted down all parish meetings, as useless; and
taking the old power of the parish meetings into their own hands,
they passed a resolution directing a sum of money to be raised;
and sent around a subscription for the purpose. Our members
refused to sign it, and called for a parish meeting. This refusal,
it is said, amounted to a disfranchisement, and disqualified them
from voting at the election of December, 1823.
In answer it is sufficient to say, that the members of this con-
gregation had never delegated to these trustees a power over
their purse. It was an usurped power, not new in this country.
Again ; an omission on the part of our members of the congre-
gation to pay up all that was due from them on the subscription
list of 1822, is relied on to shew that they were actually disfran-
chised, and not qualified to vote for trustees.
It is not disputed that the subscription list of 1822, issued in the
spring of 1822, under the resolution of a regular parish meeting,
to raise money for the salary of 'Dr. Andrews, then the stated pas-
tor of the church, during the ensuing year. In the fall of 1822
Dr. Andrews resigned. The trustees caused the subscription list
to be carried around by Charles Ford, in May, 1823. According
to his testimony all our members either neglected or refused to pay
FEBRUAEY TERM, 1828. 407
The State v. Crowell.
up — the whole — without shewing who neglected or who refused.
The only additional evidence on this subject will be found in the
deposition of Latourette, who states that William and David
Crowell, defendants, at a meeting of the trustees in the summer
of 1823, (then being members) refused to pay up this subscrip-
tion list, alleging that it ought to be paid up rateably to the period
when Dr. Andrews resigned. They were willing to sign a new
subscription list, lawfully got up, to raise any money that should
be wanted.
It is not pretended that these members of the congregation
were ever disfranchised for this act, by a regular vote of the
parish or congregation, duly summoned for the purpose. If not
so disfranchised, they must have voluntarily withdrawn, in order
to cease to be members. It is admitted that a member of a con-
gregation may voluntarily withdraw from his membership, either
directly, in express terms, or indirectly, by doing or omitting to
do an act which would amount to a voluntary amoval. But that
a neglect on the part of these members to pay the balance on
this old subscription list, or a refusal to pay it on the ground
that they contested the right to raise it, would amount to a vol-
untary abandonment of membership, is a doctrine which I think
no court will sanction. It would be fraught with dangerous'
consequences, and would deter any member from disputing the
claims of trustees. If wrong, the very act of disputing the
claim would be an abandonment of membership. Sound law and
common sense would alike require that the act which should
amount to an indirect, voluntary amoval from the congregation,
should be entirely unequivocal.
At this time they had not dreamt of considering this omission
to pay up as amounting to a withdrawal from the congregation.
In the fall of 1823 they sent notices to the Crowells and others
of our party, to attend their meetings. But after the advertise-
ment was put up for the election in December, 1823, they got
together and voted themselves to be the only lawful pc-wholdera
and members of the congregation.
If this view of the subject be correct, it follows that the elec-
tion of December, 1823, is valid, and the election of March, 1824,
is illegal and void.
Some extraneous matters are introduced, which may deserve
some notice.
It is said that the majority party have run counter to the
408 NEW JEESEY SUPEEKE CO [JET.
The State v. Crowell.
wishes and disputed the authority of the Presb}*tery, in their
resolutions of April, 1824.
It is true they resolved not to open their doors to supplies
sent without having their wishes consulted; but tho rnomenl,
they were satisfied that that subject was under the authority of
the Presbytery, they retracted and have allowed the church to
be opened. The Presbytery did not attempt to disfranchise
them. Without stopping to enquire whether a breach with
the spiritual part of the church, can in any case strip a con-
gregation of its temporal rights, one would suppose that the
strongest advocates of spiritual power would at least require
a vote of disfranchisement by the Presbytery to produce
that effect. It might be sufficient to observe, that this little
sparring with the Presbytery took place in 1824, and is not
within the issue.
Again ; it is said that the majority of the congregation wish
the return of Dr. Andrews to this church. This is not true in
fact; and if true would be immaterial to the issue.
If the plaintiffs succeed, they will have a church without a
congi*egtition. The act requires for the continuance, as well as
the erection of these corporations, that they should consist of
thirty families. This party on the side of the state is composed
of only ten or a dozen.
EWINQ, C. J. — At the outset of our examination of this case,
it is important to open the pleadings and ascertain with pre-
cision the issues which have been formed, in order not only to
present distinctly the questions to be solved, but because, as it
will be seen, we shall thereby simplify our duty, and relieve
ourselves and the cause from the investigation of several of the
topics discussed at length and with much ability upon the argu-
ment at the bar.
The defendants being called on by the information to shew by
what warrant and authority they claim to have and use the office
of trustees of thePresbj'terian church in the city of Perth Am boy,
into which it is alleged they have unlawfully intruded, say, that
one of them, William M. Crowell, was duly elected a trustee at an
election held on the eleventh day of February, 1823, agreeably to
the provisions of the statute for the incorporation of religious
societies; and that the others, Wait, Hadden, Ayres, See and
David Crowell, were duly elected trustees at an election held on
FEBEUAEY TEEM, 1828. 409
The State v. Crowell.
the fourth day of December, 1823, according to the provisions
of the same statute, by a majority of such of the members of
the said religious society as attended for that purpose.
By replication, on the part of the state, it is alleged, that the
persons who attended on the fourth day of December, 1823. and
by whom the election of that date was made, were not members
of the said religious society or congregation; wherefore the said
Wait, Hadden, Ay res, See and David Crowell, were not duly
elected trustees; and as to William M. Crowell, that subse-
quently to the eleventh of February, 1823, that is to say, on
the twenty-second of March, 1824, another election was held,
at which another person was chosen in his stead, who duly took
upon himself the office, and from thence he was a trustee no
longer.
The defendants, by rejoinder, say that the election of the
fourth of December, 1823, was made by persons being in fact
members of the said religious society or congregation ; and upon
this point issue is joined. And that the election of the twenty-
second of March, 1824, was illegal, due notice not having been
given, inasmuch as the notice was given and directed only to
those members who were pewholders of the church, and there
were other members who were not pewholders, and who were
not therefore notified to attend.
To which it is answered on the part of the state, that the
notice was not given and directed only to those members who
were pewholders: and that there were not then and there other
persons members of the said religious socielj* who were not pew-
holders; and that all the members of the said religious society
entitled to vole at the said election were pewholders. And upon
this matter issue is also joined.
By this view of the pleadings, it is seen, they bring into ques-
tion the elections in December, 1823, and in March, 1824. Hence
it follows that the transactions subsequent to the hitter period,
which have doubtless tended so much to widen division and in-
flame animosity in this congregation, and have been so truly pain-
ful to the friends of religious peace and order, are not to become the
subjects of our cnquiiy. Having taken place since those elections,
they cannot affect thequcstionson which the parties have thought
fit to rest their respective claims. The placing of a lock on the
door by the defendants was in April, 1824. The resolution that
the doors of the church should not bo opened to the supplies
410 NEW JERSEY SUPEEME COURT.
The State v. Crowell.
appointed by the Presbytery, was made in the same month.
The refusal by cne of the defendants, acting as president of the
trustees, to open the doors of the church, whereby the minister
appointed by the Presbytery to supply the pulpit on that day
was excluded, was on Sunday the second day of May, 182 i. The
open violence of strife, which caused a mournful silence for more
than a year to prevail where the language of prayer and praise
was wont to be heard, did not break out until after the last of
the elections which have been mentioned. On tho twen,ty-
seventh of July; 1824, the Presbytery resolved, that the Session,
and those with them, had acted according to the constitution,
and rules of the Presbyterian church, and that the other party,
comprising the defendants, had acted in opposition to the rules
and constitution, and had virtually renounced the government,
of the church. All these things however are out of the limits
by which the pleadings have bounded our research. And it
would be to no effect, therefore, to examine the soundness of
the argument urged on the part of the state, that by these acts
the defendants, and those united with them, "did refuse to sub-
mit to the censures of the church regularly administered," and
had thereby ceased to be members of the congregation.
Another topic suggested by the counsel of the state must
necessarily be passed without examination. It was urged that
the defendants were ineligible as trustees, because they were not
members of the congregation. But the issue is on the member-
ship of the electors, not of the elected. Tho membership of
the latter cannot therefore be a distinct subject of enquiry, nor
brought into view, otherwise than as involved with that of the
former.
On the part of the defendants' counsel it was strongly insisted,
upon the argument at the bar, that this corporation is dissolved,
the number of families having, as they said is shewn by the evi-
dence, been reduced below thirty, the number required by the
statute to constitute a congregation entitled to the enjoyment of
corporate privileges. But if such is the fact, if the corporation
is dissolved, by what authority do these defendants exercise their
corporate offices ? If the corporation is dissolved, have not their
functions as trustees, ipso facto, ceased ? Do they not, in the lan-
guage of the information, usurp, intrude into, and unlawfully hold
and execute them? We need not, however, resolve these ques-
tions. The existence of the corporation cannot in this cause be
FEBRUARY TERM, 1828. 411
The State v. Crowell.
legally made the subject of enquiry. Both parties in their res-
pective pleadings have expressly averred, that the corporation
existed at and for a long time previous to the exhibition of the
information. It is an established rule that a jury cannot find
in point of fact against what the parties in pleading have
agreed and admitted, although the contrary be the truth. Com.
Dig. tit. Pleader, S. 17. Bac. Abr. tit. Pleas, &c. Buller N. P. 298.
2 Mod. 5.
The questions presented by the issues formed in the pleadings,
are, 1. Whether the persons who assembled, and by whom the
election of trustees was made, on the fourth day of December,
1823, were at that time members of the society or congregution ?
2. Whether the notice of the election on the twenty-second of
March, 1824, was given and directed only to those members who
were pewholders? and, 3. Whether at that time there were any
members who were not pewholders?
Who then are the members of a Presbyterian society or con-
gregation ? The act of the legislature for the incorporation of
trustees of religious societies, does not answer the enquiry. It
does not explain the term, nor describe the qualifications of mem-
bers. It enacts that the trustees shall be chosen by the members
of the society or congregation. But who are the members has
been wisely left by the legislature to be determined by the rules
of each religious denomination. We must therefore have recourse
to the constitution of the Presbyterian church in the United States,
as published under the authority Cf the General Assembly.' In the
fifteenth chapter of the form of government, which provides for
the election of pastors, it is declared that on a Lord's day preceding
the election, immediately after public worship, "all the members
of that congregation " shall be requested to meet at a named day
to proceed to the election of a pastor -T that on the day appointed
the presiding minister shall announce to the people that he will
proceed, if such be their desire, "to take the votes of the electors
of that congregation for a pastor." And that in this election
no person shall be entitled to vote, who refuses to submit to the
censures of the church regularly administered, or who does not
contribute his just proportion according to his own engagements
or the rules of that congregation, to all its necessary expenses."
These clauses serve sufficiently to fix the qualifications of mem-
bership, although they mny not have been formally designed for
that cud. The form of government contains no other. And they
412 NEW JEESEY SUPEEME COUET.
The State v. Crowell.
are considered by the Presbyterian denomination as establishing
" the criterion by which the right of membership is determined,"
as appears by the affidavit read before us of an eminent minister,
whose experience in the councils and judicatorics of that church
is well known. lie is a member of a Presbyterian congregation
who submits to the censures of the church regularly administered,
and contributes his just proportion according to his own engage-
ments or the rules of that congregation, to all its necessary expen-
ses. He who refuses to submit to the censures of the church
regularly administered, as also he who does not contribute his
just proportion according to his own engagements or the rules
of the congregation, is not a member. With the first of these
qualifications we have at present no concern, because there is
nothing in the evidence, as has already been remarked, to shew,
until subsequent to March, 1824, a refusal to submit to the censures
of the church. By the other qualification the fact of membership
is to be tested. And here, to avoid misunderstanding, I observe,
that I employ the term, members, strictly in the sense in which
it is used in the act of the legislature, and in the pleadings before
us, that is to say, persons entitled to act and vote in the affairs
of the congregation. There is another and popular signification
of the term, sometimes perhaps attached to it in the form of
government and in the proceedings of the church judicatories,
but which is more extensive than the purview of the statute.
Thus the wife of 'a member, an infant of tender years who has
been baptised, a communicant who from straitened circumstances,
or other satisfactory reason, makes no pecuniary contribution to
congregational expenses, all these are nevertheless called, and in
many respects rightly, members of the congregation, or perhaps
more correctly speaking, members of the church. In the
former, or strict, and not in the latter or popular sense, I here
use and understand the term.
The persons by whom the election of December, 1823, was made
do not appear with all desirable certainty and precision. Joseph
B. Wood, in his affidavit, states that he was present. He names
nine persons who voted and believes there were at least six more,
but cannot name them. Henry Hampton, in his affidavit, names
the members of the congregation, twenty-three in number, who
belonged to what was called the party of the defendants. All
these he states were not present at the election. But it very suf-
ficiently appears, and indeed was fully agreed, on the argument,
FEBRUARY TERM, 1828. 413
The State v. Crowell.
that the persons who made the election are comprised within the
enumeration of Hampton.
The mode of contributing to the necessary expenses of that
congregation, as appears from the minutes of their proceedings,
and from one or more of the affidavits, was by the renting of
pews, arid by voluntary subscriptions in aid of the pew rents:
and to rent such pews as might be vacant from time to time, and
to procure subscriptions, committees were usually appointed at
meetings of the congregation in the spring of each year. In the
spring of 1822 a subscription paper was opened, whereby the
subscribers promised " to pay to the trustees of the first Presby-
terian church in Perth Amboy, or order, the sums annexed to
their respective names, for the purpose of maintaining the
preaching of the gospel in the said church from the first May,
1822 to the first May, 1823." This subscription paper was signed
by all the persons mentioned by Hampton as belonging to the
party of the defendants, except Abraham Bloodgood and Joseph
B. Wood. In the month of September, 1823, a list of persons
owing, according to their engagements, balances up to the first
day- of Ma}T, 1823, was under the direction of the trustees made
out, and before the 17th of November, 1823 they were, except
David Wait, severally called on by the collector, Charles Ford,
who in his affidavit states, that some said they would pay until
the time Dr. Andrews resigned and no longer; and that all,
except such as are marked, paid, on the paper, refused or neg-
lected to pay. The list of those who thus refused or neglected
to pay includes all the persons mentioned by Hampton, except
Daniel Ayres, Mary F. Lewis, William Bloodgood, Mordecai
Noe, Abraham Bloodgood and Joseph B. Wood. Nor does tho
list shew that cither of them paid. In the month of August,
1823, the trustees caused a list to be made of tho persons who
had not subscribed for the current }rear, but had held pews, and
an account of their pew rents for the quarter ending the first
of that month, during which period the public services of the
church had been regularly performed by supplies under appoint-
ments of the Presbytery. This list bore all the names men-
tioned by Hampton, except Philip Robinson, Joseph Pigeon,
Mary F. Lewis, Mordecai Noe, Alexander Robinson, Abraham
Bloodgood and Joseph B. Wood. Tho persons named in tho list
were called on by tho collector, except Caleb Ward, and all
refused to pay but Elizabeth Coddington, Chxrkson Dunham and
414 NEW JERSEY SUPREME COURT.
The State v. Crowell.
Linus Moore, who said they would but did not. Daniel Ayres
told the collector he would pay for no supplies ; if they would
get a settled minister he would hire a pew.; and William Blood-
good said he had given up his pew on the first of May preceding.
Mary F. Lewis had moved away from the congregation some
months prior to the election and had paid up to the time of her
removal, as appears from the affidavit of Daniel Latourette.
David Wait is not mentioned by Hampton, nor by Joseph B.
Wood, and of consequence there is no evidence that he was
present at the election ; and Abraham Bloodgood and Joseph B.
Wood, named by Hampton, do not from any document before us
appear to have ever been in any wise contributors. Latouretto,
in his affidavit, also enters into a detail of the persons who had
not fulfilled the stipulation contained in the subscription paper
of the spring of 1822, and expresses his belief that Mordecai
Noe, was one of the number.
From a careful examination, then, of the evidence before us,
it clearly results, that the persons named by Hampton, including
all those by whom the election of December, 1828, was made,
did not at the time contribute according to their own engage-
ments to the expenses of the congregation. On the contrary,
all of them had wilfully and designedly omitted, and most of
them had peremptorily refused to do so.
The reasons assigned for the omission to fulfill these engage-
ments, some of which were urged on the argument by the counsel
of the defendants, are wholly insufficient to dispense with them, or
prevent the results which may legal!}11 flow from such omission.
The answer repeatedly given to the collector was "I will not pay ;
call a parish meeting." And the argument is, that as according to
the practice of that congregation the subscription was made under
a vote of the people at a meeting annually held, neither the trus-
tees nor any other persons were authorized to ask or procure such
subscription except under a vote of a meeting, and a refusal to sign a
subscription called for without such vote was not therefore a refusal
to contribute " according to the rules of that congregation." Now
it will readily be perceived that this argument, however valid
against the calls for subscriptions subsequently made, without a
congregational meeting, can avail nothing in respect to the sub-
scription of the spring of 1822, which was made in the ancient
mode, after a vote, at the accustomed meeting ; and which there-
fore beyond doubt was not only according to the rules of the con-
FEBRUARY TERM, 1828. 415
The State v. Crowell.
gregation, but according to the actual and voluntary engage-
ment of those by whom it was signed. Some of the subscribers
assented to pay, and some actually did pay, up to the twentieth
of December, 1822, the date of the dissolution of their con-
nection with the Rev. Mr. Andrews, bnt« refused to pay any
more pr for any longer period. The engagement however which
they had made, as appears by reference to the subscription paper,
was to pay not merely for the support of a particular clergyman,
" but for the purpose of maintaining the preaching of the gospel
in the said church from the first of May, 1822, to the first of
May, 1823 ;" and the public services of the church were actually
performed by supplies furnished in the usual manner by the
Presbytery, to whom of consequence remuneration was due.
Moreover, Daniel Latourette in his affidavit states, that at the
resignation of Mr. Andrews there was a balance due to him, to
pay which required all the subscription money. The same
remarks may properly apply to the pew rent which has been
mentioned and had been demanded of the pewholders, for having
actually occupied the seats and enjoyed the services of the church,
they were bound to pay for their pews and according to the former
terms, if no new contract was made.
By one of the exhibits read before us it appears that a sub-
scription paper dated twenty-first November, 1823, was signed
generally by the section of the congregation acting with the
defendants, whereby they engaged to pay, one-half at three
months and the other half at six months, sundry small sums, and
some of them so very small as to be merely nominal, for the sup-
port of the gospel in the church. But this paper cannot justly
have any legal operation to shew that the subscribers did con-
tribute to the necessary expenses of the congregation nor to
remove the effect of their antecedent omission and refusal. It
was every way a nugatory act, done without the authority or
consent, and against the will of the trustees for the time being,
and had not even the preliminary sanction of a congregational
meeting, if such sanction was requisite.
Upon the argument at the bar it was contended by the counsel
of the defendants that the electors of December, 1823, bad un-
questionably been at an antecedent period, for instance May, 1822,
members of the congregation, and that they must necessarily
remain so unless disfranchised by some corporate or judicial act.
This position is not, in its full extent, sound. There is an obvious
416 NEW JERSEY SUPEEME COUJRT.
The State v. Crowell.
distinction between an expulsion from membership and a volun-
tary relinquish ment. The former may require a trial and
decree either civil or ecclesiastical. The latter may be effected
•without either, for a person may voluntarily renounce his mem-
bership, subject nevertheless to the fulfillment of existing obliga-
tions; and he does renounce it when he wilfully and designedly
omits, or expressly refuses to conti'ibute according to his engage-
ments. Without ceasing to be a member in the popular accepta-
tion, his right to act and vote may be suspended, or for the
time, cease. Thus a citizen residing in one of our counties in
the full enjoyment of all the rights of citizenship, may by
removal into another county deprive himself of some of the
most important, for instance, the right of suffrage, and he must
even qualify himself, for example, by a residence of a year, in
order to exercise that right in the other county. An individual
may for years have voted for members of council and assembly,
yet when he ceases to be worth fifty pounds, or to be able to
shew what the law has constituted the evidence of that fact, he
is no longer entitled to vote. Let me put another case, by way
of illustration. Suppose the qualifications required by the con-
stitution of the Presbyterian church had been that every house-
bolder, submitting to the censures and contributing to the
expenses of the church, should be a member and entitled to
vote, and an individual, after having with these requisites for
years acted and voted as a member, had ceased to be an house-
holder. It is presumed no one will deny that at an election
subsequently held he could not be admitted to vote, although
no decree of disfranchisement or sentence of any ecclesiastical or
civil tribunal had passed against him. The proper questions to
have been proposed to those who presented themselves to vote at
the election of December, 1823, were not, Have you once been
accepted as a member? Have you since been deprived of your
privileges as such by some corporate or judicial act? but, Do you
possess the requisite qualifications ? Do you contribute according
to your own engagements, or the rules of the congregation, to its
necessary expenses? If the view I have taken be correct, truth
would have compelled all of them to answer in the negative.
Upon the whole I am of opinion that the persons who assembled,
and by whom the election was made, in December, 1823, did not, at
the time, possess- the qualifications of membership, that they were
not, at the time, members of that congregation entitled to vote in
FEBRUARY TERM, 1828. 417
The State v. Crowell.
the election of trustees; and that on this first issue judgment
should be rendered for the state.
The second question, whether the notice of the election on the
twenty-second of March, 1824, was given and directed only to
those members who were pewholders, may be readily answered.
The original notice in writing is before us. The language of it
resolves the question in the affirmative. "Notice. A meeting of
the Presbyterian society or congregation in Perth Am boy, being
pewholders in the church, will take place," &c.
The remaining question is, whether at the time of the last elec-
tion there were any members of the congregation who were not
pewholders. The meaning and application of the term members,
which I have sought to attain in the consideration of the first
question, leave but a narrow field for the present enquiry. "We
have seen that they who did not contribute according to their
engagements were not members. The number of those who had
ever been contributors without being pcwholders was very small,.
Among the persons enumerated by Henry Hampton were but
two, Joseph Pigeon and Alexander Robinson. Of these, as ap-
pears by the affidavit of Daniel Latourette, Joseph Pigeon mo,ved<
away and never paid any thing, and Alexander Robinson " refused;
absolutely to pay, and wrote Latouretto an abusive letter on the
subject." The persons who had been pewholders and thereby
contributors, either remained pewholders at the time of the March
election, or had ceased to be so. If pewholders, they were em-,
braced in the notice. If they had ceased to bo pewholdors they
bad ceased to be contributors, and therefore ceased to be mem-
bers. And it hence clearly results that there were not at that
time any members of the congregation who wore not pcwholders.
As there were no members not powholders, the notice given and
directed to pewholders only was in effect a notice to all persons
legally entitled to participate in the election. Upon the second
issue then judgment should bo rendered for the stuto.
FORD, J. — The state of New Jersey enquires by what authority
the defendants claim to be trustees of the Presbyterian church at
Perth Amboy. The pleadings of the parties admit the legal exist-
ence of a corporate body, and the right of this religious society
to elect trustees; and there is no dispute on these two points.
Then the defendants plead a title to be trustees by virtue of an.
election the fourth of December, 1823;' and they aver that the
VOL. iv. 2 B
418 NEW JERSEY SUPREME COURT.
The State v. Crowell.
persons who voted at that election were members of the congre-
gation ; the state denies that the persons who voted at that
election were members of the congregation. And this forms the
first issue in the cause.
Next, William M. Crowell, (who had been chosen trustee at an
election prior to December, 1823,) insists that no subsequent
election has removed him from office. The state avers that there
was a subsequent election the twenty-second March, 1824, at
which the said William M. Crowell was duly removed from office;
and the relators, James Harriot, Daniel Latonrette, John Patrick,
Charles Ford, Oliver W. Ogden, Benjamin Maurice and Alexander
Semple were chosen trustees. In avoidance of the last mentioned
election, Mr. Crowell denies the legality of the notice for holding
it, because it was addressed only to pewholders, whereas he says
there were other members of the society, not pewholders, to
whom the said notice was not addressed. The state rejoins that
every member entitled to vote the twenty-second of March, 1824,
was a pewholder. And this forms the second issue.
Instead of sending these issues to the determination of a jury,
they have been submitted to the court, by agreement of the
parties, upon affidavits on each side, together with the law arising
on the case.
Hence it appears that the claim of the defendants (except
Mr. Crowell,) rests on this: whether the persons who voted in
December, 1823, were members. Mr. Crowell's claim turns on
this: whether the notice for March, 1824, was addressed to all
the electors. We are to examine, first, whether the persons who
voted in December, 1823, were members entitled to vote.
It would seem as if the act for incorporating trustees of religious
societies ought to have defined what qualifications should consti-
tute membership; yet it studiously avoids doing so. Thus,%the
first section only says, that every religious society may elect trus-
tees ; the fourth section that the members of the society may choose
successors; and the tenth section requires them to be persons who
support the gospel; it neither defines membership nor its qualifica-
tions. If the statute had specified the qualifications that should
entitle to membership, any person possessing those qualifications
might have forced himself on the society by legal process ; and
persons destitute of those qualifications could not have been
received legally into the communion of the church. Moreover,
if , the civil power prescribed rights of membership at all, it would
FEBKUAEY TERM, 1828. 419
The State v. Crowell.
naturally accommodate them to such doctrine, discipline and gov-
ernment as were most conformable to its own faith; which is
the very groundwork of a religious establishment. It therefore
wisely leaves each society to regulate these matters according
to its own ideas of truth and convenience. But in giving such
ample powers to these societies, it compels no citizen to join
them or submit to their jurisdiction; nor, having joined them,
to continue with them longer than he chooses. He may re-
nounce their jurisdiction and withdraw at any moment; and
afterwards reunite with them again if they are willing to receive
him; for no religious society is compellable to receive a member
against its will, nor to retain one after it becomes dissatisfied
with his conduct or conversation.
To determine therefore who are members entitled to vote, re
course must be had to the government and laws of each society,
for as no society can expect peace or order in its affairs, or, for
any length of time, to protract its existence without rules and
regulations, the Presbyterian society (like others) has adopted
a constitution, government and laws, for itself. It has ordained
four church judicatories, a Session of the congregation, a Pres-
bytery, a Synod, and in the last resort, a judicatory called the
General Assembly.
Among its regulations one is cited as governing the subject in
hand, in the following words, to wit: "In this election (for a pas-
tor,) no person shall be entitled to vote who refuses to submit to
the censures of the church, regularly administered, or who does
not contribute his just proportion according to his engagements,
or the rules of that church, to all its necessary expenses."
Now th*jro is no dispute about what persons did or did not
vote at the election of December, 1823. The congregation was
divided into two well defined parties, one of which, without in-
termixture, voted by itself. Before that time, and down to about
the month of May, 1823, both parties had indiscriminately pos-
sessed and exercised the right of suffrage; and it is no unfair
inference that they all continued in possession of the same right
until December following, unless the state can shew some dis-
qualification occurring within that interval.
To fix a disqualification, therefore, on the voters of December,
1823, the state shews, that prior to that time, while the Eev. Mr.
Andrews was pastor of this church, the trustees circulated a sub-
scription to raise money for parish purposes; to which paper the
420 NEW JERSEY SUPREME COURT.
The State v. Crowell.
parishioners put down their names for sums proportionate to
their circumstances, or PO nearly proportionate as to have ex-
cited on that point no dispute. Afterward the Rev. Mr. Andrews
resigned his pastoral charge; and money being indispensably
necessary to satisfy a large arrearage of salary owing to him,
•which il was incumbent on the congregation to pay; and also to
pay supplies for the pulpit ; a person was deputed to request pay-
ment of the money so subscribed; whereupon every individual
of those who afterward voted at the election of December, 1823,
refused to pay his subscription, and each one assigned reasons
which evinced the refusal to be a deliberate one, arising in no
case from destitution of means. Some would not pay for supplies
if they were procured by the Session ; some would not pay for
them if they came from Presby tery ; others would not pay with-
out a parish meeting; and some would pay for nobody, if they
could not have the Rev. Mr. Andrews. Thus a predetermined
and resolute refusal became common to that part; while the other
part of the members, without any objection, paid up their dues.
Thus the congregation became divided into two uniform parties;
one composed of those who were contributors, and the other of
those who were refusers. Soon after this the refusers caused notice
to be given that an election would be holden for choosing a new
set of trustees on the said fourth of December, 1823. The
persons who had paid their dues did not attend. The refiisers
held the election by themselves; and after removing every trustee
then in office, (except Mr. Crowell,) they elected the present de-
fendants in their places. Here the state grounds its objection
to these voters on the foregoing law of the society, that no
person shall be allowed to vote who refuses to pay his just pro-
portion towards the necessary expenses of the society; and from
thence concludes that the election of the defendants is void.
Whether the foregoing law and facts will maintain the issue on
the part of the state, so that the defendants must be ousted of
the office of trustees, will depend on the sufficiency of the
answers given to this case, in point of law and reason ; which
answers we shall proceed to consider.
The first is, that the regulation of this religions society which
says that no one who does not contribute according to his engage-
ments shall vote for & pastor, is one that has no application to the
present case. It is limited expressly, it is said, to the business of
electing a pastor, and cannot possibly apply to a subject so unlike
FEBRUARY TERM, 1828. 421
The State v. Crowell.
it as choosing trustees ; the one being a spiritual, and the other
wholly a temporal trust. But surely it cannot be maintained
that choosing a pastor is a spiritual transaction, when according
to the forms of the church every call must- contain a contract
of support. The election and support of a pastor fall as
accurately under the denomination of temporal acts, therefore, as
the election of trustees. And in further proof of its being a
temporal affair, the trustees, who are temporal officers, may,
according to a standing rule of the church, subscribe the call of
the pastor instead of the congregation.
And this regulation of the society appears to deserve a much
more liberal construction than that which would limit its opera-
tion to the single instance put in the rule, of choosing a pastor.
The election of a pastor calls into exercise a function of greater
importance to each member than any other temporal act he can
perform in that character. By it he not only selects a teacher
and spiritual guide, but binds himself by contract for his support.
It is just, therefore, to infer the right of voting in all cases, from
its being secured to members in this great particular. That the
society intended it as a criterion of the right of voting in all
temporalities, becomes still more manifest from their having no
regulation but this to govern in voting for trustees. It stands on
this foundation, that voting fora pastor is the greatest case, and
•the greater always comprehends the less, according to the maxim.
omne majus continet minus. Members who deprive themselves
therefore of the greater right, of voting for a pastor, deprive
themselves of the less right, of voting for trustees. There is
but one rule for both cases; that which is put in the rule is by
way of example for other cases, and amounts evidently to this
principle, that non-contributors shall in no case vote. The same
might bo inferred from the very nature of the office of trustees.
They are agents to receive the money of contributors and pay it
over quarterly or 3rearly to the pastor, in performance of the
contract in the call. It is the money of contributors in the
hands of trustees who are accountable for the disposition of it
to the owners. They cannot bo called the trustees of a person
who contributes nothing, for they hold nothing of his in their
hands ; nor could he maintain an action or a bill against them to
account. Why should one man vote for trustees to tuUo care of
another man's money who is able to ap'point trustees for himself?
Or why should one man appoint trustees from year to year, to
422 NEW JERSEY SUPREME COURT.
The State v. Crowell.
support the gospel with his neighbour's money, without con-
tributing to that support himself? If he enjoys the gospel
without charge, he ought to allow those who carry the burden
to adjust it on their shoulders for themselves. If such be not the
meaning of the regulation in question, these religious societies
will be left without any guard for their temporalities. People
of another denomination, or of no denomination, might usurp
the power of putting in their trustees, and get in characters on
purpose to dissipate their property. The statute does not require
trustees to be responsible freeholders, or to be worth a cent, much
less that they should give security against wastefulness or breach
of trust. The i-egulation, in every view that can bo taken of its
principle, excludes from a vote in choosing trustees all persons
who refuse to contribute to the expenses of the society. A
contrary rule might break up religious societies of every denomina-
tion in the state. The present case forms an illustration of the
strongest kind. A set of trustees who contribute to the support
themselves, and represent all those who do the same, are turned
out of the management of their own affairs, to make way for
another set, who do not contribute a cent themselves, and are the
representatives of none who do. Under such a state of things,
it may be expected that the contributors will stay their hands
also; and then, all contributions ceasing, the support is gone, and
the society broken up. If those who contribute nothing can elect
trustees this year, they can, by the same rule, do so next year,
and so on for twenty years to come. Thus a majority of non-
contributors might impose the whole support on a minority who
were contributors, and yet keep the management in their own
hands. If therefore the society did not possess any regulation, or
the semblance of one on the subject, and we were compelled to
decide on general principles, still the analogies of law and the rules
of equity, which are rules of equality, would force us into the same
^conclusion, that persons refusing to contribute cannot vote.
Secondly ; the defendants charge an usurpation against the Ses-
sion, for transcending the limits of their spiritual office, in origi-
nating a temporal subscription to raise money, without having the
sanction of a parish meeting for the sum. Dr. M'Dowell and the
Rev. Mr. Andrews concur in their opinions of this step, as being
rather unusual and not according to custom. Suppose their opin-
ions to be correct, still the subscription amounted only to an irreg-
ularity, palliated too by circumstances of emergency. Half the
FEBRUARY TERM, 1828. 423
The State v. Crowell.
congregation, or more, bad refused payment of their dues; and
yet there was a debt to the Rev. Mr. Andrews to be provided
for, besides supplies for a vacant congregation ; and this new
subscription was merely auxiliary to the purposes of the old
one; it contained nothing hostile to the judicatories of the church,
their regulation respecting supplies or modes of internal govern-
ment. Suppose it irregular, it was not void ; it was merely void-
able, that is liable to correction or amendment by the congre-
gation in that or any future cases. Subscribers to it would
at least be contributors de facto, and retain the right of voting
against such a mode of subscription in future cases. But the
persons who voted in December, 1823, did not preserve to them-
selves the right of voting, by any act ; neither by paying up their
dues on the old subscription, nor by subscribing the new one -t they
chose to assume the condition, in every view, of non-contributors,
and voluntarily disfranchised themselves as voters. But they
are not obliged, even now, to remain in this condition a moment
longer than they please ; for whenever they pay up their dues
and become contributors, the right of voting will revive.
Thirdly ; the defendants present an alternative to the following
effect ; that if the electors of December, 1823, were members, the«
the election was valid, and the defendants cannot be ousted ; but
if they ceased to bo members, the remaining number was less than
thirty, and under the tenth section of the act, could not continue the
corporation in existence. Admit the latter part of the alternative
to be true, the former part is not so. Their membership might
have continued, but they had parted with the right of voting. A
congregation evidently consists of two kinds of members ; one pos-
sessing the right to vote and the others not. This distinction ap-
pears to be made by the society itself, in their order or regulation
touching the election of a pastor. It directs notice of a meeting
for that purpose to be given to the members of the congregation,
but when assembled the moderator shall proceed to take the votes
of the electors of the congregation; thus plainly distinguishing
members from electors. Moreover, persons under ago cannot cer-
tainly be electors, yet they are as certainly members of the congre-
gation, and as such are received into the communion oft ho church.
Poor communicants, also, who possess no ability of contributing
to the support of the gospel, nor consequently any title to voto,
are nevertheless members of the religious society. Nothing in the
book of church government countenances the idea that married
424 NEW JERSEY SUPREME COURT.
The State v. Crowell.
women can vote, yet they are subject (separately from ibcir hus-
bands) to the discipline and censures of the church, and therefore
must be regarded as members of the religious society. Therefore
to constitute a valid election of trustees the voters must be mem-
bers, and something more; they must be members and contrib-
utors. And this must be the sense of the issue.
Fourthly ; the defendants claim for their constituents the char-
acter of contributors, from their having originated a subscription
for the support of the gospel themselves, and put down their names
to it. They connected with it, however, a set of resolutions mili-
tating against the government and laws of the Presbyterian soci-
ety. They resolved that no supplies should be paid out of this
fund, if those supplies were procured by the Session, or came by
the appointment of Presbytery. Now the obligation of Presby-
tery to appoint supplies, and to exercise in this way a constant
supei'intendence, is the very bond of union between them and
vacant congregations. The subscription was a blow aimed there-
fore at a vital principle of the society. As one of the counsel
properly observed, it flew in the face of the Session and Presby-
tery, and in fact, of all the judicatories of the church. As a
Presbyterian measure, it was therefore utterly void. The sub-
scribers to it might be contributors to an independent church,
but not to the Presbyterian church. If Presbytery had coun-
tenanced that proceeding, they would have -subverted their own
government, and laid a foundation for endless confusion among
their vacant congregations. This court must decide according to
the laws of that society; and as they admit of none lor electors
who refuse payment according to their engagements, the election
of December, 1823, cannot be supported, and judgment must of
consequence go for the state, on the first issue, against all the de-
fendants but Mr. Crowell. His claim demands our next attention.
Mr. Crowell asserts that the election by which the contributors
endeavored to remove him from office in March, 1824, was holden
under an illegal notice, addressed to pewholders only, and not to
any other persons. He proves this allegation, touching the form
of the notice, by the paper itself, which addresses the invitation
evidently only to pewholders. And the contributors designed it,
most probably to be in that form, as they had passed a preceding
resolution that none but pewholders should be entitled to vote.
The notice is in such full conformity to that resolution as to
preclude the idea of its being so drawn through any mistake. Now
FEBRUARY TERM, 1828. 425
The State v. Crowell.
I exceedingly doubt the propriety of any resolution that would
limit the right of suffrage to pewholders only. The society by its
regulations extends the right to contributors, paying no regard to
their owning seats in the church, or whose seats they sit in, or even
BO much as requiring their attendance at church, in order to be
entitled to vote. The church indeed exhorts their attendance at
public worship, and offers the most solemn and cogent reasons in
favour of it, but it employs no coercion, and is very far from
depriving men of temporal rights for the omission of spiritual
duties. The resolution is introductory therefore of a new quali-
fication for voting in requiring every elector to be a pewholder,
whereas the regulation of the society requires no more than that
he be a member and contributor; and if the issue turned on the
validity of this resolution, I should hold the resolution to be
erroneous and void ; because a member may contribute in many
other ways beside the single one of paying rent on a pew.
But the pleadings do not put the validity of this resolution in
issue; they raise quite a different point. The statute requires a
notice to all the electors; and if there existed a single elector who
held no pew in the church, that person had no notice to attend ;
on the contrary it was an intimation that his attendance would
be useless. The parties have taken their issue therefore on a very
important fact, whether at that time there existed a member
entitled to vote who was not a pewholder. If there were none
such, then notice to pewholders was indeed notice to all the
electors. Now on this point there is offered to us no contrariety
of evidence. It is proved on the part of the state that every
member who paid up his dues took a pew in the church. On the
other hand there is no evidence of a single contributor who did
not do so. This vindicates the election of March, 1824, against
the only objection taken to it; and all the issues stand in favour
of the state. Of course judgment must be rendered in its i'avour.
DRAKE, J. concurred with the opinions delivered.
. Judgment for the state.
CITED m Schenck v. Schenck, 5 Hal. 331. Den, Amer. Primitive Soc. v. Pilling,
4 Zab. 659.
NOTE. — Tn the argument of this case the attorney-general was associated with
Mr. Hardcnbergh. on the part of the state, and Mr. Wall argued with Mr Wood
on the part of the defendant*. But the reporter, not having notes of those
gentlemen's argument, has not inserted them. They maintained the same gen-
eral topics as their colleagues.
APPENDIX.
[The reporter is indebted to the politeness of the late CHIEF JUSTICE KIRK-
PATRICK, ior the following opinion, delivered by him, in the case of the state
against Jabez Parkhurst, in the year 1802; and as it involves several important
constitutional questions, he believes he will be- rendering a service to the public
by giving it insertion in this volume.]
THE STATE against JABEZ PARKHURST.
1. A person holding a seat in the legislature, and afterwards being appointed
to and accepting an office of profit, his seat in the legislature is thereby vacated.
2. The governor, as the supreme executive of the state, £and he alone,) hath
authority in the recess of the legislature, to fill a vacancy in the office of cLerk
of the Inferior Court of Common Pleas.
3. The Supreme Court has power to declare an act of the legislature void, as
being contrary to the constitution.
4. If a person holding an office be appointed to and accept another office
incompatible therewith, such acceptance of the second is a virtual surrender of,
and vacates the first.
5. The offices of senator of the United States and clerk of the Court of Com-
mon Pleas are incompatible, and cannot be held by the same person.
This was an information filed by the attorney -general, at the
relation of Aaron Ogden, esquire, against Jabez Parkhurst, charg-
ing 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.
To this information the defendant pleaded as follows:
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 tho
seventeenth day of November, in tho year of our Lord eighteen
hundred, bo and tho same was thereby repealed. And it was
further enacted, that in every case where anyperson or persons
holding a commission or appointment to any civil office under
the authority of tho said state, and who had been elected a mem-
ber to represent tho said state either in tho Senate or House of
Representatives of the United States since tho passing of tho
act entitled "An act to prevent tho holding of appointments
(427)
428 APPENDIX.
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 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 Hpuse of Repre-
sentatives in the Congress of the United States. And the said
Jabez further said, that since the passing of the said act of the
legislature, entitled "Ah act to prevent the holding of appoint-
ments 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 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, 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 tho
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 senatordidof right belongand appertain. And thesaid Jabez
further saitb, that the said Aaron Ogden, esquire, afterwards, to
wit, on the fourth day of March, in the year last aforesaid, at tho
city of Washington, to wit, at Newark aforesaid, did accept of the
commission, or appointment of a senator to represent the state
APPENDIX. 429
of New Jersey in the senate of the United States, and took his
seat accordingly as a member thereof; and so the said Jiibez 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 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, under
the authority of the said state of New Jersey, and had been elec-
ted a member to represent the said slate in thesenate of thellnited
States, and lyui taken his seat and accepted of such appointment
under the general government at the same time. And the said
Jabez ful-ther saith, that the said Aaron Ogden, esquire, did not,
within twenty days from the passing of the said act of the legisla-
ture 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 saitn,
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 Parkhurst, reciting whereas in and by an act
of the council and general assembly of New Jersey, entitled
430 APPENDIX.
" 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 nppointments 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 representa-
tives in the congress of the United States, as in and by the said
recited act fully and at large would appear; and dicl further
recite, that whereas Aaron Ogden, esquire, 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
Pai'khurst, 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 Ses-
sions of the Peace, and Inferior Court of Common Pleas for the
county of Essex in the said state, and him the said Jabez Park-
hurst was by that commission or appointment commissioned to
be derk of the said Court of General Quarter Sessions of tho
APPENDIX. 431
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 coun-
cil and assembly of the said state in 'joint-meeting should think
proper to make an appointment of clerk of General Quarter Ses-
sions 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 Park-
hurst and ready to be pi-oduced, reference thereunto being had
will more fully and at large appear. And the said Jabez further
saith, that afterwards, 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 appoint-
ment 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 law-
ful and competent authority to administer the same in that
behalf; and did then and there before the said James Hedden,
take all oaths usual and necessary to be taken upon being sworn
into the said offices; and the said Jabez did then and there also
enter into bond unto the said state of New Jersey, with Caleb
Parkhurst and Uzal Piorson, 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 author-
ity 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 writings, entire and
undefaccd, to his successor in office, and for the faithful perform-
ance of those duties required by an act of the legislature of the
said state of New Jersey entitled "An act respecting convey-
ances," and which said bond was duly executed, and contained a
432 APPENDIX.
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 every thing 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 con-
tinually 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 i8
lawful for him the said Jabez to do.
To this plea 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 Ho well, 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 t he Peace of
the said county, for the term of five j-ears; 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 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
APPENDIX. 433
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 com-
missioned 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 assembty 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.
The defendant rejoined as follows: —
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 repl}', 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 Quar-
ter 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 General Quarter
Sessions of the Peace and Inferior Conrt of Common Picas 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 hun-
dred and one, as by the replication is above supposed j yet for
VOL. iv. 2 o
434 APPENDIX.
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 member, before the said twenty -third
day of December in the year aforesaid, to wit, on the third day
of D.ecember 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 Jabe? 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 be 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.
To this rejoinder the attorney-general filed a general de-
murrer.
Joinder in demurrer.
The cause was very ably and fully argued by the attorney-
general, Woodruff, I, H. Williamson and R. Stockton, for the state,
and E. Vanarsdale for the defendant, and two of the justices of
the Supreme Court at that time, viz. SMITH and BOUDINOT,
delivered opinions in favour 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
favour of the defendant.
KIRKPATRICK, J.* — This is an information in nature of a quo
warranto, filed in the term of May, 1802, by the attorney -general,
.in the name of the state, at the relation of Aaron Ogden, esquire,
against Jabez Parkhurst.
By this information the court are informed and given to under-
stand, that the said defendant, for the space of four months and
more before the filing of the said information, had usurped,
* Chief Justice KIRKPATRICK, in a letter to the reporter dated January 28,
1828, says : " In the Court of Errors, as I was then informed, (at the time of
rendition of the judgment in that court), the opinion of the court was taken
upon each of the questions stated in this opinion, and an unanimous concur-
rence in each expressed."
APPENDIX. 435
intruded into, and unlawfully held and executed, the office of
clerk of the Court of Common Pleas, and Quarter Sessions of
the Peace, of the county of Essex.
The defendant, in the same term of May, 1802, comes into court
and sets forth in pleading: 1. The act of Dec. 1, 1801, whereby
among other things it is enacted in substance, that when any
person holding a commission under this state had b«en elected a
member of the senate or house of representatives of the United
States, since the act of the seventeenth of March, 1795, and had
taken his seat therein accordingly, the commission under this
state should be considered as vacated, UNLESS he should resign
such seat in congress, and give notice thereof to the governor
within twenty days after the passing of the said act. 2. That
after the passing of the said act of 17th March, 1795, and before
the passing of the said act of Dec. 1, 1801, viz. on the 26th of
February, 1801, Aaron Ogden, esquire, then holding the said
office of clerk, &c. by commission, under the authority of this
state, was in due form elected a member of the senate of the
United States, and on the fourth of March in the same year
took his seat accordingly; that the said Aaron Ogden did not
within twenty days after the passing of the said act, resign his
seat in the ^senate of the United States and give notice thereof
to the governor of this state, but continued to hold the same, by
reason whereof the said commission of clerk, &c. became
vacated. 3. That the said office being thus vacated, the
defendant, Jabez Parkhurst, was appointed and commissioned
to that office by the governor of the state, by commission
bearing date Dec. 23, 1801; and that on the thirtieth of the
same month, the said defendant accepted the said office, &c.,
was duly sworn in, &c., and that in virtue thereof he hath used,
exercised and claimed the said office, and not otherwise; and
thereupon prays judgment that the said office may be allowed
to him, &c.
The attorney-general replies that the matters in the said
plea pleaded are not sufficient to preclude the state from their
information aforesaid, because he says —
1. That the said Aaron Ogden, on the 30th of October, 1800,
was elected by the joint-meeting, and on the same day was duly
commissioned by the governor to be clerk, &c. for the term of
five years, and thereunto was duly qualified, &c. and took upon
himself the execution thereof in due form, and that he was so
in the due execution thereof at the time when the said Jabcz
436 APPENDIX.
did usurp, &c., the said term of five years not being then
expired.
2. That the said Jabez, at the time when he was appointed
and commissioned as aforesaid, was a member of the general
assembly of this state, from the county of Essex, and prays
judgment that the said Jabez may answer.
The defendant rejoins cum protestando, that the general
assembly of which the said Jabez is supposed to be a member,
before the date of his said commission, viz. on the third of
December, adjourned without day, and have not since been
convened or assembled ; and as before prays judgment that his
said commission be allowed, &c.
To this rejoinder the attorney-general demurs; and the
defendant joins in demurrer.
From this state of the pleadings it is manifest that the right
of the demandant depends —
1. On the construction and operation of the act of December
1, 1801.
2. On the operation of the commission granted to the defendant
by the governor of the state ; and
3. On the capacity of the defendant to take, in the situation
in which he then stood. .
For if the act of December 1, 1801, be inoperative, or in other
words, if it be unconstitutional to declare that the commission
should be considered*as vacated in this case of Aaron Ogden ;
or, if the commission granted to the defendant by the governor
be inoperative or insufficient to carry the office, for want of
authority in the governor, or otherwise ; or, if the defendant,
from his situation as a member of the general assembly, was at
the time incapable of taking; in either of those cases, the
defendant has shewn no right in himself to the office which he
is said to have usurped, and the state of course will be entitled
to judgment of ouster.
Before I say any thing on these principal questions, I shall
beg leave to lay out of the way —
In the first place, all that has been thrown out at the bar in ter-
rorem to operate on the fears of the court. I believe the time has
not yet come in New Jersey, and I humbly trust in God it never
will come, when a court, for investigating a cause regularly
brought before them, and for the determining the right of the
citizen therein, and pronouncing judgment according to the best
of their abilities, will have anything to fear, either from legislative
APPENDIX. 437
or executive interference on the one hand, or from the resent-
ments or persecution of party on the other. The representa-
tives of a free people, who value their own liberties and the
liberties of their country, will not easily be brought to strike so
fatal a blow at the regular administration of public justice, upon
which those liberties so entirely depend. But even were it other-
wise, we are bound by an oath to administer justice accoi'ding to
the constitution and laws of the state; and in so doing I hope
we shall at all times be able to adopt the maxims of our ances-
tors, and say, Fiat justitia mat ccelum.
In the next place, I shall lay out of the way all that has been
said as to the form of the information. It is objected that it is
informal and insufficient, because it does not state with certainty
the lime and place of the supposed intrusion, as to the place,
containing* Hunterdon in the margin, and Essex in the body, and
as to the time, leaving it to be collected by reference only to the
time of filing the information itself. To these objections, if
there be anything in them, the doctrine of amendments at com-
mon law, aided by the statute of jeofails, which is expressly
extended to informations of this kind, I think afford a sufficient
answer in this stage of the cause.
I shall lay out of the way, also, all. that has been said as to
the nature and extent of this remedy. It has been argued that
it extends only to the offices and franchises of corporations
within the state, and not to the offices of the state itself. The
words of the statute are too broad to admit of this construc-
tion. '* In case any person or persons shall usurp, intrude
into, or unlawfully hold or execute, any office or franchise
within this state." These words admit of no limitation. The
mistake on this head has probably arisen from assimilating our
statute to that of the ninth of Ann, to which in this particular
it has no resemblance. That indeed had no relation to informa-
tions on a subject matter of this kind; it related only to corpo-
rations and their offices and franchises. But the old writ of
quo warranto itself, which was a civil writ at the suit of the
king, and not a criminal prosecution at all; and the informa-
tion in nature of a quo warranto, which supplied its place after
it*had fallen into disuse, were much more extensive in their
operation. They are said by Blackstone to have for their object
all offices, franchises and liberties. Viewing the information in this
light, our statute goes neither to extend nor to limit its opera-
tion, but merely to render the proceedings upon it more speedy
438 APPENDIX.
and effectual, not in certain specified cases, like the ninth of
Ann, but in all cases where it is by the principles of the common
law the proper remedy.
I proceed now to the1 principal questions in the cause. And,
taking those of less importance first, I shall consider in the first
place —
1. The capacity of the defendant to take.
The twentieth section of the constitution provides, That none
of the judges of the Supreme or other court, sheriff, or any other per-
son possessed of any post of profit under the government, other than
justice of the peace, shall be entitled to a seat in assembly ; but that
on his being elected and taking his seat, his office or post shall be con-
sidered as vacant.
The arguments drawn from this section of the constitution
against the defendant, premises, that having been elected a'
member of assembly from the 'county of Essex, and having
actually taken his seat accordingly, he could not withdraw him-
self from that seat, or in any way divest himself of it, otherwise
than by a resignation, during the sitting, and from thence con-
cludes, that being in such situation, he could not accept, or take,
or hold, the office in question, otherwise he would hold both the
seat and the office at the same time, which would be contrary
to the constitution.
The force of this argument seems to me to depend upon the
correctness of the first proposition, viz. That having once taken
a seat he could not withdraw himself from that seat, or in any
way divest himself of it, otherwise than by resignation, during
the sitting.
If this be correct, it seems to me that the argument is conclu-
sive. But where shall we find this doctrine established? "We
find no clause in the constitution, we find no act of the legisla-
ture to this effect. It is no where said that a member of the
assembly shall not accept of an office of profit.
The fact is, that soon after the establishment of our constitu-
tion, considerable doubt arose as to the true construction of this
section of that instrument. Some, giving it a short construction,
held that it operated only upon those who held offices at the time
of their election, and at the time of their taking their seats,
and not upon those who were elected to office after they had
taken their seats: that it prevented an officer from taking his
seat and holding his office at the same time; but that it did not
prevent a member from taking an office and holding his seat at
APPENDIX. 439
the same time. And for this construction they relied princi-
pally upon the words of the last clause of the section, viz. That
on his being elected and taking his seat, his office shall be considered
as vacant, relating as they insisted, altogether to such persons as
were in office at the tinie of their election. But however correct
this construction may be, according to the letter of the section,
yet one much more liberal, and much better calculated to pre-
serve the legislative department from all suspicion of corruption, ulti-
mately prevailed ; and it was determined, not only that a person
actually holding an office of profit, being elected and taking his
seat, vacated his office, but also that a person holding a seat, and
afterwards being appointed to and accepting an office, should
vacate his seat. And this being once settled has been the uniform
construction ever since.
The house of assembly, therefore, in these cases does not look
for a resignation. It only wants to be informed that a member
has been elected to and accepted an office of profit, in order to
lay a ground for declaring the seat vacant, and ordering a new
election. And in this form will be found, if I am not mistaken,
the entries in the minutes in cases of this kind. Of this I think
I could mention many instances. I can mention one with great
certainty. It is my own case, when first appointed to a seat on
this bench. In that case a resignation was actually called for by
Borne of the younger members of the house, and the question
brought forward in argument, but it was held and determined
that no resignation was necessary, that the acceptance of the
office vacated the seat: and in this instance too it was a mere
parol acceptance, made to the speaker out of the house, and by
him reported, and it was held sufficient to ground an order for
a new election. This then I take to be the legislative, and the
only liberal and true construction of the section. A member of
assembly is in no way precluded from the acceptance of office
at any time more than others, but his acceptance, if it be an
office of profit, vacates his seat. We find, too, in the constitution
of the United Slates, a clause to this effect: That no person hold-
ing any office under the United States shall be a member of either
house during his continuance in office. And on this clause it has
been held in the case of Van Ness, from New York, that a mem-
ber of the house may accept an office under the United States,
but that such acceptance vacates his seat.
And this acceptance too was in the recess. Now, in principle
I see no difference between these two. Indeed it is the only
440 APPENDIX.
true and rational construction of both these instruments. As
to this question therefore, I think it is with the defendant.
Secondly —
2. As to the authority of the governor.
In the twelfth section of the constitution, it is said, among
other things, that clerks of the Inferior Courts of Common
Pleas and General Quarter Sessions of the Peace in the several
counties, shall be appointed by the council and assembly in joint-
meeting. In the case now before us the office in question became
vacant, if at all, in the recess of the legislature, when no joint-
meeting existed, and in this situation of things the governor
took it upon himself to appoint and commission. It is said he
had no authority so to do.
As to precedent, but little can be collected from that source on
this head. The practice has been both ways. The courts, in
the first year of our government, it is pretty manifest, in some
cases exercised the authority now in question ; but afterwards,
in the time of Governor Paterson, the subject seems to have
beeYi more maturely considered, and the authority to have been
claimed and exercised as a branch of the supreme executive
power; and from that time the practice instituted by him seems
to have been uniformly followed. So far, therefore, as precedent
goes at all, it is in favour of the execution.
But upon principle. The argument against the defendant, if
I rightly understand it, goes upon these grounds, viz. first, that
by the principles of the common law the courts of record had the
right of appointing their own clerks ; but, by the express words
of our constitution the common law is declared to be our law; and
that therefore this right attaches to, or perhaps I should rather
say remains in, our courts of record, except so far as it is expressly
taken away, or otherwise disposed of by the constitution ; and
as the constitution has not placed it in any other hands during
the recess of the legislature, when there can be no joint-meeting,
it must of necessity during that recess remain in the courts; and
secondly, that if this conclusion cannot be supported, yet still,
according to the great rule of construction applied to all the
American constitutions, and to our own among the rest, the sev-
eral departments of government are to exercise certain defined
powers, which can neither be amplified nor extended by impli-
cation or construction; that all that is not expressly given is
retained by the sovereign people ; that this power of appoint-
ment during the recess is not expressly given, and therefore that
APPENDIX. 441
the assumption of it by the executive is an assumption of power
with which neither the constitution nor the laws have vested
him; and that therefore in this case .the appointment is void
and the commission void.
By the section of the constitution above recited, the power of
appointing clerks, &c. is expressly given to the joint-meeting, not
when the legislature is in session only, but without condition and
without limitation. The whole power is placed there. Omitting,
therefore, to enquire what right the courts of record had at the
common law to appoint their own clerks, or how far that right
has remained in, or has been claimed or exercised by, the courts
of record in New Jersey, it will be sufficient to say that it is now
placed by the constitution in other hands; and being so placed
it never can be resumed. If the tribunal to which it is commit-
ted shall omit, or neglect, or refuse to exercise it, that cannot
cast it back upon the court; the mere non user cannot revest
them with a power once taken away.
I would not be understood by this to say that a court cannot
appoint a person merely to record their proceed ings^ro hac vice,
in certain supposable cases ; I believe this might well be done
ex necessitate rei; yet this appears to be a thing very dif-
ferent, and much more limited, than that now in question
before us.
But if in this case the whole power is placed in the joint-
meeting, without condition and without limitation, and the
courts cannot, even in the recess, claim to exercise it, upon
what foundation, it may be asked, can the governor rest his
claim.
By the eighth section of the constitution the governor is de-
clared to have the supreme executive power, to bo chancellor of
the state, and captain-general and commander-in-chief of all the
militia and other military forces, &c. Now this supreme ex-
ecutive power, from the construction of the sentence, must mean
something distinct from the chancellorship, and from the com-
mand of the militia. It must also mean something distinct
from his function in the Court of Appeals and the Prerogative
Court; for these being merely judicial can in no sense bo called
the supreme executive power. What, then, docs it mean ? Tho
very term, supremo executive, in some measure explains it. It
certainly contains in it the powers necessary for the general
administration of the government; it certainly contains in it
the power of causing the laws to be executed when the ordinary
442 APPENDIX.
provisions for that purpose fail. The propriety, the reasonable-
ness and necessity of such a power being lodged somewhere, go
far to justify this construction j and under what more apt and
appropriate terms could it have been conveyed, than the supreme
executive power. If therefore, from the death, removal, or other
disability, of any of its officers, the public administration of
justice should be impeded, and the right of the citizen be ren-
dered insecure, I should certainly believe it not only the right
but the indispensable duty of the governor, to supply such de-
ficiency.
As if this principle would carry us too far, it has been asked,
can the governor appoint a chief justice? Can he fill up the
bench of a county court? As this power only devolves upon
the governor ex necessitate, upon the failure of the joint-meeting
to appoint, or upon the death or removal of officers, or some
other unforeseen casualty, perhaps he would hesitate in the cases
stated, if there were judges enough left to proceed in the busi-
ness of the courts; yet even here I think his powers could not
be questioned. But if the whole bench of the Supreme Court,
or if any other court were to become vacant in the recess of the
legislature, I have no hesitation in saying that it would be the
duty of the executive at least so far to fill such bench as that
the law should be executed, as that the justice of the state should
not fail.
Both from precedent and principle therefore, I think we are
authorized to say, that the governor as the supreme executive of
the state, and he alone, hath authority to fill vacancies in the
recess of the legislature.
I proceed now to the third, which I take to be the great ques-
tion in the case, viz.:
3. The construction and operation, or in other words, the con-
Btitutionalit}^, of the act of December 1, 1801.
But at our entrance on this subject we are arrested by the
defendant, and told that we cannot proceed upon this investiga-
tion—
1. Because the constitution itself is in the hands of the legis-
lature, and may be altered at pleasure, and
2. Because the legislature are the ultimate judges of the con-
stitution, and therefore this court has no power to control the
operation of a law upon the principle of its being contrary to
that instrument.
As to the first of these objections. Whatever might be said
APPENDIX. 443
upon theoretical principles, considering that the constitution was
framed by a convention never delegated for that purpose, and
therefore never vested with competent authority therefor; and
considering also that it was not even by that convention
intended or meant to be a perpetual law, but only to answer the
pressing exigency of the times, as is manifest from its being made
before the declaration of independence, as well as from many
badges of colonial distinction which it still wears upon it; yet,
notwithstanding these considerations, it has by general consent
been received, and used ever since as the legitimate constitution
of the state.
Without looking, therefore, into the spuriousness of its origin,
we must receive and treat it as such, until* the people shall think
proper to lay it aside, and to establish a better in its place.
^Receiving it then in this light as a constitution, if not framed,
yet established by common consent, can the legislature change
or alter it?
What is a constitution ? According to the common acceptation
of the word in these United States, it may be said to be an
agreement of the people, in their individual capacities, reduced
to writing, establishing and fixing certain principles for the
government of themselves.
Among these principles, one of the most important in all our
constitutions, is to prescribe and limit the objects of legislative
power. The people are sovereign, they are supreme in power.
The legislature act by delegated and circumscribed authority ;
circumscribed as to its objects, circumscribed as to its extent over
those objects. Now to say that the legislature can alter or change
such a constitution, that they can do away that very principle
which at the same time gives and limits their power, is in my
view a perfect absurdity. It is making the creature greater than
the creator. It is establishing despotism without limitation and
without control. No — it is a principle never yielded by the
people, never claimed by the legislature, without reason, without
foundation.
As to the second objection, viz. that the court has no power to
control the operation of an act of the legislature, merely upon
the principle of its being contrary to the constitution.
This is a question which of late years has been considerably
agitated in these United States. It has enlisted many champions
on both sides. It is a question equally arising out of every con-
stitution where the legislative power is limited, and whore there
444 APPENDIX.
are certain rights or powers reserved in the hands of the people
themselves, over which the legislature has no control. We may
fairly avail ourselves, therefore, not only of the sentiments and
decisions which have prevailed in our own state upon the subject,
but also of those which have prevailed in our sister states, and
in the United States.
At an early period of our government, while the minds of
men were yet unbiassed by party prejudices, this question was
brought forward, in the case of Holmes and Walton, arising on
what was then called the seizure laws. There it had been
enacted that the trial should be by a jury of six men; and it was
objected that this was not a constitutional jury; and so it was
held; and the act upon solemn argument was adjudged to be
unconstitutional, and in that case inoperative. And upon this
decision the act, or at least that part of it which relates to the
six men jury, was repealed, and a constitutional jury of twelve
men substituted in its place. This, then, is not only a judicial
decision, but a decision recognized and acquiesced in by the
legislative body of the state.
In later daj-s, in the case of Taylor v. Eeading, a certain act
of the legislature, passed March, 1795, upon the petition of the
defendants, declaring that in certain cases payments made in
continental money should be credited as specie, was by this court
held to be an ex post facto law, and as such unconstitutional, and
in that case inoperative.
And with this decision before them, (for the act was made pend-
ing the suit,) and as I humbly conceive, fully acquiescing therein
as to matter of principle, the legislature afterwards, in January,
1797, passed another act for the relief of the said defendant, Bead-
ing, in another way. These two cases in New Jersey, deter-
mined upon full consideration, the former in the time of CHIEF JUS-
TICE BREARLET and the latter in the time of CHIEF JUSTICE KIN-
SEY, both afterwards brought into the notice, and acquiesced in,
and, if I may so say, sanctioned by the legislature, would be suffi-
cient to rule the question. But the force of these cases is greatly
increased by the uniform course of decision in other states, par-
ticularly Virginia and Pennsylvania, and above all, by reported
decisions involving the same question in the Supreme Court of
the United States of America.
I should be satisfied to rest here; but in addition, without
touching the argument upon which these opinions have been
founded, I will take the liberty to say, that the legislature of
APPENDIX. 445
New Jersey themselves, have, by solemn act, impliedly decided
the question.
To all judges, before they enter upon the execution of their
offices, they have prescribed this oath, " I do solemnly promise
and swear, that I will administer justice without respect to
persons, and faithfully and impartially perform all the duties
incumbent on me, according to the best of my abilities and
understanding, agreeably to the constitution and laws of the
state of New Jersey." This I take to amount to a legislative
determination, clearly declaring constitutional as well as legal
rights and questions to be the proper subjects of judicial investi-
gation and decision.
Laying out of the way then, as entirely without foundation,
these two objections wbich have been raised at the threshold, let
us proceed to look into the question itself.
It appears from the statement of the case, that Aaron
Ogden, the relator, on the thirtieth of October, 1800, was
appointed and commissioned, in due form of law, to the clerk-
ship in question.
In the twelfth section of the constitution it is said, that
clerks of the Courts of Common Pleas and Quarter Sessions
of the Peace shall continue in office for the term of five years ;
provided always, that they shall be liable to be dismissed
when adjudged guilty of a misdemeanor by the council, on an
impeachment of the assembly. Now as Aaron Ogden, the
relator, was regularly appointed and commissioned to this
clerkship; and as it is expressly declared by the constitution
that clerks shall continue in office for the term of five years,
subject to be dismissed only on impeachment, it is concluded
that the act of December 1, 1801, so far as it comprehends or
relates to this office, and declares that it shall be considered
as vacated, in another way, is contrary to the constitution and
void. But this is not satisfactory to me. Certain offices are
in their own nature incompatible and inconsistent, and cannot
be exercised by the same person at the same time. Certain
other offices which might be fully executed by the same per-
son at the same time, upon considerations of policy may be
rendered incompatible by positive law. In this latter case,
when the law is made to operate in future, and not to affect
offices already vested, I believe no doubt has been entertained
as to its constitutionality; were it to have a retrospective view,
and render incompatible offices already created, there would
446 APPENDIX.
be more doubt; and perhaps the force of such a law might
be questioned as an ex post facto law. But as to those cases of
positive law, where there is no incompatibility in the offices
themselves, I give no opinion ; believing the case before us to be
of the other kind.
As to the incompatibility, then, of these two offices.
It is said by Lord Coke, 4 Inst. 100, that offices are said to be
incompatible or inconsistent, when from the nature or multiplic-
ity of business in them they cannot be executed with care and
ability by the same person at the same time.
Now it is very obvious, and therefore will be readily con-
ceded, that it is physically impossible for the same man, in
his own proper person, to do the duties of the clerkship of
Essex, and to sit in the senate of the United States, at
Washington, at the same time. But it is said he may execute
the clerkship by deputy.
It is somewhat difficult to say what offices in our government
may, and what may not upon the principles of the common
law, be executed by deputy. Andent grants and local customs
and usages, in England, have so far broken in upon the general
principle, that it is not very easy, at this day, to distinguish
what that general principle is. Nor can we draw much assist-
ance in this matter from our own experience while in our
colonial situation. For it cannot be dissembled, that in England,
as well as in all other countries, I believe, both ancient and
modern, colonial offices have always been considered and dis-
tributed as the perquisites of the parasites and panders of the
court, to be exercised as may best subserve their purposes.
A practice too corrupt to give precedent to a free and virtuous
republic.
Notwithstanding this obscurity, however, it is pretty clear,
both from authorities and from the nature of the thing itself,
that & judicial officer, generally speaking, cannot execute his office
by deputy; nor can a ministerial officer, when the office, either
by the terms of the grant, or by the law prescribing the duties
thereof, are to be executed by him in person.
Since the act, therefore, of February 20, 1799, prescribing
certain oaths, which says, that it shall be the duty of the clerk for
the time being of the Inferior Court, of Common Pleas of each county
in this state, and of NONE OTHER, to administer the oaths of office
and allegiance to judges, justices, &c, thereby making it necessary for
him to execute this duty in person; and since the act of June 13,
APPENDIX. 447
1799, to regulate fees, &c., whereby the clerk is authorized and
directed to tax bills of cost, and in so doing to allow no charge
unless the service, in his opinion, shall have been necessary, &c.
thereby creating him in this case a judicial officer. I say, since
these acts I should be inclined to think that even upon common
law principles, the clerkship of a county could not be executed
by deputy, whatever might have been done before.
But be this as it may, we have a more certain guide. "We
have the act of October 8, 1778, which recites, That whei-eas
no person who holds an office in this state under an appoint-
ment of the joint-meeting, is by the constitution authorized to
let or farm out such office, or to depute any person to execute
the same in his behalf or stead, &c. and therefore enacts that
every person holding such office shall himself execute the same,
except the surrogate-general, who may appoint deputies, &c.
This then being the condition upon which all offices, from
that early period, have been granted, with what reason can it
be said that the one now in controversey can be executed by
deputy?
Well ; if the relator, holding a seat in the senate of the
United States, can neither execute this office by himself nor by
any other in his stead, it necessarily results, according to the
doctrine of Lord Coke, that the two offices are incompatible
and inconsistent. They cannot be executed by the same person
at the same time.
Now I hold it to be a clear principle, (and so it was deter-
mined by all the judges in the case of Sir Edward Coke, on hia
translation from the Common Pleas to the King's Bench,) that
if a person holding an office, bo appointed to and accept another
office, incompatible therewith, such acceptance of the second is
a virtual surrender of and vacates the first. And so also it is
said by Lord Mansfield, in Bur. 1615, in the case of The King v.
Trelawney Steward, &c. of West Coe.
And if this be so, the act in question, so far as it touches this
office, is only declaratory of what the law was before. It neither
alters the law nor changes the condition of the office. But inas-
much as one or more instances of this nature had before taken
place, and the executive, (in which term I mean to comprehend
the joint-meeting,) either from some doubt as to the incompati-
bility, or from tenderness to the officers, or from some other
cause, had declined to resume the offices thus voluntarily surren-
dered, and to fill up the same by new appointments, leaving them
448 APPENDIX.
to be executed by the former incumbent in the best way he could,
as if there existed no such incompatibility, it became necessary,
in order to secure the faithful execution of these trusts, for the
legislature to interfere, and to puss a declaratory act, thereby
giving to the executive a more clear and certain rule of conduct
in all future cases of that kind.
And I cannot in this place help taking notice of the great
forbearance of the act. Lest any person concerned might from
inadvertence have been led into danger of losing an office which
he wished to hold, the act in question gives him twenty days to
reflect upon the subject, and (if he shall think it- preferable) to
resign the seat, and to resume and hold the office.
This has been the course taken in the present case. To me it
appears to be opposed by no principle of the constitution, by no
principle of the laws, by no principle of reason or justice.
I shall only add, that in this case there is the less hardship on
the relator, because when he accepted this office, it was, by the
then existing law, declared to be incompatible with a seat in the
senate of the United States, so that there could be no misappre-
hension on that subject; and though after his acceptance this
law, so far as relates to the office in question, was repealed, yet
still he accepted it with this incompatibility before his face. He
was then content with it thus qualified ; and the act of December
1, 1801, puts him in no worse condition.
After investigating the cause, therefore, with some care, and
giving it all the consideration I am able, I am of opinion, for the
reasons above stated, that judgment must be for the defendant.
CITED is State v. Thompson, Spen. 691.
INDEX.
ABATEMENT.
1. A plea in abatement of another
action pending for the same cause, in
another state, must be verified by 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 Con-
gress; otherwise the plea may be treated
as a nullity, or taken advantage of
either by general or special demurrer.
Trenton Bank v. Wallace, 83
2. If the record of another court be
pleaded in abatement, the party plead-
ing it must accompany the plea by an
exemplification to be filed therewith.
Per Ford, just. ib.
3. If a defendant would take advan-
tage of the infancy of a plaintiff, suing
alone, the proper mode of raising the
objection, in courts proceeding accord-
ing to the course of the common law,
is by plea in abatement; but in the
courts for the trial of small causes it
may be taken advantage of by motion
to dismiss the suit. Smith et al v. Van
Houten, 381
ACKNOWLEDGMENT.
1. A certificate of acknowledgment of
a deed is good if it shews a substantial,
though not a verbal, compliance with
the requirements of the act respecting
conveyances. Rev. Laws, 458, tec. 1,4;
Den v. Oeiger, 225
2. A certificate of. acknowledgment
which omits to state that the grantors
executed the deed voluntarily, and that
the acknowledgment of the wife was
on a private examination, and without
any fear, may be good if it contain
words equivalent to those omitted, ib.
ACTION.
An action cannot be maintained
merely for a false affirmation on the
sale of property. The plaintiff must
shew in his state of demand that he
sustained some inj ury. Weaver v. Wal-
lace, 251
ACTION OF DEBT.
See DEBT.
ADJOURNMENT.
See JUSTICE'S COURT.
ADMINISTRATORS.
See EXECUTORS AND ADMINISTRATORS.
AFFIDAVIT.
1. An affidavit taken before one of
the counsel in the cause, (being a com-
missoner) cannot be received in evi-
dence. Den v. Oeiger, 225
2. An affidavit made before a judicial
officer of another state, verifying a plea
in abatement, cannot be read in this
court. Trenton Bank v. Wallace, 83
3. An affidavit taken before one jus-
tice of the peace, cannot be read to prove
the service of a notice in a cause pend-
ing before another justice. Hunt v.
Langstroth, 223
4. When a general rule is obtained
by one party to take affidavits for a
specific purpose, then both parties have
leave, by virtue of the rule, to take
affidavits. Anonymous, 224
6. An affidavit of a person, (not one
of the surveyors,) will not be sufficient
evidence to contradict the return of a
road. The State v. Scott, 17
VOL. IV.
2D
(449)
450
INDEX.
AFFIRMATION.
1. Where an indictment purports to
be on the affirmation of some of the
grand jurors, it must appear that they
alleged themselves conscientiously scru-
pulous of taking an oath. The State v.
Fox, 214
2. An action cannot be maintained
merely for a false affirmation on the
sale of property. The plaintiff must
shew in his state of demand that he
sustained some injury thereby, Weaver
v. Wallace, 251
AGENT.
An agent who has sold personal
property belonging to his principal, is
not a competent witness for the vendee,
to prove that he was not agent and
that the property was sold on his own
account, and thereby to establish the
validity of the sale. Harwood v. Mur-
phy, 215
AGREEMENT.
AMENDMENT.
1. A judge at the circuit has no
power to order an amendment to be
made in the circuit record. Den v.
Hull, 277
2. After a certiorari has been re-
turned to this court removing an in-
dictment, 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. The State v.
Jones, 2
3. The notice at the end of the declara-
tion in ejectment may be amended after
service, by striking out one day and in-
-serting another. Den v. Laning, 254
4. The caption to an indictment may
be amended after it has been removed
into the Supreme Court by certioraii,
and the amendment may be made upon
proper evidence of the facts and entries
on the minutes of the Oyer and Ter-
miner ; or the certiorari may be returned
to that court and the amendment made
.there. The State v. Jones, 357
5. The oral allegation or certificate
of the prosecuting attorney, that there
are materials in the court below from
which the amendment may be made,
and that the minutes and records and
files of that court will supply the alleged
deficiency, is sufficient to warrant this
court in granting a rule to return the
certiorari to the Oyer and Terminer
for the purpose of making the amend-
ment, ib.
APPEAL.
1. An appeal will lie to the Court of
Common Pleas from the judgment of a
justice of the peace rendered on the
•verdict of a jury, in a case where the
debt, demand, or other matter in dis-
pute does not exceed three dollars.
Oruter v. Duryea, 15
2. A rule of the Court of Common
Pleas requiring the appellant, upon the
return of the appeal papers, and prior
to the entry of the appeal, to pay to
the clerk of the court the sum of one
dollar is illegal. Carpenter v. Titus, 90
3. The amount of the fees to which
the Court of Common Pleas is entitled
on the return of the appeal is thirty-
seven cents. ib.
4. If upon the trial of an appeal a
jury is demanded, and there is an
objection to the sheriff', the Court of
Common Pleas are fully competent tt
order a coroner to return a jury. De
Wit v. Decker, 148
5. Where a judgment has been ren-
dered in a justices court against two
defendants, one of whom only made
defence, he may appeal from the judg-
ment of the justice, and for that pur-
pose may make use of the name of the
other defendant. Shepherd and Wil-
liams v. Fenton, 8
The proper course upon filing the
appeal would be lor the defendant
bringing the appeal to take a rule
upon the other defendant to shew cause
why the appellant should not prosecute
his appeal alone. ib.
6. On an appeal from the judgment
of a justice, founded on a report of
referees, the affidavit required by the
statut«, (of November, 1821,) must be
INDEX.
451
filed with the justice at the time of
filing the appeal bond ; presenting a
bond to the justice one day, and affida-
vit at a subsequent day, though prior
to the next court, to which the appeal
must be made, is not sufficient. Cole-
man v. Warne, 290
7. Where the Court of Common Pleas
have dismissed an appeal, this court
cannot, on certiorari, look into the
proceedings of the justice. Obert v.
Whitehead, 245
8. It is not necessary that th« Com-
mon Pleas should state upon the record
the reason for dismissing the appeal. 16.
9. A judgment of the Court of Com-
mon Pleas, rendered on an appeal, will
be reversed if the state of demand is
defective. Gould v. Brown, 165
APPEARANCE.
It is not necessary to enter an appear-
ance in order to move to quash a writ ;
but the motion to quash must be made
on the part of the defendant. Skillman
V. Coolbaugh, 216
APPOINTMENT OF SURVEYORS.
See ROAD, 10, 11.
APPRENTICE.
1. An order of two justices dis-
charging an apprentice, made upon the
complaint of the father of the appren-
tice, will be quashed. Ackerman v.
Taylor, 65
2. A complaint from tho apprentice
or the master, is the very foundation
of the authority of the justice. If
ench complaint does not appear, the
proceedings are vicious ana defective
ab oriyine. ib.
3. The Courts of Quarter Sessions
have no original jurisdiction to dis
charge an apprentice, therefore an
oriW made by them in affirmance of
proceedings brought before them by
an appeal must necessarily be errone-
ous, if those previous proceedings are
essentially defective. ib.
ASSAULT AND BATTERY.
1. An indictment for an assault and
battery will not be quashed because it
does not conclude "contrary to the form
of the statutes in such case made and
provided." The State v. Berry, 374
2. The second ptatute 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 nowise attaches the penalty or
punishment to the offence. ii.
ASSIGNMENT.
The " act to secure creditors an equal
and just division of the estate of debtors
who convey to assignees for the benefit
of creditors," Rev. Laws 674, does not
extend to a solitary transfer of an indi-
vidual item of property to a creditor in
payment of a debt ; and the operation
of the act must be confined, if not to
case's where a trust is created, at least
to cases where there is something like
universality in the assignment. Tillou
V. Britton, 121
Set, INTEREST.
ASSUMPSIT.
1. In an action of assumpsit against
executors, the plaintiff, under the com-
mon counts, upon promises by the
testator, for money lent and advanced,
had and received, paid, laid out and
expended, for work and labor, and for
goods, wares and merchandize sold and
delivered, may prove that the testator,
in his lifetime, cut, carried away and
sold, a quantity of wood and timber
from the premises of the plaintiff,
without his permission. Cooper v.
Crane, 173
2. An omission to demand a pet-off
for such claim against the tortfeaser,
will not preclude an action of assurnpsit
against his executors, to recover the
value of the property taken. ib.
ATTACHMENT.
1. If a second writ of attachment is
sued out between the same parties, in
452
INDEX.
the same county, during the pendency
of a former attachment, the second writ
of attachment will be quashed. Harris
V. Linnard, 58
2. 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 judgment in attach-
ment is obtained. Garwood v. Gar-
wood, 193
AUTHORITY.
A general authority to an attorney
to sign the sheriff's name, will not
authorize him to appoint a deputy to
serve process. James ads. Cox, 335
B
BANK BILLS.
See NOTICE, I., 1, 2, 3, 4, 5.
BAIL.
1. The neglect of plaintiff to file his
declaration in time is not a ground to
discharge defendant on common bail.
Branson v. Shinn, 1
2. A defendant may be rendered in
discharge of his bail; notwithstanding
exceptions to them have been entered.
Anonymous, 25
3. A variance between the affidavit
to hold to bail and the writ, the former
omitting, the latter inserting, the Chris-
tian names of the plaintiffs, is not a
sufficient reason to discharge the bail,
after bail has been perfected. Robeson
and P^rry v. Thompson, 97
4. But if the cause of action set
forth in the declaration is substantially
variant from that set forth in the affi-
davit, the bail will be discharged, even
after a trial and verdict against their
principal. ib.
BATTALION COURT.
The Battalion Court have no original
jurisdiction. If no fine have been im-
posed by the Company Court the Bat-
talion Court can impose none. The
State v. Atkinson, 271
BOND.
1. If the obligor hold out the bond
in his hand, (after it has been signed
and sealed) and say to the obligee,
"here is your bond, what shall I do
with it," this will be a sufficient deliv-
ery, although the bond never comes to
the actual possession of the obligee.
Folly v. Vantuyl, 153
2. A deed may be delivered by any
acts or words evincing an intent to
deliver, provided such intent have refer-
ence to the present time. ib.
See INTEREST, 3.
BOND WITH WARRANT OF
ATTORNEY.
See JUDGMENT, 1.
BOOK OF ACCOUNT.
A mere entry made in a man's book
of account of a settlement with another,
is not as against such other person, legal
evidence of a settlement. Prest v. Mer-
cereau, 268
c
CAPTION.
See INDICTMENT.
CHARGE TO JURY.
1. The omission to give any charge
when not required, or the omission to
state some legal principles which may
be applicable to the case, where the
attention of the jury has not been im-
properly directed, is no ground of com-
plaint on a writ of error. Folly v.
Vantuyl, 153
2. 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 instruc-
tion and have found a verdict contrary
to law. Den v. Sinnickson, 149
INDEX.
453
CERTIORARI.
1. A certiorari to remove an indict-
ment may be granted by a judge of tbe
Supreme Court at chambers. Anony-
mous, 2
2. On the return of a writ of certio-
rari, if such matters, other than those
properly inquirable into by the court,
are shewn to the court, by a party
whose rights or interests are affected,
as would, if shewn at the moment of
application, have induced the court to
refuse the allowance, the writ will be
quashed. The State v. Woodward, 21
3. A writ of certiorari will not lie,
to remove into this .court, before trial,
a common law action, depending in
an Inferior Court of Common Pleas.
Chandler v. Mon. Bank, 101
4. A certiorari is the proper writ to
remove an information or indictment,
and an habeas corpus to remove a civil
action. ib.
5. This court, on certiorari in settle-
ment cases, has no jurisdiction or con-
trol over the sessions in matters of fact
or the credibility of witnesses. Inde-
pendence v. Pompton, 209
6. Where the case brought up turns
upon a mere question of fact, upon
which a jury nave passed, this court
•will not interfere; it will not enquire
on the certiorari whether a verdict
is against evidence. Baldwin v. Sim-
tnons, 196
7. The sentences or decrees of the
Orphans' Court on the final settlement
and allowance of the accounts of execu-
tors, administrators, guardians or trus-
tees, may be removed by certiorari to
the Supreme Court to be reviewed. The
State v. Mayhew, 70
CHURCH.
1. A person is not entitled to vote as
a member of a Presbyterian congrega-
tion, who does not contribute his just
proportion, according to his own en-
gagements or the rules of that congre-
gation, to all the necessary expenses of
tbe church. The State v. Crowell, 391
2. An election of trustees of a Pres-
byterian church, made by persons not
being contributors to the support of
the church, and therefore not qualified
by their rules to vote, is void. ib.
CONSIDERATION.
See PROSECUTION, ABANDONMENT OF.
CONSOLIDATION.
The court will order a consolidation
of several actions of ejectment, where
there is the same question and defence in
each of the cases. Den v. Kimble, 335
CONSPIRACY.
1. The conspiring together to commit
a crime of an indictable nature, is a
crime ; and the offence is complete
when the conspiracy is made, though
no act be done in consequence of it.
The State v. Rickey, 293
2. An indictment will not lie for a
conspiracy to commit a civil injury of
any description that is not in itself an
indictable offence. ib.
3. It is not an indictable offence for
several persons to conspire to obtain
money from a bank by drawing their
checks on the bank when they have no
funds there. ib.
4. An indictment for a conspiracy
may be quashed. io.
CONSTABLE.
See EXECUTION.
CORPORATION.
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 neces-
sary 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. Hatch-
ings v. Scott, 218
2. The legislature may, consistently
with the constitution, confer the powers
454
INDEX.
and authorities of justices of the peace
on the mayor, recorder and aldermen
of a city or borough. ib.
COSTS.
A court may legally stay the pro-
ceedings in a second action, until the
costs of a former action, brought by
the same plaintiff, for the same cause of
action, shall be paid. Sooy v. M'Kean
et al. t 86
See also Cooper v. Sheppard. 96
2 A defendant is not entitled to
recover costs on quashing plaintiff's
•writ before an appearance entered ;
and the court will not stay the pro-
ceedings in a second action until the
costs of quashing a writ in a former
action be paid, unless the defendant
has entered his appearance to the
former action. Cox v. James, 378
See TAXATION OF COSTS.
PRACTICE, 5.
COURTS.
I. Quarter Sessions.
II. Court of Common Pleas.
I. Quarter Sessions.
The question of the credibility of a
witness offered in a pauper case 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. East Wind-
sor v. Montgomery, 39
II. Court of Common Pleas.
1. A rule of the Court of Common
Pleas requiring the appellant, upon the
return of the appeal papers and prior to
the entry of the appeal, to pay to the
clerk of the court the sum of one dollar,
is illegal. Carpenter v . Titus, 90
2. If upon the trial r>f an appeal a
jury is demanded, and there is an
objection to the sheriff, the Court of
Common Pleas are fully competent to
order the coroners to return a jury.
De Wit v. Decker, 148
COURT FOR THE TRIAL OF
SMALL CAUSES.
See JUSTICE'S COURT.
COURT, BATTALION.
See BATTALION COURT.
COVENANT.
1. 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 mea-
sures. Stewart and Fine v.Drake, 139
2. If there is a subsisting mortgage
on the premises at the time of the exe-
cution of the deed of conveyance, the
covenant in the deed that the premises
are free from incumbrances is broken
as soon as made. ib.
3. Where, by reason of an antecedent
mortgage, the grantee is evicted, or the
whole of the premises is absorbed in the
discharge of the mortgage debt, the rule
of damages for the breach of a covenant
against incumbrances, or for quiet en-
joyment, is the same as if the grantor
had 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. ib.
• 4. If a covenant against incumbrances
has been broken previous to the grant-
or'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. ib.
D
DEBTOR.
A debtor in failing circumstances
may prefer a creditor. Tillou v. Brit-
ton, 121
DEBT.
An action of debt in a justice's court,
and of assumpsit in the higher courts,
ItfDEX.
455
may be maintained by a turnpike com-
pany to recover tolls. Ayres v. Turn-
pike Company, ' 33
See EXECUTION, 1, 3.
DECLARATION.
The allegation usual in tbe com-
mencement of a declaration, " that the
defendant ia in custody," may be safely
dispensed with ; as may also the formal
words, " of a plea of trespass," used in
the writs issuing out of this court. Bank
of New Brunswick v. Arrowsmith, 284
DECREE.
See ORPHANS' COUKT, 1, 2.
DEED.
A deed may be delivered by any acts
or words evincing an intent to deliver,
provided such intent have reference to
the present time. Folly v. Vantuyl, 153
DELINQUENTS, MILITARY.
The return list of delinquents, which
is required by the first section of the
militia act, Rev. Laws 508, to be made
out by the major, and furnished to the
justice by the battalion paymaster, as
the authority upon which the justice is
to issue his execution against the delin-
quents, must shew that a fine has been
imposed upon said delinquents, or the
execution will be quashed. The State
V.Atkinson, 271
DEMAND, STATE OF.
1. If plaintiff's state of demand ex-
•hibit an original claim exceeding one
hundred dollars a general credit " by
sundries," reducing the sum demanded
below one hundred dollars, will not be
sufficient to give tbe justice jurisdiction.
Haijyerly \. Vankirk, 118
2. In an action of debt, against a con-
stable for neglect of duty in serving an
execution, an averment in the state of
demand that the execution was not
returned within thirty days will not
vitiate it. Hunt v. Qulick, 205
3. If there is a substantial variance
between the agreement set forth in the
state of demand, and that which is
proved to have been entered into by
the parlies, the variance is fatal, ami
the plaintiff cannot recover. Mulford
v. JSowen, 315
4. 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 makes that sum, a court for the
trial of small causes has jurisdiction.
Griffith v. Clute, 264
DEVASTAVlT.
To support an action founded on a
devastavit, where the judgment and
execution are available for that pur-
pose, 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, ia
not competent evidence to support
such an action. Van Horn v. Teasdale
et al.t 379
DEVISE.
1. A. devises as follows, "I give, be-
queath and dispose of all and singular
the said lands and plantation unto rny
wife's son, J. E., ana his lawful begotten,
heir forever; and my will further is,
that if the said J. E. should die without
lawful begotten heir, that then I give
and bequeath the said lands unto my
brother, A. E., and to his heirs and
assigns forever." J. E. by this devise
takes an estate tail. Den v. Cox, 10
2. A. devjses as follows : "I give and
bequeath unto my son Eleazarus
Brewer, all my lands and interest in
lands, lying on the west side of Min-
gemihole brook, except one acre of
land, which I reserve for the use of a
burying burial yard, where the burying
yarn 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
456
INDEX.
above mentioned lands, lying on the
west side of Mingemihole brook, and
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." Eleazarus Brewer
by this devise takes an estate in fee sim-
ple and not an estate for life in the de-
vised premises. Den v. Gifford, 46
DISTRESS.
1. The goods of one of three joint
lessees, found upon the demised prem-
ises, are liable to be distrained for rent,
although the tenant had previous to
rent's becoming due, made an assign-
ment of them to assignees for the
benefit of his creditors. Assignees of
Barker v. Paul, 110
2. Though unfinished cloth sent to a
fulling mill to be wrought is exempt
from distress as well by the common
law as by the statute of this state, yet
this exemption extends only to goods
of strangers, and not to goods of the
tenant himself. ib.
DOCKET.
See JUSTICE'S COURT, IV.
E
EJECTMENT.
1. 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 latter
possession of a mere trespasser. Den v.
Sinnickson, 149
2. The notice at tho end of the
declaration in ejectment may be
amended after service by striking out
one day and inserting another. Den
v. Laning, 254
3. In an action of ejectment brought
upon a mortgage, the court will not
ailow the moneytlue upon the mortgage
to be paid into court, if there is a bill in
equity pending on the mortgage. Den
V. Kimble, 335
4. The court will order a consolida-
tion of several actions of ejectment,
where there is the same question and
defence in all the cases. ib.
EVIDENCE.
I. Matters of record and written
evidence.
II. Parol evidence.
III. Competency of witnesses.
IV. Evidence in particular cases.
V. Admissions and declarations.
I. Matters of record and written evidence.
\. An affidavit of a person, (not one
of the surveyors), will not be sufficient
evidence to contradict the return of sur-
veyors. The State v. Scott, 17
2. If, upon a transcript of a justice's
docket, duly certified under hand and
seal, the justice, on the day after the
certificate bears date, makes an endorse-
ment on the back of such transcript
" that the defendant appeared and filed
an affidavit, and produced bond and
demanded an appeal," such endorse-
ment is not evidence of the demanding
of the appeal, and will not be received
by the Common Pleas. Bennet v.
Kite, 106
3. An affidavit taken before one
justice, cannot be read to prove the
service of a notice in a cause pending
before another justice. Hunt v.Lang-
stroth, 223
4. A mere entry made in a man's
book of account of a settlement with
another, is not, aS against such other
person, legal evidence of a settlement.
Prest v. Mercereau, 268
II. Parol evidence.
Where the subscribing witness to an
instrument denies his handwriting or
attestation, other evidence of the execu-
tion of the instrument may be received ;
and proof of the handwriting of the
subscribing witness, by other persons
acquainted therewith, will in such case
be sufficient to authorize the reading
of the instrument to the jury. Patter-
son v. Tucker, 322
INDEX.
457
III. Competency of witnesses.
1. Upon a certiorari to remove the
proceedings in a matter of road, a per-
son whose land is not touched by the
road, and who does not bear any part
of the expense of defending saia road
on the certiorari, is a competent witness
although he was one of the persons
who petitioned the Court of Common
Pleas to lay out the road in question,
and although he may have Dome a
part of the expense of laying it out.
The State v. Woodward, ' 21
2. An agent who has sold personal
property belonging to his principal, is
not a competent witness for the vendee,
to prove that he was not agent and
that the property was sold on his own
account; and thereby to establish the
validity of the sale. Harwood v. Mur-
phy, 215
3. 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. Harwood v. Murphy, 215
IV. Evidence in particular cases.
1. The question of the credibility of
a witness offered in a pauper case,
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. East
Windsor v. Montgomery, 39
2. In an action brought by the
endorsee against an indorser of a
promissory note, payable to bearer,
and endorsed in blank, the endorser
will be permitted to shew it was the
agreement at the time of the endorse-
ment, that he was not to be liable as
endorser upon the note, and that his
name was endorsed merely to enable
the plaintiff to collect the money of the
drawer. Johnson v. Martinus, 144
3. This court, on certiorari in settle-
ment cases, has no jurisdiction or con-
trol over the Sessions in matters of fact
or the credibility of witnesses. Inde-
pendence v. Pompton, 209
4. Though an indictment for pausing
counterfeit money purport to set forth
the counterfeit note according to its
tenor, and contain no averment of its
loss or destruction, the production of
the note may be dispensed with, upon
proof that the same has been mutilated
or destroyed by the defendant, and
other evidence of its contents may be
admitted. The State v. Pott?, 26
5. An indictment does not fail be-
cause one witness for the state differs
from another in points more or less
material, or even in some directly con-
tradicts him. ib.
6. Fraud may be given in evidence
by a defendant under the general issue,
without giving previous notice ; or
where facts are intermixed with matter
of law, may be pleaded specially, or
notice be given under the statute. Tillou
v. Bntton, 121
V. Admissions and declarations.
1. The hearsay declaration of the
father is not competent evidence to
prove the place of the child's birth.
Independence v. Pompton, 209
2. The admission of a party, made in
the progress of the trial of the cause
before the justice, may be proved on
the appeal by one of the witnesses
examined before the justice, who heard
the admission. Heed v. Rocap, 347
EXECUTION.
1. In an action of debt against a
constable for neglect of duty in serving
an execution, an averment in the state
of demand that the execution was not
returned within thirty days, will not
vitiate it. Hunt v. Ouhck et al. assignees
of Chambers, 205
2. The right of a plaintiff in execu-
tion to recover against a constable for
neglect of duty in the service of an
execution is a vested right ; and a repeal
of the statute rendering the constable
liable, will not defeat the recovery, ib.
3. For neglect of duty in the service
of an execution, the constable is liable
to pay, not only the debt, or damages
ana costs mentioned in the execution,
but also the interest. ib.
458
INDEX.
EXECUTORS AND ADMINIS-
TRATORS.
1. On the settlement of an administra-
tor's accounts, interest may be charged
against him, if it appear that he has
actually received interest, or that he
has made in his own affairs profitable
use of the money, or that from the
time of the sales»of the real estate the
money has' remained out upon bond
and mortgage, drawing interest, well
secured and promptly to be collected.
The State v. Mayhew, 70
2. In an action of assumpsit against
executors, the plaintiff, under the com-
mon counts, upon promises by the tes-
tator, for money lent and advanced,
had and received, paid, laid out and
expended, for work and labor, and for
goods, wares and merchandize sold and
delivered, may prove that the testator
in his lifetime, cut, carried away and
sold, a quantity of wood and timber
from the premises of the plaintiff, with-
out his permission. Executors of Crane
V. Crane, 173
3. An omission to demand a set-off
for such a claim against the tortfeasor
will not preclude an action of assumpsit
against his executors to recover the
value of the property taken. ib.
See DEVASTAYIT.
P
FEES.
•
The amount of the fees to which, the
Court of Common Pleas is entitled upon
the return of the appeal is thirty-seven
cents. Carpenter v. Titus, 90
FENCES.
When two persons own adjoining
closes of improved land, between whom
the partition fence has never been
divided, or the portion to be kept up
by each in any wise ascertained, neither
can impose upon tke other the liability,
or claim for himself the protection con-
templated by the statute regulating
fences, Rev. Laws 387; and if the
cattle of one enter .upon the close of
the other, an action of trespass will lie
against the owner of the cattle. Coxe
7. Bobbins, 384
FORCIBLE ENTRY AND
DETAINER.
In forcible entry and detainer the
nature of the estate of the party
grieved must be stated in the com-
plaint. Wall v. Hunt and Boyd, 37
FORGERY.
In an indictment for forgery, a full
description of the forged instrument
must be set out in the indictment, or
the omission excused by proper aver-
ments. The State v. Potts, 26
FRAUD.
Fraud may be given in evidence by
a defendant under the general issue,
without giving previous notice ; or
where facts are intermixed with matter
of law, may be pleaded specially, or
notice be given under the statute. If
no notice be given, the particulars must
be opened to the court at the time of the
trial, that it may see whether it amount
to fraud. Tillou v. Britton, 121
G
GOVERNOR.
The governor as the supreme execu
tive of the state, and he alone, hath
authority in the recess of the legislature,
to fill a vacancy in the office of clerk of
the Inferior Court of Common Pleas.
The State v. Parkhurst, per Kirkpatrick,
just. 427
H
HIGHWAY. •
1. Where a highway has been laid
out to intersect a turnpike road, and
terminate at the line thereof, a gate
placed laterally upon the turnpike at
the end of the highway, is not an
obstruction to the highway within the
meaning of the act of the legislature.
Ayres v. Turnpike Company, 33
2. The fact that a post which is at the
end of a fence extending from the gate
so as to prevent carriages passing from
the highway to the turnpike road, stands
on the highway, can furnish no defence
in an action brought by the turnpike
company to recover tolls. ib.
INDEX.
459
INDICTMENT.
I. Indictment.
II. Caption of indictment.
I. Indictment.
1. An indictment for conspiracy
may be quashed. The State v. Rickey
et al. 293
2. A motion to quash comes in the
place of a demurrer, and therefore can
only be made for causes apparent on
the indictment or caption. ib.
3. The conspiring together to commit
a crime of an indictable nature, is a
crime ; and the offence is complete when
the conspiracy is made, though no act be
done in consequence of it. ib.
4. An indictment will not lie for a
conspiracy to commit a civil injury of
any description that is not in itself an
indictable offence. ib.
5. It is not an indictable offence for
several persons to conspire to obtain
money from a bank by drawing their
checks on the bank when they have no
funds there. ib.
6. Though an indictment for passing
counterfeit money purport to set forth
the counterfeit note according to its
tenor, and contain no averment of its
loss or destruction, the production of
the note may be dispensed with, upon
proof that the same has heen mutilated
or destroyed by the defendant; and
other evidence of its contents may be
admitted. The State v. Potts, 26
7. In an indictment for forgery a full
description of the forged instrument
must be set forth in the indictment, or
the omission excused by proper aver-
ments, ib.
8. An indictment does not fail be-
cause one witness for the state differs
from another in points more or less
material, or even in some directly con-
tradicts him. ib.
9. When an indictment purports to
be on the affirmation of some of the
grand jurors, it must appear that they
alleged themselves conscientiously scru-
pulous of taking an oath. The State v.
Fox, 214
10. If an offence be committed in the
county of S., and after the commission
of the offence the county is divided, and
that part of the said county in which
the offence was committed is created a
new county, and called W., the offence
is indictable in the county of W. The
State v. Jones, 357
11. An indictment for an assault and
battery will not be quashed because it
does not conclude " contrary to the form
of the statutes in such case made and
provided. The State v. Berry, 374
II. Caption of indictment.
1. The caption to an indictment may
be amended after it has been removed
into the Supreme Court by certiorari,
and the amendment may be made upon
proper evidence of the facts and entries
on the minutes of the Oyer and Ter-
miner ; or the certiorari may be returned
to that court and the amendment made
there. The State v. Jones, 357
2. It is not necessary that it should
be stated in the caption, in express
terms, that the grand jurors were sum-
moned and returned as such. ti
INFANCY.
If a defendant would take advan-
tage of the infancy of -a plaintiff, suing
alone, the proper mode of raising the
objection, in courts proceeding accord
ing to the course of the common law
is by plea in abatement; but in the
courts for the trial of small causes it
may be taken advantage of by motion
to dismiss the suit. Smith et al. v. Van
Houten, 381
INTEREST.
1. Where no rate of interest is fixed
by contract, the law permits the creditor
to demand at the rate of six per cent, per
annum, and forbids him to take more,
but allows him to take at any lower
rate he may deem proper. Griffith v.
Clute, -oi
460
INDEX.
2. When a creditor sues, although
the principal and interest calculated at
BIX per cent, would exceed one hundred
dollars, yet if in his state of demand he
actually demands for intereat no more
than makes that sum , a court for the trial
of small causes has jurisdiction. ib.
3. The obligee of a bond, for the pur-
pose 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.
Le Branthwait v. HaLsey, 3
See EXECUTOR AND ADMINISTRATOR, 1.
EXECUTION, 3.
INSOLVENT.
See PROMISSORY NOTE, 3.
STATUTE, 1.
JUDGMENT.
1. A judgment entered upon a bond
with warrant of attorney to confess
judgment after the death of the obligor,
will be set aside as irregular. Milnor
v. Milnor, 93
2. If the obligor was insolvent at his
decease, a creditor may move to have
the judgment set aside. ib.
3. A judgment of the Court of Com-
mon Pleas, rendered on an appeal, will
be reversed if the state of demand is
defective. Gould v. Brown, 165
4. In an action against two defend-
ants, one of them cannot, in the absence
of the other, confess judgment against
both; and a judgment rendered against
both upon the confession of one only,
without evidence, will be set aside.
Wiggins v. Klienhaus, 249
5. Upon a scire facias, the only
judgment which the justice can render
against the defendant is that an execu-
tion issue. Woolston v. Gale et al. 32
6. A judgment of nonsuit in a former
action between the same parties is no bar
to a subsequent action for the same cause
of action. Snowhill v. Hillyer, 38
7. If on the record of the court there
is an omission of the sum for which the
judgment is ordered, and a blank space
left for filling up the same, the record
is incomplete, and the judgment will be
reversed. Hann v. Gosling, 248
JURORS.
If, after the jury are sworn in a
criminal case and depart from the bar,
one of the jurors separate from his fel-
lows, whereby the court are compelled
to discharge the jury, without the con-
sent of the defendant, he may be again
put upon his trial on the same indict-
ment. The State v. Hall, 256
JURY, GRAND.
1. The panel of the grand jury re-
turned by the sheriff, or the caption
thereto, should shew the purpose for
which, the authority by which, and the
court to which, the persons named in
the panel were summoned. The State
v. Mickey et al. 293
2. Although the panel returned by
the sheriff, by which the grand jury are
called and sworn, is defective, yet it
may, by order of the court, be amended
or a new one substituted, at any time
during the day on which it is returned,
previous to the presentment of any bills
of indictment. ^ ib.
JURY, PETIT.
1. When the question of variance
between the note set out in the indict-
ment and that produced in evidence is
properly submitted to the jury, their
verdict is conclusive. The State v
Potts, 26
2. Where parts of the testimony of a
witness are overruled, the parts over-
ruled should be distinctly stated by the
court to the jury. Groverv.Bruere, 319
3. Whether the possession is adverse
or not, is a question for the jury. Den
V. Sinnickson, 149
INDEX.
461
JURY, STRT' •
This court will on application grant a
rule for a struck jury to try an indict-
ment pending in the Oyer and Terminer.
The State v. Murat, 3
JUSTICE'S COURT.
1. State of demand and pleas.
II. Adjournment.
III. Judgment.
IV. Docket.
V. Summons.
I. State of demand and pleas.
1. If plaintiff's state of demand ex-
hibit an original claim exceeding one
hundred dollars a general credit "by
sundries," reducing the sum demanded
below one hundred dollars, will not be
sufficient to give the justice jurisdiction.
Haggerty v. Vankirk, 118
2. In an action of trespass vi et armis
for taking away goods, &c. an omission
to allege the value of the goods in the
state ol demand is not a fatal defect.
Oould v. Brown, 165
3. In an action of debt against a con-
stable for neglect of duty in serving an
execution, an averment in the state of
demand that the execution was not
returned within thirty days will not
vitiate it. Hunt v. Gulick et al. 205
4. If there is a substantial variance
between the agreement set forth in the
state of demand, and that which is
proved to have been entered into by
the parties, the variance is fatal, and
the plaintiff cannot recover. Mulford
V. Bowtn, 315
5. 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. Heed v. Rocap, 347
6. If a defendant would take advan-
tage of the infancy of a plaintiff, suing
alone, the proper mode of raising the
objection, in courts proceeding accord-
ing to the course of the common law, is
by plea in abatement; but in the courts
for the trial of small causes it may be
taken advantage of by motion to dismiss
the suit. Smith v. Van llvuten, 381
7. In an action to recover a penalty
incurred under the statute for the pre-
servation of game, the state of demand
must shew that the person seeking to
maintain the action is clearly within
the provisions of the statute ; and set
out clearly the offence and the nature
of it. If it do not the judgment will
be reversed. Chew v. Thompson, 249
II. Adjournment.
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. Oould v.
Brown, 165
2. If the justice adjourn the cause in
the absence of the defendant, the sum-
mons not having been duly served, and
give him no notice of the adjournment,
and try the cause in his absence, the
judgment will be reversed. Camman
v. Perrine, , 253
III. Judgment.
1. When a judgment has been ren-
dered in a justice's court against two
defendants, one of whom only mado
defence, he may appeal from the judg-
ment of the justice, and for that pur-
pose may make use of the name of tha
other defendant. Shepherd and Wil-
liams v. Fenton, 8
2. An appeal will lie to the Court of
Common Pleas from the judgment of a
justice of-the peace render«*d on the
verdict of a jury, in a case where the
debt, demand, or other matter in dis-
pute does not exceed three dollars.
Cruser v. Duryea, 15
3. If judgment is rendered for a sum
exceeding the amount demandwl in the
state of demand, it will be i ^versed.
Hawk and others v. Anderson, 319
4. If a plaintiff appeals from A judg-
ment rendered against him in fovor of
the defendant, he cannot on the appeal
move the court for a judgment ol non-
suit and thereby get rid of the judgment
against him. Reed v. Rocap, 347
462
INDEX.
5. Upon a scire facias the only judg-
ment which the justice can render
against the defendant, is that an execu-
tion issue. Woolston v. Gale, 32
IV. Docket.
1. 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, make an endorse-
ment 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. Bennet v. Kite, 106
2. It is the duty of the justice to enter
in his docket the names of the plaintiff
and defendant. Stating the initials only
of the plaintiff's name is not insufficient.
Clayton v. Tonkin, 252
V. Summons.
If the summons issued by the justice
is for the defendant to appear at two
o'clock — noon, it is defective. Camman
V. Perrine, 253
L
LEGACY.
1. A legacy charged upon real estate
may be attached in the hands of the
devisee of the real estate, for a debt of
the legatee. Executors of Woodward
V. Woodward, 115
. 2. But a mere personal legacy is not
attachable. ib.
LEGISLATURE.
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. Hutchings v.
Scott, 218
M
MANDAMUS.
If the Court of Common Pleas refuse
to make an appointment of surveyors
on proper application, for the purpose
of vacating a road, a mandamus will be
ordered. The State v. Salem Pleas, 246
MILITIA.
See DELINQUENTS, MILITARY.
BATTALIOK COURT.
MORTGAGE.
1. If there is a subsisting mortgage
on the premises at the time of the exe-
cution of the deed of conveyance, the
covenant in the deed that the premises
are free from incumbrances is broken
as soon as made. Stewart and Fine v.
Drake, 139
2. When, by reason of an antecedent
mortgage, the grantee is evicted, or the
whole of the premises is absorbed in the
discharge of the mortgage debt, the rule
of damages for the breach of a covenant
against incumbrances, or for quiet en-
joyment, is the same as if the grantee
had 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. ib.
3. In an action of ejectment brought
upon a mortgage, the court will not
allow the money due upon the mort-
gage to be paid into court, if there is a
bill in equity pending on the mortgage.
Den v. Kimble, 335
NEW TRIAL.
1. A new trial will not be. granted to
let in a party to the production of new
witnesses, for the purpose of discredit-
ing those examined by his adversary ;
nor on account of the discovery of new
evidence of a cumulative character.
Den v. Geiger, 225
2. A party is not permitted to impugn
a verdict on account of the introduction
of testimony to which on the trial he
made no objection. ib.
NONSUIT.
1. Judgment of nonsuit in a former
action between the same parties is no
INDEX.
463
bar to a subsequent action by tbe same
plaintiff against the same defendant, for
the same cause of action. Snowhill v.
Hillyer, 38
2 If a nonsuit bas been granted at
the circuit, in consequence of a variance
between the evidence offered and the
circuit record, such nonsuit may be set
aside, if it appear that the mistake
occurred in copying the record. Den
T. Hull, 277
NOTICE.
I. Notice of special matter under the
general issue.
II. Notice generally.
I. Notice of special matter under the
general issue.
3. A notice subjoined to the general
issue, stating " that at the time the note
(in question) was discounted, the bank
paid the defendant the amount thereof
in its own bills, that afterwards before
the note became payable, and while
the bank was still the holder thereof,
the defendant tendered the same iden-
tical bills to the bank in payment of
the note, but it would not receive them ;
of all which the plaintiff had notice
before he took the endorsement ; and
the defendant still holds the same bank
bills, unpaid and unsatisfied," is bad in
substance, because it does not contain
such matter, as, if pleaded, would be a
bar to the action. Tillou v. Britton, 120
2. So also a notice stating, " that
while the bank was the holder of the
note the said bank became indebted to
the defendant ia the sum of four hun-
dred dollars ; whereupon the defendant
offered to set off so much of his demand
as would satisfy the said note ; and that
the bank was in failing circumstances;
of all which the plaintiff had notice
before he took the said endorsement;
and that the transfer thereof to him
was fraudulent and void," is bad in
substance, not containing such matter
as wonld be a bar to the action. ib.
'3. So also a notice containing the
following statement of facts is bad for
the same reason, viz.: "that the bank
gave its own bills for the note in ques-
tion, when it was in failing circum-
stances and destitute of funds to redeem
them ; and in fact refused to take the
aoine bills back again in payment of the
note ; and that the plaintiff knew these
facts when he received the note by en-
dorsement." ib.
4. So also a notice stating, " that
while the bank was the holder of the
defendant's note, it became indebted to
him in a larger sum than the amount
of the said note ; and that the bank
was in falling circumstances ; of all
which the plaintiff had notice before
he took an endorsement of the note ;
and that the said transfer was contrived
of fraud, covin, collusion and guile, with
intent to defraud the defendant of the
amount of said note; and that the
transfer of the same to the plaintiff
was fraudulent and void," is bad. ib.
5. So also a notice is bad which states
" that the bank, while the holder of this
note, was indebted to the defendant and
divers other persons, in large sums of
money, amounting to one hundred
thousand dollars, and being in failing
circumstances, transferred the note to
the plaintiff, with intent to delay, hin-
der and defraud creditors." ib.
6. So also a notice stating, " that the
bank being indebted to the plaintiff,
transferred the note to him for the pur-
pose of giving him an advantage over
the other creditors of the bank, whereby
he should be first paid and receive a
greater proportion than others, contrary
to the statute in such case made and
provided," ia bad. ib.
7. Nothing which would be matter
of substance in a plea may be omitted
in a notice. Per Ford, just. ib.
8. A notice may present as many
independent defences as could be set
up by w»y of special pleading. But
each defence must stand by itself aa
much as in a plea, so that it may
plainly appear where one defence enda
and another begins. Per Ford, just. ib.
9. If previous written notice of par-
ticulars be given, it stands in the place
of an opening, and the court must
adjudicate on its sufficiency. Per Ford,
just. ib.
10. The particulars must be shewn in
a notice as fully as in an opening. Per
Ford, just. »&.
Set FRAUD.
4G4
INDEX.
II. Notice generally.
1. A notice of an application to rein-
state an action, should be written, and
not verbal. Hunt v. Langstroth, 2^3
2. The notice at the end of the declara-
tion in ejectment may be amended after
service, by striking out one day and in-
serting another. Den v. Laning, 254
3. The party moving for relaxation
of a bill of costs, must give his adver-
sary notice, and state the particulars of
the bill of costs to which he objects, and
the nature of his objection. Hays ads
Williams, 383
4. Whether notices of the application
for the appointment of surveyors have
been set up at three of the most public
places in the township where the road
is to be laid out, is a point upon which
the judgment of the Court of Common
Pleas is final and conclusive. The State
v. Schanck, 107
5. The notice of taking affidavits to
be used on the argument of a rule to
shew cause, should be given to the
attorney, and not to the party only.
Den v. Geiger, 225
See CHARGE, 1, 2.
SET-OFF.
DEED.
RECORD.
ORDER OF TWO JUSTICES.
1. An order of two justices dis-
charging an apprentice, made upon the
complaint of the father of the appren-
tice, will be quashed. Ackerman v.
Taylor, 65
2. Where an order is made for the
removal of a pauper from one township
to another in the same county, 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. Knowlton v.
Independence, 276
ORPHANS' COURT.
1. The sentences or decrees of the
Orphans' Court on the final settlement
and allowance of the accounts of execu-
tors, administrators, guardians or trus-
tees, may be removed by certiorari to
the Supreme Court to be reviewed. The
State v. Mayhew, 70
2. The decree of the Orphans' Court
is presumed legal until the contrary is
shewn. ib.
3. A decree of the Orphans' Court on
a final settlement of the accounts of an
administrator, ordering the surrogate to
strike a dividend of the estate among
the several creditors named in the
account, will not be set aside because a
dividend has not been struck. ib.
4. The Orphans' Court has no au-
thority (under the twelfth section of
the act, Rev. Laws 779) to appoint
commissioners to make division 01 lands
held between the heirs of a tenant in
common on the one part, and the person
who has been the tenant in common
with their ancestor on the other part.
The State v. Parker, 242
5. It is the duty of the Orphans'
Court making an order for the sale of
real estate, under the act "making
lands liable for the payment of debts,
Rev. Laws 430, 435, sec. 19, 20, 24, to
ascertain and decide whether a sale of
the whole of the real estate is necessary,
or whether the sale of a part will suffice ;
and if they find that the sale of part
only will suffice, and ought to be made,
then to ascertain and decide what part
ought in legal propriety to be sold.
The State v. Conover, 338
6. It is the duty of the Orphans'
Court before making the order for sale,
to examine and ascertain that the per-
sonal estate which came to the hands
of the executor or administrator, has
been applied by him in the course of
administration. id
OYER AND TERMINXR.
See STRUCK JURY.
P
PARTITION.
See ORPHANS' COURT.
INDEX.
465
PAUPER.
See SETTLEMENT.
PENALTY.
I« an action to recover a penalty
incurred under the statute for the pre-
servation of game, the state of demand
must shew that the person seeking to
maintain the action is clearly within
the provisions of the statute ; and set
out clearly the offence and the nature
of it. If it do not the judgment will
be reversed. Chew v. Thompson, 249
PLEADING.
See ABATEMENT, 1.
POSSESSION.
1. 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. Den v.
Sinnickson, 149
2. Whether the possession is adverse
or not is a question for the jury. ib.
PREFERENCE.
A debtor in failing circumstances
may prefer a creditor. Tillou v. Brit-
ton, 120
PRACTICE.
1. 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. Obert v. Whitenead, 214
2. 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.
Skiltman v. Cooloaugh, 216
3. If a plaintiff sue out a writ of sum-
mons against two or more defendants,
he cannot regularly declare against one,
and proceed to judgment against him
only. Bank oj New Brunswick v.
• Arrowsrnith, 284
VOL. IV. 2
4. A defendant may avail himself of
a variance between the writ and the
declaration, either by oyer and plea or
by a motion to set aside the proceedings
lor irregularity. •$.
5. The best mode for the defendant
to avail himself of the variance, is by
motion to set aside the proceedings,
inasmuch as upon oyer and plea in
abatement he recovers no costs against
the plaintiff if he succeeds. ib.
6. This court will on application
grant a rule for a struck jury to try an
indictment pending in the Oyer and
Terminer. The State v. Murat, 3
7. If a second writ of attachment is
sued out between the same parties, in
the same county, during the [tendency
of a former attachment, the second writ
of attachment will be quashed. Harris
V. Linnard, 58
8. A court may legally stay the pro-
ceedings in a second action, until the
costs of a former action, brought by
the same plaintiff, for the sarue cause of
action, shall be paid. Sooy v. M'Kean
et al. 86
9. A notice of an application to rein-
state an action, should be written, and
not verbal. Hunt v. Langstroth, 223
10. On the argument of a rule to
shew cause the party is not confined to
the grounds on which the rule to shew
cause was obtained. Denv.Geiger, 225
See AMENDMENT, 3.
BAIL, 3.
NONSUIT, 2.
MORTGAGE, 3.
TAXATION OF COSTS.
STATE OF CASE.
VENUE.
PROMISSORY NOTE.
1. In an action brought by the
endorsee against an endorser of a
promissory note, payable to bearer,
and endorsed in blank, the endorser
will be permitted to sin w it was the
agreement at the time of the endorse-
ment, that he was not to be liable aa
endorser upon the note, and that his
name was endorsed merely to enable
the plaintiff to collect the money of the
drawer. Johnson v. M^rlinut, 144
466
INDEX.
2. In an action on a promissory
note made payable at a particular
place, brought by the payee against
the drawer, a special averment of pre-
sentment 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.
Weed v. Van Houten, 189
3. A note given . by an insolvent
debtor to two of his creditors, in con-
sideration of their withdrawing their
opposition to his discharge under the
insolvent act is void, it being against
the policy of the insolvent law. Sharp
v. Teese, 352
4. To an action brought by the -en-
dorsee against the drawer of a promis-
sory note, payable at a particular bank,
•without defalcation or discount, the
defendant cannot set off a demand
•which he may have against the bank
which discounted the said note and
transferred it to the plaintiff. Tillou
v. Britton, 120
5. It makes no difference in this re-
spect whether the note was transferred
after or before maturity. ib.
PROSECUTION, ABANDON-
MENT OF.
If it be a question whether the aban-
donment 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 prose-
cution 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 in-
structions. Grover v. Bruere, 319
B
RECORD.
1. If on the record of the court there
is an omission of the sum for which the
judgment is ordered, and a blank space
left for the purpose of filling up the
same, <he record is incomplete, and the
judgment will be reversed. Hann v.
Gosling, 248
2. If the record of another court be
pleaded in abatement, the party plead-
ing it must accompany the plea by an
exemplification to be fi4ed therewith.
Per Ford, just. Trenton Bank v. Wal-
lace, 83
RECORDER OF A CITY OR
BOROUGH.
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 neces-
sary 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. Hutch-
ings v. Scott, 218
REFERENCE.
1. Where distinct actions are depend-
ing, of all which a reference is intended,
there must be separate rules of reference
and separate reports ; or they must be
first united and then referred ; or in
one of them a rule of reference must
be entered, with, a submission of all
matters in dispute between the parties.
Oraig v. Craig, 198
2. 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 matter*
in difference between the parties in the
said cause," will not vitiate the report,
if it appear that the referees really
went into an examination only of the
matters in difference in the cause. West-
cott v. Somers, 99
RELIGIOUS SOCIETY.
1. A person is not entitled to vote as
a member of a Presbyterian congrega-
tion, who does not contribute his just
proportion, according to his own en-
gagements or the rul«s of that congre-
gation, to all the necessary expenses of
the church. The State v. Orowell, 390
2. An election of trustees of a Pres-
byterian church, made by persons not
being contributors to the support of
the church, and therefore not qualified
by their rules to vote, is void. id.
INDEX.
467
RENDER IN DISCHARGE OF
BAIL.
A defendant may be rendered in dis-
charge of his bail, notwithstanding
exceptions to them have been entered.
Anonymous, 25
RENT.
See DISTRESS, 1, 2.
RETURN LIST OF DELINQUENTS.
The return list of delinquents, which
is required by the first section of the
militia act, Rev. Laws 508, to be made
out by the major, and furnished to the
justice by the battalion paymaster, as
the authority upon which the justice is
to issue his execution against the delin-
quents, must shew that a fine has been
imposed upon said delinquents, or the
execution will be quashed. The State
v. Atkinson, 271
See ROAD, 3.
ROAD.
1. If it appear by the return of the
surveyors appointed to lay out a road,
that they met at a place different from
that designated by the order of the
court, their proceedings will be set
aside. State v. Scott, 17
2. The return of the surveyors should
shew that they received proof that pub-
lication had been made of thf ir meeting,
and that they decided upon it. ib.
3. An affidavit of a person, (not one
of the surveyors,) will not be sufficient
evidence to contradict the return of a
road. ib.
4. If it appear that a variation be-
tween the road laid out by the survey-
ors and that described in the petition,
alleged as the reason for setting aside
the return of the road, was produced
by the prosecutor of the certiorari, he
will not be allowed to take advantage
of such variance. 9 he State v. Wood-
ward, 21
6. Whether notices of the application
(or the appointment of surveyors have
been set up at three of the most public
places in the township where the road
is to be laid out, is a point upon which
the judgment of the Court of Common
Pleas is final and conclusive. The
State v. Schanck, 107
6. The return made by the surveyors
will not be considered vague and uncer-
tain because the several courses of the
road set forth in the return, are said to
be as the magiyriic needle of the prac-
tical surveyor engaged in laying out
the road, pointed on a particular day ;
nor because the route had been run on
a subsequent day by two other survey-
ors, who found a small difference of
course on the first line, and at the ter-
mination of the»road a departure of
about four chains ; a fourth surveyor
agreeing with the first. ib.
7. 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 suffi-
cient to vitiate the return. ib.
8 After the return of a road is re-
corded, the applicants cease to have,
alone, the control over it. t&.
9. Where a road has been laid out
and recorded, though never opened,
the Court of Common Pleas may on
application appoint surveyors to vacate
the same. The State v. Judges of Salem
Pleas, 246
10. And if the Court of Common
Pleas refuse to make an appointment
of surveyors, on proper application, for
the purpose of vacating such road, a
mandamus will be ordered. ib.
11. It is not a sufficient reason for
refusing to appoint surveyors in such
case, that a rule for an alternative
mandamus for the opening of the road
was at the time pending in the Supreme
Court. ib.
12. Where a highway has been laid
out to intersect a turnpike road, and
terminate at the line thereof, a gate
placed laterally upon the turnpike at
the end of the highway, is not an
obstruction to the highway within the
meaning of the act of the legislature.
Ayret v. Turnpike Company, 33
468
INDEX.
13. The fact that a post which is at
the end of a fence extending from the
gate so as to prevent carriages passing
from the highway to the turnpike road,
stands on the highway, can furnish no
defence in an action brought by the
turnpike company to recover tolls, ib.
See EVIDENCE, III., 1.
S
SALE.
See ORPHANS' COURT, 5, 6.
WITNESS, 3, 4.
SCIRE FACIAS.
Upon a scire facias the only judg-
ment which the justice can render
against the defendant is that an execu-
tion issue. Woolaton v. Gale, 32
SERVICE.
1. A right to the services of a child
born of a slave since the fourth day of
July, 1804, is assignable, and may be
vested by assignment in one person,
while the ownership of the mother is
in another. Ogden v. Price, 167
2. A subsequent change in the con-
dition of .the mother will not affect the
right of the master to the services of
the child. 16.
SLAVE, CHILD OF.
See SERVICE.
SET-OFF.
An omission to demand a set-off
for a claim against a tortfeaser, will
not preclude an action of assumpsit
against his executors, to recover the
value of the property taken. Cooper
V. Crane, 173
SETTLEMENT.
1. Under the act of 1744, (1 Ncvil's
ed. N. J. Laws 256, and Allison's ed.
118) a living one full year at one
time in one house or fatally, gave a
settlement.
gomery,
East Windsor v. Mont-
39
2. A healthy person coming from
Europe to a sister state, and from thence
into this state, does not gain a residence
in the township in which he shall first
settle and reside for one year. Still-
water v. Green, 59
3. For such a person to gain a settle-
ment under the act of 177-4, "for the
settlement and relief of the poor," he
must come directly from Europe into
this state. ib.
4. Though a township may have for
a number of years maintained a person
as a pauper, it will not thereby be
estopped from denying his legal settle-
ment to be in said township. ib.
5. If a pauper has obtained no legal
settlement by residence or otherwise,
he must be maintained by the township
where he becomes chargeable^ ib.
STATE OF CASE.
A state of the 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 ae to the
place of settlement arises, and not the
mere evidence of those facts. Indepen-
dence v. Pompton, 209
STATUTE.
1. An attempt to contravene thai
policy of a public statute is illegal,
though the statute contains no express
prohibition of such attempt. Sliarp v.
Teese, 352
2. A party may waive the action
given by a statute and resort to his
common law remedy. Coxe v. Rob-
bins, 384
See ASSAULT AND BATTERY, 2.
STAY OF PROCEEDINGS.
A court may legally stay the proceed-
ings in a second action until the costs of
a former action, bright by the same
plaintiff, for the same cause of action,
shall be paid. Sooy v. M'Kean, 86
See also Cooper v. Sheppard,
96
INDEX.
469
SURVEYORS.
See ROAD, 1, 2, 3, 6, 7.
TAXATION AND RETAXATION
OF COSTS.
1. The party obtaining the taxation
of a bill of costs, must upon a relaxa-
tion prove the items objected to. Hays
ads. Williams, 3«3
2. But the party moving for a retaxa-
tion must give his adversary notice, and
state the particulars of the bill of costs
to which he objects, and the nature of
his objection. ib.
TENANCY IN COMMON.
The Orphans' Court has no authority
under the twelfth section of the act,
Rev. Z,aws779,toappointcommissioners
to make division of lands held between
the heirs of a tenant in common on the
one part, and the person who had been
the tenant in common with their
ancestor on the other part. The State
V. Parker, 242
TENANT.
See DISTRESS, 1, 2.
TENDER.
To make a tender valid the debt must
be due at the time of the tender. Per
Ford, just. Tillou v. Britton, 120
TESTIMONY.
When parts of the testimony of a wit-
ness are overruled, the parts overruled
should be distinctly stated by the court
to the jury. Or over v. Bruere, 319
TOLLS.
An action of debt in a justice's court,
and of assumpsit in the higher courts,
may be sustained by a turnpike com-
pany to recover tolls. Ayret v. Turn-
pike Company, 33
TOWNSHIP.
Though a township may have for a
number of years maintained a person
as a pauper, it will not thereby be
estopped from denying his legal settle-
ment to be in said township. Still-water
v. Green, 59
TRANSCRIPT.
If, upon a transcript of a justice's
docket, duly certified under hand and
seal, the justice, on the day after the
certificate bears date, makes an endorse-
ment on the back of such transcript
" that the defendant appeared and filed
an affidavit, and produced bond and
demanded an appeal," such endorse-
ment is not evidence of the demanding
of the appeal, and will not be received
by the Common Pleas. Sennet v.
Kite, 106
TRESPASS.
In an action of trespass vi 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.
Gould v. Brown, 165
TURNPIKE.
See HIGHWAY 1, 2.
VARIANCE.
1. A variance between the affidavit
to hold to bail and the writ, tha former
omitting, the latter inserting, the chris-
tian names of the plaintiffs, is not a
sufficient reason to discharge the bail,
after bail has been perfected. Hobeson
and Parry v. Thompson, 97
2. But if the cause of action set
forth in the declaration is substantially
variant from that set forth in the affi-
davit, the bail will be discharged, even
after a trial and verdict against their
principal. ib.
3. A variance between the original
rule of reference and the copy pre-
sented to the referees, the former sub-
mitting "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 went into an examina-
tion only of the matters in difference in
the cause. Westcott v. Somers, 99
4. A defendant may avail himself
of a variance between the writ and the
470
INDEX.
declaration, either by oyer and plea or
by motion to set aside the proceedings
for irregularity. Bank of New Bruns-
wick v. Arrowsmith, 284
5. The best method to avail himself
of the variance, is by motion to set
aside the proceedings ; inasmuch as
upon oyer and plea in abatement he
recovers no costs against the plaintiff
if he succeeds. ib.
6. If there is a substantial variance
between the agreement set forth in the
state of demand, and that which is
proved to have been entered into by
the parties, the variance is fatal, and
the plaintiff cannot recover. Mulford
v. Bowen, 315
7. Where the question of variance
between the note set out in the indict-
ment and that produced in evidence is
properly submitted to the jury, their
verdict is conclusive. The State v.
Potts, 26
8. If a nonsuit has been granted at
the circuit, in consequence of a variance
between the evidence offered and the
circuit record, such nonsuit may be set
aside, if it appear that the mistake
occurred in copying the record. Den
V. Hull, 277
9. If it appear that a variation be-
tween the road laid out by the survey-
ors and that described in the petition,
alleged as the reason for setting aside
the return of the road, was produced
by the prosecutor of'the certiorari, he
will not he allowed to take advantage
of such variance. The State v. Wood-
ward, 21
VENUE.
In a transitory action, where the
plaintiff is a non-resident, the venue
will be changed to the county in which
the defendant resides, upon an affidavit
made by him that process was served
upon him in that county, and that wit-
nesses material to the defence also reside
there. Dauchy et al. v. Taylor, 96
VERDICT.
1. Where the case brought up turns
upon a mere question of fact, upon
which a jury have passed, this court
will not interfere ; it will not enquire on
certiorari whether a verdict is against
evidence. Baldwin v. Simmons, 196
2. A party is not permitted to impugn
a verdict on account of the introduction
of testimony to which on the trial he
made no objection. Den v. Geiger, 225
W
WAIVER.
A party may waive the action given
by a statute and resort to his'common
law remedy. Coxe v. Robbing, 384
WILL.
See DEVISE.
WITNESS.
1. Upon a certiorari to remove the
proceedings in a matter of road, a per-
son whose land is not touched by the
road, and who does not bear any part
of the expense of defending said road
on the certiorari, is a competent witness
although he was one of the persons
who petitioned the Court of Common
Pleas to lay out the road in question,
and although he may have Dome a
part of the expense of laying it out.
The State v. Woodward, 21
2. The question of the credibility of a
witness offered in a pauper case belongs
exclusively to the Court of Quarter Ses-
sions. East Windsor v . Montgomery , 39
3. An agent who has sold personal
property belonging to his principal, is
not a competent witness for the vendee,
to prove that he was not agent and
that the property was sold on his own
account; and thereby to establish the
validity of the sale. Harwood v. Mur-
phy, 215
4. 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. ib.
5. The admission of a party, made in
the progress of the trial of the cause
before the justice, may be proved on
the appeal by one of the witnesses
examined before the justice, who heard
the admission. Meed v. Rocap, 347
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