REPORTS OF CASES ARGUED AND DETERMINED Iff THE SUPREME COURT OF JUDICATURE THE STATE OF NEW JERSEY. BY WILLIAM HALSTED, JTO., EEPOBTEE. VOLUME 1 . THIRD EDITION, WITH NOTES, BY JOHN LINN, ESQ. JERSEY CITY: FREDERICK D. LINN & CO. 1886. JUSTICES SUPREME COURT OF JUDICATURE or THE STATE OF NEW JERSEY, A. D. 1822. ANDREW KIRKPATRICK, ESQ., - CHIEF JUSTICE. I WILLIAM ROSSELL, ESQ., - SECOND JUSTICE. GABRIEL H. FORD, ESQ., - - - THIRD JUSTICE. ATTORNEY-GENERAL, THEODORE FRELINGHUYSEN, ESQ. LAW REPORTER, WILLIAM HALSTED, JUN., ESQ. CLERK OF THE SUPREME COURT, ZACHARIAH ROSSELL, ESQ. (m) TABLE OF CASES. PAGE. Adams v. Executors of Rolston... 183 Algor v. Stillwell 166 Allen v. Hickson 409 Arnold v. Mundy 1 Anonymous, (Practice) 159 Anonymous, (Practice) 166 Anonymous 230 Austin v. Nelson...., .. 381 Bateman v. Connor et al 104 Bergen v. Clarkson 352 Berry v. Callet 179 Black v. Ely 232 Board v. Cronk 119 Boqua v. Ware 151 Brooks v. Brooks 404 Brush v. Ware 404 Budd v. Crea 370 Burnet v. Bryan 377 Burroughs v. Condit 300 Campbell v. Cooper 142 Cattel v. Warwick 190 Cavalier v. Doughty 227 Cook v. Green 109 Cowell v. Oxford 432 Crane v. Sayre '. 110 Cumberland Bank v. Hall 215 Den ex dem. Den ex dem. Den ex dem. Den ex dem. Den ex dem. Den ex dem. Den ex dem. cott Den ex dem. Den ex dem. Dickerson v. Dickerson v. v. Ferin 431 Jouet v. Spinning.... 466 Halsey v. Dodd 367 Lockyer v. DeHart.. 450 Maffit v. Tonkins 228 Pancoast v. Curtis... 415 Laurence v. Lippen- 473 Rossell v. Inslee 475 Nathan v. Fen 478 Robinson 195 Dill 168 E PAGE. Edwards v. Davis 394 Ely v. Norton 187 Fennimore v. Childs 386 Ford v. Potts..., .. 388 G Gibbons v. Livingston 236 Gibbons v. Ogden 285 Gordon v. N. Brunswick Bank.... 100 Gratz v. Wilson 419 Greenway v. Dare 305 Grieve and Moffat v. Annin and Henry 461 H Hankinson v. Baird 130 Harrison v. Sloan 410 Harvey v. Trenchard 126 Hay v. Bruere 212 Hoffman v. Brown 429 Howell v. Robertson 142 Hunt v. Boylan 211 Jessup v. Cook 434 Kennedy v. Nixon 159 Kingsland v. Gould et al 161 Lambert and Jones v. Moore 131 (v) VI TABLE OF CASES. M PAGE. Maffit ads Den ex dem. Tonkins... 228 M'Donald v. Lawry 414 Meredith v. Banks 408 Newton. Overseers of, v. Overseers of Gloucestertown... .. 405 Overseers of Hopewell v. Amwell. 169 Overseers of Newton v. Gloucester Town 405 Overseers of Tewksbury v. Wash- ington 177 Peppinger v. Low 384 Perrine v. Executors of Perrine... 133 Reading v. Reading 186 Richards v. Drinker et al 307 Roome and Dodd v. Executors of Counter Ill Ross and wife v. Winners 366 Rowland et al. v. Stevenson 149 S PAGE. Saddle River v. Colfax 115 Saltar v. Saltar 405 Scott v. Conover 222 Scott v. Stackhouse 431 Sherrard v. Olden 344 State v. Covenhoven 396 State v. Fisler 305 State v. Hopping 125 State v. Hunt 303 State v. Kirby 143 State v. Parker 148 State v. Rockafellow 343 State v. Van Waggoner 374 Stevens and Sneed v. Meguire 152 Stout v. Hopping 125 Stulta v. Outcalt 130 Thompson v. Button 220 Todd v. Collins.... 127 Vanderveer v. M'Mackin 213 Van Dyke v. Dodd 129 W Westcott v. Danzenbaker 132 White v. Hunt 330 White v. Hunt 415 Wildes v. Mairs 320 Wilkins and Black v. Budd 153 Wilson v. Wilson 95 Woodruff v. Smith.... .. 214 TABLE OF CASES CITED. PAGE. Anderson v. Runyon 325 Archbish. of Canterbury v. Brown. ] 99 Archbish. of Canterbury v. House.. 202 Archbish. of Canterbury v. Wills... 199 Atkinson v. Haines 327 Barrett v. Fletcher 317 Bartlett v. Hebbes 426 Baylie v. Taylor 317 Bennett v. Alcott 325 Berry v. Penring 319 Bladder v. Webb 113 Blower v. Morrett 137 Board v. Kronk 118 Burridge v. Braciyl 138 Cadogan v. Kennett 459 Carter v. Marcott 67 Chews v. Sparks 458 Clerk v. Tucker 365 Cox v. Rolt 326 Cranch v. Kirkman..., ........ 380 D'Eon's case 350 Deux v. Jefferces 430 Doe v. Routledge 459 E Edmondson v. Matchet.... .. 325 Fabritius v. Cook 443 Flatt v. Abrahams 298 Ford v.'Lord 449 Fores v. Wilson 327 Foulkes v. Selway 373 G PAGE. Gillman v. Hill 3*4 Goodtitle v. Newman 369 Gould v. Bailey 121 Gray v. Jefferies 324 Greenside v. Benson 200 Griffin v. Spencer 317 H Hatnbly v. Trott 395 Hankins v. Colclough 319 Head v. Providence Ins). 304 Hewlett v. Strichland 3^5 Hutton v. 'Mansell.... .. i!;>f) Johnson v. Calkins.... .. 374 K 177 King v. Mellingham. L Latlpss v Holmes 3^3 Livingston v. Gibbons 2^'9 Lucas v. Wilson 393 M Mease v. Mease 292 Meredith v. Allen 317 Mostyn v. Fabrigus 298 N Norton v. Jason.... .. 327 Oswald v. Legh. .... 350 (VII) VIII TABLE OF CASES CITED. -PAGE. Patten v. Halotead 125 Pbilhi* v. Garth 114 Pitts v. Case 426 Postelthwaite v. Parker 325 Tex v. Ivlwnrds 401 Hex v. Harris 402 Hoberts v. Harnaze 298 Bussell v. Corne 324 Kussell v. Uammond 458 S Shinn v. Earnest 131 PAGE. Shotwell v. Kelley 121 Sippora v. Bansett 325 Studdiford v. Ferris 131 Tillotson v. Cheetham ... 331 Townshend v. Windham 458 Treasurer v. Jersey Bank 103 Twine's Case 458 W Wallis v. Pipon 200 Warren v. Matthews 72 Welford v. Liddell 380 Wright v. Hartehorne 457 CASES DETERMINED IN THE SUPREME COURT OF JUDICATURE OF THE STATE OF NEW JERSEY, AT NOVEMBER TERM, 1821. ROBERT ARNOLD against BENAJAH MUNDY. IN TRESPASS. 1. Navigable rivers, where the tide ebbs and flows, the ports, bays, coasts of the sea, including both the waters and the land under the waters, for the pur- poses of passing and repassing, navigation, fishing, fowling, sustenance, ana all other uses of the water and its products, are common to all the people of New Jersey. 2. By the grant of Charles II. to the duke of York, those royalties, of which the rivers, ports, bays, and coaste were a part, passed to the duke of York, as the governor of the province exercising the royal authority, and not as the pro- prietor of the soil, and for his own use. 3. Upon the Revolution, all those royal rights vested in the people of New Jersey, as the sovereign of the country, and are now in their hands. 4. The proprietors of New Jersey did not, under the grant from the duke of York, take such a property in the soil of the navigable rivers in this state, that they could grant several fisheries therein. 5. A person who plants oysters on the bed of a navigable river, below low water mark, has not such a property therein as to enable him to maintain tres- pass against a person taking tnem away, although the oyster bed should be adja',ent to his own shore. 6. A grant of land bounded upon a fresh water stream or river, where the tide neither ebbs nor flows, extends aafilum aquae; but a grant bounded upon a navi- gable river extends to the edge of the water only. This was an action of trespass for breaking the close of the plaintiff, situated in Perth Amboy, and taking his oj'sters, &c. The cause came on to be tried at the Middlesex circuit, before his honour the Chief Justice and a special jury, at the Decem- ber sessions, 1819. On the trial, the plaintiff deduced title to the oystery VOL. i. A NEW JERSEY SUPEEME COURT. Arnold v. Mundy. 1. Under surveys to Peter Sonmans, dated 28th March, 1689-90, and 20th January, 1685, to the river opposite to the oystery, and deduced title down to himself. 2. Under a survey, dated 8th April, 1818, for the land where the oysters were planted ; and showed a number of grants of fisheries and beds of navigable rivers by the' proprietors, both before and after the surrender. The plaintiff proved, that Coddington, from whom be pur- chased the farm, had staked off the oyster beds in dispute in front of his farm near thirty years ago. That he claimed the exclusive right to the enjoyment of the oysters, and attempted, and did drive people off who came under a claim of common right; some of them, however, would resist, and several lawsuits grew out of their disputes. After the plaintiff purchased, he bought oysters, and planted them on the beds, and staked it off. It appeared, that he was at considerable expense in planting, and bought several boat loads, and claimed an exclusive right as far as he had planted, and drove off, as far as he was able, every one who attempted to take oysters without his leave. The staking was no injury to the navi- gation. The bed from which the oysters were taken is bare at very low tides, but is below the ordinary low water mark. After the survey of 1818, the defendant came, at the head of a small fleet of skiffs, and took away these oysters, avowedly to try the right. The defendant pleaded not guilty, and gave notice, that the locus in quo was a public navigable river, in which the tide flows and rcflows, in which oysters grow naturally, and that all the citizens of the state had a common right to take oysters therein &c. After the plaintiff had rested his cause, The counsel for the defendant, Messrs. Wood and Scott, moved ifor a nonsuit. They contended that the claim under the Sonmans' patent of 1685 and 1689-90, bounded on the river, and there- fore was limited to high water mark. That the title by occu- pancy had not been made out in proof; inasmuch as Ihe people had always claimed their rights while Coddington was in pos- session, and no acquiescence of this kind would take away a public right, which was now claimed by the defendant. The plaintiff must therefore depend upon his title under the survey .of .1818, and, if that will not support him, he must be nonsuit. NOVEMBER TERM, 1821. Arnold v. Mundy. They contended 1. That the right to the soil of navigable rivers, where the 'tide ebbs and flows, is in the people of New Jersey, and belongs to the state. That the soil to navigable rivers, the sea and the arms thereof, was not granted by king Charles II. to the duke of York, by the fair construction of the charter ; and that, if it was, it was void, as the king could not, on the principles of the common law, make such a grant. That he held the right thereto for great public purposes, as trustee for the public, and subject to the right of the people to navigate and fish, &c. It was public domain and the property of the nation, and on principles of national law, as well as the common law, could not be granted by the king. 2. That if the proprietors had a right to the soil of the Rari- ton river, they could not grant a right of several fishery, and thus deprive the people of New Jersey of their rights. The right of common fishery was a vested right, derived from, and sanctioned by, common law principles, and which their ancestors brought over with them. By the usurpation of the Norman kings on the principles of Saxon liberty, prior to the reign of Henry II. the king might grant a fishery ; but since then he is restrained by Magna Charta, which simply restored the principles of the ancient law. That the English pretended to claim this country by the right of discovery, which was a mere inchoate right, and could not be consummated until they found inhabitants and occupied the country. That the people brought over to this country the same rights which they possessed in England. They had the same rights in navigable rivers here as in England ; and the king had no greater rights over the people of this country than over the people of England. Magna Charta applied here in full force. This was declared by the Declaration of Independence, and asserted by all our writers of the day; and was one of the great principles upon which our revolutionary patriots founded their opposition to the acts of parliament. It was further contended, that if the grant of Charles II. passed the right of fishery at all, it was as an incident of the sov- ereign power, and revested in the sovereign by the surrender, NEW JERSEY SUPREME COURT. Arnold v. Mundy. and, on the Revolution, as one of the incidents of sovereignty vested in the people; and none but the legislative power could control the rights of the people. Again that admitting that the king of England could grant the soil of the rivers and the right of several fishery, yet his delegates or sub-sovereigns could not; and therefore the duke of York could not grant it, as he was restricted to govern according to the laws and statutes of England. By the grant to the duke of York, he took a feudality, and not an allodium. By the sur- render, the rights of property were left as before, but the right of fishery, being a royal franchise, an act of sovereign power, if it ever vested in the grantees of the duke of York vested as incident to the sovereign power, and, by the surrender, passed with the powers of government. The counsel for the defendant cited, illustrated, and relied on the following cases. Cooper's Justinian 68. Vattel 11, 117. 2 Slack. Com. 39. 4 Sac. Abr. Prerogative (D) 15fi. 3 Cruise 297 (2 vol. Am. Ed.} Willed Rep. 265. Bracton (en passim.') 6 Mod. E. 73 (93.) Salk. 357. Vattel 99 (S. 207.) 1 Slack. Com. 167 (107.) Allinson's N. J. Laws 57. Learning & Spicer t Grants and Concessions 589, sec. 13 of Surrender. 1 Penn. R. 391. South. R. 61. Learning & Spicer 627 (S. 33) 590, art. 13. 2 Penn. R. 942. Val 391. Pat. 79, 416. Smith's Hist. N. J. 89, 119, 120, 188, 256, 291. 2 Slack. Com. 417. 2 H. Slack. 182. The counsel for the plaintiff contended That the great principle of the common law respecting prop- erty is, to assign to everything capable of ownership an owner. That law assigned the ownership of the sea and the arms thereof, and the navigable rivers to the king. He has not only a right of jurisdiction over the sea, but he has a right of property and own- ership of the soil of the mare clausum, the arms of the sea and navigable rivers, founded on his ability to possess them by his navies. A subject may have a right in the soil of tho.sea &c. by grant from the king; and in rivers where the tide does not ebb and flow, and not navigable, a grant to the bank gives them the right of soil to thofilum aquas. That whoever has a right to soil covered with water, the right of fishing is annexed to it. That no common law case has been produced denying this position. That the only doctrines that NOVEMBER TERM, 1821. Arnold v. Mundy. conflict with it are drawn from the civil law. ffhe common law writers all acknowledge the right of the king to grant or alienate whatever he holds in propriety, as the head of the nation. The doctrine of the defendant proves too much; as, if true, it shows that he had no right to grant the land of New Jersey at all, it being as much part of the public domains as the rights of fishery. That what passed under the grant to the duke of York, cannot be questioned in New Jersey, after a lapse of two centuries. It has been settled in New Jersey, and we hold all our rights under it. The right of fishing is annexed to the soil, and whoever has the right of soil, has the right of fishing. The right of the king results from the law assigning to him the own- ership of the soil. In answer to the assertion, that the right to a several fishery does not exist in navigable rivers in New Jersey, it was said, that the cases on which the defendant relies are cases of mere dicta, and also are cases of free fishery, which is not founded on the right of soil, and are therefore not hostile to our positions. That much confusion has arisen from the inaccuracy in the books, in confounding free and several fisheries. The plain r-ule to be ex- tracted from the books is, that while the soil of the sea &c. re-' mains in the king, the people have a common right of fishing, not &, jus publtium, which is only applicable to highways. There the jus privatum of the subject is charged with the jus publicum, which does not belong to the king only, but to his subjects, and cannot be taken away without prostration of liberty. The right of fishery is different, and may be compared to the right of com- mon, which exists until an appropriation of the thing in common, and then ceases. \ That the only sound distinction between the right of fishery in navigable rivers and rivers not navigable is, that in the latter it must belong to a citizen, and in the former, prima facie, it is in the king, and so long as it remains in him it is public and common. The right of free fishery is a royal franchise, but the right of several fishery is not, and this distinction destroys the whole of the adverse argument. The right of several fishery is a right by reason of, and in concomitance with the land, and founded on, and annexed to it, and when the soil of a navigable river is parted with, the right of several fishery begins. A free fishery is a royal franchise in the hands of the subject, founded SEW JERSEY SUPREME COURT. Arnold v. Mundy. on grant or prescription from the king, distinct from the land. The king still retains the right of propriety in the soil, but parts only with the right of fishery. If this distinction is well founded, then the section of Magna Charta, on which the defendant re- lies, applies only to free fisheries, and not to several. Slack. and Cruise both confine it to free fisheries. But Magna Charta, so far as regards this subject, is repealed : so says the Mirror, Coke, &c. If not, it does not apply here ; it was local, and there- fore could not be of authority here. That although we brought over the great principles of the English liberty contained in what is called the folk law, it was never supposed that the mere statutes (which this part of the Magna Charta is) applied here; they were local, and it might as well be said, the game laws &c. applied. That the 16th chap, of Magna Charta, on which Blackstone founds his pobition, that since the reign of Henry II. the king could not grant a free fishery, was wholly misunderstood. That by putting rivers in defence, was meant merely barring fishing or fowling in a river, fresh or salt, till the king had taken his pleasure of the writ de defensione reparie. Harg. L. T. 7. That neither the proprietors nor colonists ever supposed that the chapters of Magna Charta applied; for in the grants and concessions they secured all the essential rights of a free man, and enacted statutes placing the rights and liberties of the citi- zen on a more rational and secure basis than any part of Magna Charta. It was not true, that the citizens of New Jersey held their rights nnder Magna Charta as such. The grants and con- cessions, and the bill of rights of 1698, 1695, contains the prin- ciples of civil and religious liberty better defined and more broadly based than any thing to be found in the British consti- tution. In these the settlers contract also, that they shall have lands for keys, wharfs, and harbours, and also free passage through or by any sea, sounds, rivers, &c. from the ocean. The settlers found the proprietors in possession of an extensive country, and they purchased under them, and cannot now turn round and deny their title, which would be like a tenant denying the title of his landlord. The proprietors not only held under the grant from the duke of York, but they bought the title of the Indians, which some suppose the better title. Again by the principles of the common law, the king held NOVEMBER TERM, 1821. Arnold v. Mundy. the soil of navigable rivers in full propriety. "He could grant that as well as the land. If restrained at all, it must be by Magna Charta, chap. 16, Henry II. which was repealed, did not apply, or did not extend to new discovered countries out of the domin- ions of England. 2. That the king did not grant the right of several fishery. This state was originally granted by patent, dated 1606, by king James to Sir Thomas Gates and others, which patent also included Virginia, Maryland, Pennsylvania, New York and the New England states, and was repealed in 1623. It was again granted, in 1664, by king Charles, to the duke of York. At this time the eastern part of New Jersey was in possession of the Dutch, and before' this grant was known here, the royal gov- ernor, Nicholls, conquered it from the Dutch. Although it was held under the king from that time, yet it was not formally ceded to him until the treaty of Breda in 1667, and the grant of 1682 was no doubt made to obviate the doubts that well might arise, whether, by the conquest of 1664, the title did not revest in the king. And the assembly, in 1682, resolved that the land and government were purchased together, and that the concessions were agreed on as fundamental, and the ground of the govern- ment of New Jersey. He granted the rights of sovereignty to the proprietors, as well as the lands, rivers, soils, waters, and fishings within certain bounds. It was not neceesary that he should use the term several fishery, because the same was granted ex vi termini by either of those terms. He declared by the grant, that it should be good and effectual in the law, notwithstanding any act, statute, or restriction to the contrary. If then the eastern part of New Jersey was acquired by con- quest from the Dutch, and it was thought necessary to validate the grant of 1664, made before the conquest, by the grant of 1682, made after; according to the doctrine of Blackstone, Holt, and Tucker, he might impose his own laws. If he might impose his own laws, he might delegate the right of making laws, and did so with only one restriction. "Wherever the king intended to restrict the right of fishing in proprietary grants, he did it, as in the grant of Maryland. That this is a cotemporaneous exposi- tion by the great lawyers of the day, who were the constitutional advisers of the king, and who inspected these grants. That by the surrender, the rights of sovereignty and govern- NEW JERSEY SUPREME COURT. Arnold v. Mundy. ment, and the incidents thereunto, passed. That it is to be taken in connection with the treaty preceding it, in which it is said, that the rights accruing to the proprietors from the seas adjacent, could not be well circumscribed. The right of free fishery passed as an incident to sovereignty in the seas adjacent, which were not granted to the proprietors by the grant of soil, but as annexed to the government. The grant bounds them on the east by the main sea, and on the south by the ocean. But, as sovereign, their right extended to three leagues. This right passed on the surrender to the crown, and by the Declaration of Independence vested in the people of New Jersey, as sove- reign, together with the rights of free fishery, which now can only be granted by the sovereign power. In conclusion it was argued, that the right of the soil re- mained in the proprietors, and, when they granted the soil, they ipso facto granted the several fishery, and therefore it is of no consequence to the plaintiff whether he derives his title under the Sonman's survey in 1685, or the survey in 1818. The counsel referred to the doctrines in our sister states, as strengthening the view they had taken of the subject, and also to the fisheries on the Delaware. In Connecticut, Pennsylvania, and Massachu- setts, it is held that the right of fishery is annexed to the soil, and may be granted. It was lastly argued, that in this case, the fishery claimed by the plaintiff was a local one, and that the plaintiff's claim was strengthened by the act of planting the oysters. The cases here- tofore decided in New Jersey, no way reached the present, and it was entirely open. They cited 1 Con. II. 382. Davis' Hep. 150, &c. 2 Slack. Com. 199, 261, &c. 18, 39. 2 Bin. 476. 1 Mod. 107. 1 Slack. Com. 299. 5 Rep. 107. 4 Bur. 2164. 5 Bur. 2814. 3 Jac. L. D. 62, 32, Constable's case. 6 Com. Dig. Prerogative 55. 3 Caine's Rep. Hargrave 17, 19, 5, 18, 22, 10, 14, 9, 20, 21, 33, 34, 11, 36, 26, 7, 31, 32. Salk. 666. 10 Mass. T. R. 212. Learning & Spicer 163, art. 19, 258, 3, 373, 5, 4, 23, 589, 594, 590, 595, 14, 15, 153, 368, 371, 2, 20, 7, 614. 4 Mass. R. 144, 527. 2 Johnson 357. Smith's Hist'. N. J. 62, 67, 168, 163, 8, 1 Swift 341. Tucker's Black. 395. 1 Har- ris & M 'Henry 564. KIRKPATRICK C. J. Abating a little want of courteousness towards the memory of some of the greatest luminaries of the NOVEMBER TERM, 1821. Arnold v. Mundy. English law, and indeed I may say, some of the greatest men that ever lived, I have been much gratified by the arguments presented by the counsel in this cause. They have investigated the subject with great care, and great ability, and they have certainly thrown much new light upon the view in which it had before exhibited itself to my mind. The principal question, however, which it presents, and which is now to be determined, is a new question ; it has never before come up before the courts of justice in this shape, and in this direct manner, since the first settlement of the province. It is a question of great importance; it involves immense interests; it lies at the foundation of all the rights of fishery hitherto claimed or exercised in the state of New Jersey. That such a question cannot be ultimately decided, or even beneficially discussed, in hastily rendering an opinion upon a motion for a nonsuit at a circuit court, must be manifest to all; and yet, at the same time, what might be said upon it might prove to be exceedingly injurious, by exciting false hopes or false fears, by encouraging those who claim a common right to make unlawful aggressions, or those who claim several rights to make unlawful defences, and in their conflict for superiority, for awhile, not only to disturb the peace of society but also to destroy the very subject matter of controversy! If it were possible, therefore, to avoid the expression of an opinion at present, and to take a verdict for the damages only, subject to the opinion of the court at bar upon the title, and that too, with leave to either party to put the case in such form as that it might be carried up to the court of appeals, as is sometimes done, it would be exceedingly agreeable to me. This, however, I know can be done only by the consent and agreement of the parties, and it is with that view I propose it, and with that view would beg leave to submit it to their consideration. [The defendant declined the proposition, and called for the opinion of the court, when I proceeded.] Constrained, as I am, to render an opinion in this hasty man- ner, I shall merely state my present views of the right which the plaintiff has exhibited, as concisely as I am able, and that without recurring either to books or arguments to support them. The action is for a trespass in entering upon the plaintiff's oyster bed, and taking and carrying away his oysters. To sup- 10 NEW JERSEY SUPEEME COUET. Arnold v. Mundy. port this action, the plaintiff must shew a title in himself. This title, in ordinary cases, may be either a fee simple, or a posses- sion accompanied by right, without a fee simple or an actual and exclusive possession, without either the fee simple or the right, for such possession is good against all the world, till a better right is shewn. To make out this title, the plaintiff has attempted to shew 1. In the first place, an actual and exclusive possession. 2. In the second place, a possession accompanied by right. 3. In the third place, a fee simple under the proprietors of New Jersey. As to the first and second of these, they are no other way proved than by showing the conveyance for, and the possession of, certain lands upon the shore opposite to this bed, extending, to make the most of it, to low water mark only; and by shewing further, the staking off the said bed, the planting of oysters upon it, and sometimes fishing there, as other people, also, sometimes did. Upon this I observe, that a grant of land to a subject or citi- zen, bounded upon a fresh water stream or river, where the tide neither ebbs nor flows, extends to the middle of the channel of such river; but that a grant bounded upon a navigable river, or other water, where the tide does ebb or flow, extends to the edge of the water only, that is to say, to high water mark, when the tide is high, and to low water mark, when the tide is low, but it extends no farther. The intermediate space, however, between the high water and low water mark, may be exclusively appropriated by the owner of the adjacent land, by building thereon docks, wharves, storehouses, salt-pans, or other structures which exclude the reflow of the water. All pretence of claim, therefore, to this bed, founded upon the possession of the adjacent land, must fail. And if the plaintiff would set up a possession founded upon another right, that is, upon his staking off the bed, planting oysters upon it, and sometimes fishing there, even if it were a subject matter which could be taken possession of in that way, that possession has not been proved to be either so continued or so exclusive as to estab- lish his right against those having equal claim with himself. He sets up no prescription ; he shews no grant to support such pos- session. He places himself in the situation of a fisherman, who, because he has fished in certain waters for many years, should claim the exclusive possession and the exclusive right. NOVEMBEE TEEM, 1821. 11 Arnold v. Mundy. Then, as to the title derived from the proprietors. And first of the form of their conveyance; and then of their right to convey. 1. The proprietors of New Jersey are tenants in common of the soil; their mode of severing this common right is, by issuing warrants, from time to time, to the respective proprietors, ac- cording to their respective and several rights, authorizing them to survey and appropriate in severalty the quantities therein contained. Such warrant does not convey a title to the proprie- tor; he had that before. It only authorizes him to sever so much from the common stock, and operates as a release to tes- tify such severance. This is manifestly the case, when the pro- prietor locates for himself. When, instead of locating for himself, he sells his warrant to another, that other becomes a tenant in common with all the proprietors pro tanto, and in the same man- ner he proceeds to convert his common, into a several right. Eegularly there is a deed of conveyance upon the transfer of this warrant, and that deed of conveyance is the foundation of the title of the transferee. It is true, that the survey made in pursuance of this warrant must be inspected by the surveyor general, approved by the board, and registered in their books; but all this is for the sake of security, order, and regularity only, and is by no means the passing of the title. It proves the title has passed, but it is not the means of passing it. It may be likened to the acknowledg- ment of a deed by a married woman. Her deed cannot prevail against her unless such acknowledgment be regularly made and recorded; yet such acknowledgment does not pass the title, the deed has already done that, and it operates from the day of its date. Upon this exception to the plaintiff' & title, therefore, I think the defendant must fail. In this case, the warrant and the survey were before the trespass charged, but the recording of it was said to be after. The date of the recording was not mentioned on the record. 2. Then as to the right of the proprietors to convey. And upon this I am of opinion, that by the law of nature, which is the only true foundation of all the social rights, that by the civil law, which formerly governed almost all the civilized world, and which is still the foundation of the polity of almost every nation in Europe; that by the common law of England, of which our 12 NEW JERSEY SUPREME COURT. Arnold v. Mundy. ancestors boasted, and to which it were well if ourselves paid a more sacred regard;^ I say I am of opinion, that, by all these, the navigable rivers, where the tide ebbs and flows, the ports, the ba3 - s, the coasts of the sea, including both the water and tho land under the water, for the purposes .of passing and repassing, navigation, fishing, fowling, sustenance, ajid all the other uses of the water and its products (a few things which belonged to the king in his private right, and for his own use only exceptcd) arc common to all the people, and that each has a right to use them according to his pleasure, subject only to the laws which regulate that use: that the property indeed vests in the sovereign, but it vests in him for the sake of order and protection, and not for his own use, but for the use of the citizen ; in the same sense in which he holds all the public property and the domains of the crown, that the proceeds thereof may be collected into the public treasury, and applied to the public benefit and the public defence, and that he may have the direct, immediate, uncontrolled enjoy- ment of them. I am of opinion, that this great principle of common law, in process of time, was gradually encroached upon and broken down ; that the powerful barons, in some instances, appropriated to themselves those common rights; that the kings also in some instances during the same period, granted them out to their cour- tiers and favourites; and that these seizures and these royal favours are the ground of all the several fisheries in England, now claimed either by prescription or grant; that the great charter, as it is commonly called, which was nothing but a restoration of common law rights, though it did not annul what had been thus tortiously done, yet restored again the principles of the common law in this, as well as in many other respects; and that since that time no king of England has had the power of granting away those common rights, and thereby depriving the people of the enjoyment of them. I am of opinion, that when Charles II. took possession of thid country, by his right of discovery, ho took possession of it in his sovereign capacity; that he had the same right in it, and the same power over it, as he had in and over his other dominions, and no more; that this right consisted in granting tho soil to private persons, for the purposes of settlement and colonization, of estab- lishing a government, of supporting a governor, of conveying NOVEMBER TERM, 1821. 13 Arnold v. Mundy. to him all those things appurtenant to the sovereignty, com- monly called royalties, for the benefit of the colonists, who came over here clothed with all the essential rights and privileges secured to the subject by the British constitution; but that he could not, nor never did, so grant them as to convert them into private property ; that those royalties, therefore, of which those rivers, ports, bays, and coasts were part, by the grant of king Charles, passed to the duke of York, as the governor of the province, exei-cising the royal authority, for the public benefit, and not as the proprietor of the soil, and for his own use ; that they passed from the duke of York to his grantees, and upon the surrender of the government, and as appurtenant thereto, and inseparable therefrom, reverted to the crown of England. And I am of opinion further, that, upon the Revolution, all those royal rights vested in the people of New Jersey, as the sovereign of the country, and are now in their hands; and that they, having themselves both the legal estate and the usufruct, may make such disposition of them, and such regulation con- cerning them as they may think fit ; that this power of disposi- tion and regulation can be exercised only by the legislative body, who are the representatives of. the people for this purpose ; that in the exercise thereof they may lawfully bank off the water of those rivers, ports, and bays, and reclaim the land upon the shores; the}- may build dams, locks, and bridges for the improve- ment of the navigation and the ease of passage; they may clear out and improve fishing places to increase the product of the fishery ; they may create, improve, and enlarge oyster beds, by planting oysters thereon, in order to procure a more ample sup- ply ; they may do all this themselves at the public expense, or they may authorize others to do it by their own labour, and at their own cost, giving them reasonable tolls, rents, profits, or exclusive enjoyments; but that they cannot make a direct and absolute grant, divesting all the citizens of their common right; such a grant, or a law authorizing such a grant, would be con- trary to the great principles of our constitution, and never could be borne by a free people. These principles I take to be capable of the clearest demonstration. The proprietors, except in a few instances, made probably for the sake of experiment only, have, in their practice, recognized those principles, and the people have uniformly and uninterruptedly enjoyed the correspond- 14 NEW JERSEY SUPREME COURT. Arnold v. Mundy. ing rights, from the first settlement of the colony down to this day, subject only to such regulation and such restraint as the legislature has thought just and right. From this short statement, it is seen that, in my opinion, the proprietors, as such, never had, since the surrender of the gov- ernment, any right to, interest in, or power over, those waters, or the land covered by them ; and that, therefore, the grant in question is void, and cannot prevail for the benefit of the plain- tiff. And, upon this view of the subject, I am constrained to say The plaintiff must be called. Upon the coming in of the Posted, the plaintiff's counsel ob- tained a rule to shew cause why the nonsuit should not be set aside and a new trial granted. This motion was argued in May term, 1821. Wall, in support of the motion. This action is brought for a trespass for entering on the plaintiff's soil, and taking and carry- ing away a quantity of oysters claimed to be his. It appears, by the evidence, that the plaintiff claims title under 1. A grant from the proprietors, dated 20th January, 1685, to one Sonmans, bounding him on the Rariton river; and the sub- sequent grants under Sonmans, bounding on low water mark. 2. Under a grant from the proprietors, dated 10th April, 1818, including, by metes and bounds, the very place on which the trespass was proved to have been committed. 3. From the act of planting the oysters in question, by his. own care and industry. At the trial of this cause before the Middlesex circuit, in December, 1819, the plaintiff was nonsuited by order of his honour the Chief Justice, and the object of the present appli- cation is to set aside the nonsuit and obtain a new trial. In the discussion of this application, I do not consider it neces- sary to spend any time in directing the attention of the court to the language of the grants under which the plaintiff claims, nor to tho effect, or diversity, between the two grants, the one bounding on the river, and the other ex vi termini, including the very locus in question. Assuming, what appears to mo alto- gether incapable of being denied, that if soil covered with water is capable of grant, then that the plaintiff in this case, under one or both of his titles, may well claim the locus. NOYEMBEE TEEM, 1821. 15 Arnold v. Mundy. Passing by, then for the present, all examination of the evi- dence, respecting which there is little or no dispute, 1 shall con- tend, that the nonsuit in this case ought to be set aside, and a new trial awarded. 1. Because the plaintiff' had a right of several fishery in this oystery, either for 1. Floating fish, or general, exclusive, and several fishery. 2. Or a right to a local fishery. 2. Because, by purchasing or gathering the oysters, depositing them on the premises, and staking them out, he acquired such a right to them as would entitle him to an action against any per- son who should take them without his leave. 1. In endeavoring to establish the first proposition, it will be necessary to investigate 1. The right of property to the soil of navigable rivers at common law, and to inquire, whether it waa the subject of grant. 2. The right of property to the soil of navi- gable rivers in New Jersey, and whether it is the subject of grant. 3. Whether by the grant of the soil of navigable rivers the right of several fishery passes, as inseparable. 1. The great principle of the common law of England is, to assign an owner to every thing capable of ownership, and what- ever hath no other owner is vested by law in the king. 1 Black. 298-9. 2 Black. 15, 261-2. By the English law, or constitution, all land is supposed to have been the property of the king, at some time, and to be held mediately or immediately of him. 6 Com. Dig. 60 (D 63). This is said to be derived from the feudal system. 1 Black. 264. The common law has also assigned the ownership of navigable rivers, of arms of the sea, and even of the mare clausum, to the king. The king hath the sole interest in the soil of navigable rivers, and in the fisheries thereof. Davies 155. The king has the property tarn aquce, quam soli, and all profits in the sea, and all navigable rivers. 5 Com. Dig. 102 (A, .3). The king is the owner of the sea and soil. Har. L. T. 10, 11, 14, 17, 18. 5 Coke, Constable's case 107. 7 Coke 18. 2 Black. 261. The sea is the proper inheritance of the king. Davies 152. This doctrine of the common law is in perfect accordance with the law of nature and of nations. Every nation, by the law. of nature and of nations, is the proprietor of the rivers, as well as soil, within its territorial limits. 1 Rutherf. 91, sec. 111. Vattel 120, sec. 266. By the same law, the sea itself, to a certain 16 NEW JEKSEY SUPKEME COURT. Arnold v. Mundy. extent and for certain purposes, may be appropriated and become exclusive property, as well as the land. Vattel 127, sec. 287. Ib. 125, sec. 278. Whether the soil and rivers thus belonging to a nation, or any and what part of it shall be enjoyed in common by all her citizens, or whether it shall be appropriated to the exclusive use of individuals? and if so appropriated, by whom such appropriation shall be made? are questions which depend on the will of the nation herself, as declared in her constitu- tion and laws. The nation being the sole mistress of the prop- erty in her possession, may dispose of it as she thinks proper. Vattel 116, sec. 257. She may dispose of what is common to all the citizens. Ib. 116, sec. 258. Or she may confer the right on the sovereign. Ib. 117, sec. 261. In that case, he becomes the organ of the nation. Ib. 118, sec. 262. By the English law, or constitution, the right of disposing of the public domains is vested exclusively in the king; and he had, until long after the reign of Charles II. the right of alienating them for ever. 1 Slack. 286. 3 Cruise 14, sec. 5. Ib. 565, sec. 16. He may also grant the soil of navigable rivers; and he may grant a free fishery without the soil. Har. L. T. 15,17, 18, 19, 21, 22, 32, 33, 34, 56. 6 Com. Dig. 60 (D 611). 4 Bur. 2163. Dames 150. These authorities also prove that a subject may prescribe for a free or several fishery in navigable rivers and arms of the sea. A prescription cannot be for what may not be granted. 2 Black. 265. 7 Coke 18. From these authorities, it abundantly appears, that, by the principles of the common law, a subject may have a right of soil, and also a right of fishery, in navigable rivers and arms of the sea, by grant or prescription. No case oi pure unmixed common law origin can bo produced against these positions. The case in Bracton is evidently borrowed from the civil law, and ho quotes the very language of the Justinian code. In Davies 150, it is expressly denied to be the doctrine of the common law. This case, in Davies, is also recognized as good authority by Justice Yates, in 4 Bur. 2165, and by Chief Justice Kent, in 3 Caines 318. And Lord Hale's treatise, in Har. L. T. who lays down the law in accordance with Davies, is cited with approbation, and recognized as sound law by Chief Justice Spencer. 17 John. 209. Indeed, nothing can be more variant than the civil and common law on the subject of aquatic and riparian rights. By NOVEMBER TERM, 1821. 17 Arnold v. Mundy. the civil law, every citizen has the right to use the land of another, on the banks of navigable rivers, for towing. The com- mon law denies that right. 3 Term Rep. 253. 17 John. 209. The grant from king Charles II. to William Penn, of our sis- ter state of Pennsylvania, grants the soil and rivers, and fisheries within its limits. Chief Justice Tilghman, (2 Bin. 476; expressly holds, that by this grant he became entitled to the fisheries. And a similar principle is recognized, (4 Mass. 140 ; 17 John. 203) as to the right of the people to grant, by express words. Even in England, then, it may be fairly concluded, from a care- ful examination of the cases cited, that the king could lawfully grant the soil of navigable rivers and arms of the sea to a sub- ject, and that it might be held either by grant or prescription, which always presupposes a grant. 2. Could the king grant the right of soil to the navigable riv- ers in New Jersey, and did he grant it? This opens a singular discussion, at this day, in New Jersey, when it is a fact, proved in the deduction of all the titles in New Jersey, that he did grant the lands; and that every foot of land now held by a freeman in New Jersey is traced up to the grant of the king. What had become mere fiction in England is an undisputed fact here. All lands in New Jersey were held immediately of the king. He granted this, as well as all the other colonies, as whim, caprice, favour, or avarice dictated. They were considered as his private domains, and were held and granted as such. This doc- trine is not varied by proving, that the king became entitled to the lands and rivers in this, then howling wilderness, in virtue of his prerogative; that he held them jura coronal. If so, still, by the law of England, he was the organ of tne nation to alienate them ; and admitting, (what is altogether denied) that by the conquest, or discovery, of this country, the people of England became entitled to a common right of fishery in the navigable rivers, arms of the sea, and seas of this extensive territory, yet it has been already proved, that, by the common law of England, as well as the law of nature and nations, the king, as the organ of the nation, might grant them in propriety to an individual, and thus destroy the right of the people; and that his grant would be binding on the people. It is of no importance, as to the validity or effect of the grant he did make, whether he derived his title to this country from discovery or conquest. In either case, VOL. I. B 18 NEW JERSEY SUPREME COURT. Arnold v. Mundy. it vested in him in absolute propriety, and, by the laws and con- stitution of England, he was authorized to alienate it, as he saw proper, without reference to the good of the people, or the will of parliament. He would have had this right on the general principles of national law. Vat. 101, sec. 210. His grants, even of the common rights of his subjects, would bo binding on them ; and, if so, how much more binding will it be on those who come in under the very grant, and have recognized it. It is to be re- membered, that this is not a question between the people of England, claiming that their agent or organ had exceeded his powers, but it is a question raised by those who derive their right to the soil, and, of course, to the participation of the rights founded on it under the very grant which is now sought to be circumscribed or destroyed. It is a matter not clearly settled, how the king acquired his right to this country. Blackstone, 1 Com. 108, supposes that he obtained it by treaties, or the right of conquest. Smith, in his Hist, of N. J. 8, insists that it was acquired by the right of dis- covery. The right, however derived, was strengthened by the purchase of the Indian title, which was made by the proprietors. The king of England very early exercised the right of granting this country. In 1606, king James I. granted this province, to- gether with Virginia &c. by patent, to Sir Thomas Gates and others. Smith's Hist. N. J. 17. This patent was repealed in 1623. It remained in the crown until March 12, 1664, when king Charles II. granted it to his brother, the duke of York. Smith's Hist. N. J. 59. On June 24, 1664, the duke of York granted it to Sir George Carterot and Lord Berkley. At the date of this grant, the eastern part of Now Jersey was in pos- session of the Dutch, who had made considerable settlements in Bergen, Essex, Middlesex, Monmouth, and Somerset. In Au- gust, 1664, before the last mentioned grants were known here, ^Colonel Nicholls, the royal governor of New York, conquered it, together with the fort on the Delaware, at Newcastle, from the Dutch. Smith, in his Hist. N. York 29, 30, 31, says, it was re-conquered by the Dutch, in 1673, and given up by the peace of 1674. This is somewhat doubtful. Captain Philip Carteret, the first proprietary governor, with the first settlers under Car- teret and Berkley, arrived in New Jersey in the summer of 1665, and, by the treaty of Breda, in 1667, New Jersey was form- NOVEMBER TEEM, 1821. 19 Arnold v. Mundy. ally ceded, by the Dutch, to the king of England. This gave rise to the subsequent grant, made on the 29th July, 1674, by the king to the duke of York, and by the duke to Berkley and Carteret. Learning & Spicer 41 to 50. Smith's Hist. N. York 32. This grant is to receive a liberal construction in favor of the grantees. It contains the words "certain knowledge, "mere motion," and "special grace," and it purports to be made for a valuable consideration. 3 Cruise 567, sec. 11, 12. The words of the grant, also, are very broad and comprehensive "All the lands, islands, soils, rivers, harbours, waters, fishings, &c." Learn- ing & Spicer 4. These words are technically apt to pass, as well the soil of the rivers as the fisheries. 2 Black. 18, Har. L. T. 18, 33. Dav. 150. 5 Com. Dig. (D 290). It is abundantly mani- fest from the cotemporaneous history of England, that this grant and charter, as well as all other grants and charters of the Amer- ican provinces, were framed with great deliberation ; wei-e sub- mitted to the law officers of the crown, and every word well weighed and understood. By looking at other grants, it will appear, that when the king meant to reserve the right of fishery he did it by express words. It is so in the grant of Maryland to Lord Baltimore, 1 Har. tfc M'Hen. 564. These charters and grants are great state papers; and considering them as such, and referring to the situation of England at the time, this idea is strengthened. The policy of the crown, as well as that of the English nation at that time, was to people America as rapidly as possible. It is obvious, that these grants of immense territories were designed not merely for the benefit of favourites, but to fos- ter, promote, and encourage the settlement of the country. Hence the king not only granted the territory in the most ample and compi-ebensive terms, so as not only to divest himself and the people of England of all propriety in the soil and rivers, but also the right of sovereignty and of slf-government, unrestricted in all particulars, so that they be not contrary to the laws of Eng- land, but, as near as may be, conformable thereto. At this time it was well known that much discontent prevailed in England among those who considered themselves persecuted for their religious opinions; and the spirit of liberty, which had destroyed the sceptre of Charles I. and brought him to the block, was not wholly extinguished by the restoration of his son. There were still many gallant and patriotic Englishmen who cherished 20 NEW JERSEY SUPEEAIE COURT. Arnold v. Mundy. the sacred flame of liberty, and who viewed the prerogative of the crown, in the hands of the Stuart dynasty, as dangerous to the rights of the people; and who detested the licentious and tyrannical conduct of one brother, and dreaded the religious bigotry of the other. Admonished by the fate of their father, these royal brothers might wish to avoid it, and instead of repressing the spirit of emigration which had then seized those who were remarkable for boldness, enterprize, and attachment to civil and religious liberty, they might have had the wisdom to hold out inducements to the Hampdens and Crom wells, if any still remained, to seek their fortunes in the wilds of America, and there create new theatres for action. The grant to the duke of York (Learning & Spicer 6) not only contains the most ample cession of the domain and sovereignty of the country, but gives him the right of interdicting any per- sons from settling that he may see proper. The grant from the duke to Berkley and Carteret is as full and ample as the grant to him, except as to territorial limits. There can be no question, that, at that period, no one in England seriously supposed that this grant violated the rights of the subject, or transcended the prerogative of the king. It was not supposed, that a subject of England, as such, could claim a right in New Jersey, hostile to the grant made by the king. Could he have set up the pretences of the adverse counsel, that the king held the colony merely as trustee for the people, and that a grant made to an individual without consideration, and for favouritism, was void? Could ho have set up the common right of fishery, as an unalienable right, vested in the king for great public purposes? and, as one of the people of England, made good his claim to the waters of this wilderness. The very laws upon which his claim must be based had already sanctioned the cession and grant of this country to individuals. It was no longer the property of the nation ; their lawful agent had alienated it. It is manifest that our ancestors, who, I may venture to assert, felt as ardent a love of liberty, and understood their rights as Englishmen, as well, at least, as many who prate about the rights of the people, and common right, and other imposing terms, had no such opinion. These men, whose love of civil and religious liberty, led them to abandon the delights of civilized life, the tombs of their ancestors, and all those endearing ties which bind NOVEMBER TERM, 1821. 21 Arnold v. Mundy. man to the place of his birth to encounter the privations, hard ships, and dangers of settling a wilderness, peopled only by sav- ages, knew well the rights, the powers, and privileges of the proprietors, under these grants. Before crossing the Atlantic, they ascertain the terms upon which they will be permitted to settle under the proprietors. The grants and concessions, dated 10th February, 1664, is the Magna Cfiarta of New Jersey, and therein the settlers stipulate for a representative government; a free passage to or through any seas; lands for wharves } keys, har- bours, &c. and that they shall not be liable for trespasses on waste lands. Smith's Hist. JV. J. 163. Learning & Spicer 20, 25, sees. 3, 6, 8. In 1682, the colonial legislature resolved, that the gov- ernment and laws of New Jersey were purchased together. Smith's Hist. N. J. 163. In 1683, they published their funda- mental rights; (76.153) and, in 1698, they re-published them, containing a proviso, that nothing therein contained should infringe any grant or charter already granted. The first settlers made their own terms, and when we find them treating for the right of navigation, and of harbours, &c., which are part of the jus publicum, upon the principles of all laws, and securing them by contract, and silent as to the right of fishery, it furnishes a strong argument in favour of our position, the more especially, as their brethren of West Jersey, deriving under the same grant, actually stipulate for the right of common fishery. Learning & Spicer 390. In 1676, Lord Berkley sold his moiety of New Jersey; and in 1682 the executors of Sir George Carteret sold his moiety. In 1685, the duke of York, to whom the grant had been made, became king. At that time, the province, having passed out of the possession of the courtiers and favourites, and increased very rapidly in population and wealth, became an object of jealousy to the government at home, and many pretexts were used to resume the government. Smith's Hist. _ZV. J. 65. It is to be remarked, however, that even then it was never suggested, by those who were fertile in devices to avoid charters and patents, that the king had transcended his prerogative in making the grant. It was then pretended by the adherents of the crown, as our adversaries now argue, (and indeed it is the main pillar of their argument) that the right of government, although lawfully conveyed to the duke of York, could not be alienated by him NEW JERSEY SUPREME* COURT. Arnold v. Mnndy. or bis alienees. Smith's Hist. N. J. 570. Then that doctrine was supposed to partake of the arbitrary nature of the Stuart prerog- ative, and to be hostile to the interests of the people. Hence it was resisted by the people then inhabiting here, and gave rise to the resolutions of 1682, 1683, and 1698, already quoted, in which the rights of the proprietors are distinctly asserted. It is a singular position, that our ancestors coming here under an ex- press recognition of the rights of the proprietors under the grant to the duke of York, and purchasing part of the very lands passed thereby, could destroy or circumscribe the rights of those under whom they held. It would be analogous to a tenant deny- ing the right of his landlord. 3. Having established, as is submitted, that on the principles of the common law the king could grant the soils, rivers, lands, and fisheries within New Jersey, and that, by express words, he did grant them to those under whom the proprietors claim title, it remains to shew, that as owners of the rivers and soils, inde- pendent of the grant of the fishings, the proprietors became entitled to a several fishery. Fresh waters belong, in propriety, to the owners of the soil on each side. Har. L. T. 5, 7. 2 Black. 261. Dav. 152. 4 Bur. 2162. This doctrine is recognized by Chief Justice Kent, in 3 Caines 319, and by Chief Justice Spencer, in 17 John. 209. In these rivers, the right of fishing is annexed to the soil, and passes by a grant of it, and is recovered by the description of land covered with water. Har.L.T.S,!. The distinction in the books between salt water rivers, navigable rivers, and rivers in which the tide ebbs and flows, and fresh water rivers not navigable rivers, and rivers in which the tide does not ebb and flow, for they are differ- ent expressions for the same thing, is local, and arises altogether from the nature of the rivers in England. There all their rivers, * BO far as the tide ebbs and flows, are salt, and so far navigable; and those in which the tide does not ebb and flow are fresh, and not navigable. 2 Con. Rep. 4. 2 Bin. 476. That is not so here. The Delaware, Susquehanna, Schuylkill, &c. and in fact all our great rivers, are navigable beyond the influence of the tide and the salt waters. The doctrine there was founded on the nature, extent, and situation of their rivers, and adapted to it ; and the grant of lands on salt water rivers, bounding on the river, carried only to low water mark. In fresh water rivers, the same words NOVEMBER TERM, 1821. 23 Arnold v. Mundy. in a grant would carry to thefilum aquce. This was the rule of construction. But even in salt water rivers, the grant by the king, of the soil&c. conveyed also the right of fishery as an incident. In this sense is to be understood Har. L. T. 11, 15; 4 Bur. 2163; 3 Jac. L. D. 82. If the distinction in the English books on this subject is local, it may be questioned whether it applies here. Our ancestors, on emigrating, did not bring with them the whole body of the common law, as well that establishing general prin- ciples applicable to a new country, as that founded on the pecu- liar state of the country from which they came. They brought the common law purified from its local dross. Every thing of a mere local origin was left on the other side of the ocean, and we have gradually substituted in its place a local common law of our own. Our ancestors brought the folk law merely, as contradis- tinguished from the jus coronce and the local common law of Eng- land. Besides they settled this country under royal charters defining their rights, or under grants made to individuals, which, in many respects varied from the principles of the common law, as in this very grant of New Jersey the king parted with many of his prerogative rights as to harbours, ports, rivers, &c. By the grant of the soil of a navigable river, on the admitted principles of the common law, a right of several fishery passes. Har. L. T. 5, 7, 15, 33, 34. 2 Black. 39. 4 Bur. 2163. 5 Com. Dig. Pischary. A right of several fishery is in concomitance with, and founded on, the right of soil, and is co-extensive with it ; and whoever has the right of soil in a navigable water has, also, the right of several fishery. Under the grant from the proprietors, offered in evidence, the plaintiff acquired a right of several fishery generally, and without limitation, co-extensive with his right of soil. 2. But if he did not acquire a right of several fishery for float- ing fish, he acquired a right to erect a local fishery, or an o} T stery, within the limits of his grant, and was entitled to recover for an infringement of that right. Har. L. T. 18 to 23. 4 Mass. 527. This doctrine is supported by decisions in our sister states. 1 Swift. 341-2. 4 Mass. 527. 10 Mass. 210. 2 Bin. 475. The right of several fishery exists in New Jersey, in the Dela- ware and other navigable streams, and this right has been sanc- tioned by a decision of Chief Justice Kinsey, at the Gloucester circuit. It is recognized and protected by various acts of the 24 NEW JEESEY SUPEEME COUET. Arnold v. Mundy. legislature. The fisheries are taxed as private property, distinct from the land, and above a hundred are now enjoyed on the Delaware. It also exists in Pennsylvania, on the shores of Sta- ten Island, in Virginia, Maryland, &c. This proves that there is a general local common law on this subject, pervading all the states where the waters afford sufficient inducements for the cmners of the banks to erect fisheries. Whenever the soil of a river is granted by express terms, or even constructively, it becomes, so far as regards the right of fishery, a private river, and the principles of the common law, as to private or fresh water rivers, attach. Whenever the soil of a river passes, by grant or otherwise, out of the hands of the sove- reign of the country, it becomes, ipso facto, a private river and the subject of a several fishery. How can rights, which are merely accessary, exist in the hands of the sovereign after he has parted with the principal! Several fishery is an incident to the soil; while it remains the property of the people the common law right of free and common fishery continues; but when the soil is sold or conveyed, the incident also passes. 1 Rutherf. 92. This doctrine is expressly asserted by the commissioners ap- pointed by this state to treat with New York respecting our eastern boundary. They were appointed by the legislature; re- ported their proceedings to the legislature ; and the legislature, by publishing their report at the public expense, and without comment, have adopted their reasoning; and it becomes, as well from that circumstance as from the great learning and talents of the commissioners themselves, entitled to very great weight in our tribunals. It fully supports this proposition. Report of Com- missioners 15. The proprietors, also, from a very early period down to the present time, have been in the practice of granting the soil of navigable rivers. On the trial, many such grunts were shewn, and they, at least, prove a cotemporaneous construction of the grant under which they held. While the rivers remain in the hands of the sovereignty of the country, the right of fishery therein is public and common ; when it is granted to an individ- ual, it becomes a several fisherj*. This is consistent with the doc- trine of the natural law, as laid down in Rutherf. 91. The jus publicum in all rivers is the same. The jus publicum is the right of navigation ; the right of making laws for the con- servation of fish and their fry; and to regulate the mode and NOVEMBER TERM, 1821. 25 Arnold v. Mundy. right of taking them. Har, L. T. 22, 23, 36. Lord Hale nowhere considers the right of fishery as a part of the jus publicum, prop- erly so called. This doctrine perfectly harmonizes private rights with public rights. It will here be necessary to anticipate some of the arguments of the counsel of the defendant, that they may be apprized of the answers that will be relied on. 1. It has been contended, and no doubt will be again, that the right of fishery is a royal franchise which the king holds for great public purposes, in trust for the benefit of the people, and cannot, from its very nature, be conveyed. The fallacy of this position consists in not distinguishing between the different kinds of fisheries. Fisheries are 1. Sev- eral. 2. Free. And 3. Common. 2 Black. 39. 1. The right of several fishery, as already shewn, is founded on, and annexed to, the soil, and is by reason of, and in concomitance with, the own- ership of the soil. "When the soil of a navigable river is granted the right of several fishery therein begins. 2. A free fishery is altogether different; it is a royal franchise, distinct from the land and founded on grant or prescription. By the grant of a free fishery, the right of fishery only passes, the right of soil remains in the king. 2 Cruise 297, sec. 70. 5 Com. Dig. 290. A free fish- ery separate from the soil, appropriating not the land but the fish- ery, might, on sound principles of policy, be prohibited in every well regulated government. If permitted, eveiy part of the Brit- ish channel might have been parcelled out among courtiers and favourites, and thus the ocean itself made tributary to the avar- ice of man. The right of several fishery, however, springing from, and connected with, the possession of the soil, stood on wholly different grounds. It gave an incentive to industry, and would benefit the public. The sound rational principle on which the distinction between the ownership of rivers navigable and not navigable rests, is, that, as to the latter, a subject must be the owner of it, and may be of the former, but prima facie it is in the king, and, until granted,- he holds it as the agent of the peo- ple and for their benefit; and it is public and subject to 3. The right of common of fishery. But this right of common of fishery continues only while the soil remains in the public. But there are not wanting authorities, among those already cited, to prove that the king may grant a free fishery. But the position now 26 NEW JEESEY SUPEEME COUET. Arnold v. Mundy. contended for is, that the authorities which deny the right of the king to grant a fishery in navigable waters, when properly understood, apply only to free fisheries, which is a royal franchise, and not to several fisheries. This distinction reconciles all the seeming contradictions in the books. 2. That the King was prohibited by Magna Charta from grant- ing a fishery. The 16th and 23d ch. of Magna Charta are relied on to sup- port this position. Ch. 17th is expressly stated by the Mirror to be obsolete. 3 Cruise 297. 1 Cok. Inst. 30, 37. 5 Jac. L. D. 4. This section is considered by Lord Hale (Har. L. T. 7, 8, 9) as designed to take away the right of the king in private rivers, an interest of pleasure or recreation, which he enjoyed by the writ de defensione riparian, that is, to put the rivers in defense, to bar fish- ing or fowling till the king had taken his pleasure. And that the 23d ch. applies to weirs, kidells, and obstructions. liar. L. T. 9, 22. This exposition agrees much better with the character of Magna Charta than Blackstone's. Magna Charta proceeded from a struggle between the barons, bold, turbulent, rapacious, and oppressive, and kings, weak, timid, and tyrannical. Let us not be the slaves of mere words. Whatever benefit has accrued to the liberties of the world from Magna Charta, has arisen more from chance than design. The barons armed themselves not to support the rights of the people, but to protect their own usurpations upon the rights of both monarch and people, and, in the collision between the two oppressors, some principles of lib- erty were struck out. It was a mere streamlet issuing, as if by a miracle, from the rock of tyranny, struck not by the arm of in- spired patriotism, but by a casual blow of the sword of the mailed baron, in the attempt to deck himself in the robes of royalty. But these chapters of Magna Charta are mere statutes, and it is held in Westminster-Hall, that none of the statutes of England, as such, applied to the colonies. 1 Salk. 666. 2 Ld. Ray. 1274. We hold not our liberties in this state by the provisions of Magna Charta. Every freeman, wherever his lot may bo cast, will turn to that instrument with pride and satisfaction, as a noble but rude and incomplete monument of the liberties of man. It is the corner-stone of the liberties of Englishmen, and the first land-mark in tracing out the liberties of the subject after the Norman usurpation. NOVEMBER TERM, 1821. 27 Arnold v. Mnndy. But the history of liberty in this state is happily not lost in tho recess of time. It is to be found in the grant from the king to the duke of York, and the grants and concessions between the proprietors and the settlers, and the bill of fundamental rights. Our ancestors stipulated for their own rights, and built up a great system of republican liberty, based on the natural rights of man and protected by representative government, in which they have interwoven all the essential principles of civil and religious lib- erty; I turn to it with pride and pleasure. Learning & Spicer 162-3, sees. 16, 19. Beside it, the much boasted Magna Charta of England dwindles to a twinkling star in the galaxy of freedom. It embodies every thing worthy of preservation in Magna Charta, and was the most perfect system of civil and religious liberty existing in the world at that period. It is the foundation of our present republican system, lopped of the overshadowing branches of royalty, but the trunk remains entire and vigorous. On it has been engrafted, the sovereignty of the people, equal laws and equal rights, and, to this day, the graft is nurtured by the sap and life-blood of the parent stock. These form the Magna Charta of New Jersey. To trace our liberties to Magna Charta may indeed gratify a feeling akin to that of pride of ancestry, but it is wholly deceptive. In all the struggles between the people and the pi-oprietors, on the one side, and the court party, on the other, during the proprietary government, and after the surren- der, between the people and the royal governors, it will be found that the patriots of the day constantly refer to the grants and concessions, and the fundamentals, as the basis of their rights. Learning & Spicer, passim. Indeed, the collection of the original documents, so often referred to, made by Learning & Spicer, was occasioned by the desire of the legislature to rescue from oblivion documents so essential to their just rights and liber- ties. Besides, these chapters of Magna Charta are, on the face of them, local and confined to England, and cannot, in fair rea- soning, be extended to the rivers in America. With the same propriety it might be insisted, that the provisions contained in Magna Charta respecting game, forests, &c. were applicable. The legislature of New Jersey, at a very early period, enacted similar laws respecting the obstruction of navigable waters. Pat- erson 15. 3. That, by the surrender made by the proprietors to queen 28 NEW JERSEY SUPREME COURT. Arnold v. Mundy. Anne, on April 15, 1702, tho right of fishery in the navigable waters of New Jersey, which, if it passed to the proprietors at all, passed as an incident to sovereignty, became re-annexed to tho crown. If the former propositions contended for are sup- ported, there is no force in this argument; because, if the king had a right to grant soil covered with water, and fisheries, and did grant them, they became severed from tho sovereignty, and could not be re-annexed but by terms as broad and comprehensive as those by which they were granted. In the grant, the water, soil, and fisheries are passed in express terms, and not construc- tively or as incident to the sovereignty, and it cannot be gravely pretended that it varies it, because they were conveyed by tho same instrument. This argument is a petitio principii; it assumes the very point in debate, and which is denied by us. A refer- ence to the memorial of the proprietors, which preceded tho surrender, and the surrender itself completely dispels this idea. In the memorial, the proprietors expressly separate the idea of government and property. Learning & Spicer 607. They sur- render merely the powers of government. 76. 613-4. It was accepted as such. Ib. 617. By their memorial, the proprietors, previous to the surrender, stipulate for the soils and lands of the provinces and the quit rents, (76. 589, sec. 1) which is granted. 76. 594. That the twenty-four proprietors may be lords of the soil &c. (76. 590, sec. 9) which is granted. 76. 595. That all lands, goods, and chattels of traitors, felons, deodands, fugitives, and persons outlawed, waifs, estrays, treasure-trove, mines and minerals, royal mines, wrecks, royal fish that shall be found or taken within East Jersey, or by the inhabitants thereof within the seas adjacent, to remain to the proprietors, with all the other privileges and advantages, as amply as in the grant and confirma- tion of March 14, 1682. 76. 590, sec. 13. Tho lords of the council of trade and foreign plantations, who had the assistance of all tho great law officers of the crown, in answer say, that this may be reasonable, except as to the goods and chattels of traitors, which are matters of state ; nor can right accruing to the proprietors from the seas adjacent be well circumscribed &c. 76. 59G. This memorial, and the answer and surrender, are to be considered as a treaty between tho proprietors and tho queen, and are to be taken in pari materia. The proprietors knew that they held the right to treasure-trove, royal fish, &c. as incident to the grant of sov- NOVEMBER TERM, 1821. 29 Arnold v. Mundy. ereignty, (1 Black. 299) and, unless provided for by express stipu- lation, it would again vest in the crown on the surrender of the sovereignty. The lords, to whom the memoi'ial was addressed, admit that the right of the proprietors to the seas adjacent could not be well circumscribed, so far as they passed by the king's grant, "westward of Long Island, bounded on the east hy the main sea, and hath on the west Delaware bay or river, and extending southward to the main ocean, as far as Cape May, at the mouth of Delaware bay." Learning & Spicer 10. So far, then, as these limits extended the proprietors remained lords of the soil, and their rights could not be well circumscribed, is the etrong language of the lords of the council of trade and for- eign plantations, and may be considered as the opinion of the great law officers of the crown, as they were constantly applied to by the board of trade in all important matters. But the proprietors, as sovereigns, by the law of nations and of England, were proprietors of the sea to the extent of three leagues from the shore, and, as such, lords of the soil covered with water. But this right they held as sovereigns, not as lords of the soil, and when they surrendered the sovereignty it passed to the crown. By the declaration of independence, this right vested in the people of New Jersey; previous to the surrender, the right of granting a free fishery within this three leagues was in the proprietors ; after the surrender, and until the declaration of independence, in the crown; and since, in the people of New Jersey. No grant of a free fishery has ever been made within these waters, and none can now be made, but by the legislature of New Jersey. That they have the right so to do, upon the principles of the common law, I think has been already shewn. The right of the proprietors, as to the soil, and every thing else that passes by the grant to the duke of York untouched by the surrender, was not affected by the Revolution. That glorious event found them lords of the soil, and it left them such. It was not intended to take away, but to secure, rights. 2. But even if the court should be of opinion, that the soil of the rivers below low water mark and the right of several fishery were not capable of being granted, yet we contend, that the plain- tiff, by gathering, or purchasing, and planting the oysters upon land which he claimed, and bestowing his own labour upon them, and staking them off, thereby shewing that he did not 30 NEW JERSEY SUPREME COURT. Arnold v. Mundy. throw them into the water to abandon them, acquired a right therein which is protected by law, and will enable him to main- tain an action against any one who disturbed him in the enjoy- ment thereof. He acquired such right upon the principles of the natural law; (1 Rutherf. 91) upon the principles of the civil law ; (Vattel 114, sees. 250-1; Domat. 475, sees. 3, 4, 7, 9; 280, sees. 24, 27, 28, 29) upon the principles of the common law ; (2 Black. 8, 9, 391, 392, 402 ; 3 Chitty's C. L. 359 ; 5 Esp. #. 62 ; 1 Camp. 309) and by the law of New Jersey, 1 Pennington 397. The oysters belonged to him before they were planted ; and placing them in a navigable water congenial to their growth and suste- nance, accompanied with .every indicia of ownership, cannot be considered as divesting him of any rights previously vested. The oyster is a fixture, and will not remove from the place where it is deposited. If a whale is captured and left within the tide waters no man has a right to take possession of it. So, if floating fish are caught and placed in a car. So, also, of a piece of timber secured from being drifted off by the tide ; the right of the original owner remains. Every man may deposit his goods in the highway. He may thereby subject himself to an action or indictment for a nuisance, but he does not lose his right of property. In no case does a man lose a right of pro- perty vested in him by the principles of law, by placing it in a public highway or a navigable water subject to the ./us publicum. Upon these principles, it is respectfully submitted, that the nonsuit ought to be set aside, and a new trial awarded. Wood, in answer. The main question in the present case is, whether the proprietors have a right to grant a several fishery in a navigable river, to the exclusion of the right of common fishery in the citizens generally? The right of the citizens has always been used, and the court must see their way clear before they will attempt to deprive them of it. We contend, that the right of the soil in navigable rivers, and the sea at the distance of three leagues from the shore, and the right of jurisdiction therein, with the exclusive right to what are called royal fish, are vested in the state, the sovereign power, as a part of the prerogative of the sovereign power ; and that the citizens have a common vested right of fishery therein ; and, secondly, that if the above rights, ascribed to the state, be in the NOVEMBER TERM, 1821. 31 Arnold v. Mundy. proprietors, they hold them subject to the common right of fish- ery of the citizens at large, of which they cannot deprive them. In establishing these propositions, it will be necessary to con- sider, what are the rights of the king of England, in relation to these subjects. By virtue of his prerogative, he has the allodium of the soil in navigable rivers and the sea, as above mentioned, with an exclusive right to royal fish. His subjects have a com- mon of piscary therein, which is a vested legal right, and may be pleaded. These rights of the king are part of the public domains, vested in him for public purposes. The king cannot transfer them to a private individual for a private purpose, much less, by attempting to do so, can he destroy the common right of fishery, the vested interest of the subject. This doctrine is not peculiar to the common law. It is the doctrine of the civil law, which is the basis of the codes of modern Europe, and which goes much farther. Coop. Justin. 67, 68, lib. 2, tit. 1, sees. 1, 2, 3. Positions supporting this doctrine are frequently to be met with in treatises on national law. Vattel 11, book 1, chap. 3, sec. 34; 117, book 1, chap. 21, sees. 260, 261. These doctrines apply with more force to England. Their government is a limited monarchy; their king is only a branch, and the executive branch, of the sovereign power. Such a power in the king, as is contended for on the part of the plaintiff, which is in its nature legislative, is altogether heterogeneous and destructive of the harmony and order of the British constitution. Their parliament, alone, can have the right of transferring the public domains of the nation. .The king may grant his private property, his ordinary revenue, lands vested in him upon feudal principles, but not the public property. Magna Charta, with Lord Coke's commentary upon it. 1 Beeves' Hist. 234. Chitty on Fisheries. 1 Esp. Dig. part 2, 270. 2 Black. Com. 39. Bac. Abr. tit. Prerogative, book 3. 3 Cm. 297. Willes 268. Warren v. Matthews, 6 Mod. 73. The king could not grant the tem- poralities of the church, which are in him, before the 18th Edward III. 1 Black. Com. 282. The authorities cited by the plaintiff's counsel to prove, that, upon the principles of national law, the public waters may be appropriated, only prove that they may be appropriated by a nation, to the exclusion of others. They do not touch the question, whether a king may appropriate them to the exclusion of his subjects? It is true the Norman 32 NEW JERSEY SUPREME COURT. Arnold v. Mundy. kings usurped this power of transferring the public waters to private individuals, their favourites; but this power was re- strained by Magna Charta, the great object of which was to restore Saxon liberty. Black. Tracts, Introduction to Magna Chartd 289. The reason of allowing such grants of Magna Charta to prevail, as were made prior to the reign of John and in the reign of Henry II. was no doubt because such rights were vested in the hands of innocent alienees, and the barons of those da}*s were moderate in the work of reformation. Those grants made prior to Magna Charta, and allowed by it, are no doubt the foundation of all the several fisheries and exclusive ownerships of navigable waters in England, which are now claimed by pre- scription and proved by immemorial usage, which presupposes such original grant. Instances of abuse may have occurred since, which are now supported in that way. The case in Dav. Rep. is a mere dictum of the judges, as to the law in Ireland, and in the worst times of English jurisprudence. The other authorities cited by the plaintiff's counsel furnish cases of prescription only. But we are told the king holds the public waters, not as a part of his prerogative, and unalienable, but as having the allodium of the soil of England on feudal principles. It is clear, however, that he holds by virtue of his prerogative. 2 Black. Com. 39. 6 Com. Dig. tit. Prerogative 55, (Z)) 80. The queen of England is entitle to dower upon the demise of the king, and though an alien. 1 Black. Com. 223, 231. If navigable waters are not vested in him as the property of the nation, and under his pre- rogative, for public purposes, she would be entitled to dower in them. Free fishery is a franchise, or branch of the king's pre- rogative. 2 Black. Com. If the king did not hold the soil itself by virtue of his prerogative, a right granted out of it could not be considered a franchise. The feudal law was introduced by William the conquero** Admit that the Norman kings pretended to claim the sea and navigable rivers upon feudal principles, as their private property, yet the Saxon kings held it as a part of the prerogative ; (Bac. Abr. Prerogative B 3) and Magna Charta revived the Saxon doctrine and put an end to the Norman usurpation. If we were to admit that the kings of England, both before and since Magna Charta held the sea and navigable rivers as private transferable property; yet they held it subject to the common right of fishery NOVEMBER TERM, 1821. 33 Arnold v. Mundy. in the subject, which is a vested right, and may be pleaded. 1 Pen, Rep. 391. Post v. Man, 1 South. 61. Richardson v. the Mayor of Oxford, 2 H. Black. 182. Har. L. T. 11, 19, 20. 4 Term Rep. 437. To destroy the vested legal right would be the highest effort of legislation. A king of England, upon the prin- ciples of the British constitution, cannot do it. In Hargrave it is admitted, that the king cannot, by alienation, destroy the jus publicum, and that the common right of fishery is a part of the jus publicum. When he tells us, then, that the king may, by alienation, destroy this common right of fishery, it only proves that the author is inconsistent with himself. The construction put upon Magna Charta, in Hargrave, is opposed to all the authorities upon that subject above cited. It supposes the barons of Runnymede were anxious to put an end to royal encroach- ment, by prohibiting the subject from the right of fishing, and yet they left it in the power of the king to defeat their right at any time, and to any extent, by merely granting the soil to his favourites, an impotent effort which was unworthy of them. Having ascertained the right and powers of the king over tho navigable waters of England, it is easy to shew that he possessed the same rights and powers, and no others, over the public navi gable waters of this country. England claimed North-America by right of prior discovery. The soil, on the principles of the British law and constitution, vested in the king, and for the pur- pose of being parcelled out among his subjects. The English government could only hold it for the purpose of being settled. Vattel 99, book 1, chap. 18, sees. 207, 208. The people emi- grating under the duke of York to America, brought with them all the laws and rights of Englishmen, except such as were ren- dered inapplicable by the change of their local situation. 1 BL Com. 107. If the king had retained immediate dominion over this country, instead of gi-anting it to the duke of York, he would have transferred the soil to the inhabitants, who, of course, would take the same rights and interests in the adjacent navigable waters as in England. His having owned all the soil, would give the king no greater power over the navigable waters. Suppose a manor in England, through which a navigable river flows, should revert to the king, and he should parcel it out again to his subjects, they would take the same rights as before in the navigable waters. VOL. i. o 34 NEW JERSEY SUPREME COURT. Arnold v. Mnndy. It is said, the people migrating here brought with them politi- cal, but not municipal, rights; and that the provision on this sub- ject, in Magna Charta, was merely local. On the contrary, they brought civil, as well as political rights. Constitution of N. J. Smith's Hist. N. J. 291. 8 Cranch 242. 1 Mass. T. E. 60, 61. Laws restraining the power of the king, more especially on nav- igable waters which supplied the inhabitants of a wilderness with food, were all important to them, and peculiarly applicable to their situation.. But the king caused to be created proprietary governments here, by the grant to the duke of York. In the construction of this charter, we are to consider 1. What the king had a right to grant; and 2. What he intended to grant. 1. It is manifest he could give to the duke of York, and his assigns, no greater right and power over the navigable waters here than he himself would have possessed ; and, if the words of the grant are more extensive, all beyond his legitimate right is absolutely void. As he could only possess a right in these navigable waters, subject to the common right of fishery of the inhabitants, which was unalienable, the duke of York, and all claiming under him, would take the right of the king, subject to the same restriction ; but 2. The king did not intend to grant to the duke and his assigns, as an individual, an Exclusive right of fishery in these navi- gable waters. In the construction of this charter, we should con- sider it as a great state paper, not to be confined within the petty trammels of a mere private conveyance. The grant is not made to him as an individual, but as a qualified sovereign, created so by the same instrument, and thereby vested with a qualified sov- ereignty over the country. He puts the duke in his place, with his powers, and to hold the territory for the same purposes that he held it; the soil to be parcelled out among emigrants; the navigable waters to be used by those emigrants for navigation and fishing. He, therefore, gives the duke the soil and rivers, and all royalties, with the powers of government, to bo exercised according to the laws -and statutes of the realm of England. Admitting, for a moment, the abstract power of the king to make an exclusive grant of fishery to an individual, in navigable waters, yet, in the present case, he granted to the duke of York, as sovereign over them, to hold them as he held them, with a . common right of fishery in the settlers. The grant of the duke .to Berkley and Cartoret, and the subsequent grants, will receive NOVEMBER TERM, 1821. 35 Arnold v. Mundy. the same construction. Hence the people here always exercised a common right of fishery. 1 Allinsorfs N. J. Laws 57, preamble. Learning & Spicer 368, 369, 371, 129, sec. 6. It is said, this was a conquered country : be it so. This would give the king no greater power over his British subjects; he conquered with their arms. Vattel 391, book 3, chap. 13, sec. 202. Smith's Hist. N. J. 119. The country, however, was not conquered, but retaken from the Dutch. It is said in the grant to Lord Baltimore, (1 Harris and M'Henry 564) there is an express reservation of the right of fishery to the inhabitants of England and Ireland. It might have been doubted, whether the right of fishery would have extended to them, and was not confined to the inhabitants of Maryland, But why was there no reservation in favour of the latter? Not, surely, because it was intended they should be de- prived of it, but because it was clear they would have had a right, without a reservation in their favour. The interference is clearly in our favour, notwithstanding the opinion of Mr. Dulaney. It is said, that all the ramparts of the people's rights are to be found in the concessions and fundamental constitutions, and that in the disputes before the surrender to queen Anne, the people always appealed to them. It is manifest those provisions were merely precautionary, intended to operate upon the local govern- ment. If Charles had intended a despotism here, bis grantee and his successors would have pursued the plan. See Mr. Walsh's Appeal, on that subject. These provisions would have been nu- gatory if they were not in pursuance of the original charter. They could not otherwise have bound the king, and, of course, would not have been appealed to. The duke of York and his succes- sors, the proprietors, having held these navigable waters subject to the common right of the people, in the quality of limited sovereigns, vested with the prerogatives of the king, in the sur- render to queen Anne, gave back all their rights and powers over those waters. This surrender was made because the pro- prietors had no right of government strictly. Learning & Spicer 613. Sac. Abr. tit. Courts Palatinate. That their rights over navigable waters were surrendered, is proved First, impliedly: because if the king, as already shewn, could not make such grants to an individual for a private purpose, the moment the great public object of the grant ceased, which was the creation 06 NEW JERSEY SUPEEME COURT. Arnold v. Mundy. of a qualified local government lor the settlement and regulation of the country, the rights over these waters reverted to the king. Secondly, by express words they surrender all powers, authori- ties, and privileges of and concerning the government. Learning 63). His natural character is merged in his political; he can, in his own name as an individual, hold nothing ; it is by his prerogative that he takes by forfeiture or escheat; he claims and owns royal fish, as they are called, by his prerogative, and yet they may be granted. 1 Slack. Com. 298. In short, he is considered, by that law, as having a mere political character, and claims and holds all that .he has as king, but may grant at his pleasure. Davies 152. It is palpable that this course of reasoning would go to prove that the proprietary title to lands in New Jersey is worthless. Charles acquired the main land a,s king; he was entitled to it only by his prerogative. If he was disabled to grant what he held as king he could not convey an acre of land. But it is again asserted, that the grantee of the king, and those claiming under him, hold subject to the common right of fishery vested by the common law in the people. This is in truth the pivot upon which the defendant's case rests; but the principles we have established, and the cases we have produced, demolish it. We have shewn that the grant of the king passes the very title and propriety of the land and water, absolutely and without any such restriction; and that a right of several fishery passes with the soil. Where a several fishery passes, a common right of fishery cannot exist; they are utterly incompatible, for NOVEMBEE TEEM, 1821. 59 Arnold v. Mundy. the right of several fishery is altogether exclusive. This assertion, then, is but a repetition of the fundamental position, that the king cannot grant several fishery in a navigable river. What authority has been produced? what diet um that the king's grantee of the soil of a river holds subject to the right of fish- ery ? Lord Hale says, it is true, that he holds subject to the jus publicum, but he tells us what that is: it is the right of "passage and re-passage with their goods by water," (liar. L. T. 36) which must not be taken from them under pretence of a royal grant. For this is the right of the people by the law of nature, rivers being great highways furnished by the great Creator for the use of the human race. Common of fishery is no more a part of the jus publicum, than common of pasturage belonging in all the tenants of a particular manor. Again it is said, that the king of England, alone, could do no act to divest the right of the people, without the aid of the other branches of the legislature, and, therefore, his grants are void, so far as the common right of fishery is concerned. This is part of the old error the counsel for the defendant have fallen into in denying that the king is, by the common Jaw, the true owner and proprietor of every thing acquired in his regal capacity. That he is such absolute owner has been fully proved ; and that he may, in all cases in which he is not restrained by statute, convey in full propriety, has also been demonstrated. No author- ity has been 1 shewn, or can be found, to support this novel idea ; it is utterly inconsistent with the whole system of the common law, touching the prerogative of the king. It is also said, that the great object of these original grants was the settlement of the country, and that they must be con- strued so as best to promote that end; that the right of fishing, being a common right, must be considered as reserved to them by these grants, because it is for their benefit that it should be retained. This is a strange doctrine, as applied to grants, deeds, and muniments of title to land; if it is adopted, and acted upon, and improved by modern ingenuity in the best manner for the good of the people, it will soon render such instruments of little avail to the owner. Fortunately, however, it happens to be in direct repugnancy to the law of the land, by which the construction of all solemn conveyances, and of the words inserted in them, have been fully settled, so as never to admit considerations of political 60 NEW JERSEY SUPREME COURT. Arnold v. Mundy. policy^ in any manner to affect their legal operation. But if we could admit, for a moment, such considerations into this case, we might ask, what was the best plan to 6ffect an actual settlement of this wilderness in the reign of Charles II.? Surely it was by encouraging a few men of enterprize and capital to embark in, and devote themselves to, the object. The settlers were to be brought from England, and maintained and protected hero till able to take care of themselves. Hence the policy to encourage the immediate adventurers by most extensive grants and powers, and of leaving it to them to parcel out the lands without restric- tion. The duke first sold to two, who would probably never have purchased if the powers and rights of the original grant from the king had been curtailed; these sold to the twelve; they to the twenty-four; and they again to the forty-eight, on the original terms, leaving them to make their own contracts with future adventurers. And even as to the sub-purchasers, the small pro- prietors, surely the right now in discussion being secured to the landholder would be an additional inducement to substantial purchasers to fix themselves on the waters of the territory. It is further objected, that we have not been able to shew that the king of England has ever granted a right of several fishery .in a navigable river since the statute of Magna Charta. If this be true, which is denied, it is because several fishery is dependant on the ownership of the soil, and because all the lands of England, especially those on their rivers and the sea shore, have been granted and parcelled out ever since the time of the Norman conqueror. England being an island, the English have been a commercial nation time out of mind, and the jurisdiction and property of their great rivers, from early times, has been distrib- uted among their great corporations. Sir John Davies says, "the city of London, by charter from the king, hath the river Thames granted to them, but because it was conceived that the soil and ground of the river did not pass by that grant, they purchased another charter, by which the king granted to them sol urn et fundum of the said river" He does not say which of the kings gave this charter, but it is not likely that both grants were prior to Magna Charta. The case of Bulbrock v. Goodire proves that several fishery is now held in the Thames by individuals claiming under the corporation. 3 Bur. 1768. In 3 Chitty's Criminal Law 974, we NOVEMBER 1EKM, 1821. 61 Arnold v. Mundy. have an indictment for taking oysters from the oyster fishery of the borough of Lin Beges in the county of Norfolk, within the limits and precincts of the port of Lin Reges. This, no doubt, is the case of several fishery belonging to that corporation, as owners of the river. In Dames 155, this case is stated: "king Henry VIII. granted to Strangeways totam illam liberam pisca- riam vocatum the fleet in Abbotsbury, which is a bay and creek of the sea;" and he adds, "this was a several fishery on a branch of the sea." The assertion is then incorrect in point of fact, and it is not doubted, but that if we had a full collection of royal grants to corporations and individuals since Magna Charta, many would be found granting the solum et fundum of navigable rivers in England. It has been further asserted, that the people have always ex- ercised the right of taking fish j and a grantee of the proprietors now, for the first time, has set up this pretence. There is no foundation in fact for either branch of this assertion. That tbe people have been in the habit of taking oysters from the unap- propriated beds may be true, but that such a right has been ex- ercised in places where the soil of the river has been sold and located is denied, and has not been proved. It is a matter of fact, and ought to have been proved. The defendant gave some evidence, that in former times, before the survey, the Wood- bridge people insisted on their right, and so did the owner of our main farm insist on his, and resist theirs ; but it is well known that the Woodbridge men claimed the right of fishing not as a right of common, but under their grant from the proprietors, commonly called the Woodbridge charter. "When this action was brought, they discovered that the charter upon which they relied did not cover this oyster-bed, and then they, for the first time, by the advice of their learned counsel, took this new ground of common right. There is not a particle of evidence that they ever before asserted a title by general right of common fishery; on the contrary, they claimed by grant, as the plaintiff docs. The people of this state exercise a right of fowling and hunting in the waste of the proprietors. Surely when the proprietors sell, and the purchaser encloses and improves, such a right could not, remain ; and yet that is precisely the same sort of common right as that exercised by our adversaries in regard to fishing. As to this being a new claim, now for the first time got up, the 62 NEW JERSEY SUPREME COURT. Arnold v. Mundy. documents produced should have shielded us from this reproach ; we have shewn many grants of the soils of the rivers from the public records, and many more from the earliest times no doubt exist. Is it not a notorious fact, that numerous fisheries have been held on all our great rivers for more than a century without dispute ? Many actions of trespass have been brought in this court, and heavy damages recovered for taking fish from such several fisheries ; not merely for hauling on the land, but for tak- ing the fish swimming in the river. The doctrine upon which this nonsuit was ordered will destroy all this species of property from Powles Hook to Cape May. It is well known that seines may be drawn without touching the land. Shad fisheries of immense value, which have been transmitted from father to son, time out of mind, are destroyed at a stroke, though the property in them has been admitted by the legislature in all their acts taxing and regulating them. The argument, then, from pos- session and usage, is altogether on the side of the plaintiff. This doctrine of a right of several fishery is not confined to New Jersey; it is recognized and protected in many of our sister states. In Massachusetts, the fisheries all belong to the public corporations, who distribute them out among the different towns. This proves that they were considered as passing by their charters, and that there is no right of common in these fisheries in the whole mass of the people. In Connecticut, as early as the year 1790, the Supreme Court, in the case of Adgate v. Story, determined that the adjoining proprietor might main- tain trespass against one who drew a seine in a navigable river fronting his land. 1 Swift's System 343. In Pennsylvania, it has been judicially admitted, that a several fishery might have been granted by the proprietors before the extinction of their title, or by the state since. 2 Sin. 475. The act of the legislature of Pennsylvania vesting in the com- monwealth the estates of the late proprietors, grants all the soil, royalties, and franchises granted by Charles II. to William Penn, and the Supreme Court in the cases just cited, admit that the right of several fishery passed. 1 Dal. Penn. Laws 822. In Maryland, upon Lord Baltimore's grant, it was held, that the king had power to grant several fishery, and that the forms of that grant, not so comprehensive as ours, did convey it. The only doubt was on a proviso reserving the common right of NOVEMBER TERM, 1821. 63 Arnold v. Mundy. fishery to the people of England. Har. & M' Hen. Rep. 564. And, finally, we find the settlers in West Jersey contracting for the right of common of fishery with the proprietors, and the pro- prietors granting it to them. Learning & Spicer 390. Bat no each grant has ever been made by the eastern proprietors, and the concession and acceptance of it shews that, in the opinion of both parties, it did not exist without it. IV. The only remaining point to be discussed is, whether the title of several fishery was surrendered and given up to queen Anne when the proprietors yielded up to her their jurisdiction and powers of government? This argument was delicate and dangerous, because it gives up at once all the rest of the case, admitting that the right in question did pass by the original grants to the proprietors; for if it did not exist it could not be surrendered. And here it is to be remarked, that the crown of England executed every reasonable act of further assurance to protect and enforce the grants to the proprietors while the gov- ernment remained in the proprietors, as the documents laid before the court fully prove. The only trouble they met with was from the duke's governors in New York. When he became king, he was too much engaged in his own plans at home to spend time in the affairs of his colonies ; but after the revolution, and towards the latter end of the reign of "William III. the British court betrayed the same disposition which had before appeared in regard to other colonies, to infringe the liberal charters which had been first granted to the adventurers in America; and the crown lawyers began to question the validity of that part of the grant of Charles II. which conveyed the powers of government in extenso. And so many impediments to the liberal views and exertions of the proprietors to settle the country were thrown in the way, that they judged it most expedient to open a treaty for the surrender of the government to the crown of England, so far as related to the great political powers of government. Learning & Spicer 588, give the propositions of the proprie- tors. In the 9th section it proposed, that the proprietors may be lords of the soil and hold courts. Ib. 595, the answer of the board of trade is, that they have no objection to this, in case those officers be like such as constitute the courts Leet and Baron in England. Ib. 590, in section 13th, the proprietors reserve all royalties, enumerating them, "to remain to the pro- 64 NEW JERSEY SUPREME COURT. Arnold v. Mundy. prietors with all other privileges and advantages, as amply as in the grant and confirmation to them of the I4th March, 1682." Ib. 596, the answer of the board is, " This article may bo reasonable, except as to the goods and chattels of traitors, &c., which is matter of state;" and they add these significant words, "Nor can right accruing to the proprietors from the seas adjacent be well circumscribed." With this protocol before us, we proceed to the final treaty, which is found in the instrument called tbe surrender. This instrument recites the original grants, and that the king did grant to the duke, and he to the proprietors, "full and absolute power and authority to appoint governors, and to correct, punish, pardon, govern, and rule all the adventurers, according to such laws &c. as the duke or his assigns should establish, with power to use and exercise martial law in case of insurrection, rebellion, or mutiny, and to make war against all persons "who should attempt to inhabit without the leave of the duke or his assigns." Learning & Spicer 609, 12, 13. It then recites, "that her majesty queen Anno had been advised that the proprietors have no power to exe- cute any of the said powers, but that the same belonged to her majesty in right of her crown." It further recites, " that the proprietors, being desirous to submit themselves to her majesty, are willing to surrender all their pretences to the said powers of government." Then they do surrender and yield up to the queen "all these the said powers and authorities to correct, punish, par- don, govern and rule ;" and also the right to make laws and appoint governors ; " and also the powers to use and exercise martial law, and to make war," &c. Is it not, then, self-evident that this deed of surrender only embraced the great political powers of government which, as the country was becoming populous, were inconsistent with dependence on the British crown; and that it did not convey or surrender any estate, property, franchise, royalty, or privilege appertaining to the soil, rivers, and bays which entered essen- tially into the estimate of the value of the soil, and had become their property ? It was so understood by the queen and her council. Immediately after the surrender, Lord Cornbury was appointed the first royal governor. He received written instruc- tions, the 36th section of which recommends passing such laws "as will secure the right of property of the soil to the proprie- NOVEMBER TERM, 1821. 65 Arnold v. Mundy. tors," and "all such privileges as were expressed in the conveyance to the duke of York, excepting only the right of government" Learn- ing & Spicer 628, sec. 36. Now, unless this court is prepared to pronounce that the claim of right of common of all fish is one of those great political rights which pertained essentially to the crown of England, and a part of the right of government, it cannot be within that deed of sur- render. Indeed, unless the words of the deed of surrender are disregarded as well as the manifest intent and meaning of the contracting parties, there is nothing in this objection. KIRKPATRICK C. J. This is an action of trespass for entering upon the plaintiff's oyster-bed in the mouth of the Rariton, at Perth Amboy, and taking and carrying away his oysters there planted. It was brought to trial at the Middlesex circuit, in December last, when, upon the case made out, the plaintiff was nonsuited ; and upon coming in of the Posted there was a rule to shew cause why that nonsuit should not be set aside and a new trial granted. It appeared in evidence, upon the trial, that the plaintiff, on the 14th of February, 1814, had purchased in, and, at the time of. the supposed trespass, was in possession of, a certain farm, commonly called NevilFs farm, containing one hundred and seventy-five acres, or thereabouts, lying on the river Rariton, opposite to this oyster-bed, and extending, according to the words of the deed, to the bank of the river; that one Joseph Codding- ton, who had before owned and possessed the said farm, and under whom the plaintiff held, had, twenty years ago, and more, and while so in possession, staked off a part of the oyster-bed in question, and that part of it, too, from which these oysters were taken, and had, during his time there, claimed the exclu- sive right of taking oysters upon the bed so staked off; but the people had always disputed that right, had entered upon it, and taken oysters from it, when they pleased, and if opposed by Coddington, that the strongest usually prevailed. And it further appeared, that the plaintiff, soon after he came into the possession of the said farm, staked off the present bed, being greater, but including Coddington's, began to plant oysters upon it, and has continued to plant more or less, at the proper seasons, every year since that time ; that some of the stakes, VOL. I. X 66 NEW JERSEY SUPREME COURT. Arnold v. Mundy. by which it is so staked off, stand below low water mark, but that they are so slender as to oppose no obstruction to the navi- gation of the river, even with the smallest craft ; that this bed is about fifty yards below common low water mark; the tide ebbs and flows over it; it is frequently bare at the full and change of the moon, and commonly, though not always so, in the full and spring; that there have always been oysters upon it, as well as upon the other beds in these waters, and that the space between it and the shore is what they call a mud flat, commonly covered with water, but not a channel for vessels or other craft usually plying in that river. And it further appeared, that the plaintiff, on the 3d of April, 1818, by virtue of a warrant of location from the proprietors of East Jersey, caused a survey to be made for himself there of 41.59 acres of land covered with water, includ- ing a certain survey of wharves formerly made to one Son mans, and leaving for his survey 35.59 acres, including the oyster-bed in question. And although it appeared, that this survey had been made before the supposed trespass, and had been approved and recorded in due form, yet it did not appear, that such approving and recording had been before the said trespass, the time of tho recording not appearing upon the record. And it further ap- peared in evidence, that the defendant had entered upon the said bed, so staked off, and taken oysters there, at the time in the declaration set forth. And, indeed, it was admitted by the defend- ant himself, that he, together with others, had so done, but merely with a view of trying the plaintiff's pretended right, and not with a view of injuring the bed, or taking the oysters further than was necessary for this purpose. Upon this state of facts, the defendant moved for a nonsuit 1. Because the plaintiff had shewn no title arising from posses- sion only, that is, an exclusive and adverse possession. 2. Be- cause he had shewn no title under the proprietors, it not having Appeared that his survey had been approved and recorded before the supposed trespass was committed. 3. Because the proprie- tors themselves had no title which they could convey, even if (the form of conveyance had been complete. Upon the last of these reasons the plaintiff was called. But yet, still, in shewing cause upon this rule, the defendant's counsel have insisted upoc. the first and second reasons also, against the claim of tho plain- tiff, which he still maintains, so that it becomes necessary to look a little into each of them in their order. And NOVEMBER TERM, 1821. 67 Arnold v. Mundy. 1. As to the mere possession. This is no other way proved than by shewing the conveyance for, and the possession of, the Nevill farm upon the shore opposite to this oyster-bed, extending, to make the most of it, to the water's edge only ; and by shew- ing further, the staking off of the said bed, the planting of oysters upon it, and sometimes fishing and taking oysters there, as other people also did, the claim of exclusive right notwithstanding. Now, upon this it is to be observed, that though a grant of land to a subject or citizen, bounded upon a fresh water stream or river not navigable, and where the tide neither ebbs nor flows, extends to the channel of such river, usque ad filum aquce, as they have it in our old books ; yet that a grant of land bounded upon a river or other water which is navigable, and where the tide does ebb and flow, extends to the edge of the water only, that is to say, to high water mark, and no further. See the case of the river Banne, (Davies 152, 155); Har. L. T. 5 ; Carter v. Marcotl, (Bur. 2162). All pretence of possession, therefore, in this case, as being connected with, and appurtenant to, the adjacent land, must fail. The grant for that could extend only to high water mark, and it could, therefore, carry with it no part of the adjacent land covered with water. And if the plaintiff would set up a possession founded upon the stak- ing off the bed, planting oysters upon it, and sometimes fishing there, even if it were a subject matter that could be taken pos- session of in that way, that possession has not been proved to be either so complete, so exclusive, or so continued, as to estab- lish a right against those having equal claim with himself. He pretends to no prescription, none such exists in this country; he pretends to no grant, none has even been mentioned. He places himself in the situation of a fisherman, who, because he has fished for many years, would claim the exclusive possession of the waters, and the exclusive right of fishing in them. Upon the ground of possession merely, then, I think the plaintiff can- not stand. But the nonsuit cannot be maintained upon this alone, because he sets up another title. 2. As to the form of the conveyance and the operation of the purvey. The proprietors of East Jersey are tenants in common of the soil; their mode of severing this common estate is by issuing warrants, from time to time, to the several proprietors, according to their respective rights, authorizing them to survey, 68 NEW JERSEY SUPREME COURT. Arnold v. Mundy. and appropriate in severally, the quantities therein contained. Such warrant does not convey a title to the proprietor, he had that before ; it only authorizes him to sever so much from the common stock, and when so severed, by the proper officer, it operates as a release to him for so much. This is the case when the proprietor locates for himself. When he sells his warrant to another, that other becomes a tenant in common with all the pro- prietors pro tanto, and, in the same manner, he proceeds to con- vert his common, into a several, right. Regularly there is a deed of conveyance upon the transfer of this warrant for so much of the common property and that deed of conveyance, and the survey upon the warrant, is the title of the transferee. It is true, that the survey must be inspected and approved by the board of proprietors 'and must be carefully entered and kept in the secretary's office, or in the office of the surveyor-general of the division, but this is for the sake of security, order, and regu- larity only, and is, by no means, the passing of the title. It proves that the title has already passed, but it is not the means of passing it. It may be likened to the acknowledgment of a deed by a femme covert. Her deed cannot prevail against her, unless such acknowledgment be regularly made and recorded ; yet such acknowledgment does not pass the title, the deed has already done that, and it operates from the day of its date. The view which has been taken of this subject, and so much insisted upon by one of the defendant's counsel, I think is quite too narrow. He has placed himself upon the third section of the act of January 5, 1787, "for the limitation of suits respecting titles to lands." That section enacts, "that a survey made, inspected, and approved by the council of proprietors, and by their order recorded in the secretary's office, or in the surveyor- general's office, shall, from and after such record is made, pre- clude and forever bar such proprietors from any demand thereon, any plea of deficiency of right, or otherwise, notwithstanding." Novy this is a statute merely for the limitation of suits. It is made for the benefit of him that has the survey ; if he procures it to be inspected, approved, and recorded, it is a bar against the proprietors and those holding under them ; if he does not do so, it is no bar, but stands just where it did before the statute was made. The statute is not imperative upon him that has the survey to procure it to be inspected, approved, and recorded; it NOVEMBER TERM, 1821. 69 Arnold v. Mundy. does not make it void in case he does not do so, but leaves it where it was before, and he loses his bar. Let us see, then, how those surveys were viewed before this statute. We shall be enabled, pretty satisfactorily, to do this, by looking into the act of March 27, 1719. In the tenth section of that act, it is enacted, "that the surveyor-general shall hold a public office, in which shall be carefully entered and kept the surveys of all lands thereafter to be made; that such entries shall be considered as matter of record, and may be pleaded as evi- dence in any of the courts," &c. but it prescribes no time within which they shall be entered, nor does it make them void if not so entered. In the eleventh section of the same act it is recited, "that great inconveniences have happened by making and not recording of surveys, whereby many have not only got lands sur- veyed which have been formerly surveyed, not knowing of any former survey, but have settled, and made great improvements on the same, and have been afterwards ousted thereof;" and then it is provided, " that surveys heretofore made shall be brought in and recorded within a certain time, or for ever after to be void and of no effect as against succeeding surveys of the same lands duly recorded." Now, if those prior surveys had been of no effect until they were approved and recorded, how could those who had settled and improved under posterior surveys be ousted by them? or how could the evil here complained of ever have happened at all? and if they had effect, that effect is no way impaired by this act, unless it be against posterior surveys of the same lands, duly approved and recorded. The truth is, I believe, that the survey pf the proper officers, under a warrant duly issued for that purpose, has always been considered as the act of sever- ance; the inspecting, approving, and recording, as relating back to that act; and the party surveying, as having an estate in sev- eralty from that time. And, of course, except in the case of posterior surveys, the time of inspecting, approving, and record- ing has not been thought material. And, as to the mode of partition, however necessary it may have been in other cases of tenancy in common, that it should be made by deed; yet in this proprietary estate, upon locations of this kind, I believe it never has been so done. As to the form of the conveyance, therefore, in this respect, the defendant's objection cannot prevail. 3. As to the right of the proprietors to convey. This is the 70 NEW JERSEY SUPREME COURT. Arnold v. Mundy. great question ID the cause, and though we have taken time since last term to look into it, yet I must confess, for myself, that 1 have not done so in so full and satisfactory a manner as could have been wished; and my apology must be, that during a very great part of the vacation, I have been necessarily abroad, attending to other official duties, and during the time I had assigned to myself for this purpose, I have been so much indis- posed as not to be able very satisfactorily to attend to business of any kind. I have, nevertheless, so far looked into it as to satisfy myself of the principle that must prevail. The grant of Charles II. to the duke of York was not only of territory but of government also. It was made, not with a view to give that territory and that government to the duke, to be enjoyed as a private estate, but with a view to the settlement of it as a great colony, to the enlargement of the British empire, and the extension of its laws and dominions. In construing this grant, therefore, we ought always to have our eye fixed upon these great objects. If we shall find some things contained in it, which by the laws of England, as well as of all other civilized coun- tries, and even by the very law of nature itself, are declared to be the common property of all men, then, by every fair rule of construction, we, are to consider these things as granted to h\m r as the representative of the sovereign, and as a trustee to support the title for the common use, and especially so, if we shall find that the king himself had no other dominion over them. The grant is not only of all lands, but of "all rivers, harbours, waters, fishings, &c. and of all other royalties, so far as the king had estate, right, title, or interest therein, together with full and absolute power and authority to correct, punish, pardon, govern, and rule all such the subjects of the king, his heirs, and success- ors, as should, from time to time, adventure themselves into tho said territory ;" and for this purpose to make statutes, ordinances, &c. provided the same should not be contrary to the laws, statutes, and government of England, but saving to the inhabitants, nevertheless, the right of appeal, and to the crown the right of hearing and determining the same. The duke was to govern, but ho was to govern, substantially, according to the principles of the British constitution. The colonists were to be governed by him, but, by tho very words of tho charter, they were to be British subjects, and to enjoy the protection, liberty, and privi- NOVEMBER TERM, 1821. 71 Arnold v. Mundy. leges of the British government. In order to accomplish tboso great objects, the king selected his royal brother, and granted to him all the rights which he himself had, or could exercise in and over this great territory, saving to himself only the right of hearing appeals. Those things, therefore, which were, prop- erly speaking, the subjects of property, and which the king him- self could divide and grant severally to the settlers, the duke, by virtue of this charter, could also divide and grant; but those things which were not so, ,and which the king could not grant, but held for the common use, the duke necessarily held for the same use, and in the same way. Let us see, then, upon what principle the king held the sub- ject matter of this inquiry ; what right he had in it, and how far he could dispose of it. Every thing susceptible of property is considered as belonging to the nation that possesses the country, and as forming the entire mass of its wealth. But the nation does not possess all those things in the same manner. By very far the greater part of them are divided among the individuals of the nation, and become pri- vate property. Those things not divided among the individuals still belong to the nation, and are called public property. Of these, again, some are reserved for the necessities of the state, and are used for the public benefit, and those are called " the domain of the crown or of the republic;" others remain common to all the citizens, who take of them and use them, each according to his necessities, and according to the laws which regulate their use, and are called common property. Of this latter kind, according to the writers upon the law of nature and of nations, and upon the civil law, are the air, the running water, the sea, the fish, and the wild beasts. Vattel lib. i, 20. 2 Slack. Com. 14. But inasmuch as the things which constitute this common property are things in which a sort of transient usufructuary possession, only, can be had ; and inasmuch as the title to them and to the soil by which they are supported, and to which they are appur- tenant, cannot well, according to the common law notion of title, be vested in all the people ; therefore, the wisdom of that law has placed it in the hands of the sovereign power, to be held, pro- tected, and regulated for the common use and benefit. But still, though this title, strictly speaking, is in the sovereign, yet the use is common to all the people. This principle, with respect 72 NEW JERSEY SUPREME COURT. Arnold v. Mnndy. to rivers and arras of the sea, is clearly maintained in the case of the royal fishery upon the Banne, in Ireland, in Sir John Da- vies 1 report of that case 56, 67, and in Hale's treatise de jure maris et brachiorum ejusdum. Bracton, too, quoting from Jus- tinian, says, "publica sunt omnia flumina et portus ideoque jus piscandi omnibus commune est in portu flumimbusque, et riparum etiam usus est publicus jure gentium, sicut et ipsius fluriiinis." Brac- ton lib. i, chap. 12. In Lord Fitzwaltor's case, (1 Mod. 105) it is said, that in an action of trespass for fishing in a river, where the tide flows and reflows, it is a good justification to say, that the locus in quo est brachiam maris in qua unusquisque subjectus domini regis habet et habere debct liberam piscariam, for that, prima facie, the fishing is common to all. In Warren v. Matthews, (6 Mod. 73) we are told every subject of common right may fish with laivful nets in a navi- gable river, as well as in the sea, and the king's grant cannot bar him thereof. Same case (Salk. 357). Carter v. Marcott (Bur. 2162). In navigable rivers, the fishery is common, it is prima facie in the king, but is public and for the common use. Nothing can be more clear, therefore, than, that part of tho property of a nation which has not been divided among the in- dividuals, and which Vattel calls public property, is divided into two kinds, one destined for the use of the nation in its aggregate national capacity, being a source of the public revenue, to defray the public expense, called the domain of the crown, and the other destined for the common use and immediate enjoyment of every individual citizen, according to his necessity, being the immedi- ate gift of nature to all men, and, therefore, called tho common property. The title of both these, for the greater order, and, per- haps, of necessity, is placed in the hands of tho sovereign power, but it is placed there for different purposes. The citizen cannot enter upon the domain of the crown and apply it, or any part of it, to his immediate use. He cannot go into the king's forests and fall and carry away the trees, though it is the public prop- erty ; it is placed in the hands of the king for a different purpose, it is the domain of the crown, a source of revenue ; so neither can- tho king intrude upon tho common property, thus under- stood, and appropriate it to himself, or to tho fiscal purposes of the nation, tho enjoyment of it is a natural right which cannot be infringed or taken away, unless by arbitrary power; and that, NOVEMBER TERM. 1821. 73 Arnold v. Mundy. in theory at least, could not exist in a free government, such as England has always claimed to be. But if this be so it will be asked, how does it happen that in England, whose polity in this respect we are now examining, we find not only navigable rivers, but also arms of the sea, ports, har- bours, and certain portions of the main sea itself upon the coasts, and all l,he fisheries appertaining to them in the hands of indi- viduals. That the fact is so cannot be controverted ; but how it became so is not so easy, at this period of time, satisfactorily to shew. So far as it depends upon royal grant, however, it seems pretty clear that it has always been considered as an encroach- ment upon the common rights of the people. An exclusive right of fishing in a navigable river, is said to be a royal franchise, that is, a privilege or branch of the royal pre- rogative, granted by the king to a private person. This royal prerogative, we are told, was first claimed by the crown, upon the coming in of William the conqueror, and was considered by the people to be a usurpation of their ancient common rights. Accordingly, in Magna Charta, which is said to be nothing more than a restoration of the ancient common law, we find this usurpation broken down and prohibited in future. That charter, as passed in the time of king John enacts, "that where the banks of rivers had first been defended in his time, (that is, when they had first been fenced in, and shut against the common use, in his time) they should be from thenceforth laid open." And, by the charter of Henry III. which is but an amplification and confir- mation of the former, it is enacted, " that no banks shall be defended (that is, shut against the common use) from henceforth, but such as were in defence in the time of king Henry our grandfather, by the same places and the same bounds as they were wont to be in his time." By this charter it has been understood, and the words fairly import, that all grants of rivers, and rights of fishery in rivers or arms of the sea, made by the kings of England before the time of Henry II. were established and confirmed, but that the right of the crown to make such royal grants, and by that means to appropriate to individuals what before was the common right of all, and the means of livelihood for all, for all future time, was wholly taken away. And whatever diversity there may be found in the books, with respect to the different kinds of fishery, it can no way affect the operation of the charter in this respect, 74 NEW JERSEY SUPEEME COURT. Arnold v. Mundy. because that forbids all manner of fencing in, or shutting, fishe- ries against the common use. All claim, therefore, of an exclu- sive right of fishery in a navigable river, founded upon the king's grant or prescription, which presupposes a grant, must reach as far back as Henry II. This we find expressly laid down by Sir William Blackstone, one of the greatest men that ever wrote upon the laws of England. 2 Black. Com. 39. Lord Chief Justice Holt, too, lays it down as a principle, "that the king's grant cannot bar a subject from fishing in a navigable river;" (6 Mod. 73; Salk. 357) and pretty nearly to the same effect is Mod. 105. The case of Carter v. Marcott seems to admit, that such a right can be maintained by prescription, which runs back beyond the memory of man. Bur. 2162. Against this doctrine has been cited and much relied upon, Lord Halo's treatise de jure maris brachiorumque ejusdem, given to us by Hargrave in his law tracts, and the case of the royal fishery upon the river Banne, in Ireland, by Sir John Davies. But making a little allowance for both the judge and the reporter being disciples of Seldon, and converts to his doctrine of the mare clausum, everything they have said may, in my view of it, be ad- mitted in the fullest extent, and yet the positions here laid down be in no way shaken ; nay, indeed, I have rather considered them as the great foundations upon which they are to rest. Lord Hale says, " the sea, and the arms of the sea, and the navigable rivers in which the tide ebbs and flows, are of the do- minion of the king, as of his proper inheritance ; and that this dominion, embraces, also, the shores, litora, the spaces covered with the slime and mud deposited by the water between the high and the low water mark, in the ordinary flow and reflow of the tide ; that this dominion consists, first, in the right of jurisdiction which he exercises by his maritime courts; and, secondly, in the right of fishing in the waters; but that though the king is the owner of these waters, and, as consequent of his property, hath the primary right of fishing therein, yet the common people of England have regularly a liberty of fishing in the sea, and the creeks and the arms thereof, as a public common piscary, and may not, without injury to their right, bo restrained thereof." This is his general doctrine. He then proceeds and says, that "though the king hath this right communijure, yet a subject, also, may have such right, and NOVEMBER TERM, 1821. 75 Arnold v. Mundy. that either by king's grant or prescription ; that the king may grant fishing within a creek of the sea, and that he may also grant a navigable river that is an arm of the sea, with the water and soil thereof." But when he speaks of this power of granting, as a common law right in the king, he must be understood as speaking of the common law before it was confined and restrained by Magna Charta, and as it was received and acted upon by the kings of England before that time ; and accordingly all the grants which he has been able to produce, after the most diligent search, are before the date of that charter. He has given, in support of his doctrine, five grants, and five only, one by Canute the Dane; two by William the conqueror ; one by Edward the confessor, and one by John himself before passing of this statute. And that the law was so understood at that time, or rather so construed by arbitrary kings; that they did so grant, and that those grants were confirmed by Magna Charta, and are now the foun- dation of most of the several rights of fishery in England, cannot be doubted. And, besides this, Lord Hale, in his treatise, has nothing material on this subject that I can discover. In examining this subject, I do not speak of the jure regium as it is called, the right of regulation which the king has in all the navigable waters of the kingdom; that is quite another thing, and wholly foreign from the present question. Then as to the case of the Banne water in Ireland. It was this : the plaintiff had obtained a royal grant for the territory of Rout, adjoining the river Banne, in which grant was contained, among other things, piscarias, piscationes, aques, aquarum, cur- sus, &c., in territoris predicto, reserving to the crown three parts of the said fishery. And the question was, whether this fishery passed by the grant? and it was held, that it did not; not indeed, upon the principle, that the king could not grant in that case, but upon the construction of the grant. In the discussion of the case, however, it was laid down, "that every navigable river, so far as the tide ebbs and flows, is a royal river, and that the fishery of it is a royal fishery, and belongs to the king by his prerogative ; and the reason iSj that the river par- ticipates of the nature of the sea, and is said to be a branch of the sea so far as it flows ; and the sea is not only under the dominion of the king, but it is also his proper inheritance, and, 76 NEW JERSEY SUPREME COURT. Arnold v. Mondy. therefore, he shall have the land gained out of it, and also the grand fishes of the sea, such as whales, sturgeons, &c., which are royal fish, and no subject can have them without the king's special grant ; and he shall have the wild swans also, as royal fowls, on the sea and its branches." Now what does this, taken in its whole extent, prove ? It proves, that the wisdom of the law has placed the titles of rivers, tc. in the king ; that if the river shall leave its bed, or if otherwise, there shall be alluvions or derelictions by the waters, the land so made shall then, and not before, belong to the king, as part of his domain ; and that he has an exclusive right in these waters to his royal fish and swans, but it proves no more. Nay, indeed, it does prove more, for the very position, that ho has an exclusive right to the royal fish and swans, proves that he has no such right to any others. It would be absurd to con- tend, that he had an exclusive prerogative right to these fish and swans, if he had also the same right to all the fish in the river, and all the aquatic birds upon it. Again it is said, in the same book, "that, by the common law of England, a man may have a proper and several interest as well in a water or river as in a fishery ; and that, therefore, a water may be granted." The cases produced to support the latter part of this position are grants from private individuals to private indi- viduals, but even if they were from the king, it would not alter the case, for there is no doubt that many such exist; but the question is, can such a grant be made by the king since the reign of Henry II.? It is enough to say, that no instance of it has been produced. Recent confirmations of ancient grants made before that time, which are recognized and established by the charter of Henry III. prove nothing to the purpose. Upon the whole, therefore, I am of opinion, as I was at the trial, that by the law of nature, which is the only true foundation of all the social rights; that by the civil law, which formerly gov- erned almost the whole civilized world, and which is still the foundation of the polity of almost every nation in Europe ; that by the common law of England, of which our ancestors boasted, and to which it were well if we ourselves paid a more sacred regard ; I say I am of opinion, that by all these, the navigable rivrrs in which the tide ebbs and flows, the ports, the bays, the coasts of the sea, including both the water and the land under NOVEMBER TERM, 1821. 77 Arnold v. Mundy. the water, for the purpose of passing and repassing, navigation, fishing, fowling, sustenance, and all the other uses of the water and its products (a few things excepted) are common to all the citizens, and that each has a right to use them according to his necessities, subject only to the laws which regulate that use; that the property, indeed, strictly speaking, is vested in the sovereign, but it is vested in him not for his own use, but for the use of the citizen, that is, for his direct and immediate enjoyment. I am of opinion, that this great principle of the common law was, in ancient times, in England gradually encroached upon and broken down ; that the powerful barons, in some instances, appropriated to themselves these common rights ; that the kings themselves, also, in some instances during the same period, granted them out to their courtiers and favourites; and that these seizures and these royal favours are the ground of all the several fisheries in England, now claimed either by prescription or by grant; that the great charter, as it is commonly called, which was nothing but a restoration of common right, though it did not annul, but confirmed, what had been thus tortiously done, yet restored again the principles of the common law, in this as well as in many other respects; and since that time no king of England has had the power of granting away these common rights, and thereby despoiling the subject of the enjoyment of them. I am of opinion, that when Charles II. took possession of this country, by his right of discovery, he took possession of it in his sovereign capacity ; that he had the same right in it, and the same power over it, as he had in and over his other dominions, and no more ; that this right consisted chiefly in the power of granting the soil to private citizens for the purposes of settlement and col- onization, of establishing a government, of appointing a governor, of conveying to him all those things appurtenant to the sov- ereignty, commonly called royalties, for the benefit of colonists; but that he could not, and never did, so grant what is called the common property as to convert it into private property ; that these royalties, therefore, which constitute that common property of which the rivers, bays, ports, and coasts of the sea were part, by the grant of king Charles, passed to the duke of York, as the gov- ernor of the province exercising the royal authority for the pub- lic benefit, and not as the proprietor of ihe soil, and for his own private use; and that if they passed from the duke of York to his grantees, which is a very doubtful question, then, upon the sur- 78 NEW JERSEY SUPREME COURT. Arnold v. Mundy. render of the government, as appurtenant thereto, and insepar- able therefrom, they reverted to the crown of England. And I am further of opinion, that, upon the Revolution, all these royal rights became vested in the people of New Jersey, as the sovereign of the country, and are now in their hands ; and that they, having, themselves, both the legal title and the usufruct, may make such disposition of them, and such regula- tion concerning them, as they may think fit; that this power of disposition and regulation must be exercised by them in their sovereign capacity; that the legislature is their rightful repre- sentative in this respect, and, therefore, that the legislature, in the exercise of this power, may lawfully erect ports, harbours, basins, docks, and wharves on the coasts of the sea and in the arms thereof, and in the navigable rivers ; that they may bank off those waters and reclaim the land upon the'shores ; that they may build dams, locks, and bridges for the improvement of the navigation and the ease of passage; that they may clear and improve fishing places, to increase the product of the fishery ; that they may create, enlarge, and improve oyster beds, by planting oysters therein in order to procure a more ample sup- ply; that they may do these things, themselves, at the public expense, or they may authorize others to do it by their own labour, and at their own expense, giving them reasonable tolls, rents, profits, or exclusive and temporary enjoyments ; but still this power, which may be thus exercised by the sovereignty of the state, is nothing more than what is called the jus regium, the right of regulating, improving, and securing for the common benefit of every individual citizen. The sovereign power itself, therefore, cannot, consistently with the principles of the law of nature and the constitution of a well ordered society, make a direct and absolute grant of the waters of the state, divesting all the citizens of their common right. It would be a grievance which never could be long borne by a free people. From this statement, it is seen that, in my opinion, the pro- prietors, as such, never had, since the surrender of the govern- ment, any such right to, interest in, or power over, these waters, or the land covered by them, as that they could convey the samo and convert them into private property; and that, therefore, the grant in question is void, and ought not to prevail for the benefit of the plaintiff, and, of course, that the rule to shew cause must bo discharged. NOVEMBER TERM, 1821. 79 Arnold v. Mundy. ROSSELL J. It is a fact, as singular as it was unexpected in the jurisprudence of our state, that the taking a few bushels of oysters, alleged to be the property of the plaintiff in this suit, should involve in it questions momentous in their nature, as well as in their magnitude; calling forth the talents, learning, and industry of our bar; affecting the rights of all our citizens, and embracing, in their investigation, the laws of nations and of England, the relative rights of sovereign and subjects, as well as the municipal regulations of our own country. The plaintiff's counsel contend, that the nonsuit granted on the trial of this cause, by the Chief Justice, should be set aside, on two grounds : 1. That the locus in quo whereon these oysters were laid, was his own proper freehold, by virtue of a proprie- tary right, duly laid thereon, returned and approved of by the council of proprietors of East Jersey, and recorded by their authorized officer, in consequence of which he claims a several fishery. 2. That he had purchased and planted those oysters on the spot from whence they were taken by the defendant; and as a public notice, that he, by placing them on the soil of the river Rariton, had not abandoned his property in them, he had sur- rounded them with small stakes. The defendant claims a right to those oysters, having taken them from a bed called an oyster- bed, situate on the river Rariton, below the common low water mark, and on which it had been usual for the people of East Jersey to fish for oysters, from the first settlement of the country. In support of the first of these positions, the counsel for the plaintiff contend, that Charles II. in the year 16G4, granted unto his brother, the duke of York, the land, soil, seas, bays, rivers, with divers franchises, royalties, and government of New Jersey ; that the duke of York granted the same, in like words and powers, to Lord Berkley and Sir George Carteret; that these, by grant, conveyed to the Earl of Perth, William Penn, and others, that part of New Jersey called East Jersey, and to Edward Billinge, that part called West Jersey, together with all the roy- alties, franchises, and government, as fully as the}' were granted by the king to the duke of York; and that the present proprie- tors of East Jersey, deriving their respective titles to their several shares or proportions to all the unlocated soil and waters of East Jersey, by virtue of several mesne conveyances from the original proprietors, had a legal power to dispose of rights to the plain- 80 NEW JERSEY SUPREME COURT. Arnold v. Mundy. tiff to locate them on this oyster-bed, whereon the trespass is alleged to have been committed. And it is insisted, that as Charles II. did grant, so he had the power to grant, not only the whole soil of a newly discovered, or conquered, country, but certain parts of his royal prerogative, as named in the grants or letters patent to and from the duke of York. In support of these positions, they cite numerous authorities. Vattel 120-5-7, sec. 266, and 101, sec. 210. 2 Slack. Com. 15. 1 76. 264, 286. Davies 152. 6 Com. Dig. Navigation D 50, 60, title Prerogative. 4 Bur. 2163-4-5. 3 Cruise, sec. 14, title Deed, 565- 8. 17 John. 209-10-13. 3 Term. Reports 253. 2 Bin. 475. 4 Mass. Eep. 140. Har. & McHen. Eep. 564. Har. L. T. 5, 7, 10, 11, 14, 17, 19. 1 Rutherf. 91. . 2 76. 82. 3 Chit. Grim. Law 359. 2 Ld. Ray. 1274. 2 Salk. 666. Smith's Hist. N. J. Learning & Spicer, Grants and Concessions. From these authorities it abundantly appears, that by the law of nations and of England, a conqueror has a right to impose such laws on the conquered, as he may think proper; that in England, all property, real and personal, capable of ownership vests in some one or more individuals or bodies corporate; that the titles to lands in England are said to be held, in general, mediately from the king; that certain rights and powers are vested in him, as the head of the government, under the name or title of prerogative, amongst which may be numbered, on the present occasion, the sovereignty of the sea, to a certain extent, and of all public rivers, royal fish, as whales and sturgeons, wrecks, treasure-trove, &c.; that the kings of England have, from time to time, frequently alienated part of the domains belonging to the crown, and bestowed many franchises on their favourites, and rewarded individuals, for their faithful services, with parts of their lands, or granted them many exclusive privileges, as a right to fish in arms of the sea, or public rivers wherein the sea ebbs and flows; and lastly, that King Charles II. did, in the year 1664, grant to the duke of York all the lands, islands, soils, rivers, har- bours, mines, minerals, quarries, woods, marshes, waters, lakes,' fishings, bawkings, huntings, fowlings, and all other royalties in, belonging, or appertaining to the state of New Jersey, as well as the government of the same (saving and reserving to the crown the receiving, hearing, and determining appeals in and touching any judgment or sentence to be there made or given) ; to appoint NOVEMBER TERM, 1821. 81 Arnold v. Mundy. governors, and to make all necessary laws, &c., so always that they be not contrary to the laws and statutes of England, but as near as may be agreeable thereto. After a careful examination of the authorities cited to establish the plaintiff's claim to these oysters, and his right to a several fisheiy on the bed whereon they wore laid, I shall proceed to examine the correctness of the inferences and conclusions his counsel have drawn from those authorities. And it may not be amiss to take a very brief view here of the manner in which thia country was first settled by English subjects. In the preface of Grants and Concessions, by Learning ing been imposed by any competent court, without any entry made, without any paper filed, without any thing of record to which '.he parties affected can have recourse to test the regu- laiity of the proceeding. 1 1 is true, that in behalf of the State they have produced the afii-lnvit ol the brigade paymaster, in which he states, that be drew the warrant himself; that upon seeing the justice passing his office, he called him in to sign it, and he did sign it; that the list of delinquents annexed to it was made out by him in part, before the signing, and was completed by him, afterwards, by adding a number of names thereto ; and that be took those names from returns made to him in due form of law. But though it has been made a matter of much interest to support this warrant, though much pains have been taken, and many witnesses exam- ined, not one of these returns has been produced here. !Now. what does all this amount to? does the affidavit of the paymaster at all better the matter? taking the thing as he states it to be. is it, in any measure, a compliance with the law, either upon 'nis part or on the part of the justice? In what, is it any thing m<~>rc than the brigade paj-master getting the justice to sign the warrant, and then annexing to it, what, indeed, is the very essence o! it, such names as delinquents, and such fines opposite to them as he might think fit ; and that without any judgment or discretion of the justice exercised thereon, without any entry or other document to which recurrence can bo had for redress? Can it be, that the property of two hundred and twenty-five citi- zens can be made liable to seizure, and their persons to imprison- ment, upon proceedings like these? Certainly not in a free coun 148 .NEW JERSEY SUPEEME COURT. State v. Parker. try, where rights are defined by law, where no man can bo touched in his person, property, or reputation without the lawful judgment of a competent tribunal, and that recorded, or in some Way registered, so that it may be carried up and reconsidered by tho tribunals of the last resort. It is manifest, therefore, that iJiiH warrant was issued improvidently and without authority ; nnd that, therefore, it must be set aside as to all ttiose who have voino before the court as the prosecutors of this writ. From this view of the case, Mr. Justice FORD dissented ; but, by the Chief Justice and Justice ROSSELL, .Let the warrant be set aside as to the prosecutors of this writ of ccrtioran. CITED IN State v. Atkinton, 4 Hal. 275. State v. Mor. Can. & B'kg Co., 2 Or 411. N.J.R.R.&Tr. Co. v. Suydam, 2 Harr. 42. Camden City v Mulford, 2 Dutch. 55. THE STATE against J. PARKER. OK IHDICTMEHT. Quarter Sessions may grant a new trial upon the merit*. .1 . PAR* EH was indicted for having a counterfeit note in his pos- session, with intent to pass; and, upon his trial before the Quarter BoflsionH of the county of Monmouth, the jury found him guilty. Tho defendant's counsel moved for a new trial, upon the ground, that tho prosecutor for the State did not prove that I'urker know the note to be counterfeit, and the Court of Quar- ter Sessi JDS granted a rule for a new trial, upon that ground. Wolf., the deputy attorney-general, now moved the Supreme Court for a rule to shew cause why a mandamus should not issue to the Qiwrtcr Sessions of Monmouth commanding them to ren- der judgment on the verdict of the jury, and forbidding them to proceed on tho rule for a new trial, and contended, that the Uourt of Quarter Sessions erred in granting the rule for a new trial ; bec,flto, being a court of inferior jurisdiction, they had no ri^ht to gra.it a new trial on the merits, and cited in support of hi* portion, 1 Chit. Crim. Law 373, 654. 13 East 416, note. 1 John. 179. 2 Caines in Er. 319, opinion of Justice Kent. 4 Black, (torn. 27 1 -2. j. at. N. J. Laws 130, sec. 2. Stat. Edward III. Stat. at Large 1537. Learn. & Spi. 233. (See Appendix S, the part of Learn. o '.sr.tered 0:1 the t-ail piece filed in this cause. The facts ol'tho case wore admitted to be these: Samuel Rowland became indebted, 'ir Philadelphia, to Stevenson. Upon this debt Steven- sou sued Rowland in this state. Pending these suits Rowland was tatcou . ; n custody in Philadelphia, at the suit of different persons, for a different debt, and was there discharged as an insolvent. Tho debt for which this action was brought was contracted in Philadelphia, and Stevenson resided there at the time it was contracted, and at the time of the discharge. The discharge was in regular form, and duly certified. Rowland was * resident of New Jersey. Kiting contended, that the discharge in Pennsylvania was a pro- tection to the person of Rowland ; the court would not suffer a ca. 150 JNEW JERSEY SUPREME COURT. Rowland v. Stevenson. #i. to bo : Bc.td against Rowland ; and if it was issued and taken the court would discharge him. 1 South. 202. This position being established, the only question was, whether the exoneretur should bo entered, a id of that there could bo no doubt. Wall admitted, that if the first position of the gentleman was correct tJio i*ocond followed of course. While the suits were pending in this *tute, Rowland goes into the state of Pennsyl- vania, and takes the ' onefit of the insolvent law. It is imma- terial whether voluntary or not, for it appears to mo, that the suit bcin? commenced before he went the lex fori had attached. 2 John. IDS. II John. 195. It is the same as if the suit was com- menced hero, n the contract was made here. It is only to the interpellation of contracts that the lex fori applies. As to the remedies, it ''OP not depend upon the ground of their residing in different tales; when they come into our courts they must be.goverr.ed by tne course of proceedings in our courts, viz. the lex Jon* By tne laws of this state, the plaintiff is entitled to hold the \ail until they are discharged in the manner pointed out. by our laws. Here the rights of the plaintiff had attached before R(.'.v.anu went to Philadelphia to get a discharge. I find no case vrhore tbo defendant has been discharged from debt in one state if,er a suit actually commenced for that debt in another, but th ;re is a case in Johnson which appears to bear upon it. 7 John. 117, White v. Canfield. 'Ihe discharge in one state is only the discharge of the body, ard is local in its operation. It was so decided in Peck v. Hozier (11 John. 34C) where it was determined, that a person who had i/rrested in another state, and discharged from imprison- MI. dor toe act of the legislature of that state, may be arrostoi a^u 'ield to bail in New York for the same cause of acticj at tne suit of the same plaintiff. If this principle is cor- rect, it applies much stronger in this case, where the suit had been commenced in this state before the discharge made. The assignee.: ir. Pennsylvania could not act here; the debtor has no property in that state. It would give rise to all kinds of fraud; the creditor there could never have any redress against him. Eicing. If this application bo novel, it must be because no one has thought proper to oppose it; but the principles upon which the application is made are not novel. The case in 2 John, does FEBRUARY TERM, 1822. 151 Boqua v. Ware. not apply. As to the case in 11 John, it is opposed to the deci- sion in South, but even that does not go the length which the gentleman does. In the case in 7 John, the debt was contracted in New York, and the discharge in Connecticut. The case in 14 John, is the same thing in effect ; the debt was contracted in Barbadoes, the plaintiff resided in New York, and the discharge was in Massachusetts. We are brought back fairly, then, to the principles contained in the case of Vannuxem v. Hazlehurst. When the discharge was obtained, makes no difference, whether it was after the suit commenced or before. BY THE COURT. Let there be an exoneretur entered on the bail piece. CITED isr Wood v. Martin, 5 Hal. 256. JOHN BOQUA against ANDREW WARE. When a plaintiff moves for judgment upon a postea which states, that the defendant made default at the circuit, and this motion is opposed upon the ground, that notice of trial was not served, proof of duo notice may be made, either at the circuit or at bar. Upon the coming in of the postea in this case, whereby it appeared that the defendant made default at the circuit, Jeffers moved for judgment thereon. Armstrong objected to this motion, and contended, that plain- tiff's attorney, to entitle him to judgment, ought to prove due service of notice of trial. He alleged, that notice of trial had not been duly served on the defendant's attorney, and, there- fore, moved for a rule to shew cause why the verdict should not be set aside. Jeffers said, that the cause had been regularly noticed, and brought down to the circuit for trial ; that the cause was tried, and a judgment obtained, in the presence of the attorney on record, without his making any objection to the service of the notice. KIRKPATRICK C. J. The real question between you is, where the notice of trial must be proved, whether at ttie circuit or at bar. The Chief Justice then asked Mr. Wall, as amicus curice, what the practice was ? Wall said, it was customary to prove it at bar. 152 NEW JERSEY SUPREME COURT. Stephens v. Meguire. Mr. L. H. Stockton, being then called on for his opinion, said, he thought the recent course of practice was to prove it at bar. K iKKi'ATHUK C. J. There appears to be some incongruity in that, but I believe that is the practice. FORD J. said, that it had been the practice when it was usual to try causes upon the nisi prius record, curia advisare vult. At a subsequent day, during the term, KIRKPATRICK C. J. said, the court had conferred upon this case, and were of opinion, that if the party appeared at the circuit and made objection to the notice, the judge at the circuit might hear and determine it ; but if the party did not appear at the circuit and make objection, he might take the objection at the bar ; and, therefore, it might be done either way. FORD J. There has been doubt as to the former practice ; but on a judgment by default there could be no argument, and there it must be settled at the bar. But where the question arises, and is discussed, at the circuit, and the opinion of the judge is, that the notice is regular, there the judgment cannot bo entered as by default, but in the usual manner; and then the question cannot arise at the bar. The question of notice, in this case, is now open. The plaintiff may be admitted to prove notice, be- cause that question did not arise, and was not discussed, at the circuit CITED IH Norwood v. Smethurst, 1 Vr. 232. SAMUEL "W. STEPHENS and ELIZABETH SNEED, administrators of Griffin Sneed, deceased, against WILLIAM MEGUIRE. The affidavit to hold to bail for money due on articles of agreement, must Ute the breach of the articles of agreement, or the defendant will be dis- charged on common bail. WHITE moved to discharge the defendant on common bail, because the affidavit to hold to bail was insufficient. The affida- vit was in the form following: "A. B. being duly sworn, depos- eth and saith, that William Meguiro is indebted to Samuel W. Stephens and Elizabeth Sneod, administrators of all and singular the goods and chattels, rights and credits, of Griffin Sneed, de- ceased, in the sum of thirteen hundred dollars, due on a certain article of agreement made and entered into between Griffin FEBKUAEY TE11M, 1822. 153 Wilkins v. Budd. Sneed, in hi- lifetime, and the said William Meguire. Dated the ninteenth day of May, 1815." Tho objections to this affidavit, he said, were 1. The affidavit was made by t' e attorney in the cause. He conceived it incon- sifltont with practice for the attorney to make an affidavit to hold to bail, when the plaintiff himself was within the jurisdiction of the court. 2. Tho affidavit is made by A. B. a third person, not party to the suit, and d';es not state, whether it is made by him as attorney or agent, or in what character. 3. Tho affidavit does not set out any breach. It states the money to be due on a certain article of agreement. It does not appear bat what these articles of agreement have been completed. FORD J. The great defect in the affidavit is, that it does not set out a breach. By THE COURT. Let the defendant be discharged on common bail. WILKINS and BLACK against BUDD. This court will not order a judgment to be vacated because the plaintiff thinks he has discovoied a partner of the defendant, to enable plaintiff to bring an action against the defendant and such supposed partner. WALL applied to the court to vacate the judgment obtained by the plaintiffs against Budd in this case. He said, that since the judgment, Wilkins and Black thought they had discovered a partner of Budd, viz, Jones, and, therefore, as they have been able to obtain nothing on the execution against Budd, they wished to vacate their judgment against him, so as to proceed against Budd and Jones, as partners. I can find no case authorizing the vacation of the judgment; but in 18 John. 459, 476, 484, I find something touching upon the case. Ail the law relative to a judgment obtained against one person, before a dormant partner is discovered, is there fully dis- cussed. No ono could be injured by allowing the judgment to be vacated, except Jones, the dormant partner, and he can have no right to oppos* the application. Eicing, on brha'.f of Wesley Budd, the defendant in the former action, oppoced this motion. In March, 1818, Isaac Wilkins 154 NEW JEESEY SUPEEME COUET. Wilkins v. Budd. filed an aft* davit, fiat Budd was indebted for goods, wares, &c. sold by NVilKiiiti and Black. At the circuit, the plea of Budd was relinquished, snd &ca. sa. issued, but nofi.fa. Budd was arrested on the c.a. mi. and a compromise took place between Budd and Wilkir.s ana Black, and they ordered the sheriff to discharge Budd ; and auerwards Wilkins and Black prosecuted Budd and Joiieti on the. same cause of action; and fearing that this judg- ment may b* set up against their recovery in this second action, have mov L J to vacate their judgment against Black. This.appli- cation is made three years after the judgment was obtained. I insist, that tl.e court have no power at this lapse of time to vacate the judgment. If the recovery of judgment against one partner is a bar to an action against two, then the court have no power to deprive him of that right. There is no instance where a plaintiff hag boon suffered, after such a lapse of time, to vacate a judg- ment; oven a '.7rit of error could not now be brought. Has any power beer shown to reside in this court of vacating judgment after Hur.b a lapse of time ? There is a case in Salheld which says, the court may vacate their judgment during the term, but no case can bu found where they have done it at a subsequent term. Wall, in reply, said, he had not supposed that the gentleman wouU havo placed himself upon the ground, that the court had not. power to interfere during the term, after the opinion expressed by this oourt in the case of Reed v. Bainbridge, 1 South, 351. This case fnily establishes the power of the court to interfere. Tho case in the Supreme Court of the U. S. (6 Cranch 253) is the only cau which says, that a judgment against one partner will not bar an action against the two ; but this is opposed by the case in the Supremo Court of New York, and by Chief Justice Kent and Justice Washington. The objection entitled to most weight is, that Budd has been arrested and discharged; but the general fact, that tho party derived no satisfaction, either actually or legally, is correct. Tho circumstances of the ca. sa. having been issued, ia no discharge ; he must have been actually arrested, or have paid the money. Your honours must confine your attention to what appears upon the record, viz. the sheriff's return. The return was "wived the plaintiff's discharge from the within writ" This was only to exonerate the sheriff, and the defendant, Budd, has no right to take any advantage of that discharge. AH to the effect upon Budd's interest, it is imaginary; there can FEBRUARY TERM, 1822. 155 Chumar v. Wood. be no injurious consequences to Budd in case we succeed. Jones is the only one who is interested in opposing this application. There is no analogy to a writ of error, and because a writ of error could not be brought after three years, it is no reason why the court, after that lapse of time, would not vacate. But this application was made at the last term, when three years had not expired, curia advisare vult. At a subsequent day in the term, the court said, they had con- ferred upon this case, and they refused to vacate the judgment, but ordered the rule to shew cause to be discharged. JOSEPH CHUMAR against PETER B. WOOD. OH CEETIOEAEI. A conveyance of chattels unaccompanied with possession IB void. This action was commenced in the form of an action on the case, and so styled in the justice's docket. But the state of demand complained against the defendant below, Joseph Chumar, "for that he, on the 13th October, entered the leased premises of Thomas Bedle and Thomas Carhart, in the township of Mid- dletown and county of Monmouth, and at sundry times, from the said 13th day of October, 1820, until the commencement of this suit, took and carried away 24 cords of oak wood, the property of the plaintiff, to his damage," &c. The defendant pleaded, that he was not guilty of the trespass charged, and for further plea, that the wood which the said plaintiff had charged him with was the property of the Rev. John Croes, by whose request and order the said Joseph Chumar acted. The jury found a verdict for "Wood, the plaintiff below, for $54. Upon the return of the certiorari, a rule was taken upon the justice to certify certain facts. In his return to this rule the jus- tice certified 1. That the plaintiff below, Wood, claimed title to 200 cords of wood, the property in dispute, under a bill of sale made by Peter Barber to him, bearing date 1st July, 1820; that the bill of sale was proved to have been executed on the day it bore date ; and that a sum of money was paid for the same, but does not remember that any delivery of said wood was proved to have been made to the plaintiff below. 2. That the defend- 156 NEW JERSEY SUPEEME COURT. Chumar v. Wood. ant below claimed the property in dispute under a bill of Bale from Peter Barber to the Rev. John Croes, duly executed, for a lawful consideration, accompanied by a delivery of a part, and bearing date the 10th July, 1820. After the execution of both these bills of sale, the wood was levied upon as the property of Peter Barber, and, by his direc- tion, sold. Peter B. Wood was present at this sale, and did not forbid it, but bought the wood at twenty-five cents per cord. Wall said, that the first bill of sale to Wood, under which he claimed the wood, was fraudulent, because possession did not accompany or follow it. But Barber being permitted to remain in possession of the wood, and afterwards selling it for a valua- ble consideration to a bona fide purchaser, without notice, such subsequent purchaser would be entitled to hold it. He took the law to be well settled, at this day, that a conveyance of chattels unaccompanied by possession was absolutely void. Br THE COURT. There is no doubt but that is the law. Take a reversal. NOTE. That a conveyance of chattels unaccompanied with possession is void. See Reed v. Blades, 5 Taunt. 212. Edwards v. Harbin, 2 Term. Rep. 587. Meeker et al. v. Wilson, 1 Oallison's Rep. 419. 1 Oranch 309. CITID IH Hall v. SnowUll, 2 Or. 8. Shreve v. Miller, 5 Dutch. 254. Runytn V. Qroshon, 1 Beat. 89. CASES DETERMINED 15 THE OP THE STATE OF NEW JERSEY, t AT MAY TERM, 1822. NA, IAN SQUIER, JOSEPH PIERSON, CALEB DURAND, JOB CKOW ELL, and JAMES CROWELL, appellees, against THOMAS P. appellant. 1. Though a mandamus will lie to an inferior court to command the j r thereof to proceed to judgment, yet it will not lie to command them tc ur. ceed to any particular judgment, and much less to command them to set asioe a verdict and grant a new trial, or even to grant a rule to shew cause for tbnt purpose. 2. Courts of Common Pleas have a right to set aside verdicts and to grant new trials, and they have this right, as well in cases of appeals under statute as in other cases. This cause was originally tried in the court for the trial of small causes, and judgment rendered for the appellees, upon the verdict of a jury. An appeal was then taken to the Common Pleas of the county of Essex, where the cause was again tried before another jury, and a verdict rendered in favour of the ap- pellant. After the rendering of the verdict, and before the judg- ment was given thereon by the court, a motion was made on be- half of the appellees, for a rule to shew cause why a new trial should not be had on the said appeal, which rule the Court oi Common Pleas refused to grant, and alleged, as a reason for such refusal, that they had no authority in the law to grant such rule, and order a new trial in case of an appeal. Halsey, at the last term, obtained a rule upon the Court < f Common Pleas to shew cause, on the first day of this term, wly (157) 153 NEW JERSEY SUPREME COURT. Squier v. Gale. a mandamus should not issue, commanding them to grant a rule to shew cause why a new trial should not be had in the case of the appeal aforesaid, and proceed to hear the party appellee upon the said rule. To this rule the Court of Common Pleas made the following return : " The judges of the Inferior Court of Common Pleas in and for the county of Essex, in compliance with a rule of the Supreme Court, a copy whereof is hereunto annexed, do respectfully state to the said Supreme Court and the justices thereof, that after the trial of the said cause, in the said annexed rule mentioned, between Thomas P. Gale appel- lant, and Nathan Squier, Joseph Pierson, Caleb Durand, Job Crowell, and James Crowell, appellees, in the Inferior Court of Common Pleas in and for the county of Essex, by a jury of the county, and in which the said jury found a verdict for the said appellant against the said appellees, the counsel for the said appellees applied to this court for a rule to shew caUBO why a new trial should not be granted, on the sole ground, that the verdict was rendered contrary to the evidence in the cause; whereupon the said inferior court took into consideration the question whether it had power to grant new trials in such cases? and upon examination of the act of the legislature, in that case made and provided, and not finding therein any authority con- ferred on this court to grant new trials in such cases, and con- ceiving it contrary to general principles for the court to exercise the power of granting new trials in such cases, without special legislative authority to do so, this court, in the cause in the an- nexed rule mentioned, refused to grant a rule to shew cause, inasmuch as it would only tend to consume the time of the court and create expense to the parties, without any beneficial result, according to the opinion which had been formed of the power of the court before stated, all which is respectfully submitted to the Supreme Court." Opinion of the court by the Chief Justice. KIRKPATRICK C. J. In this case the court are of opinion 1. That though a mandamus will lie to an inferior court to com- mand them to proceed to judgment, yet it will not Ho to com- mand them to proceed to any particular judgment ; and much less to command them to set aside a verdict and grant a new trial, or even to grant a rule to shew cause for that purpose. MAY TERM, 1822. 159 Kennedy v. Nixon. 2. That the Courts of Common Pleas have, by the constitu- tion of the said courts, and by the principles of the ancient com- mon law, a right to set aside verdicts and grant new trials; and that they have this right, as well in cases of appeal under statute as in other cases. CITED IN Baldwin v. Simmons, 4 Hal. 196. Cortelyou v. Ten Eyck, 2 Zab. 46. Van Waqgener v. Coe, 1 Dutch 197. State v. Common Pleas oj Pas- saic, 9 Vr. 184. Benedict v. Howell, 10 Vr. 223. ANONYMOUS. PRACTICE. Service of notice of amercement on the sheriff must be a personal service. WALL moved to amerce the sheriff of Cumberland, and read an affidavit of sending a venditioni and notice of this motion, by mail, to the sheriff. Per curiam. There must be proof of personal service of the notice on the sheriff. Proof of notice sent by mail is not suffi- cient; and, therefore, we cannot grant your motion. KENNEDY against NIXON. Where the defendant puts off a cause upon affidavit, he will not be compelled to pay the costs of striking a jury which haa been summoned on a rule of the plaintiff for that purpose. This cause was noticed for trial at the last Hunterdon cir- cuit. The plaintiff had obtained a rule for a struck jury; this jury had been summoned, and attended. The defendant put off the cause upon affidavit of the absence of a material witness. Ewing said, that upon the taxation of the bill of costs of the term, a question had arisen, whether the plaintiff was entitled to the costs of striking the jury? He thought that where the cause was put off by the defendant, without any neglect on the part of the plaintiff, that the plaintiff ought to be completely indemni- fied, and, therefore, ought to be paid the costs he had been put to in striking the jury. KIRKPATRICK C. J. said, the plaintiff could only recover the costs to which he is entitled by law. The statute (Pat. 261, sec. 16) enacts, that the party applying for a struck jury "shall pay 160 NEW JERSEY SUPREME COURT. Woodward v. Cook. the fees for striking the same, and shall not have any allowance therefor upon the taxation of costs." He did not see, therefore, how they could tax it. ROSSELL J. thought the act of assembly was a bar to the plaintiff's claim to these costs. FORD J. I think the defendant ought to pay it. The plaintiff ought to be indemnified for the expense he has been put to. Costs of striking jury not allowed. APOLLO WOODWARD, at the suit of JOSEPH COOK, assignee of J. Shinn The affidavit required under the 5th section of the act directing the mode cr entering judgments on lands with warrants of attorney, must state the comid cration of the bond, and it is not sufficient to state the consideration of the assign mmt of the bond only. This was a rule to shew cause why the judgment and exe cution in this cause should be set aside. This judgment wab entered upon a bond and warrant of attorney under the act "directing the mode of entering judgments upoa bonds with war- rant of attorney to confess judgments," passed 24th Februaiy, 1820. The affidavit made and filed in pursuance of the 5th section of the act was as follows : "A. B. attorney for Joseph Cook, being duly sworn, doth declare and say, that Apoljo Woodward is justly indebted to the said Joseph Cook, as this deponent verily believes, in the sum of thirteen hundred dollars, on a bond accompanied by a warrant of attorney to confess judgment, whereof the foregoing are true copies. That the consideration of the assign- ment of the said bond to said Joseph Cook is, as this deponent believes, for money paid to the said Joseph Shinn, the obligee therein mentioned ; and this deponent verily believes the said sum of money to be justly due and owing to the said Joseph Cook from the said Apollo Woodward, and that judgment is not confessed on the said obligation, by virtue of the warrant there- unto annexed, to answer any fraudulent purpose, or to protect the property of the defendant from his creditors." Armstrong moved to set aside this judgment, on account of the insufficiency of the affidavit. The affidavit, he said, was not in conformity with the provisions of the act. By the 5th section, it MAY TERM, 1822. 161 Kingsland v. Gould. was enacted, "that no judgment shall be entered on a bond or obligation and warrant of attorney to confess judgment thereon, unless the plaintiff or his attorney shall produce, at the time of confessing such judgment to the court, justice, or judge, before whom such judgment shall be confessed, an affidavit of the plain- tiff, his attorney, or agent, stating therein the true consideration of the said bond or obligation, and that the debt for which judg- ment is confessed is justly due," &c. Now this affidavit does not state consideration of the bond, but merely the consideration of the assignment of the bond, and was, therefore, not a compliance with the words of the act. Per curiam. Let the rule setting aside the judgment be made absolute. CITED IK Beading v. Reading, 4 Zab. 364. Cfappv. Ely, 3 Dutch. 569-589. HENRY KINGSLAND agaimt WILLIAM GOULD, JOHN DOD, RICH- ARD OUTWATER, NATHAN SQUIER, and JOSEPH T. BALDWIN. ON CERTIOEAEI. 1. The obtaining an injunction ont of Chancery to prevent commissioners proceeding in a certain matter, does not deprive the party of his remedy in this court by certiorari. 2. There being a court of appeal does not prevent the proceedings of the inferior court from being brought before the Supreme Court by certiorari, 3. A cerliorari operates as a supersedeas, and the court below cannot proceed after the certiorari is granted. This was a certiorari issued out of the Supreme Court to bring up the proceedings of commissioners appointed by "An act sup- plementary to an act passed on the twentieth day of January, eighteen hundred and eighteen, entitled an act to authorize Edmund William Kingsland, Jacob Van Winkle, and others, their heirs and assigns for ever, to erect and maintain a dam, sluices, and floodgates across Kingsland creek, and such other water-works as they may think necessary, in the township of New Barbadoes, in the county of Bergen, to improve their salt marsh or meadows," and a supplement thereto passed the four- teenth day of January, eighteen hundred and nineteen. Pennington moved to set aside the certiorari guia improvide emanavit. He contended, that no certiorari lay, in this case, to the commissioners. 1. Because, by the 4th section of the act, it was provided, that in case of any dissatisfaction on the part of VOL. i. L 102 NEW JERSEY SUPREME COURT. Kingaland v. Gould. either of the proprietors, in consequence of assessments, such proprietor might apply to the commissioners of appeal of New Barbadoes and Bergeu, who were constituted a court of appeal to take cognizance of such application. That the legislature had provided this domestic tribunal for the purpose of settling these matters, and, therefore, this court could not interfere. 2. That Henry Kingsland, previous to the issuing of this certiorari, had filed a bill in Chancery to set aside the proceedings of these commissioners. The chancellor granted an injunction, and, upon the coming in of the commissioners, the injunction was dissolved. The plaintiffs then took no steps in their Chancery cause, but come into this court and obtain a certiorari to bring up the pro- ceedings of the commissioners, and the same reasons are filed substantially as are stated in the bill. He then offered to read the bill in Chancery, to shew that the facts were as ho stated. Chetwood, contra, objected to his reading the bill ; because he had no right to enter into the proceedings of another court on this motion to quash. Besides, the motion itself was too late ; it should have been made at the last term, (the term when the writ was returned). KIRKPATRICK C. J. Is there any case where you can make ftn application of this kind, after the term to which the writ is returned ? If the application to quash is merely for irregularity, it should have been made at the term the writ was returned. Frelinghuysen, attorney-general, on the same side with Pcnn- ington, said, that the reason relied on was not irregularity mere- ly ; but that there was another tribunal before which this action was pending, and that this court had no jurisdiction of it, upon the principle/ that wherever there was a decision before a court of competent jurisdiction it was conclusive upon the point. Chetwood. The gentlemen, for their first point, rely upon the 4th section of the statute. The first reason assigned was not con- fined to the assessment. But even if it was, yet he contended, that though an appeal was given it did not take away the right of a party to bring a certiorari, and unless the certiorari was expressly taken away by the statute, the party could not be deprived of the benefit of this writ. Doug. 555, note. Black. Rep. 231. Be- fore our late act for the trial of small causes, although an appeal MAY TEEM, 1822. 163 Kingsland v. Gould. lay to the Common Pleas, yet a certiorari would also lie, and was frequently brought. The second objection is, that the party was proceeding in the Court of Chancery. This assessment was made out by the com- missioners. They were proceeding, and actually had advertised to sell, and would have sold it before a certiorari could issue, because there was no court sitting to whom the party could apply, and, therefore, he was obliged to apply to Chancery for an injunction, and it was upon that ground alone that it was allowed, because the chancellor said he had no jurisdiction of the cause, and granted it only for the reason that, if it was not granted, the property might be sold before the party could have any redress. But this court is asked to set aside the supersedeas, if they will not the certiorari. But the court would not do it where a man's freehold was in question. If the court think proper to sus- tain the certiorari, will they, during the pendency of the suit, permit the property to be sold. If they do set aside the super- sedeas, and the property is sold, and the proceedings should be determined illegal, how could the property be got back again ? If there had been no supersedeas this court would have granted a rule to stay the sale. Southard. This is a motion with a double aspect first, to get rid of the certiorari; second, of the supersedeas. 1. It was said, that an application had been made to Chancery, and the bill had been dismissed; the principle, as to decisions of concurrent jurisdiction, did not apply; the question was, whether this court could be deprived of the exercise of its jurisdiction because there were proceedings in Chancery. If there be pro- ceedings in two courts of concurrent jurisdiction, the proceed- ings in one will not arrest the proceedings in the other, until there has been a decision. But the Court of Chancery had no jurisdiction in this case; it could have no jurisdiction in these cases but upon two grounds: first, to prevent an enormous evil; second, where there is no remedy at common law. I apply to a court that has no jurisdiction, and can get no redress. I then apply to a court which has jurisdiction ; shall I be told I have made an application to the court which has no jurisdiction ; that, there- fore, the court which has jurisdiction will give me no redress? But the application was made to Chancery, only until we could apply to this court. The application there was only for tempo- 164 NEW JERSEY SUPREME COURT. Kingsland v. Gould. rary relief; but the application here is of a more permanent character. The second objection is, that there is an apcal to another tri- bunal, and that, therefore, this court has no power to issue the writ of certiorari. No such appeal ever can take from this court the right to issue its certiorari. The power to issue this writ is an original power, inherent in this court, and cannot be destroyed^ because an appeal is given to another tribunal : if it could thero would be some case to be found upon the subject, and none has been cited. This power can never be taken away except by express negative words. In cases of roads, this court will direct their certiorari to the surveyors or freeholders, or Common Pleas Is the appellate jurisdiction of the Common Pleas of Bergen to correct the illegality of the proceeding? No! they only inquire into the justice and propriety of the proceedings ; the act speaks only of assessment; the Court of Common Pleas are to look into the extent, injustice, and inequality of the assessment, and not into the legality of the proceedings. With regard to the supersedeas, the certiorari is in itself a super- sedeas, and they ought to have stopped their proceedings upon receiving the certiorari, and the supersedeas is a mere notice to tell them you have not stopped under certiorari, and if you do not now stop you will make yourselves liable. KIRKPATRICK C. J. said, there is no doubt that a certiorari is a supersedeas. Southard. It is a very extraordinary course of argument to say, because we disregarded your first writ, therefore you are to set aside your second writ. Frelinghuysen said, the court would perceive the act was made to improve a meadow. 2d sec. of the act passed 1820. The legis- lature intended to vest in the commissioners some serious powers. This was a neighborhood concern, and the legislature intended to create a domestic tribunal. It is said, this appellate court had no authority to review the proceedings of commissioners, except as to the assessment ; but all the important reasons filed regard the assessment. Now, if Mr. Kingsland was bound to submit to this assessment, then all these reasons must be struck out. The bill prays for full equitable relief. It will not answer for MAY TEEM, 1822. 165 Kingsland v. Gould. the gentleman to say, that the only object of the bill was to pray an injunction until they could obtain redress from the Supreme Court. It is said, the Court of Equity possessed jurisdiction to grant the injunction, but no farther. This suit is now pending in Chancery, and Mr. Kingsland can there obtain all the redress that the Supreme Court can give. The bill in Chancery was filed merely to delay the proceedings, and after the answer comes in, he abandons that court and applies to a judge of this court for a similar writ in substance. Suppose he had fii*st obtained a supersedeas, and, upon the inves- tigation, the supersedeas had been set aside or dismissed, could he then have gone to Chancery for an injunction ? I apprehend not. No! the decision of a concurrent jurisdiction directly upon the point, is conclusive, wherever the matter comes before another court of concurrent jurisdiction. The case from 1 Black, shews that the certiorari would be irregular if interposed between the origi- nal and appellate jurisdiction. Here the certiorari was directed to Common Pleas, the appellate court, and not to the justice. I do not mean to contend, that the statute takes away the author- ity of this honourable court, but submit, that, after what has taken place in Chancery, Mr. Kingsland is barred of any farther remedy. But, at all events, the supersedeas cannot be maintained. The certiorari can be granted only in term time. Can a party go to a judge, ex parte, in vacation, and, upon his own statement, obtain a supersedeas f The certiorari was no supersedeas; it was a mere writ requiring them to send up a certificate of what they had done. Per curiam. We are of opinion, that the proceedings in Chan- cery have no effect on this court; and notwithstanding there is an intermediate court of appeal created by the statute, (see sec- tion 4) as to the mere assessment, yet the party may bring his certiorari. It is a privilege similar to that which is allowed upon proceedings in the courts for the trial of small causes, you may take the appeal and bring the certiorari also. We shall, there- fore, retain the certiorari. The certiorari is itself a supersedeas. The court below cannot proceed after the certiorari is granted ; it would defeat the whole object of the measure. The supersedeas is a cautionary measure, and, as the certiorari is sustained, must remain in force. CITED is N. J. R. R. & Tr. Co. v. Suydam, 2 Harr. 25. Me Williams v. King, 3 Vr. 25. State v. Cassidy, 9 Vr. 439. 166 NEW JERSEY SUPREME COURT. Anonymous. BENJAMIN B. ALLGOR againtt JOHN STILLWELL. ON CERTIORARI. In an action for a malicious prosecution, unless the state of demand set* ont an arrest or special grievance the judgment will be reversed. This was an action originally commenced before a justice of the peace, by John Stillwell against Benjamin B. Allgor, for a malicious prosecution. The state of demand filed with the jus- lice was as follows : " The plaintiff demands of the defendant $15, for fraudulently, vexatiously, and maliciously prosecuting John Stillwell, without any ground of action whatever. The action was brought by the said Benjamin B. Allgor, against the said Stillwell, before T. N. esq. at J. K's tavern in H , at the distance of eighteen miles; the summons returnable the 24th November, 1820; the action in trespass on the case: demand $100. To which summons I was obliged to attend. Said Allgor then adjourned the trial, and called a jury, and I again had to attend. The cause was tried by the jury, and they rendered a verdict for the defendant, with six cents costs, for which malice and abuse I was compelled to attend twice, to my damage 815." At the trial before the justice, the jury found a verdict in favour of Stillwell, the plaintiff. From this judgment Allgor appealed to the Court of Common Pleas, who affirmed the judgment. This certiorari was then brought. Wall now moved to reverse this judgment, because the state of demand contained no legal cause of action. The supposed malicious suit is stated to have been commenced by summons; there is no arrest or special grievance stated. 1 South. 330. BY THE COUBT. Take a reversal. ANONYMOUS. A writ of dower cannot be amended by inserting a place of appearance, which had been omitted. VROOM moved to quash a writ of dower for informality, be- cause there was no place mentioned .in the writ where the de- fendant was to appear. The writ only summoned him "to appear MAY TERM, 1822. 167 Anonymous. before the justices of the Supreme Court" without saying at Tren- ton, or designating any place of appearance. Ewing contra, contended, that the writ ought not to be quashed for this error ; that the place of appearance was certain enough ; the defendant is summoned to appear before the justices of the Supreme Court; and their sitting was by law fixed at Trenton, and according to the maxim, id cerium est quod cerium reddi potest, it was sufficient. KIRKPATRICK C. J. Might you not as well say, that you need not put in the writ, that the defendant must appear " before the justices of the Supreme Court," because by law there must be justices of the Supreme Court? Ewing. I think I can find authorities to shew that defects as great as this have been amended. KIRKPATRICK C. J. Has there been any appearance entered ? Ewing. No sir. KIRKPATRICK C. J. Take a little time to look into it. At a subsequent day in term, Ewing moved to amend the writ, and laid before the court the following cases, in which, he said, amendments had been made of as much importance as the one he now applied for. 5 John. 233, Merrill v. Waggoner. 1 Sel. Prac. 100. 1 Black. R&p. 454. 2 Ib. 918. Com. Dig. title Amendment 46. KIRKPATRICK C. J. We have uniformly held that writs issued out of this court, are original writs, and, that they cannot be amended, for there is nothing to amend by. We have nothing in our practice analagous to the bill of Middlesex in England ; the process there is under the discretion of the court. The place of appearance is a pretty substantial thing. EOSSELL J. I am for allowing the amendment; the place of return is fixed by law, and might be amended by the law itself. FORD J. This is a pretty strong error. If there was an ap- peai'ance entered in the cause, I should not be so .averse to amending, but I rather think the precedent would establish a loose practice ; therefore, take nothing by your motion. Let the writ be quashed. 168 NEW JERSEY SUPREME COURT. v. Dill. ROBERT H. PIERSON against WILLIAM PIERSON. OH CEETIOBABI. In an action of covenant, it must appear upon the state of demand that the instrument upon which the action is founded is a sealed instrument. This was an action of covenant in which a judgment had been given upon the verdict of a jury, for William Pierson, the plaintiff below, against Robert H. Pierson. Swing now moved to reverse this judgment, because the state of demand did not allege that the instrument upon which the action was brought was a sealed instrument. KIRKPATRICK C. J. Does the state of demand set out an in- strument of writing at all? Swing. No sir ; it calls it " articles of agreement" KIRKPATRICK C. J. As the magistrate is obliged to set down the cause of action, he must set down the real style. FORD J. An action of covenant cannot be maintained, except on a deed. Per curiam. Take a reversal. CITED IH Sayret v. Inhabitants of Springfield, 3 Hal. 206. against DILL. Rale to plead must be served on defendant's attorney, though he was in court when the rule was taken. EWINO took a rule upon the defendant, at the last term, to plead in thirty days. The defendant having failed to plead, he now moved for judgment against him by default. KIRKPATRICK C. J. You are not entitled to judgment ; you do not state that you served the rule upon the defendant's at- torney. Swing. The defendant's attorney was in court at the time the motion was made, and knew of it. Per curiam. We are all of opinion, that a service of the rule is necessary, and even if the defendant's attorney is in court when the motion is made. We cannot enter into an examina- tion, whether he was in court or not. Besides, he might have been engaged at the time, and not have heard it. Motion denied. CASES DETERMINED THE SUPREME COURT OF JUDICATURE OF THE STATE OF NEW JERSEY, AT SEPTEMBER TERM, 1822. THE OVERSEERS OF THE POOR OF THE TOWNSHIP OF HOPE- WELL against THE OVERSEERS OF THE POOR OF THE TOWN- SHIP OF AMWELL. ON CEETIORARI. A service, under an instrument to which there was affixed no seal of wax or wafer, but only a scroll or scribble by way of seal, is not such a serving of an apprenticeship under indenture as will gain a settlement under the act for the " settlement and relief of the poor." This was a certiorari to the Court of Quarter Sessions of the county of Hunterdon. The facts in this cause fully appear by the state of the case sent up to this court by the Quarter Ses- sions, in return to the certiorari, which is as follows: "John Carr and Jacob I. Young, esquires, two of the justices of the peace in and for the county of Hunterdon, made their order for the removal of Christian Brooks, and two children (the one a male, and the other a female, aged about one month and twenty-one days) from the township of Amwell to the township of Hopewell, which order of removal is hereto annexed; under which order they were removed to the said township of Hope- well, from which the said overseers of the poor of the township of Hopewell appealed to the General Quarter Sessions of the Peace of the county of Hunterdon, which appeal came on to bo heard before the said court in the sessions of February, in the (169) 170 NEW JERSEY SUPREME COURT. Overseers of Poor of Hopewell v. Overseers of Poor of Amwell. year of our Lord, one thousand eight hundred and twenty ; and it was thereupon testified by Mary Stackhouse, a witness pro- duced on the part of Amwell, and sworn, that she is the mother of the said Christian Brooks, who will be twenty-two years old on the fourteenth day of the present month ; that she served with Nehemiah Saxton, in Hopewell ; that witness, having no husband at the time, herself bound said Christian to said Saxton, in August, eighteen hundred and ten, to serve until she should be eighteen years of age; that witness and said Christian, her daughter, executed an indenture to the said Saxton ; that there was only one indenture, which was kept by said Saxton ; that the said Christian remained with said Saxton until she was fourteen years aud six months old, under the indenture ; that she was there three years and a half; that it was mentioned in the indenture that she was to serve six years and six months; that said Saxton is not now living; that said Christian was to learn to do all kinds of work that a girl ought to do; that the indenture was drawn by Joab Saxton, son of said Nehemiah ; that the binding of the girl was at the request of the said Nehemiah Saxton, with whom she had lived before she was bound. And being cross-examined on the part of Hopewell, the said Mary testified, that when, she says, she and her daughter executed the said indenture, she means that she and her daughter signed it; that witness lived at Read- ington at the time, and said Christian is a bastard. And being examined again, on the part of Amwell, she testified, that the said Joab Saxton was a witness to the said indenture; that she did not recollect who called on her to execute it; that she acknowledged it to be her hand and seal, and her daughter, the said Christian, did the same; that the said indenture was read over to them, and that she made a mark, but did not. write her name. And it was further testified by the said Christian Brooks, a witness produced on the part of Amwell, and sworn, that she served with Nehemiah Saxton, in Hopewell, for three years after she was bound ; that she was bound by her mother, and had lived there about five months before; that she, the witness, signed the indenture; that she does not recollect to have seen or signed more than one, which was left with the said Nehemiah Saxton; that, by the indenture, she was to servo until she was eighteen years of age ; that the said indenture was read to them ; that she left said Saxton before her time was out; that he sent her away, SEPTEMBER TEEM, 1822. 171 Overseers of Poor of Hopewell v. Overseers of Poor of Amwell. and she went to her mother's, and has not been bound out since; and being cross-examined by Hopewell, she said she made a cross, and could not read nor write at the time. And it was far- ther testified by Joab Saxton, a witness produced on the part of Amwell and sworn, that he was called on to write an indenture between these people and his father, the said Nehemiah Saxton, who is now dead ; that the said indenture was delivered to his father, and is now lost ; that said Christian was to serve until she became eighteen years of age, and did serve about three years, and had lived with his father some time before, and that his father lived in Hopewell. And, being cross-examined on the part of Hopewell, he testified, that he drew the writing in question, and there was but one; that he was present at the time it was signed, and was a subscribing witness; that there was no seal of wax pr wafer to the said writing ; that there was a scribble made with a pen ; that there was no stipulation in the said writing, that the said Christian should be taught anything by his father; that he drew it from an old printed indenture, and left out all that part which relates to teaching any thing; that his father was to give her a quarter's schooling and a freedom suit. And being again examined on the part of Amwell, he testified, that about seven years ago he had occasion to look at the said inden- ture, since which he had not seen it ; that it was stated in it that she was to serve as an apprentice; and that he thought that the parties did not acknowledge their hands and seals ; at the time, he did not know much of the manner in which writings should be drawn." Upon the foregoing evidence, the cause was put to the Court of Quarter Sessions, and after argument of the counsel of the parties, the said court did affirm the said order of removal, with costs: whereupon the counsel on the part of the appellants did pray of the court a state of the case, and thereupon the forego- ing state of the case is stated, signed and sealed. This cause was argued at May term, 1822. Ewing and Wall, counsel for the overseers of the poor of the township of Hopewell, contended, that the order of removal of the two justices, and that of the Sessions, ought to be quashed, because the settlement of Christian Brooks was not in the town- ship of Hopewell. 1. She could gain a settlement there only by 172 NEW JERSEY SUPREME COURT. Overseers of Poor of Hopewell v. Overseers of Poor of Amwell. service of apprenticeship under an indenture. But this instrument was not an indenture ; it had no wax or wafer seal. The state of New Jersey, (Pat. 254) making scrolls good seals only applied to instruments for the payment of money. They cited also, on the subject of seals, 5 John. 244, opinion of Kent J.; Perkins, sec. 128 ; Coke's Inst. 169. 2. Nor was the service, a service of apprenticeship. The term apprenticeship, made use of in tho statute, (Pat. 26, sec. 1) was a legal term, and must have a legal signification. To make a person an apprentice there must be a binding to service by deed. 1 Burns' Just. 60. Bac. Abr. letter A, 557, et sequente. 2 Ld. Ray. 1117. Chit, on Apprentices 28. It may be contended, that though there is no legal indenture of apprenticeship, yet that a service under this instrument is suf- ficient, as against the township, to gain a settlement. But this is not true: tho instrument is wholly void, and cannot be sfct up for any purpose or against any person. 1. It is not good against the child. 2. It is not good against the mother. Whatever right a father had to bind his children, no such right existed in the mother. 1 Black. Com. 453. 4 Bur. 487, 492. The children here were bastards, but that does not alter the position. In 1 Swift's System 208, it is said, " the father of a bastard child has no power or authority over him" a fortiori, the mother has none. The act of 1798, (Pat. 305) only gives the mother authority to hind in case of the death of the father. 3. It is not good against Maxton. 4. The instrument is not good, as against the township. There are some cases in Burrow where a settlement has been obtained by apprenticeship, although the indenture was defec- tive. But, in these cases, it was decided, that the indenture waa voidable only, and not void. No case can be produced where a settlement has been gained by a service under a writing without seal, or an instrument which is void. It has been repeatedly de- cided, that although there may be an agreement, and a service under it, yet it will not gain a settlement. Burrow's Settlement Cases 272, 540, 656. Wo may be referred to two cases in this court, viz. that of Hopewell v. Amwell, 1 Pen. Rep. 421, and tbat of the Township of Franklin v. South Brunswick, Ib. 442. In the first, there was a writing executed by the father; and tho objection was that the child did not sign it. There was a regular valid instrument, and the father, who was entitled to the service of the child, had contracted. The instrument was valid, as to all SEPTEMBER TERM, 1822. 173 Overseers of Poor of Hopewell v. Overseers of Poor of Amwell. except the child. The other case was, where the pauper was bound out by the overseers of the poor and two justices of the peace, under the 18th section of the act, (Pat. N. J. Laws 31). And it was objected, that the justices were not together when the indenture was made, and, therefore, that the indenture was void. But the court determined, that the indenture was good. Judge Pennington intimates, that a service under a voidable indenture would gain a settlement, but he surely never intended to say, that a service under a void indenture could gain a settle- ment. Bonnel and Vroom, contra, contended, that there was such a ser- vice of apprenticeship under this instrument as to gain the pauper a settlement in the township of Hopewell. The statutes relative to the settlement of the poor (they said) should be construed liberally; their object was to further the purposes of humanity. Chit, on Apprentices, Preface 15. According to the common law it appeared there could be no apprenticeship, unless there was a particular trade to be learned. But the strictness of the com mon law had not been followed up in modern courts, and was. done away by acts of the legislature. Burrow's Settlement Cases 657. The act of New Jersey, 1774, (Pat. 26) was to be construed by the common law which was then in force; and, by the com- mon law, this service was to be considered as an apprenticeship, because the father could not legally bind his child as a servant. This indenture, by the common law, was not void, but voidable only, and if it be not avoided by the apprentice or child the township or master cannot avoid it. Though this instrument was not strictly an indenture at common law, because it had no seal of wax or wafer, yet the want of a seal was not such a defect as to make it void, so that the township could take advantage of it. Seals had their origin in the ignorance of mankind, when men were unable to evidence their contents by writing. The definition of a seal is cera impressio, et sine impressione non est sigillum. And the reason given for allowing the jury to take a deed out with them is, that being from the neighbourhood, some of them might be supposed to know the impression of the seal. 1 Wash. Eep. 42. 5 Bin. 241. But now there is seldom any impression on the seal, and none by which the seal of one man can be distinguished from that of another; therefore, as the reason of the law does not now exist, the law itself ought to 174 NEW JERSEY SUPREME COURT. Overseers of Poor of Hopewell v. Overseers of Poor of Amwell. cease. When an indenture has been executed by the parties, and all the essential requisites are combined, the court will not, in a settlement case, look at mere matters of form. By the statute 5 Elizabeth, it is enacted, that there shall be a binding for seven years, or it will be absolutely void, yet a binding for four years, under this statute, was held a good binding to gain a settlement. 3 Sums' Just. 384-5. Chit, on Apprentices 35. A service under a person who has no title to the service of the apprentice, or servant, will be good against the township. 3 Sums' Just. 406. In 1 Pen. Rep. 422, there was no binding on the part of the apprentice; he did not sign the instrument, and yet it was held good against the township; and in the case of the King v. the Inhabitants of St. Nicholas, Bur. Settlement Cases 91, though the master did not execute the instrument, it was held sufficient to gain a settlement for the apprentice. 3 Sums' Justice 384. From our statute (Pat. 305) it appears as if these defects ought not to be taken advantage of by any other person than the party. This act recognizes the doctrine of the common law. It merely requires the assent of the guardian, which must be given in a particular manner. He is merely a person standing in loco parentis, in such a way as to see that no advantage is taken of the child. It is not necessary that the guardian should take upon himself any binding covenant. It has been said, that the mother has no power to bind her bastard child ; although this case does not come within the very letter, surely it is within the spirit of the act. It is a mere casus omissus. But if she is not such a mother as may bind her child, yet she may do it as guardian, for she is the natural guardian of the child ; and this binding, by the mother, was sufficient to bind the township; therefore, they trusted the order of the justices and of the Quarter Sessions would be affirmed. Curia advisare vult. And now, at this term, the Chief Justice delivered the opinion of the court. KIRKPATRICK C. J, It appears, by the return of this writ, that there was an order of two justices to remove Christian Brooks, a pauper, with her two children, from the township of Amwell, in the county of Ilunterdon, to the township of Hopewell, in the same county; that there was an appeal from this order to the Court of General Quarter Sessions of the Peace of that county; SEPTEMBER TERM, 1822. 175 Overseers of Poor of Hopewell v. Overseers of Poor of Amwell. and that upon the hearing of the appeal, the order was affirmed, with costs. It appears further, from the case stated by the Sessions, that this Christian Brooks was the daughter of one Mary Stackhouse, and was born a bastard; that she was bound by her mother to one Nathaniel Saxton, of the said township of Hopewell, for the term of six years and six months, to common service, and served him there for three years and a half of that time ; that this bind- ing was, in its form, by a certain writing called an indenture, which was executed by both the pauper and her mother, each of them making her mark thereto, and acknowledging it to be her hand and seal ; but that there was, in fact, no seal, either of wax or wafer, affixed to the said writing, but a scribble made with a pen only. And the question is, whether this be such a serving of apprenticeship under indenture as will gain a settlement under the act for the settlement and relief of the poor ? The objection is, that the writing was not sealed, and that, therefore, it could not be an indenture, nor the service under it be a service under indenture, which, alone, is sufficient under the act. An indenture, in the language of the law, is a deed, that is, a writing sealed and delivered. It takes its name from its being indented, or cut, on the top, or on the side, either by a waving line or a line of indenture, instar dentium, so as to fit or aptly join its counterpart, from which it is supposed to have been separated. Besides this general understanding of. the law, our act respecting apprentices and servants expressly provides, that the indenture of apprenticeship or service shall be sealed. When the act for the settlement of the poor, therefore, speaks of gain- ing a settlement by serving an apprenticeship under indenture, it must necessarily mean such indenture as the law prescribes, an indenture sealed. We are to inquire, therefore, what the law means by a seal, or a writing sealed. There has been a good deal of speculation in the courts of some of these states upon this subject. They have investigated, with profound learning, the nature, origin, and utility of seals, and of what a seal must consist; and some of them have made the icon- derful discovery, that a seal may be not only without and distinct impression, but also without wax, or any thing in the nature of wax, or in any way susceptible of impression. To have said, that sealing should not be necessary to constitute a deed, but that the 176 NEW JERSEY SUPREME COURT. Overseers of Poor of Hopewell v. Overseers of Poor of Amwell. subscription of the name only should be sufficient for that pur- pose, would have had some foundation in reason, K'owever little it might have in the law, to support it ; but to say, that a writing is sealed without any thing affixed to it in the nature of a seal, is a little like Lord Peter's saying, that his brown loaf was as fine a leg of mutton as ever came out of the Leaden-Hall market ; and, I think, must be received pretty much upon the same kind of authority. "Gr. Confound you all eternally, and gripe your guts with hunger if you offer to believe otherwise." By our act concerning obligations, &c. it is enacted, that any instrument for the payment of money to which the person making the same shall affix a scroll, or ink, or other device, by way of seal, shall be taken and adjudged to be of the same force and obliga- tion as if it were actually sealed witb wax ; thus fully recogniz ing the principle, which common sense had before taught to all men, that wax, or something in the nature of wax, and suscepti* ble of receiving an impression, is necessary to constitute a seal, but dispensing with such seal in the case of instruments for the payment of money. The act does not say, that a scroll, or ink, or other device affixed, shall be a seal, but, that being affixed, by way of seal, they shall have the same force and obligation as a seal. This, however, is only in the case of instruments for the payment of money, of which an indenture of apprenticeship is not one. In all other cases it is left as at the common law. The instru- ment before us, therefore, can, in no sense known to the law, be called an indenture. But then it is said, that inasmuch as it is in the form of an indenture, and was, by the parties, understood to be an inden- ture ; and inasmuch as the service, which is an essential thing in gaining a settlement, was actually performed under it, it does not lie in the mouth of the township now to except against it; that it was not void, but voidable only, and, being so, it could be avoided by the parties alone, and not by third persons. It is true, that in England this doctrine has been maintained to a certain extent. As where the indenture has been for a shorter time than that prescribed by the statute ; and where the appren- tice only has signed the indenture, and not the parent or guar- dian, or even the master; and in some other cases of a similar nature, in which, though the statute says the indenture shall be void to all intents and purposes, yet it has been adjudged, that SEPTEMBER TERM, 1822. 177 Overseers of Poor of Tewksbury v. Overseers of Poor of Washington. it was not absolutely void, but voidable only, at the election of the parties themselves, if they thought fit to take advantage of it, but not of third persons, and that therefore, serving under inden- tures of this kind gained a settlement. In these cases, however, it was a serving under indenture within the words of the statute, for though the indenture were voidable, yet they were not void, but subsisting indentures until avoided by the parties. But there is no case to be found in the books where the ser- vice of an apprenticeship under a parol agreement, or under any instrument of writing, not being an indenture sealed, has been adjudged to be sufficient to gain a settlement. And the reason is, that the statute expressly requires a service under indenture. In the case of the King v. Mellingham, the writing, though other- wise in the form of an indenture, was not actually indented, and it was adjudged in the King's Bench, that no settlement could be gained under it. And it has been thought necessary, both in England and here, to remedy this by statute, and to declare that no deed, contract, or writing, for binding any one an apprentice or servant shall be void by reason of its not being indented only. And if this be so as to the indenting, which is but mere matter of form, how much more so as to the sealing, which is the very essence of the thing. I am of opinion, therefore, that the order of Sessions, as well as the order of the justices in this case, be quashed. CITED is Overs. Bloomfield v. Acquackanunck, 3 Hal. 319-321. Overs. North Brunswick v. Franklin, 1 Harr. 536. Flanagan v. Cajnden Hut. Int, Co., 1 Dutch. 511. Perrine v. Cheeseman, 6 Hal. 174. OVERSEERS OF THE POOR OF THE TOWNSHIP OF TEWKSBURY, of the county of Hunterdon, against OVERSEERS OF THE POOR OF THE TOWNSHIP OF WASHINGTON, in the county of Morris. ON CEETIORAEI. An order of two justices for issuing a distress warrant against overseers of the poor, made without any notice of the application for such distress warrant given to the overseers against whom it is to be issued, is irregular, and will be set aside. This was a certiorari directed to two justices of the peace of the county of Hunterdon, to bring up the judgment, order, and proceedings before them had, upon the complaint of the over- Beers of the poor of the township of Washington against the overseers of the poor of the township of Tewksbury, in the case VOL. I. M 178 NEW JERSEY SUPREME COURT. Overseers of Poor of Tewksbury v. Overseers of Poor of Washington. of William Blaine, a pauper. The facts, as they appeared by the certificate of the proceedings sent up by the two justices, were these : William Blaine, a pauper, whose legal settlement was in the township of Tewksbury, removed into the township of Wash- ington, and there became sick, and a charge npon the township The overseers of Washington gave notice to those of Tewksbury of the circumstances and conditions of the said pauper, and re quested them to relieve and maintain him during his illness, and to remove him. This the overseers of Tewksbury neglected to do. The overseers of Washington were, therefore, obliged to maintain Blaine, the pauper, until he was in a situation to be removed. To recover the amount of their expenses for maintain- ing the pauper, during his sickness, and previous to his removal, the overseers of Washington applied to two justices of the peace of the township of Tewksbury, in the county of Hunterdon, to issue their warrant of distress against the overseers of Towksbury, as by the ninth section of the act "for the settlement and relief of the poor" (Pat. N. J. Laws 29) they are authorized to do. The said justices accordingly issued their distress warrant to levy the amount of the said expenses out of the goods and chattels of the overseers of Tewksbury. But it did not appear upon the face of the proceedings of the two justices, that the overseers of Tewksbury had any notice of the application for the distress warrant. Ewing now moved to quash the order of the justices for issu- ing a distress warrant, upon the ground, that it had been made, and the distress warrant issued, without giving any notice to the overseers against whom it was issued of the application for the earae. KIRKPATRICK C. J. I think we have determined that there ought to be a notice to the overseers against whom the distress is to be issued. It is contrary to the whole policy of our law that they should be condemned unheard. FORD J. It stands on the same footing as an order of filiation ; the act does not require notice, but it has always been held inecessary. ROSSELL J. concurred. Xet the order of the justice for issuing the distress warrant, .and, also, the said distress warrant, be quashed. SEPTEMBER TERM, 1822. 179 Berry v. Callet. JOHN A. BERRY against JAMES CALLET. 1. The Court of Common Pleas may refuse to enter judgment in attachment on the report of auditors, and may refer the matter back to them if they think that the auditors have made a mistake in law. 2. This court will not grant a mandamus to compel the Common Pleas to enter judgment on a report of auditors, while a rule is pending in that court to shew cause why the report should not he set aside. This was an attachment by John A. Berry against James Callet, as an absconding debtor. At the last term of this court, a rule was taken on behalf of G. Cassedy, esq. on the judges of the Court of Common Pleas of the county of Bergen, to shew cause on the first day of this term, why a mandamus should not issue commanding them to render judgment in this cause upon, and according to, the report of the creditors made to them therein. By the return of the Court of Common Pleas to this rule, it appeared, that John A. Berry had regularly sued out an attach- ment against the rights, credits, moneys, and effects of James Callet, an absconding debtor. By virtue of this attachment, prop- erty to the amount of $2914 was attached ; auditors were appointed, in the usual manner, to audit and .adjust the accounts of the plaintiff, and of such of the creditors of the absconding debtor as should appl}* to them for that purpose. On the 12th of January, 1822, the auditors reported to the Court of Common Pleas, that they "found due from the said James Callet to the said John A. Berry the sum of $6656.25, and that they found due from the said James Callet to Stephen V. Boreland $350.87, and to H. E. Haight 8543.09. And they further reported, that they found nothing due from the said James Callet to the Mechanic's Bank, J. Delateer, J. B. Maria, E. Millon, G. L. Therott, P. E. Fere- vaU, David Delapier, John L. and Gabriel F. Duflon, and that the said John A. Berry, Stephen V. Boreland, B. and H. E. Haight, Mechanic's Bank, J. Delatour, J. B. Maria. E. Millon, G. L. Therott, P. E. Ferevall, D. Delapier, John L. and G. Duflon, are the only creditors of James Callet, who applied to them to audit and adjust their demands." Upon the coming in of this report, a rule was taken by Samuel Cassedy, esq. attor- ney for the claiming creditors, " to shew cause why the report of auditors should not be set aside, and the claims of the Mechan- ic's Bank, and John L. and Gabriel Duflon, David Delapier, Peter E. Ferevall, Gabriel L. Therott, Etienne Millon, John 180 NEW JERSEY SUPREME COURT. Berry v. Callet. B. Maria, and of John Delatour bo admitted, and that they take their dividend of the property attached, and that the parties interested have leave to take affidavits." By virtue of this rule, affidavits wore taken, by which it appeared, that James Callet, the absconding debtor, was indebted to the Mechanic's Bank, John L. and G. Duflon, and the persons above named, in con- siderable sums of money. And, at the same term, a motion was made by George Cassedy, esq. attorney for the plaintiff in attachment, for judgment on the report of the said auditors, which motion the court denied, and refused to enter judgment on said report. It was in this stage of the cause that the rule for a mandamus out of this court to the Common Pleas of Bergen, commanding them to enter judgment on the report of auditors, was taken. And now Halsey, in support of the motion for a mandamus, said, that the matter in controversy was between the attaching creditor and other pretended creditors ; that, at the third term after the issuing of the attachment, he had applied for judgment on the report of auditors; but the pretended creditors, viz. the Me- chanic's Bank and others obtained a rule to set aside the report. The question was, whether the Court of Common Pleas had a right to grant the rule? or, whether they ought not to have per- mitted judgment to have been entered on the auditors' report? He contended, that the Court of Common Pleas had no discre- tion upon the subject, but were bound by the statute to enter judgment. Rev. Laws 315, or Pat. edition 298, sec. 15. The words of the statute were, "It shall be the duty of the auditors to ascertain the sum due to the plaintiff and each of the credi- tors, and to make their report thereof in writing under their hands, which report shall be filed by the clerk, and shall, the third term, be made absolute, and judgment entered thereon." The statute gave the court no authority to set the report of auditors aside, nor t-o refuse to enter judgment thereon when applied for, and, therefore, the mandamus ought to be granted. Frelinghuysen, attorney-general, contra. The court perceive that the object of the application is to control the Court of Com- mon Pleas in the exercise of their power over the report of the auditors. The auditors, by their report, shut out creditors to the amount of $5000, and, upon the coming in of the report, a rule SEPTEMBER TERM, 1822. 181 Berry v. Callet. was taken to shew cause why it should not be set aside. The only question was, whether the auditors were subject to no con- trol ? or, whether the Court of Common Pleas had a right to in- vestigate the correctness of their proceedings ?. The auditors can certainly possess no more power than referees have, and I think they possess much less, for they are only to ascertain the sum due to the creditors. But the report of referees may be set aside by the court, and why may not the report of auditors. It cannot be, that they are the only inferior tribunal without control. But admitting that the auditors possessed the power of determining upon the claims of the creditors, our complaint is, that they re- jected our claim, without any evidence that they were incorrect, and without any consideration : and we came before the Court of Common Pleas to shew that they acted erroneously. Hornblower, on same side. It is a principle, that where a statute gives a summary proceeding without giving the detail, these details must be pursued according to the principles of the common law. This principle is applicable to the proceedings on attachment. The statute does not point out the detail of all the proceedings necessary to be had under it. If, then, these auditors in their proceedings should violate the principles of the common law, there must be a superintending power in the court to correct them. Are these auditors, who are unsworn, and never legal characters, to be above control ? are their decisions final? They are to audit the claims of all persons who come before them, and if there is a legal objection to these claims, the defendant or his creditors may come before the court to have the report set aside. If the report of auditors was conclusive, the most dangerous consequences to creditors might ensue. These creditors are appointed by the nomination of the plaintiff in attachment, and they are generally his friends, and he might get them to make a report in his favour and reject the claims of other creditors. FORD J. Suppose the report of auditors is incorrect, what do you do with it, refer it back ? Horriblower. The court would refer it back to the auditors, to ascertain the amount. But if the court thought that the claim was not just, they might set the report aside as to that claim. I apprehend the court will never say they have no control over these auditors. 182 NEW JERSEY SUPREME COURT. Berry v. Callet. Halsey in reply. The manner in which auditors may bo ap- pointed, has nothing to do with the question before the court; because, being appointed according to the directions of the statute, they are presumed to be honest and discreet men. It is made the duty of auditors to ascertain the sum due to each of the creditors. But how is this to bo done? Certainly by evidence which will satisfy their consciences. And they must investigate the claims of the creditors, otherwise it might be in the power of a friend of the debtor to manufacture debts, or notes, which would absorb the whole of the absconding debtor's property. Suppose the notes on which the claims of these creditors were founded, had been usurious, or given for a gambling debt, could not the auditors judge of this, and if they believed it, might they not reject them? And if they do reject them, the court has no power to set aside the report, or go into an investigation of it. The act says, the report shall bo made absolute at the third term; and the Court of Common Pleas, or any other court, cannot prevent it. KIRKPATRICK C. J. I can scarcely entertain a doubt, that the court have a right to open the report of the auditors. Chief Justice Kinsey, told me that before the revolution, this court not only stayed the proceedings in attachment, but actually ordered an issue to try the claim of a creditor, and took a verdict of a jury upon it, and gave the creditors liberty to file a plea in the name of the absconding debtor. However, this case requires a little consideration, and we will reflect on it. On a subsequent day, the court said, they were of opinion that the judges of the Common Pleas, had a right to refer the matter back to the auditors, if they thought that in making their report they had committed an error or mistake in law. They, there- fore, refused the mandamus. CUED IB Stewart v. Waltert, 9 Vr. 278. Phoenix Iron Co. v. N. T. Wrought Iron JR. R. Chair Co., 3 Dutch. 491. Taylor Ex. v. Woodward, 6 Hal. 1. SEPTEMBER TERM, 1822. 183 Adams v. Executors of Rolston. JOHN ADAMS, JOHN KNOX, and JAMES NIXON against the EXECU- TORS OF JOHN ROLSTON, deceased. In an action of assumpsit for goods sold, this court will not make an order on the plaintifis to produce their oooks and papers relative to the issue previous to the trial, to be left with the defendant's attorney for his inspection. This was an action on the case, which had been brought by the plaintiffs, who were merchants residing in Philadelphia, against the defendants, for goods and merchandise sold. It had been noticed for trial at the ensuing Morris circuit, and now Vanarsdale "moved that all the proceedings in the cause might be stayed until the plaintiffs produce, upon affidavit, to the defendants, or their attorney, before the trial of this cause, at such time as the court may direct, all the books and papers in their possession concerning the matters in issue in the above cause; and that the said books and papers be left with the defendants, or their attorney, or at such convenient place, and for such space of time as the court may direct, with liberty to inspect and peruse the same, and take copies, extracts, or abstracts thereof;" and read a copy of a notice of this motion, which had been served on the plaintiffs' attorney. In support of this motion he said, it was the practice of courts, whenever required, to give the parties the bene- fit of papers in the other partj 7 's custody. In N. York, on a similar application, the court ordered the production of papers and writ- ten correspondence relative to the matters in issue. 11 John. 245, note, Lawrence v. the Ocean Ins. Co. Courts of law would not send the party into equity to get a sight of papers when they could give him the benefit of them by rule. The courts of the United States have this power, and it was given to them to prevent the necessity of instituting-suits in equity merely to obtain from an adverse party the production of deeds and papers relative to tho litigated issue. 2 Dal. Rep. 332. Courts of law had become more liberal in their practice than formerly, and now frequently granted relief where it was formerly necessary to resort to a court of chancery. Thus anciently, by a rigid adherence to the rule requiring a profert, a person, in order to recover upon a lost bond, was driven into a court of equity; but now, upon suggest- ing the loss of the bond in the declaration, he may proceed at law. This practice of requiring a party to produce papers rela- tive to the matters in issue, was well settled in England. 1 Taunt. 164 NE\V JERSEY SUPREME COURT. Adams v. Executors of Rohton. Hep. 167. 2 Strange 1139. 1 Camp. Rep. 562. 1 Phil Evi. 337. And there was no good reason why it should not be adopted in this court ; this case afforded a fair opportunity of introducing it here. The plaintiffs were merchants, and the defendants executors, ignorant of the transactions of their testator, and unless they can have a sight of the plaintiffs' books, they cannot go to trial upon fair and equal terms. Hornblower and the attorney-general contra. This is a very extravagant and unprecedented application. It goes beyond any thing the cases will warrant. It requires that the plaintffs, who are merchants in Philadelphia, and who are prosecuting here on a simple account for goods sold, should send all the books of their extensive concern into this state, and that they should be left where the defendants' counsel can inspect them from day to day. What would be the condition of these plaintiffs if the court allow this rule ? They might almost as well shut up their store as to attempt to carry on business without their books, or to be obliged to lay them open to the inspection of every defendant whom they shall be compelled to prosecute for the collection of their debts. What merchant will deal with the citizens of New Jersey in the common course of commercial transactions if he cannot recover his debt without subjecting himself to a rule of this kind? The case cited from Phillip's Evi. 337, also reported in Str. 1139, Gaoler v.Nunnely, is by no means analagous. That was between a factor and his employer, a grazier, not an action be- tween merchant and merchant, debtor and creditor, but between agent and principal. But what was the order in that case ? was it similar to the one here applied for? No! it was an order that the plaintiff shew cause why he should not produce at the trial the several books in which he entered the amount of beasts sold, and of money received, on the defendant's account, and, no cause being shewn, the rule was made absolute. But this rule is not necessary hero, to make us produce the books as evidence, because they can give us notice to produce them at the trial, and if we do not, they can prove them by the clerks who kept them, or in any other manner. A court of equity would not, upon a bill filed for a discovery, compel a merchant to produce all his books of account, without some special equity or specific ground stated in the bill. The rule in equity was, that SEPTEMBER TEKM, 1822. 185 Adams v. Executors of Rolston. if a plaintiff has set forth atitle in contradiction to the defendant's, he has no right, generally speaking, to look into the defendant's title, but only if the same deed constitutes in part the defence, and in part the plaintiff's title. 13 Vez. 251. 1 Mad. Chancery Practice 165. The case cited from Dallas is founded on the special act of congress, and, therefore, does not apply to this court. The case from 11 John. 245, is a case on a policy of insurance. So, also, is the case from 1 Camp. 562. It may be proper, in cases on policies of insurance, and on documents in which both parties have an interest, but not in a case of this kind, which is an adversary suit. If the rule is granted, we cannot limit it as to the place of residence of the party. If he should reside in Maine or Georgia, and should be obliged to bring an action in this state, he might be compelled to produce his books. How would a merchant of England ever ivcover a debt in this country, if applications of this kind arc to prevail? Applications would be continually made for these rules, for the mere purpose of delay. The practice act gives the defendant all the right he is entitled to; he had availed himself of it; had required a bill of particu- lars, which had been furnished him; and this was all he had a right to demand. Vanarsdale in reply. It is said, that in a court of equity we would not be entitled to a discovery to the extent we ask here. I know of no limit in equity within which a party could protect himself from disclosing matters of contract. The apprehensions of the gentlemen about laying open their books and exposing the concerns of the plaintiffs to the inspection of the defendants, are altogether groundless; they can seal up every other part of the books, except those which the rule calls for, and this is the ordi- nary method on these occasions. Why should not the defendants be permitted to examine these books before, as well as at the trial? The accoints are of long standing; the executors are ignorant of them ; it is impossible for them to investigate them thoroughly, in the hurry of trial. Courts of law are in the daily practice of relieving parties from the necessity of applying to a court of equity, and this case appears to me peculiarly proper for the exercise of that relief here. It is said, that the cases cited are insurance cases; but in these cases the principle was decided, that the court would make an order on the plaintiff to produce, upon oath, all papers in his possession 186 NEW JERSEY SUPREME COURT. Beading v. Den. concerning the cause at issue. And if no authority can be found to sanction it, yet if the rule is a beneficial one, and tends to further the ends of justice, it ought to be adopted. KIRKPATRICK C. J. It is not alleged, that any such rule has ever been granted in this court. FORD J. A rule for the production of corporation books might be found on the minutes of this court. Curia advisare vult. The court, after taking time to deliberate upon it, refused the motion. JOHN READING against JOHN DEN ex dem. ELISHA E. READING and others. Upon the reversal or affirmance of a judgment of this Court by the Court of Errors, and a remittitur of the record, no application to the court for leave to issue execution is necessary. This cause had been removed from this court to the Court of Errors, and the judgment was there reversed, and the record ordered to be remitted. Wall now moved to file the remittitur, and for permission to issue execution. Swing said, that it was not necessary to apply to this court for leave to issue execution. KIRKPATRICK C. J. thought it was necessary to make applica- tion to the court. Swing said, he had always taken the practice to be otherwise, and prayed for time to search for precedents, which was granted him. At a subsequent day in term, Mr. Swing cited the follow- ing cases, which had been affirmed in the Court of Errors, the execution remitted and execution issued, without any applica- tion to this court, viz. Joseph Wall v. John Den ex dem.; Samuel Stevenson, in ejectment for lands rn Burlington, in 1789; Messrs. Paterson and Leako attorneys; Den ex dem. John Pearis and Andrew Pearis ads. Mary Paterson, in ejectment for lands in Sussex, in 1795; Barnt De Klyn, plaintiff in error, v. Robert E. Griffith, defendant in error, in debt, in 1798 ; Wm. Moore and Ebenezer Powell v. John Den ex dem. John Locquil, eject- SEPTEMBER TERM, 1822. 187 Ely v. Norton. ment in Cumberland, L. H. Stockton attorney, in 1798; John Den ex dem. Barnt De Klyn ads. Robert Wright and Philip Nicklin, ejectment, Kichard Stockton attorney, in 1805 ; David Allen v. John Den ex dem. Snedecher, ejectment in Middlesex, in 1809, Leake attorney; JohnSchenck, late collector &c. v. John Stevenson, administrator, &c. in 1810; David Fogg and others v. John Den, in ejectment, in 1812, L. II. Stockton attorney ; Abra- ham Ten Eyck v. Elijah Dewey and wife, in dower, 1814, R. Stockton attorney. These cases, he said, shewed what had been the uniform practice in this state, and the practice in Eng- land appeared to be the same. In 2 Tidd's Practice 1135, it is said, "After affirmance in exchequer chamber, the defendant in error, after four days, may take out execution ; but where the judgment is affirmed in the exchequer chamber, or house of lords, it is necessary that the transcript should be remitted to the Court of King's Bench before the execution is issued, or, at least, before it is returnable." And in 2 Saund. 101, x. it is said, "After affirmance, &c., defendant in error may take out execution for the sum recovered in the original action." Again, " But where a judgment is affirmed in the exchequer chamber, or house of lords, the transcript should be remitted before the issuing of the execution, at least before it is returnable;" but it is no where said in these books, that there must be an applica- tion to the court below for leave to issue execution. KIRKPATRICK C. J. It appears to be the settled practice of the court, that the application for leave to issue the execution is un- necessary. AARON ELY against JOHN NORTON, executor of Sarah Lee, deceased. ON CEETIOBAEI. Where an executor pays money to a legatee, and six years after the payment, upon a settlement in the Orphans' Court, discovers that he has paid the legatee more than he was entitled to, and brings an action to recover the money over- paid, the action is barred by the statute of limitations. This was a certiorari to the Common Pleas of the county of Monmouth. The action was originally commenced before a justice of the peace, and the following are the facts upon which it was founded: John Norton, the defendant in certiorari, 188 NEW JERSEY SUPREME COURT. Ely v. Norton. was tho executor of Sarah Lee, deceased, who died in 1791, at which time Norton took upon himself the execution of the will. Aaron Ely, tho plaintiff in certiorari, was one of the residuary legatees of Sarah Lee, deceased, and, as such, John Norton, the executor, in 1810, pays him $120, supposing that to bo tho sum to which he was entitled under tho will. In 1817, Norton, tho executor, makes a settlement with the Orphans' Court of tho estate of tho testatrix, by which settlement it appeared, that the distributive share of Aaron Ely was only 79 dolls. 83 3-4 cts. in- stead of 8120, the sum paid. To recover back the surplus over- paid, viz. 40 dolls. 10 1-4 cts. Norton, the executor, on the 20th of January, 1821, brought an action of debt against Ely before a justice of the peace. To this action, Ely, the defendant below, pleaded the general issue and the statute of limitations. Upon the trial before the justice, a judgment was rendered in favour of Norton, the executor, for $53. From this judgment Ely ap- pealed to the Common Pleas of the county of Monmouth, and by that court the judgment of the justice was affirmed, and thereupon a certiorari was taken to this court. Wood now moved to reverse the judgment of the Common Pleas, upon the ground, that if the executor had a right to re- cover the money back, (which he denied) that right commenced the moment the money was paid, viz. in 1810. Then the causo of action, if there was any, accrued; and the plaintiff having suffered six years to elapse since the cause of action accrued, was now barred by the statute of limitations from recovering it. But it may bo said, that the mistake was not discovered until 1817, tho time of tho settlement before the Orphans' Court. But although tho mistake bo discovered afterwards, yet the statute begins to run from the time the money was paid. This position is supported by the case of Bree v. Ifolbech, Doug. 655, and Read v. Markle, 3 John. 524. If there had been fraud, Lord Mansfield thinks it would have been different, but even there, I think, be has gone too far.* Swing and Wall, contra, contended, that the executor's right * ' Sedvide 3 Mats. Rep. 201. Where to a plea of the statute of limitations the plrintiff replied fraud and deceit, and that the action was commenced within nil year* after the discovery of the fraud, the replication was held good, and th- court Raid, that the statute -did not become a bar till six years after the fraud was discovered. See, also, 3 Pere Wil. 143; 1 Chit. Plead. 556, note 3d American edition. REPORTER. SEPTEMBER TERM, 1822. 189 Ely v. Norton. of action did not accrue until the settlement before the Orphans' Court in 1817, and, therefore, was not barred by the statute of limitations. The money, they said, was advanced by the execu- tor to Ely, not upon any settlement, but merely to accommodate Ely, the legatee. If the executor bad a right to recover the money overpaid, immediately upon paying, yet that right could not be complete until the settlement before the Orphans' Court rendered the amount to which the legatee was entitled manifest. 2 South. 426, Executors of Harris v. Harris. The case from 3 John. 524, did not bear out the position of the gentleman, because, in that case, the execution was a nullity. FORD J. In this case there was a payment made, in 1810, to a residuary legatee of $120. In 1816, the executor settled his account in the Orphans' Court, and it then appeared, that the sum to which the residuary legatee was entitled was only $79. Four or five years after this, the executor brought an action against the legatee to recover the surplus. The legatee pleaded the statute of limitations, and contended, that the cause of action accrued in 1810. Judge Rossell and myself are of opinion, that the cause of action accrued in 1810, and is, therefore, barred by the statute of limitations, consequently the judgment of the Common Pleas must be reversed. KIRKPATRICK C. J. said, he thought that account in the Or- phans' Court was to be considered as perfect in all its forms, as long as it remained unreversed, and, therefore, that being perfect in items, time, &c. it appeared to him, that paying the money to the legatee before the settlement could be considered only as an advancement, trust, or deposit to wait the result of such settle- ment. However, I am satisfied with the opinions declared by my brethren ; perhaps it is all right. Judgment reversed. CITED IB Den. v. Young, 7 Hal. 307. Tichenor v. Hewson, 2 Or. 29. 190 NEW JERSEY SUPREME COURT. Cattel v. Warwick. JAMES CATTEL againtt RICHABD E. WARWICK. A purchase of the equity of redemption by the mortgagee is not an extin- guishment of the attendant bond, and, therefore, in an action of assumpsit by the mortgagor against the mortgagee for goods sold, the mortgagee may set on his bond, notwithstanding his purchase of the equity of redemption. This cause came before the court on a writ of error directed to the Common Pleas of Gloucester county. Warwick, the do fendant in error, had prosecuted Cattel in an action of assumpsit for goods sold. Cattel plead the general issue, and gave notice of offset. Upon the trial before the Common Pleas, a number of questions were raised, and bills of exceptions taken to the opinion of the court. But the question upon which, the cause turned in the Supreme Court, and which, alone, it is thought necessary to notice, arose upon the following facts. After the plaintiff had rested his cause, Cattel, the defendant, "to maintain and prove the issue on his part, offered two certain bonds, executed " by Warwick, the plaintiff, to Cattel, the defendant, dated 15lh February, 1816, one conditioned for the payment of $500, on or before the 25th March, 1817 ; the other conditioned for the pay ment of $1100, on or before the 25th September, 1818; the exe- cution of which bonds the plaintiff admitted. But to the admis- sion of these bonds in evidence, the counsel for the plaintiff objected, and offered to shew to the court that the said two bonds, together with another bond for the sum of $700, payable on the 1st May, 1816, were given by the plaintiff to the defendant, for the consideration money, or price of a certain tavern-house and plantation, sold by the defendant, Cattel, to the plaintiff, War- wick; and that, to secure the paj'mont of the said several bonds, Warwick gave to Cattel a mortgage of the same date, on the said tavern-house and plantation; that in the term of October, 1816, Caltel entered up judgment on the first bond, for 6700, by virtue of a warrant thereto annexed; and that on the 9th day of November, 1816, he issued out an execution of fieri facias de bonis et terris, by virtue of which the sheriff levied on the equity of redemption of Warwick in the mortgaged premises, and after- wards, on the 4th August, 1817, sold all the estate of Warwick in the 8aid mortgaged premises, subject to all legal incumbranccs, for the sura of 8798, and conveyed the said premises to Cattel by deed, executed according to law, and bearing date the 16th SEPTEMBER TERM, 1822. 191 Cattel v. Warwick. of August, 1817, which said several facts, so offered in evidence on the part of the plaintiff, Warwick, were admitted by Cattel, the defendant; whereupon the counsel for the plaintiff insisted, that inasmuch as the defendant had entered judgment on one of the bonds mentioned in the mortgage, and sued out execution, and caused the equity of redemption of the plaintiff in the mort- gaged premises to be levied on and sold, to satisfy part of the mortgage debt, and he himself became the purchaser thereof, subject to the said mortgage; that the land became debtor to the money, and the said bonds or debts, as between the mort- gagor and mortgagee, became extinguished, and, therefore, that the said several bonds, so offered in evidence, were not a subsist- ing debt due from the plaintiff to the defendant, and could not be offset in this action ; whereupon the counsel for the defendant .insisted, that the said several bonds, so offered in evidence, were lawful evidence, and prayed that the same might be admitted as a lawful offset in the cause under his notice. But the court de- clared the said bond's inadmissible evidence, and overruled the same ; and the counsel of the defendant took a bill of exceptions to this opinion of the court. The jury found a verdict of 242 ; and now the error assigned for the reversal of this judgment of the Common Pleas, was the rejection of these two bonds as evi- C.ence on the part of the defendant. Armstrong, for plaintiff in error, contended, that the bonds ought to have been admitted in evidence, because they were legal and subsisting claims against the plaintiff, and were not extin- guished by the purchase of the mortgaged premises by Cattel, upon the sale, under his judgment on the first bond. He did not feel disposed to contend, that, in equity, the debt might not be considered as extinguished, but no court of law could say, that these bonds were extinguished by these circumstances. In Hatch v. White, 2 Gallison 152, it was determined, that after "a fore- closure of a mortgage, the mortgagee may still recover at law, upon the attendant bond or note, the deficiency of the mortgaged property to pay the debt due." This case fully sustained the dis- tinction between the construction given to these instruments ac- companying mortgages, by the courts of equity and courts of law, and establish the position, that a foreclosure is no bar to an action upon the attendant bond. If, then, Cattel, upon a fore- closure of his mortgage and a sale of the mortgaged premises, 192 NEW JERSEY SUPREME COURT. Cattel v. Warwick. without raising sufficient thereby to pay his mortgagee, would not bo prevented from prosecuting on His bond, why should he in this case, where the property was sold and purchased by him for less than the mortgage debt? And if he might prosecute the plaintiff at law upon these bonds, then they are good as an offset, and ought to have been admitted. Swing, on same side, cited 2 Powell on Mortgages 1075, case of Tooke v. Hartley, also reported 2 Bro. Cha. Sep. 126, and the case of Perry v. Parker, 8 Ves. 528. Wall, contra. In England, an equity of redemption is beyond the control of a court of law. It exists only in a court of equity, and, therefore, the cases from the English books do not apply, because an actual foreclosure of the equity of redemption is an ex tinguishment of the accompanying bond. I admit, that whore tho mortgagee afterwards proceeds on his bond, that is considered as opening the foreclosure of the equity of redemption. There is no case to be found in the English books in -tfhich the mortgagee, holding the property in possession by an absolute foreclosure, has a right to proceed upon his bond, until he has taken tho property into market and sold it, without such prosecution of the bond bo ing considered as an opening of the foreclosure. 8 Ves. 527. In tho case from Vesey, after an absolute foreclosure of the mortgage and tho sale, the party was not permitted to proceed on the bond to recover the difference at law. 1 admit, that since that case in England, the doctrine has been settled the other way. But the court will recollect, that there the equity of redemption cannot be reached at law. But in this state it is different; here tho equity of redemption is considered the legal estate; it may be taken on execution ; it has a legal existence, and may be reached by legal process. May not this manner of considering equities of redemp- tion in this state, introduce a new rule, founded upon general principles? Are we not at liberty to form rules adapted to the ex- igencies of society ? or, must we be fettered by principles drawn from English books, which have no application here ? There was no objection to the execution of the bonds at the time they were offered in evidence us an offset. The simple question was, whether when a man gives a bond and warrant of attorney, and enters up judgment upon one of tho bonds, and seizes upon tho mortgaged property and sells it, it was an extinguishment of tho SEPTEMBER TERM, 1822. 193 Cattel v. Warwick. other bond. In New Jersey, the mortgagee has three remedies: first, by ejectment ; second, on the bond ; third, by bill to fore- close. But all these modes are intended to accomplish the same object, to enable the mortgagee to recover the debt. But where he has taken the fund, viz. the equity of redemption, which was intended for the payment of the debt, he cannot be permitted to proceed upon the bond. The great difference between equity and law, is the mode of arriving at proof, but where the proof is ascertained, can there be any difference in the application of general principles ? What is the right which a purchaser at public sale acquires? He purchases only subject to the mortgage; but if the mortgagee himself purchases, can he be in a better situa- tion ? Suppose Cattel had given twenty dollars for the equity of redemption, could he hold the redemption for that sum, and pur- sue the bond also ? In New York, the equity of redemption is reached by execution, as in this state, and, therefore, the deci- sions of their courts are entitled to more deference than any English cases. 2 John. Ch. 125. 3 Ib. 55. In this last case, the purchaser had bought in the equity of redemption, and after- wards takes an assignment of the mortgage debt; there, the Court of Chancery hold, that it is an extinguishment of the mort- gage; here the equity of redemption is the legal estate; but in England it is considered as the equitable estate. See the case in Chancery of this state of Crane & Williamson, where this doctrine was held by the chancellor. Ewing, in reply, said, it is contended that the fact stated in the bill of exceptions operated as a complete extinguishment in law of the right of Cattel to recover upon these bonds, and that, therefore, they could not be received as an offset. But he con- tended, that in a court of common law the obligee had a full and complete right to prosecute upon the bonds, and that the circum- stances stated in the bill of exceptions were not an extinguish- ment of the bonds, whatever might be the rule in equity. The cases cited from Johnson are cases of application to Chancery. Let us suppose that Cattel had prosecuted Warwick at law upon the bonds, could Warwick set up these circumstances as a defence ? No! it is in equity only that he could make any such defence, and I shall shew hereafter, that he could not avail himself of it, even in equity. But the opinion of Judge SUny, in Gal- VOL. i. N 194 NEW JERSEY SUPREME COURT. Cattel v. Warwick. lison, is express that such a defence could not be set up at com- mon law. However it may be with regard to the effect of a purchase of this kind in equity, there is no power in a court of common law which can preclude the party holding the bond from proceeding to recover it. But, even in a court of equity, the person holding the bond would be at liberty to proceed. It is true some difference exists in our mode of proceedings as to equity of redemptions, and that of the proceedings in England. But if in England, after a foreclosure, the mortgagee may pro- ceed upon the bond, much more may he in this state, where he has merely purchased the equity of redemption. It is said, that the foreclosure in England is an extinguishment of the debt, but this position is incorrect. The cases are all reviewed by Judge Story in 2 Gallison, and he comes to the conclusion, that not- withstanding the foreclosure, and notwithstanding the sale, the mortgagee may proceed upon the bond. Per curiam. We are of opinion that the judgment must bo reversed. The purchasing of the equity of redemption does not cancel the bonds; therefore they ought to have been admitted as a legal set-off. What equities may arise, is another question ; as to these, the defendant must seek relief in a court of equity. CITED is Sloan v. Sommers, 2 Or. 609, 615. SEPTEMBER TERM, 1822. 195 Dickerson v. Robinson. MAHLON DICKERSON, Ordinary, &c.,against ANN ROBINSON, HENRY FREAS, ROBERT VAN MATER, and HOWELL POWELL. 1. The power of administrators is joint only, they must sue and be sued jointly, appear and plead jointly; they cannot plead severally as executors may; and judgment against them must be in their joint capacity. 2. The non-payment of a void judgment, cannot be assigned as the breach of the condition of the administration bond, in order to subject them or their sureties, to the payment of it. 3. A creditor cannot sue an administration bond, and assign for breach of the condition thereof, the non-payment of a debt upon a demand in pais; nor even upon a judgment at common law, and a devastavit upon it. 4. But he may sue an administration bond in order to obtain a complete and perfect inventory. And he may assign as a breach, the not rendering a true and perfect inventory of the estate of the intestate ; but he cannot sue the bond and get judgment upon it lor his own individual debt. 5. If the administrator made & final settlement in the Orphans' Court, and a confirmatory decree of said court was passed upon it, then the balance found in the' hands of the administrator, is a surplus, to be distributed according to the statute. But there can be no such final settlement until all the debts known, exhibited and allowed, are paid. But if the settlement was not such final settlement, then the creditor may assign for breach of the condition, the not making a true and just account of the administration. The facts of this case sufficiently appear in the opinions delivered. Kinsey for plaintiffs. Jeffers for defendants. KIRKPATRICK C. J. This is a case settled by the parties, and has been twice argued. The facts stated, are these, that is to say, 1. Nov. 3, 1807, Ann Robinson and Henry Freas, having been appointed administrators of Samuel Robinson, dec. together with Robert Van Mater and Howell Powell, as their sureties, executed this bond to the Ordinary in the penal sum of ten thousand dollars, conditioned for the due administration of the estate in the usual form. 2. March 11, 1807, Samuel Robinson, the intestate, and Joseph Robinson, had give their joint and several bond to Ebenezer Gas- kill and John Jones, in the penalty of one thousand dollars, con- ditioned for the payment of five hundred dollars, with interest. 3. In December term, 1819, Ann Robinson and Henry Freas made a settlement of their accounts, as administrators, in the Orphans' Court of the county of Salem, upon which there was found in their hands, the sum of $2378.59. 4. In March term, 1812, Henry Freas settled his separate account of the said administration in the same court, upon which it was found that there was due to him from the said estate, the 196 NEW JEKSEY SUPJREME COURT. Dickerson v. Robinson. sum of $440.19. It is supposed this is his account of the balance found in the hands of the administrators on the settlement of 1807.* 5. In September term, 1815, John Jones, who had survived Ezekiel Gaskill, having first demanded the payment of his bond from the said administrators, and the same having been refused, and having thereupon prosecuted his suit for the recovery thereof, obtained a judgment in the same court against the said Ann Robinson and Henry Freas, as administrators as aforesaid, for the sum of $382.93. This judgment was obtained and entered in this wise, that is to say, the action was commenced by sum- mons, upon which, Henry Freas, was returned summoned, and Ann Robinson, non est inventus, Henry Freas pleaded separately for himself, plene administravit, and by the jury it was found for him, and the sum due to the plaintiff upon his bond, was found to be $382.93, upon which judgment was entered against him, Freas, of goods quando acciderint, and against Ann Robinson, who had neither been summoned nor appeared, of the goods of the intestate, si, et si non tune, &c. the costs of her own proper goods. Execution was duly issued upon this judgment against Ann Robinson, and returned nulla, &c. 6. Then this action is brought by Jones, by the permission of the Ordinary, upon the administration bond, to recover the amount of this judgment; and the only breach assigned, to which the facts admitted have any relation, is, that the said administrators have not paid the said judgment. Upon this case I observe, that the course of proceeding has been altogether misconceived, for 1. In the first place, though it is well settled that co-execu- tors are not liable for the waste of each other, and that, therefore, each may plead separately and specially to shew this matter and to exonerate himself, yet it is not so with co-administrators; their power is joint only, and not joint and several, like that of co- executors; they must act jointly, they must sue and be sued jointly, they must appear and plead jointly; or if one only be summoned, and the other returned non est inventus, he that is sum- moned may, and indeed must, by statute, plead for both, but the plea must be joint, and, therefore, the judgment for or against them, must be their joint capacity. The waste of one is the waste of all, so far at least as relates to creditors and next of kin; their remedies against one another is a different thing. SEPTEMBER TERM, 1822. 197 Dickerson v. Robinson. It has been insisted, with some degree of zeal, in the argument, that though this may be the ancient principle contained in the books, yet the principle is altered by our act of March 2, 1795, entitled " an act concerning executors, and the administration and distribution of intestates' estates." In the eighth section of that act it is said, " that all administrators, of whatever kind or description they may be, shall have actions to recover, as ex- ecutors, the debts due to the person deceased, and shall answer to others, to whom such deceased person was holden or bound, in the same manner as executors shall answer, and shall be ac- countable, as executors be in case of testament, as well of the time past as of the time to come." And it is insisted, that this section places administrators upon the same footing as executors, as to their appearing and pleading severally, and having several judgments against them. But I incline to think this is a total misapprehension of the true intent of that section. It is well known that the office of administrator, as it is now understood, did not exist in the ancient common law. It was in- troduced by the 31 Edward III. which makes it obligatory upon the Ordinary to depute the next and most lawful friends of the deceased to administer his goods, and in order to enable them to do so, gives them the same actions as executors have, and makes them accountable as executors are. Without this last provision in their favour, the administrators could neither have sued nor been sued touching the intestate's estate ; for, as we are told, all the actions which an administrator can have are given by statute, for the common law took no notice of administrators. Now the section of our act under consideration, is intended merely to sup- ply the place of that ancient statute in this respect, and is ex- pressed in nearly the same words. But, unless all lawyers, from the time of Edward III. down till this day, have been mistaken, the statute of Edward never intended to enable administrators to appear and plead severally and to have several judgments against them. And by all right rules of reason, as our act is made to sup- ply the place of that statute, and nothing more, it ought to have the same construction. It introduces no new law; it changes no ancient principles. It may fairly be assumed, therefore, that there is nothing in this topic of the plaintiff's argument. The sixth sec- tion of the same act, which is also pressed into the service of this argument, says, " that, in actions against divers executors, they 198 NEW JERSEY SUPREME COURT. Dickerson v. Robinson. shall all be considered as one person representing the testator, and that such as shall be summoned, &c. shall answer the plain- tiff, and, if judgment be for him, it shall be against those sum- moned, and also against all the others, of the goods of the testa- tor, as well as if they had been summoned and appeared." This is but a re-enactment, in substance, of the 9 Edward III. on that subject ; and though it be extended to administrators by the sec- tion we have considered, yet it does not at all affect this case ; for it is readily admitted, that if Freas had put in a joint plea, as well he might, or even suffered judgment to pass by default, that judgment might, and indeed must, have been against both him- self and his co-administrator. But the question here is not, whether, upon one being summoned, judgment can be entered against both ? but, whether they can plead severally, and have several judgments? and I think they certainly cannot. I do not now speak of costs. 2. In the second place, if co-administrators, like co-executors, could plead separately and specially, each for himself, and one should be returned summoned, and the other non est inventus, and he that was summoned should plead separately, (as was done here) then they would stand in the same situation as in other cases where there is a severance in pleading ; and so no judgment could be entered against the other that was not sum- moned, and did not appear; and especially no such judgment could be entered against him as admits assets, and subjects him to the return of a devastavit, either upon the fi. fa. or the scire fieri inquirendum. 3. It will follow, from these observations, that, in my opinion^ this judgment, so far as is relates to Henry Freas, being a judg- ment of exoneration, in presenti, at least; and so far as it relates to Ann Robinson, being a judgment altogether irregular, and as none, the non-payment of it cannot be assigned as a breach of the condition of the administration bond, in order to subject either them or their sureties to the penalty of it. It is said that as this is a subsisting judgment against Ann Robinson, it must have its full force, and bo pleadable like all other judgments, until reversed upon writ of error, in due course of law. But if I am right in the view I have taken of it, it is a mere misentry, made incautiously, and without any proceedings to support it, and, like all other mis- entries of that kind, would be a proper subject of the breve de SEPTEMBEE TE'ftM, 1822. 199 Dickerson v. Robinson. corona coram nob, at the common law. Now I certainly need pot cite authorities to shew, that in all cases where that writ would lie formerly, the court will now grant the same relief upon motion, or take notice of the error in any future stage of the proceeding which would carry it into effect. They will never give operation, in any form, to a mere misentry. But whether we consider this judgment against Ann Robin- son as a perfect nullity, or as a regular and valid judgment, will make no difference in my view of the case; for I take it to be well settled, that a creditor cannot sue an administration bond, and assign for breach of the condition thereof, the non-payment of a debt upon a demand in pais, nor even upon a judgment at common law and a devastavit returned upon it. This has been adjudged repeatedly upon the 22d and 23d Charles II. which, in the condition of the administration bond, our act follows ver- batim, as to all substantial matters, and with which, therefore, it must have the same construction. It was for some time doubted whether a creditor could sue at all on an administration bond. But even after that doubt was done away, the courts still confined them to the proper objects of the bond. The first case that I find on this subject is, that of the Arch- bishop of Canterbury v. Brown (1 Lutw. 882). In that case the defendant pleaded performance as to every particular contained in the condition, and the plaintiff replied, with a protestando, that he had not performed, &c. that the intestate was indebted, by specialty, to the assignee of the bond in so much, and that the defendant, as his administrator, had assets in his hand to pay, but had refused to do so. To this replication there was a demurrer, and the demurrer was sustained, because the Ordi- nary cannot assign for breach of the condition of an adminis- tration bond the non-payment of a debt. In the case of the Archbishop of Canterbury v. Wills (Salk. 315) Chief Justice Holt says, " since the statute of Charles II. the condition of the administration bond being to account at a day certain, the administrator must account at his peril, and that without citation on suit ; and any party interested may come in and contest it. And whereas, by the words of the condition, he is to administer well and truly, that shall be construed in bringing in his account, and not in paying the debts of the intes- 200 NEW JERSEY SUPREME COURT. Dickerson v. Robinson. tato, and, therefore, a creditor shall not take an assignment of the bond and sue it, and assign for breach the non-payment of a debt to him, or a devastavit committed by the administrator, for that would be endless and infinite." In the case of Wallis v. Pipon, (Ambler 183) Lord Chancellor Hardwicke says, " creditors cannot sue an administrator on his bond taken by virtue of the statute of Charles II. for such bonds are only for the benefit of the legatees, the next of kin, and persons entitled to the residue." The meaning of this must be, that the creditor cannot sue, and assign the non-payment of his debt as a breach; for long before that time it was settled that he might sue for an inventory and account. In the case of Greenside et al. v. Benson et al. (3 Atk. 248) the defendant, Benson, was a creditor of the intestate for 300, with interest, on bond. He sued the administratrix at law on this bond, and she pleaded no assets ultra 54, which she paid into court. Upon this there was a trial, and a verdict, that the defen- dant had assets to 226 beyond the 54. Benson then took an assignment of the administration bond, and assigned for breach of the condition, that the administratrix had not made a true and perfect inventory, and had judgment by default for the whole penalty. This bill is then brought by the sureties in the bond to be relieved against this judgment, but the lord chancellor ordered it to stand as a security for so much as the inventory should fall short of satisfying the principal and interest of Ben- son's bond. Here it is to be observed, and it is clearly to be collected from the case 1. That the jury did not find the amount of Benson's debt, on the plea of plene administravit ultra, &c. as they were made to do for Jones in the case before us, but merely the fact put in issue, that the administratrix had assets ultra to so much ; that the assets admitted, and the assets ultra, found by the jury, when added together, did not amount to the plaintiff's debt; and that the judgment, of course, was for the whole penalty of the bond. 2. That Benson, on his citation on the administration bond, did not assign for breach of the condition, the non-payment of his judgment, as is done here, but the not exhibiting of a true and perfect inventory of the intestate's estate. 3. That upon obtaining his judgment, by default, on this ad- SEPTEMBER TERM, 1822. 201 Dickerson v. Robinson. ministration bond, he did not proceed to have his particular dam- ages assessed, but was about to take out, or actually had taken out, his execution for the whole penalty ; and that upon this a bill was filed in equity, because the sureties had no relief at law. 4. That the judgment for the penalty was to stand, not for the amount of the assets found by the jury in the hands of the administratrix, but for the whole of the principal and interest due on Benson's bond, how far soever it might exceed the assets; for the whole penalty had become forfeited at law, and the chan- cellor could not relieve against it upon a judgment by default, till the debt was fully satisfied. In this case the solicitor-general, who argued for the adminis- trators, puts the question, whether a bond taken by the Ordinary, under the 22d and 23d Charles II. relating to intestates' estates, is to be confined to the exhibiting of an inventory for the benefit of the legatees and next of kin ? or, whether it extends to credi- tors also ? And he says, as there have been cases determined upon this point, it would be directly encountering them to say, that a bond within that statute may be assigned to a creditor, and that he may assign the non-payment of his debt as a breach. The attorney-general, on the other side, admits this doctrine, so far as it goes to the non-payment of a debt being assigned for a breach, but after examining and animadverting upon the condi- tion of the bond, he draws the conclusion, that a creditor may take an assignment and sue the bond, and assign for breach, that the administrators had not made a true and perfect inventory, for he is interested in having a complete disclosure of the estate. And the Lord Chancellor Hardwicke, in delivering his opinion, says, " there is no doubt but that the archbishop's commissory, the obligee, may assign a breach, in not delivering a true and perfect inventory, even without citation ; but that what the solicitor-general, the counsel for the administrators, had said, would have been perfectly right, supposing the Ordinary had assigned for breach the non-payment of the creditor's debt ;" thus establishing the principle, that such debt cannot be assigned as a breach on these bonds. It is beyond all controversy, therefore, that, in the opinion of Lord Chief Justice Holt and Lord Chancellor Hardwicke, a creditor could not assign as a breach of the condition of an ad- ministration bond, either a judgment at law against the adminis- 202 NEW JERSEY SUPREME COURT. Dickeraon v. Robinson. trator, with a devastavit returned upon it, or the non-payment of a debt upon a demand in pais. In the case of the Archbishop of Canterbury v. House, Cowp. 140, there was a rule to shew cause why the proceedings upon an administration bond should not be set aside, upon the ground that the archbishop could not depute a creditor to sue; but upon the strength of the case of Greenside et al. v. Benson et al. above cited, as well as upon the reason of the thing, Lord Mansfield discharged the rule, thus affirming the rule laid down in Green- side's case, but carrying it no further. And in this case it is clear, from his lordship's argument, that the breach assigned was not the non-payment of a debt, but the not making a true and perfect inventory; for in this, he says, the creditor was most materially interested. From these cases, adjudged by three of the greatest men that ever sat in the English courts, I think it manifestly appears, that though a creditor may sue an administration bond, in order to obtain a complete and perfect inventory and account of the estate, yet he cannot sue it, or get judgment upon it for his own individual debt. But suppose it were otherwise, and that the creditor could assign for breach the non-payment of his own debt, and could recover a verdict and judgment for the amount, what purpose would it answer to him ? The money recovered is not to be paid to him ; it is not to go to the payment of his debt exclusively ; it is, by the very words of the act, "to be applied towards making good the damages sustained by the not performing the condition in such manner as the judge of the prerogative court shall by his sentence and decree direct;" that is, not the damages of the assignee of the bond only, but of all other persons interested in the estate; for if it were of the assignee only, there could be no need of any interference of the judge of the prerogative court, or of any sentence or decree about it. The money recovered, there- fore, must be applied by the judge of the prerogative court to the payment of all the debts of the intestate, in their order, giv- ing a preference to those that have a preference by law, and making a ratable distribution among all others. This is certainly the course of the ecclesiastical courts in England, which must necessarily have been in the contemplation of the learned judge who drew this act. To shew the more clearly that the applica- SEPTEMBER TERM, 1822. 203 Dickeraon v. Robinson. tion of the money recovered in these actions must necessarily be to the payment of all debts, let us pursue the thing a little. Let us suppose the administrator to have wasted the whole estate, and to be himself insolvent, and that there is nothing to respond to creditors but the administration bond, shall he that can first get the assignment of it, and a verdict and judgment for his debt, even though it be a simple contract debt, swallow up the whole penalty, take the whole money recovered to himself, and leave all other debts, even of a superior order, altogether unpaid ? This, 1 think, would be hardly maintained by any body; and it is to prevent this that the money recovered must be distributed by the judge of the prerogative court. What then is to be done upon such a recovery ? Is the judge of the .prerogative court to divide the sum so recovered among all the creditors, and so pay the assignee of the bond but a part of his debt, and then put every other creditor to go through the same course, and make like division of what he may recover? and if it be an estate in which there is a surplus, shall he, after all, compel the next of kin to run the same race? This would, indeed, as Lord Chief Justice Holt says, be endless and infinite. But it is not so. No such breach can be assigned. No such recovery can be had. The law runs itself into no such absurdity. The condition of an administration bond requires, principally, three things; first, to make a true and pefect inventory and appraisement of the goods, chattels, and credits of the deceased; secondly, to administer the same according to law, and make a just and true account of such administration (which, according to Lord Holt, is one and the same thing, for the settlement of the amount implies the just administration of the goods, and the payment of the debts, without which it cannot be made) ; and thirdly, to pay over the surplus to the next of kin, upon refund- ing bonds. A failure in either of these three things may be assigned, by a creditor, as the breach of the condition ; but I am not, at present, aware of any other thing which can be so assigned. In all these cases, if the breach be proved, the recovery must necessarily be of the whole penalty, and not of any particular debt, or individual damages ; the execution must go for the whole penalty; and the party against whom it is, has no relief except in the Court of Chancery, and not even there with- 204 NEW JERSEY SUPREME COURT. Dickerson v. Robinson. out showing a complete administration of the estate. And as the law, when well understood, is perfectly reasonable and just in all respects, so it is in this also. The penalty of the administra- tion bond is calculated upon a general estimate of the property of the deceased ; the administrator and his sureties agree to this estimate and condition as completely covering the value, and no more; the administrator alone collects the goods and sells them ; he recovers the debts and receives the money ; he alone knows the condition, the particulars, and the amount of the estate; he refuses to exhibit an inventory or to give an account; what can be more reasonable, then, than that he and his sureties should pay the penally which is but the estimated value, and estimated by themselves too, for the benefit of creditors and others enti- tled? It is true that this penalty and the recovery upon it, is generally used only as a rod upon the back of the administrator, to compel him to do his duty, and if he do so satisfactorily to the Ordinary, even though out of time, it will not be exacted ; and especially here, where, by the administration, the same person is both Ordinary and chancellor. But this does not change the principle. I remember a case at the Sussex circuit, some years ago, in which the plaintiff had assigned for breach on one of these bond*, that the administrator had not made a just and true account of his administration ; and upon this assignment he would have gone into proof of his debt, and of the property which came to the hands of the administrator, and the value of it, in order to shew that he had sufficient to pay, but I refused both the one and the other, and it being proved that there was no account settled, I directed the jury to find the whole penalty, which they did do accordingly. Upon this, though it was submitted to, I heard a litte murmur at the bar, which induced mo to look into the mat- ter the more fully at chambers; and the investigation which I then made, fully satisfied me that the direction was right ; and that upon such an assignment, there can be no proof of the debt, or of the amount of the estate which came to the hands of the administrator, or other matter which would put upon the jury any thing like an estimate of the estate, or a settlement of the account. All that, belongs to another tribunal. It has been said, in the course of the argument, that as this plaintiff has a just and undisputed debt, and as the cstato SEPTEMBEK TEEM, 1822. JOS Dickewon v. Robinson. of the intestate, as it came into the hands of the administra- tors, was abundantly sufficient to pay all demands against it, it would be a hard thing, indeed, if the law did not afford him a remedy. I would answer this by saying that the law does afford a com- plete remedy, but that, in my view of the case, the plaintiff has not pursued that remedy. If the settlement made in the Orphans' Court of the county of Salem, in December, 1809, was a final settlement, that is a making of a just and true account of the administration, accord- ing to the condition of the bond, and if a confirmatory decree of the said court was passed upon it, as from the case submitted we are ready to believe, then, the balance found in the hands of the administrators, was a surplus to be distributed according to the statute ; for there can be no such final settlement until all the debts known, exhibited and allowed, are satisfied and paid, because settlement, as well from the force of the term, as accord- ing to the cases cited, implies payment. If the administrators, therefore, did pay out the balance found in their hands, upon debts not exhibited at the time of the settlement, or did make such distribution to the next of kin, of the balance or surplus found in their hands, and did take and file such refunding bonds, they have done their duty, and saved themselves and their sure- ties from the penalty of the administration bond, and this credi- tor, probably, has no remedy but against the next of kin on their bonds to refund ; but if the administrators did not do so, he may assign that for breach, and recover against them and their sureties. On the other hand, if the settlement, stated in the case, was not such final settlement, but a mere exhibition to shew the condition of the estate for other purposes, then this creditor may assign for breach of the condition, the not making a true and just account of the administration, and upon that assignment may recover the whole penalty for his indemnifica- tion. Upon the pleadings, however, as they are entered in the record, and upon the case stated for the opinion of the court, I think there must have been judgment for the defendant; but inas- much as the case is in some degree a new case, and the law has not been so well settled as it might have been, I am dis- posed to let in the plaintiff to amend his replication and assign- 206 NEW JERSEY SUPREME COURT. Dickenon v. Robinson. ment of breaches, so to form an issue which may be within the view which I have taken of the case. N. B. How far he can be relieved, after all, without first establishing his claim at law, by a regular and valid judgment against the administrators, it may be proper for the plaintiff to consider. ROSSELL J. This was a suit brought on the administration bond of Robinson and Freas, administrators, and Van Mater and Powell, sureties, by a creditor, to recover the amount of a judgment on a bond held by him, against the testator. The ad- ministration bond was taken in conformity to our statute, passed in 1795. Pat. 1556, sec. 11. In the condition of said bond, it is proved, " that administrators should make a true and perfect inventory of all the goods, chattels, &c. of the intestate, and well and truly administer according to law, and make a just and true account of their administration, &c. and deliver and pay unto such person or persons, respectively, as is, are, or shall by law be entitled to receive the same." This language appears sufficiently comprehensive to secure the interest of all who have a legal right, to expect a benefit from the estate of the intestate, whether creditors, or next of kin, entitled to a distributive share. An administrator is to sell the personal estate of the testator, to recover debts due, and pay all legal demands against it, and settle his accounts in the Orphans' Court, that distribution of the remainder may be made to those who by law are entitled to it. And should any person suppose himself aggrieved by a non-performance of those conditions, his legal remedy would be a prosecution on the bond. But it is alleged by the defendants, that this bond is given for the benefit of the next of kin only ; that it is copied from the statute 22 and 23 Charles II. chap. 10; and that the construction given by the English courts to that statute, will be necessarily followed by this court ; and no creditor as such, can in England, prose- cute on such bond, and assign as a breach of the condition, the non-payment of a debt or a devastavit. In support of this posi- tion, they cite 3 Mod. 61. 1 Salk. Ambler 183. 2 Burns' Eccl. Law 641. Toller's Law of Executors 496. In 3 Mod. 61, the pass- age relied on by the defendant, it is said, " there can be no remedy on the bonds of administrators, until the Ordinary hath SEPTEMBER TERM, 1822. 207 Dickerson v. Robinson. appointed distribution." If this was ever law, it has since been overruled ; as the right of persons interested, even creditors, to sue on such bonds in the name of the Ordinary, to compel the administrator to file an inventory of the intestate's estate, has been repeatedly recognized. In Toller's Law of Ex'rs, 496, it is laid down, the words " he (the administrator) is well and truly to administer," are construed to apply merely to the bringing in of the inventory. It is then added, " creditors have no right to sue on the bond, for the court cannot compel the payment of debt." The writer is speaking of the Ecclesiastical Court, which had no com- mon law jurisdiction, nor power to interfere, as between creditor and debtor. Ambler 183 Lord Chancellor Hard wicke says, " that creditors cannot sue an administrator on bonds taken by virtue of the statute of Charles II. for such bonds are intended only for the benefit of the next of kin, and persons entitled to the residue." 1 Comyns, cites only the case from 3 Salfc. 316. It is laid down, "that he shall well and truly administer, shall be con- strued in bringing in his accounts, and not paying the debts of the intestate, and therefore a creditor shall not take an assign- ment of the bond and sue it, and assign for a breach the non- payment of a debt due to him on a devastavit, for that would be needless and infinite." These authorities are, apparently, founded on the statute of the 22 and 23 Charles II. and in aid, it is said, of some authorities of the Ecclesiastical Court. That statute was passed in 1670, for the better settling of intestates' estates, and declares, that all Ordi- naries and ecclesiastical judges, having power to grant letters of administration, shall take bonds of the administrators, so appointed, with two or more able sureties, in the name of the Ordinary, in the form of which ours is a copy. And the said Ordinaries shall call such administrators to account for and touching the goods of any person dying intes- tate, and make a just and equal distribution of what remained clear (after all debts first allowed and deducted) among those who by law are entitled to it, and compel such administrator to pay the same by the due course of the ecclesiastical law. The eighth section enacts, to the end, that due regard be had to creditors, that no distribution shall be made until a year from the testator's death has expired, and that those to whom any share is allotted, shall give bond with sureties, to pay back to 208 NEW JERSEY SUPREME COURT. Dickerson v. Robinson. the administrator, in ratable proportions, any debts that shall after appear to bo due from the estate of the testator, to enable him to pay the same. In 1677, the 30 of Charles II. an act was passed to enable creditors to recover their debts of executors and administrators of executors and administrators in their own wrong, who had been possessed of wasted, or converted to their own use the per- sonal, estate of other dead persons, in the same manner as they might have done if their testator or intestate had been living. And in the 4 and 5 of William and Mary, this act was revived and extended to executors and administrators of executors and administrators of right. In 1685, fifteen years after the 1 of James II. the statutes of 22 and 23 of Charles II. were revived, made perpetual, and enlarged, provided always, that no administrator shall be cited to any courts in the last named acts mentioned, (viz. the pre- rogative and other ecclesiastical courts) to render an account of the personal estate of his intestate, unless it be at the instance or prosecution of some person in behalf of a minor, or having a demand out of such estate, as a creditor or next of kin, nor be compelled to account before any of the Ordinaries or judges, otherwise than as aforesaid. The foregoing are the acts of the parliament of England, on which the decisions relied on by the defendants are founded; but even there, in Cowp. 140, Lord Mansfield says, "I see no authority which says the Ordinary cannot empower a creditor to sue on an administration bond; on the contrary, he ought to do so; for although a creditor has no concern in the latter part of the condition distribution, jet he is most materially interested in the administrator's delivering a just and true inventory, and the due administration of the effects." This doctrine is also recog- nized in 3 Bac. Abr. title Executors and Administrators. The province of this court would be, on this statute of Charles II. to settle the question between these contradictory authorities, if, indeed, it can be raised in New Jersey ; but this I do not think necessary. Although our form of an administration bond is copied from that in Charles II. yet our statute is much more compre- hensive, and couched in different terms. And it would appear that our legislature, in 1784, when about to define the authority of the Ordinary, his surrogates, &c. and to establish orphans' SEPTEMBEE TERM, 1822. 209 Dickerson v. Robinson. courts throughout the state, had another class of citizens in view beside those who claimed a distributive share of the residue of an intestate's estate, viz. creditors, and that they were equally entitled to justice and protection ; they, therefore, make them parties in interest in the due administration of intestates' estates. In the eighth section they provide, that the Orphans' Court shall have power, where letters of administration have been granted, or on sufficient security, after hearing the objections of creditors, or persons concerned, to order such administrators to give such further security to the Ordinary, by bonds, in the usual form, as the said court may approve of, on neglect to revoke the letters of administration, and the Ordinary or surrogates to grant letters to such persons having a right as will give bonds in manner aforesaid. The tenth section enacts, that an executor or administrator may, on sufficient reason, call on his co-executor or administra- tor to account for all assets that have come to his hands, and the court may compel such executor or administrator to give security to his co-executor or administrator for the payment of the balance remaining in his hands, to creditors, legatees, or rep- resentatives of the testator or intestate; and, on refusal to authorize the executor or administrator to sue for such assets in the hands of the refusing executor or administrator. The sixteenth section provides, that the surrogate shall audit and state the accounts of executors and administrators, they hav- ing advertised their intentions for two months, and report the same to the Orphans' Court. But if any person interested make exceptions, &c. provided always, that in all cases where it shall appear that the executor or administrator hath not sufficient as- sets to satisfy just debts and expenses, the court shall not decree an allowance of the account until the next term, nor till procla- mation at that and the subsequent court, for all creditors, and others in interest to appear and shew cause, &c. The seventeenth section makes the decree of the Orphans' Court, on the final settlement, conclusive to all parties, and for ever discharges the executors or administrators from all demands of creditors or others, except for assets coming to their hands after settlement for fraud or apparent mistake. In the twelfth section of the act concerning executors, admin- istrators and distribution of estates, it is enacted, that administra- VOL. I. 210 NEW JERSEY SUPKEME COURT. Dickerson v. Robinson. tors shall give bonds ; and, in case they become forfeited, it shall be lawful for the Ordinary to cause the same to be prosecuted in any court of record, at the request of any party aggrieved by such forfeiture. The twentieth section enacts, that no executor or administra- tor shall be cited to render an account otherwise than by inven- tory, unless at the instance or prosecution in behalf of a minor, or one having a demand out of the estate as a creditor or next of kin, &c. It appears, from an examination of the two foregoing acts, that our legislature were careful to protect creditors, as well as tho next of kin, from the unlawful acts of administrators, in wasting the estate of the intestate. They could not be ignorant that many persons died insolvent as well as intestate; and in that case no next of kin, merely as such, could have an interest in the estate. That a person of little or no property might obtain letters of ad- ministration, and waste the whole estate, or abscond, and were the creditors the only parties in interest to be without the shadow of a remedy, with their hands tied up from prosecuting for their rights by the law giving six months to such administrator, in which to ascertain the amount of the debts, Ac. of the intestate? I think not. The legislature, as wisely as justly, took a more enlarged view of the whole subject, added sundry provisions not found in the English code, and thus threw off the shackles that an individual opinion, on a new and imperfect law bad thrown arpund some after-decisions of the English courts, and provided a Security to all concerned, creditors as well as others, that tho estate should be in good faith duly administered. This security was the bond ; there was no security to alter the form of that of Charles II. the language was appropriate and amply sufficient to fulfil the intentions of the legislature. If creditors were not in .legislative contemplation to be secured by this bond, why give them authority to call on the court to compel administrators to give further security in cases where they supposed it was not suf- tficient, or why are they BO repeatedly mentioned throughout tho statutes, and first named as entitled to a preference over those vwho had claims only to the residue. For these reasons I am satisfied that, in New Jersey, a creditor has a right to sue an administration bond, ho having the proper authority from tho Ordinary so to do. SEPTEMBER TEEM, 1822. 211 Hunt v. Boylan. Since writing the above, I find myself supported by a decision in 13 John. 437, where it was determined, that a creditor might sue on an administration bond; also in 9 Mass. Reports 117; 1 Wash. Rep. 31. I think, therefore, the breach assigned in the plain- tiff's declaration for the non-payment of the money due him is well assigned, and the alleged breach of the condition supported. Another point was raised on the argument, viz. that it appears on the record of the Orphans' Court that Jones had fully settled for all the assets that came to his hands, although a large balance remained in the hands of his co-administrator, and that, there- fore, judgment could not go against Jones. If Freas had not been a party in this joint bond the objection might have pre- vailed. But the obligors on a joint bond are equally liable on the forfeiture of the condition. Indeed Freas has the less reason to complain; he knew, or ought to have known, the amount of the intestate's estate, and in whose hands it was ; and, if the debts were not paid, he should have taken the measures pointed out by the act to compel his co-administrator to account and pay out of the balance in her hands, the just demands of the credi- tors. I am, therefore, of opinion that judgment be entered for the plaintiff for the penalty of the administration bond. FORD J. concurred in opinion with the Chief Justice. Therefore, there was judgment for the defendant, with leave given the plaintiff to amend. CITED IN Ordinary v. Snook, 5 Hal. 65. Schuyler v. McOrea, 1 Harr. 248. Hainee v. Price Ex, Spen. 480. Halsttd v. Fowler, 2 Zab. 43. Jifat- ter of Webster's Ad. Bond, 3 Gr. 558. Matter of Hannahs, 1 McCar. 493. Hazen v. Burling, \ Gr. 136. Ordinary v. Barcalvw, 1 Vr. 17. Ordinary v. Hart, 5 Hal. 77. JOSEPH HUNT against JOSEPH BOYLAN. ON CERTIORARI. A transcript of the justice's docket not evidence to prove the delivery of exe- cution to constable. This was an action commenced by Joseph Boylan against Joseph Hunt, a constable, for not returning an execution within thirty days, as is required by the 29th section of the "act for the trial of small causes," Pat. N. J. Laws 313. Upon the trial below, in order to prove the fact of the delivery of the execution to constable, the transcript of the docket of the justice, before 212 NEW JERSEY SUPREME COURT. Hay v. Bruere. whom the judgment had been obtained 11 on which the said exe- cution issued, was read in evidence. The transcript was dated on the 7th of August, 1820, and stated, "that on the 3d of May, 1820, execution had been granted and delivered to Joseph Hunt, constable." There was no mention made of the execution ever being returned. Upon this evidence, judgment was rendered against the con- stable, Hunt, for the amount of the debt, interest, and costs due upon the former judgment upon which the execution had thus issued. Wall now moved to reverse this judgment upon two grounds. 1. That the judgment was rendered against the constable, not only for the debt and costs of the original judgment, but also for the interest on it. The language of the statute was, " that the constable should be liable to pay to the person in whose favour the said execution is issued, the debt or damages and costs." Interest is not mentioned, and, therefore, ought not to have been included in the judgment. 2. That the transcript of the justice's docket was not sufficient evidence to prove the delivery of the execution to the constable. Per curiam. The transcript was not evidence to prove the delivery of the execution to the constable, because the justice is not required or authorized to enter upon his docket the delivery of the execution to the constable. Therefore, you may take a reversal upon this point. KIRKPATRICK C. J. As to the first, I should be very much inclined to think that the debt included the interest. CITED is Runyan v. Weir, 3 Hal. 353. Hunt v. Oulick, 4 Hal. 205. JAMES N. HAY against RICHARD BRUERE, assignee of Letitia Steward, administratrix, and George Bobbins, administrator of Aaron Steward, dec. 05 CERTIORABI. Administration cannot be proved by parol. This was an action of debt upon a note of hand given by Hay, the defendant below, to Aaron Steward, and assigned to the plaintiff, Bruere, by Letitia Steward and George Bobbins, SEPTEMBER TERM, 1822. 213 Vanderveer v. M'Mackin. the administratrix and administrator of Aaron Steward. Judg- ment was rendered against Hay for the amount of the note. Wall now moved to reverse the judgment, upon the ground, that parol testimony was admitted to prove that Letitia Stew- ard was the administratrix, and George Robbins the adminis- trator, of Aaron Steward. Ewing contra. The defendant admitted, that the signature to the note was his hand-writing, and Letitia Steward acknowl- edged the assignment of the note to Bruere, and, therefore, it appeared the plaintiff was entitled to recover. Per curiam. Administration cannot be proved in pais, not even by proving that a person acted as administrator, because he might act without authority. Therefore, Let the judgment be reversed. CORNELIUS H. VANDERVEER againtt JOHN M'MACKIN. ON CEKTIOBARI. A count for money paid to, and for the use of, defendant, and at his request, to A. B. is good injustice's court. EWINQ moved to reverse the judgment rendered by the justice in this case, because the state of demand contained only a gen- eral count for money had and received. There were several counts in the state of demand, but the one to which the objec- tion was taken was as follows: "And also for that whereas the defendant was indebted to the plaintiff, on the 3d of April, 1819, in the further sum of $1.75, for money paid, laid out, and ex- pended to and for his use, and at his request, to Peter Forman, esq." He contended, that the state of demand should shew the object for which the money was paid, laid out, and expended. It must state why and for what purpose it is laid out. And he cited the case of Bruere v. Douglass, 1 Pen. 464 ; Ib. 525, 640. KIRKPATRICK C. 3. You do not produce any case for money paid, but only for money had and received. Ewing. No sir, but the principle of those cases applies to this. Watt opposed the motion. There is a distinction between money had and received, and money paid out and expended. I do not know how a state of demand could be drawn with more 214 NEW JERSEY SUPREME COURT. Woodruff v. Smith. particularity. It states, that the money was paid to a particular person, and at the request of the defendant. KIRKPATRICK C. J. It is the opinion of the court, that the same state of demand which is good in a higher court is not always good in the court for the trial of small causes. Thus, a general count for money had and received, or for goods, wai*es, and merchandise, would not bo good in the court for the trial of small causes. But I do not see that we have ever decided a case that comes up to this. This is not the general count for money paid, laid out, and expended, as stated in the books. Here the particular person to whom the money was paid is named. This case is not within the reason of those relied on by the plaintiff's counsel. Even in a count for money had and received, if it had stated from whom the money was had and received, it would be sufficient. Let the judgment be affirmed. JONATHAN WOODRUFF againtt GABRIEL SMITH. 05 CEETIOEAEI. In an action of trover for a promissory note, the maker of the note is a good witness for the defendant. This was an action of trover, brought by Smith, the plaintiff below, against Woodruff, for a note of hand. The defendant below offered Quinby, the drawer of the note, as a witness. To the admission of his testimony, the plaintiff below objected, and the justice sustained the objection. The attorney-general now moved to reverse the judgment rendered in favour of the plaintiff below, upon the ground that Quinby's evidence ought to have been admitted. Ho had no interest in the event of the suit, and let who would recover, his liability would remain the same. Per curiam. Let the judgment be reversed. CITED m Shtrron v. Humphreys, 2 Or. 218. CASES DETERMINED IK THE SUPREME COURT OF JUDICATURE OF THE STATE OF NEW JERSEY, AT NOVEMBER TERM, 1822. THE PRESIDENT AND DIRECTORS OF CUMBERLAND BANK against WILLIAM HALL. 1. The law does not presume that an alteration, apparent on the face of a note, was made after its execution. 2. But whether the alteration was after or before the execution of the note, appears to be a question for the jury to decide. This was an action of assumpsit brought by the President and Directors of Cumberland Bank, as endorsees of a promissory note, against William Hall, the drawer, and was tried before his honour Justice Rossell, at the Cumberland circuit, in June, 1820. The facts, as they occurred at the trial, appeared by the state of the case agreed upon by the attorneys, to be these. "The plaintiffs proved the execution of the note and tho endorsement, as mentioned in the declaration, and read the noto in evidence, without objection, and then rested." The note appeared to have been drawn payable "to Clement Acton and Hedge Thompson, or their order," and was endorsed by Clement Acton and Hedge Tompson, but the words " and Hedge Thompson," on the face of the note, were erased, so that the note read, " I promise to pay to Clement Acton, or to their order," &c. The defendant offered to prove the declarations of Hedge Thompson, the last endorser, made after the commencement of (215) 216 NEW JERSEY SUPREME COURT. President and Directors of Cumberland Bank v. Hall. this suit, that the name of Hedge Thompson, in the note, had been erased after the endorsement of the note by him ; which evidence was objected to by the plaintiffs' counsel, but was ad- mitted by the court. The court then charged the jury, that the plaintiffs were bound to account for the alteration, and, unless it was shewn to have been made before the execution of the note, that the law presumed it to have been done afterwards. To this charge, the counsel for the plaintiffs excepted. A verdict was rendered, under the charge of the court, for the defendant, with leave to the plaintiffs to move for a new trial; and, if refused, to submit to judgment, as in case of a nonsuit. At February term last, Ewing, for the plaintiffs, moved to set the verdict aside, and for a new trial. He contended 1. That declara- tions of Thompson were inadmissible as evidence. Either Thomp- son was interested in the event of the suit, or he was not. If interest- ed, his declarations were certainly inadmissible; if not interested, then his declarations were incompetent, for they were no more than the declarations of a third person, not under oath. 2. The charge of the judge was incorrect; the presumption of law was, that the alteration or erasure apparent on the face of the note, was made before its execution, and not that it was made after. The principle of law was well settled, that the jury were to decide whether the alteration was made before or after the execution of the instrument. Coke Lit. 225, b. 13, Fin. Abr. 38 pi Shep. Touch. 69. 10 Co. Rep. 92. 2 Dal. 306. But if the presumption was, that the alteration was made after the execution of the instrument, then there could be nothing for the jury to decide upon. This shews that the mere circumstance of the alteration appearing on the instrument does not make it void ; for if it did the court would so decide, and there would be nothing left to the jurj'. But the true doctrine is, that unless the alteration is shown to have been made after, the law presumes it to have been made before. Wood's Inst. 3d edit. 296. 1 Swift' sSyst. 310. 12Fin.58,j>Z.5. 13/6.41. An interlineation will bo presumed to have been matte at the time of making the deed, and not after. 3 Cru. Dig. title Deed, chap. 22. 2 John. Ca. 198. The same doctrine is held, in substance, in 2 South. 737. This was not only the rule of law, but reason, for fraud or guilt was never\o be presumed. 3. The verdict was against evidence, because the jury, having found for the defendant, must have found NOVEMBEK TEEM, 1822. 217 President and Directors of Cumberland Bank v. Hall. that the alteration was made after the 1 execution of the note, when there was no evidence before them to that effect. Jeffers, in answer. The plaintiff moves for a new trial on three distinct grounds. 1. It is said, his honour the judge, who tried the cause, admitted unlawful testimony. 2. Because the charge was against law. 3. The verdict is said to be against law and evidence. I. The plaintiffs, at the trial, offered in evidence a promissory note, having proved the hand-writing of the maker and endorsers. On the production of this note, it appeared upon the face of it, that the name of one of the original payees had been erased. This erasure avoids the promissory note. T*he presumption of law, with respect to deeds, is, that the erasure was made after delivery, unless the contrary appears by a note of the erasure made before execu- tion, or by other evidence. lDal.67. 3Dyer261-6. Gil. Em. 92, 93. 3 Com. Dig. title Fail, 334 F. 1. 1 Shep. Touch. 68. 4 Cranch 60. II. This rule of law applies as well to promissory notes and bills of exchange as to deeds. 2 H. Black. Rep. 141. Masters v. Miller. 4 Term Rep. 320. 516.367. lAnst.228. 1 Selwyn 268. Decision of Supreme Court, February Term, 1820. The reason of the law applies with full force in this case. This is not the same instrument, it is not the same contract, which the defendant originally made. If the holder of a note can alter the name of one payee, why not both, and make it payable to a stranger. Suppose they had erased the name of both payees, and made the note payable to the bank at once, or to some officer of the bank, will it be contended, the amount could be recovered of the maker? There must be a privity of contract, as well as a consideration. The defendant is made debtor to one without his consent or knowledge, and without a pretence of considera- tion. Clement Acton never transferred this note to Thompson; he could only transfer his right; nor had Thompson power to 'transfer it to the bank. It is no argument to say, the defendant must have paid the note without the alteration. It is not so much for the defendant that he is exonerated, as it is for the principles of law and sound policy. "The reason of the rule, that a material alteration shall vitiate a deed, is applicable to all written instruments, and par- ticularly to promissory notes, which are of universal use in the transactions of mankind." But the defendant may have given the 218 NEW JERSEY SUPREME COURT. President and Directors of Cumberland Bank v. Hall. note to Acton and Thompson in payment of an account, which account would not be discharged by payment of this note, now payable to Acton alone. He may have had an offset, which would be good against Acton and Thompson jointly, and not be good against cither of them individually. III. It is a question of law for the court to determine, whether the instrument is void by erasure? and if referred to the jury, under the direction of the court, the jury are bound by law to find the alteration to have been after, unless the plaintiff can shew it was made before, delivery. But it is said, the jury are to determine, as a distinct fact, whether the erasure was made before or after the delivery. They have here expressly found it to be after. The court charged the jury upon the law, and left the fact for their consideration. This, therefore, is not a verdict against law, and certainly not against evidence, since the only evidence of the plaintiff was this altered, and consequently void, instrument. And I am yet to be informed wherein " the charge of the court was illegal." IV. The evidence of the declarations of Thompson were clearly admissible. 7 Term Rep. 601. They went to shew what, indeed, it was not necessary to prove, viz. that the alteration was made after delivery. This evidence could not affect the rights of the plaintiffs ; their case was gone without the introduction of any evidence by the defendant. If the testimony, therefore, had been unduly admitted, the court would not grant a new trial. When the case is clearly with the defendant, putting his evidence out of the question, there is nothing to warrant a recovery; hence, nothing to warrant a new trial. If I am correct as to the law, what would a new trial avail the plaintiffs? It would only bring up the same question again, and receive the same determination. If the verdict is right, it is to no purpose to grant a new trial. 3 Bar. 1256. L. J5T. Stockton, on same side. This case may bo considered in two points of view, in respect to the law, and in respect to the fact. I shall first shew, that if the fact warrants the conclusion that the name of Thompson was erased after the execution of the note, and without the consent of the defendant, that it will avoid the note ; and herein I shall shew 1. That it is so material as to be of the very essence of the thing, and creates in the defend- ant a right of defence to the suit founded, not only on the strict- NOYEMBEJR TEEM, 1822. 219 President and Directors of Cumberland Bank v. Hall. ness of technical right, but on the clear principles of justice. 2 Jac. L. D. 224. 3 Cruise 388, Pigot's case. 11 Coke's Rep. 27. 2 Black. Com. 308-9. These cases shew the rule as to deeds. As to bills of exchange and promissory notes, the law is the same. 4 Term Hep. Master v. Miller. This case was affirmed in the exchequer chamber. 5 Term Rep. 367. Now, when a man gives an instrument to two jointly, and that instrument is altered after its execution, so as to shew on the face of it that it was given to one, the instrument produced is not the same as that declared on ; and this alteration gives the defendant, not merely in tech- nicality, but in common sense and justice, a good defence. It can hardly be questioned, but what the release of one of two joint drawees of a note would discharge the drawer. Suppose this note given to Clement Acton and Hedge Thompson had been the same day, and before endorsement, released by Thomp- son to the defendant, will any man say, that the bank could sustain a suit upon it? Surely not, because the note would have been destroyed by the release before it came into the hands of the endorsee, the bank. Again, suppose before endorsement he had paid it to Thompson, could he not plead such payment in bar? Surely he could. Again, even without express release or payment, the defendant, on the assignment of his note to the bank, considering it as being a joint note, might have thereon many rights, both legal and equitable, as against Thompson, of which he would necessarily be divested, if the joint note, subse- quent to its execution, could, without his assent, be converted, in the hands of the endorsees, into a separate note, vesting the exclusive interest in another. It is therefore plain, that if the fact be that this erasure was made after the execution of the note, and without the assent of the defendant, that he has clear justice, as well as evident law, to support his defence. This general, most important, and fundamental proposition being established, let us inquire into the facts, and see whether they were established at the circuit ; and that they were shewn and proved to the satisfaction of the jury, is clear from the report of the case, and by the verdict of the jury. And the point on which the debate is to turn is 1. "Whether this proof before the jury, of the declarations of Thompson, was lawfully or unlawfully admitted by the judge? and 2. Whether the charge attributed to the judge was lawful ? 220 NEW JERSEY SUPREME COURT. Thompson v. Sutton. 1. The declarations of Thompson were admissible, because they wore the declarations of a party adverse, the declarations of one under whom the party claims, viz. an endorser. Now declarations, either of the party on the record, or of one under whom he claims, are clearly admissible. The facts proved by the declarations of Thompson were material facts, tending to developo a secret and fraudulent proceeding to the injury of the plaintiffs. It was a fact necessarily lying in the knowledge of Thompson. He could not be compelled to testify to it, because to compel him to any such testimony would be most directly to impugn that great privilege of the citizen, to be excused from answering any question which goes to criminate himself. Now, here the question proved by the declarations of Thompson was, that he, after the execution, had made the erasure. It was a fact which, under the statute, would amount to a misdemeanor, and he could not be compelled to answer it. If so, we, when 'we proved his declarations, we were within the clear general exception, and, in giving the evidence complained of, we pro- duced the highest in our power, and of which the nature of the case was susceptible. Crilb. EvL 15, 16, 17. 2. The charge of the judge was right. The plaintiffs were bound to account for the alteration of the note. * The law is plain. 2 Jac. L. D. 224. 2 Black. Com. 308-9. 1 Dal. 67. Curia advisare vult. And now at this term the court are of opinion, that the verdict must be set aside, and a new trial granted. CITED is Hunt v. Gray, 6 Vr. 229. Putman v. Clark, 2 SUw. 415. Farlee v. Farlee, 1 Zab. 289. EGBERT THOMPSON against JOSEPH SUTTON. 05 CERTIORARI. The Court of Common Pleas may, at the third term after filing the appeal, permit the transcript of a justice to be amended by affixing a seal thereto, pro- vided no delay is occasioned thereby. This cause was originally commenced before a justice of the peace, and a judgment rendered in favour of Thompson, where- upon Sutton appealed to the Court of Common Pleas of the county of Sussex. At the third term after the coming in of the appeal, a motion was made on behalf of Thompson, the appel- NOVEMBER TERM, 1822. 221 Thompson v. Button. lee, to dismiss the appeal, because the transcript of the justice's docket, sent up with the appeal, had no seal affixed thereto. The justice, in his certificate, had said, that the transcript was under his hand and seal, but there was no appearance of a wax or wafer to it. The court refused the motion of the appellee, and per- mitted the justice, who was in court at the time, to affix his seal to the said transcript ; and at a subsequent term proceeded to try the appeal, and gave judgment against Thompson, where- upon he brought this certiorari. Vroom now moved to reverse the judgment of the Common Pleas, because they proceeded to take cognizance of the appeal when there was no record before them. The transcript without a seal was of no validity. The Court of Common Pleas had no right to permit the justice to affix his seal at the time he did. KIRKPATRICK C. J. We send down records to the inferior courts to be perfected every day, and why cannot the Court of Common Pleas. Vroom. I believe no amendment or alteration can be made, unless a rule is taken for that purpose at the term to which the appeal is returned. KIRKPATRICK C. J. The omission of the seal is a mere mistake, which, I think, may be amended. The ground of the rule, that the amendment should be made the first term, is merely to pre- vent delay. Here no delay was occasioned. There is no prin- ciple of law against the Common Pleas making a rule to amend, either the second or third term. We place it at the first term, in order to prevent delay. I see no injustice in allowing the amend- ment, and think it would be too rigid to reverse for that. FORD J. I believe these amendments depend upon the rules of the Courts of Common Pleas, and they have often admitted them to be made instanter, when the justice was present in court, and no delay would take place. EOSSELL J. concurred. Judgment affirmed. CITED IH Camp v. Martin, 7 Hal. 182. Allen v. Joice, 3 Hal. 166. Hogencamp V. Ackerman, 4 Zab. 142. Henry y. Campbell, 4 Zab. 141. 222 NEW JERSEY SUPREME COURT. Scott v. Conover. WILLIAM SCOTT against GARRET CONOVER, survivor of Garret Cono- ver and David Gordon. 1. An article of agreement stating that the plaintiff "hath granted, bar- gained and sold, and doth absolutely grant, bargain and sell," and covenant- ing to give a good and sufficient title at a future day, upon the defendant's making certain payments, does itself convey the land, and the agreement to give a good title afterwards, means a more formal deed rather than title, strictly speaking. 2. An action of debt will not lie upon articles of agreement to pay a certain sum in bank notes, for they are not money. 3. The action should be covenant, in which the plaintiff can recover his real damages, According to the value of the bank notes. This was an action of debt ; plea, the general issue, with notice of set-off. It was brought before the court upon a case stated in these words ; On the 8th of December, 1815, the plaintiff and defendant, to- gether with David Gordon, entered into the agreement set forth in the plaintiff's declaration, under their respective hands and seals, bearing date as aforesaid, which agreement witniesseth, that William Scott, for and in consideration of the just and full sum of five thousand one hundred and twenty-five dollars, current bank notes of the state of N. Jersey and N. York, of each an equal pro- portion, to be paid in manner following: that is to say, two thou- sand one hundred and twenty-five dollars on the first day of April, in the year eighteen hundred and sixteen; the remaining three thousand dollars to be paid in three equal annual payments; the first to commence on the first day of April in the year eighteen hu n- dred and seventeen, with interest on the whole from the first day of April next ensuing; the interest on the whole to be paid annu- ally. For the above consideration the said William Scott hath granted, bargained and sold, and by these presents doth abso- lutely grant, bargain, and sell all of them two lots of land situate, lying and being in Middletown Point, with all the improvements thereon, eighteen or nineteen acres, together with all the prop- erty contained in an inventory dated April 1, 1815, amounting to one hundred and seventy-five dollars and fifty-nine cents. It is further agreed between the parties, that upon the said Garret H. Conover and David Gordon paying the above payments, and securing the payment of the remainder by mortgaging the prem- ises ; the said William Scott to give a good and sufficient title for the aforesaid lots of land, and deliver the property mentioned NOVEMBER TERM, 1822. 223 Scott v. Conover. in this agreement to the said Garret II. Conover and David Gor- don, on the first day of April ensuing. For the true perform- ance of all and singular the above agreement, the parties bind themselves to each other in the sum of one thousand dollars. At the time of the execution of the said agreement, Garret H. Conover paid t<5 the plaintiff ten dollars, part of the purchase money therein mentioned; and on the first day of April, 1816, entered into the possession of the premises therein mentioned, with the said David Gordon : and the said Garret and David held and enjoyed the same, until the death of the said David Gordon, since the commencement of this suit, and the said Gar- ret still continues in the possession thereof (except as hereafter excepted). The plaintiff, on the 1st of April, 1816, delivered to the defend- ants, Garret and David, possession of the property contained in an inventory dated April 1, 1816, amounting to 175.59, pur- suant to the article of agreement, and took a receipt therefor. The defendants, Gordon and Conover did not pa*y the sum of $2125 to the plaintiff on the 1st of April, 1816, pursuant to the said agreement, but did pay to the plaintiff, in part payment thereof, and which was accepted by the plaintiff as part payment thereof, the following sums at the time herein mentioned, viz. The before mentioned sum of ten dollars on De- cember 8, 1815, - - 10.10 April 8, 1816, - - - . 732.50 22,1816, - - - . 780.00 May 14, 1816, - - * 100.00 July 10, 1816, - - % - - 220.00 November 8, 1816, .... 80.00 September 4, 1817, .... 25.00 December 6, 1817, ..... 10.00 August 15, 1818, ..... 63.00 September 30, 1818, - - - 48.25 April 21, 1819, 4.14 $2073.14 On the 1st April, 1816, the defendants did not tender to the plaintiff a mortgage on the premises, to secure the payment of the residue of the money mentioned in the agreement, nor did 224 NEW JERSEY SUPREME COURT. Scott v. Conover. they, or either of them, make any payments thereon other than those specified, nor have they, or either of them, since offered to execute any mortgage on the premises. The plaintiff did not, on the 1st April, 1816, execute any deed to the defendants, conveying to them the premises in fee, nor did he offer to execute or deliver a deed fo them, nor was he required so to do, but on the 4th May, 1818, did sign, seal, and acknowledge, in due form of law, a deed for the premises, with full covenants of seizin and warrantee, which said deed he did afterwards, on the same day, tender to the defendants, and request them to pay the sum remaining due on the first payment in the said articles of agreement mentioned, and to mortgage the premises to him to secure the remainder, in per- formance of the said agreement, which they refused to do. Previous to the said agreement, to wit, on the 27th March, 1807, Zachariah Clevenger, being owner of the premises, did, together with his wife Elsey, mortgage the said premises, amongst others, to Lewis Abrams and Lewis Gordon, to secure the payment of three thousand dollars, which mortgage was duly acknowledged and recorded pursuant to law, which mort- gage, together with the securities for the moneys due thereon, were on the 5th of April, 1817, assigned to William Scott, the plaintiff, and the plaintiff hath kept said mortgage on foot ever since, to protect his title. At the time of the execution of the said articles of agreement, one Matthew Roberts was in possession of three acres of lot No. 2, in said articles mentioned, holding and claiming title under a deed executed to him by the said Zachariah Clevenger, then being the owner of the'equity of redemption thereof, subject to said mortgage and execution, after said mortgage, to wit, on the 13th April, 1808, and continued in possession thereof until the 15th February, 1819, when the plaintiff recovered possession thereof by virtue of a writ of habere facias possessionem, issued on a judg- ment in ejectment founded on the said mortgage, and the said plaintiff has continued in possession of the said lot ever since, but is willing and ready to deliver the possession thereof to the defendants when they comply with the paid contract. It is agreed between the parties, that if the Supreme Court should bo of opinion that the plaintiff is entitled to recover in this suit, the whole of the balance of the purchase money, then NOVEMBER TERM, 1822. 225 Scott v. Conover. judgment is to be entered for the plaintiff. And if the court should be of opinion that any deduction is to be made on account of the Roberts lot, or for the rent thereof, then that the sum of , the value thereof, be deducted, or the interest of the said sum as rents, as the case may be. And it is further agreed, that in case the said court should be of opinion that the plain- tiff is not entitled to recover, as aforesaid, then judgment to be entered for the defendant, With the costs. And it is further agreed, that either party may turn this case into a special verdict, and bring a writ of error within one term after the entry of the judgment. This case was submitted to the court upon a written argument, by Wall, for plaintiff, and Wood, for defendant. The opinion of the court was delivered by KIRKPATRICK C. J. If an action of debt will lie upon a con- tract to pay in bank notes, I should think the plaintiff entitled to recover. The article of agreement itself conveys the land. It certifies, that for the consideration therein expressed, 'the plain- tiff "hath granted, bargained, and sold, and doth absolutely grant, bargain, and sell," &c. ; and the agreement to give a good and sufficient title, afterwards, ought rather to be construed of a more formal deed containing further assurances, than of title, strictly speaking. The land had already passed ; the defendant had actually entered upon it in pursuance of the article; had become clothed with the possession of it, and made his payments, in part, for it. According to my view of the case, therefore, the plaintiff could never recover it back out of his hands; and if he cannot now recover the price, he must lose it altogether. Besides, even if it were otherwise, and the land did not pass by the article, yet the defendant, by his taking and holding the possession of it under the contract, and paj r ing from time to time, has waived the time of making the deed, and has kept the contract open, and so has made the tender of the deed set forth in the case a good and lawful tender; at least, as to all but the three cases, and, as to them, the court is, by the agreement, authorized to ascertain and deduct their value from the whole amount. Upon the whole of the case, therefore, and the agreement of the parties, taken together, under this view of it, and upon the supposition above made, I should see no objection to rendering judgment for the VOL. I. P 226 NEW JEUSEY SUPREME COURT. Scott v. Conover. plaintiff. But still I cannot bring myself to render such judg- ment, because I think an action of debt will not lie upon a con- tract to pay in bank notes. fiank notes are not money. They are not always, and in all places, of the value of money. They were not so at the time of this contract ; the two kinds specified were of different values, and both, counting them upon the face, much under the value of money, I mean money of the United States, which is the only lawful money we know of; but it is of no consequence whether they were of less, or of equal, or of greater value, still they are not the thing itself; they are no standard of value. Suppose tho contract had been to pay in the bank notes of Kentucky, which we are told are now depreciated one hundred per cent, should we now here render judgment for the whole amount in lawful money? And can we, sitting here, distinguish between the notes of one state and those of another, and say, these are at par, and those are not so ? It is true, that, in common parlance, bank notes are called money ; they pass from hand to hand like money, and without endorsement ; they are, by common consent, a sort of common measure of value; they were so, of necessity, even when the banks had stopped payment, and when they were five and twenty per cent, below the value of money ; and they are so oven at this day, in some of the western states, where they are one half below it. When Lord Mansfield speaks of them as money, he is speak- ing of their nature as a currency; as distinguished from common negotiable notes; as passing without endorsement; and of the rights and liabilities of those who receive and pass them. In these respects he represents them, and represents them truly, as of the nature of money. He says, too, that by a bequest of money in a will, bank notes will pass ; and the reason is, because in common discourse, they are called money, and it is to be pre- sumed the testator intended they should pass as such. But . however by their common currency they may resemble money, . and however by tho common consent they may answer the pur- I poses of money, yet they certainly are not so in reality, nor have they a certain fixed value when compared with it. What Lord Mansfield says, therefore, must be taken with cer- . lain qualifications arising from the subject matter of which he NOVEMBER TERM, 1822. 227 Cavalier v. Doughty. was speaking, and not in an absolute sense. Besides, even Lord Mansfield did not say, nor has any other judge ever said, so far as I know, that an action of debt would lie upon a contract to pay in bank notes. The remedy of the plaintiff therefore, I think, would be in an action of covenant, in which he would recover his real damages, according to the then value of the bank notes, and according to the equity of the case. I think, upon these principles, there must be judgment for the defendant. CHARLES CAVALIER against DANIEL DOUGHTY. OH CEBTTOBABI. The justice cannot proceed to try a cause in the absence of the plaintiff. If he does, and renders judgment against him it will be set aside. EWING moved to reverse this judgment, because the justice rendered judgment against the plaintiff in his absence. This reason was verified by the transcript, the words of which were as follows: "The defendant appeared, and the plaintiff not ap- pearing, the defendant proceeded to trial,, and, after hearing all allegations of defendant and the examination of the accounts, I give judgment, in the absence of the plaintiff, for the defendant for the sum of ." Ewing said, that if the plaintiff did net appear, the only thing the justice could do was to dismiss the suit. The statute only authorized the justice to proceed and hear the cause in the absence of the defendant, and not in the absence of the plaintiff. Rev. Laws, Small cause act, 1818, sec. 7, 13. FORD. Is the act repealed which prevented the justice from granting a nonsuit? Ewing. No sir. But this case does not come within the words of that act, which are, "when the trial is once com- menced there shall be no nonsuit." Rev. Laws. Per curiam. Take a reversal. 2J8 tfEW JERSEY SUPREME COURT. Maffett v. Den. THOMAS MAFFETT at the suit of DEN ex dem. JOHN TONKINS and WILLIAM C. TONKINS. 15 EJECTMENT. 1. Where there has been a rule for a struck jury, and, upon the striking be- fore the judge, the sheriff's book is objected to as incomplete, and the objection overruled, the, incompleteness of the book is no ground of challenge to the array upon the trial, unless in cases of imposition or fraud, the decision of the judge who struck the jury is conclusive. 2. Two sheriffs cannot, by law, advertise and sell, and convey the property of defendants jointly. Query. Whether their joint deed is absolutely void. The nature of this case sufficiently appears by the opinion delivered. White, attorney for plaintiff. Pearson, attorney for defendant. KIRKPATRICK C. J. It appears, from the report of this case, that the defendant took a rule for a struck jury ; that at the time of the striking he objected, before the judge, to his proceeding therein, because the book presented by the sheriff did not coa- tain the names of all the persons qualified to serve as jurors in that county, but that the judge overruled the objection, and pro- ceeded to strike ; that when the cause was called for trial at the circuit, and the panel of the jury returned, the defendant chal- lenged the array on this account; and, in support of his chal- lenge, called the sheriff as a witness, who, upon his oath, said, "that the book presented contained the names of those free- holders whqm he conceived to be qualified as jurors, but not of three-fourths of those of the county within the lawful ages ;" that another witness was also sworn, who said, "that, in his opinion, the book presented did not contain more than one-third of the names of the freeholders of the county qualified by law to serve as jurors;" and, upon the inspection of the book, it appeared to contain but five hundred and seventy names. The challenge was overruled upon the ground, that if the judge, at chambers, ac- cepts the book and strikes the jury, its incompleteness is no ground of challenge to the array upon the trial. Upon a good deal of reflection and consideration, the court have thought that the rule laid down by the judge at the circuit, is the safest and best rule. Unless, therefore, in cases of imposition and fraud, to which the party is privy, they are inclined to say, that the deci- NOVEMBER TERM, 1822. 229 Maffet v. Den. sion of the judge who strikes the jury must always be conclusive upon this matter. There is another ground for a new trial, taken by the defend- ant. The lessors of the plaintiff claimed the premises in ques- tion, as purchasers at sheriff's sale, on certain executions against the defendant. Some of these executions were levied by Baxter, the former sheriff, and some by Wilkins, the present sheriff. These two sheriffs advertised jointly, sold jointly, and made a joint deed, sealed with their respective seals. This deed was offered in evidence, and objected to by the defendant, because these officers could not, by law, advertise and sell, and convey jointly. It is very certain, I think, that the act subjecting lands to be sold on execution for the payment of debts, gives no such joint authority. As the law now stands, the sheriff who has the first levy, has, of course, the first right to sell, if he chooses to pursue it; and he is not restrained to sell, by the acre, to the amount of his execution only, as formerly, unless so specially directed by the defendant ; but he may sell an estate worth $10,000, upon an execution for so many hundreds, or for any less sum. And when he does so, the surplus of the consideration money, after satisfying the execution or executions in his hands, is to be paid by him to the defendant, unless he is restrained from so doing by due notice from the next incumbrancer, followed by a rule of the court out of which the execution issues, or by an order of the Court of Chancery, which always exercises a superintend- ing power in matters of this kind. In either of these cases, the said surplus must be brought into the court and paid to satisfy subsequent executions, according to their priority, in such way as such court shall direct. But if the sheriff who has the first levy shall neglect or refuse to sell at the first day, then he who has the next levy may sell, subject to such prior execution ; but not to raise the money to pay it. The law allows no such mix- ture of authorities, ; each sheriff has his distinct rights, to be distinctly exercised, and he becomes distinctly responsible. This being the view which I have of the authority of the sher- iffs, in these cases, I should incline to think this proceeding alto- gether irregular, tending to imposition, difficulty and danger, and greatly embarrassing the rights both of plaintiffs and defendants; yet I am not willing to say the deed is wholly void, or that it will 230 NEW JERSEY SUPREME COURT. Anonymous. not pass the land ; and especially so, as we are given to under- stand that a practice of this kind has prevailed pretty exten- sively in the western part of this state, and that many titles now depend upon it. It is, however, a dangerous practice, and in a multitude of cases that might be imagined, would defeat the Bale altogether. In this case, however, Let the rule to shew cause be discharged. ANONYMOUS. r It is necessary that it should appear upon the transcript of the justice's docket, that the affidavit required by the sixth section of the supplement to small cause act, parsed November 23, 1821, waa made and filed with the justice at the time of filing the appeal bond. HALSEY, at the last term, moved for a rule to shew cause why * mandamus should not issue, directed to the judges of the Com- mon Pleas of the county of Sussex, commanding them to pro- ceed to hear and determine a certain appeal which had been re- moved into that court from the judgment of a justice, and there dismissed. The facts upon which this application was made, were, that the Court of Common Pleas had dismissed the ap- peal, because it did not appear upon the transcript of the justice's docket ; that the appellant, at the time of filing the appeal bond with the justice, also filed with him the affidavit required by the proviso to the sixth section of the supplement to the small cause act, passed November 23, 1821. The words of this pro- viso are, " that no appeal shall be granted to remove a judgment rendered upon the verdict of a jury, or on a 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, stating 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, which said affidavit the said justice shall cause to be sent up to the court to which the appeal is taken, with the other papers in the cause." The affidavit was sent up with the papers, but was not marked filed, nor did it appear, by the transcript, to have been filed, though it appeared to have been made on the same day that the bond was filed, and before the same justice. Halsey NOVEMBER TEEM, 1822. 231 Anonymous. eaid it was not absolutely necessary that the justice should enter upon that transcript, that an affidavit had been made, and that the Court of Common Pleas had no right to dismiss the appeal because such entry had not been made. To shew that a man- damus was the proper writ to compel an inferior court to do that justice which they are in duty and virtue of their office obliged to do, he cited 4 Bac. Abr. 498. 2 Pen. Rep. 738. KIRKPATRICK C. J. Take your rule. No cause having been shewn against the rule, Halsey, at this term, applied to the court for a peremptory mandamus. Vroom now shewed cause against this motion. He admitted the facts to be as stated by the adverse counsel ; but said, that the Court of Common Pleas did right in dismissing the appeal, for it was necessary that the party should file an affidavit with the justice, at the time of filing the bond, otherwise the latter was of no validity. It was the affidavit which completed the matter. "Under the old law it was always held, that it must appear upon the transcript, that an appeal was demanded; that was done by tendering the bond ; this was the substantial matter which must appear upon the transcript, and now it is as necessary that the affidavit should appear to have been filed, as that the bond was tendered. It is very easy for the party to get an affidavit on the file, even though it was not properly taken. The construction of the Common Pleas was a sound one, that whatever was necessary to give the court jurisdiction must appear upon the transcript. KIRKPATRICK C. J. Does the act which requires the affidavit require it to be marked filed ? Vroom. No, sir. KIRKPATRICK 'C. J. The objection is, then, that it is neither marked filed, nor appears on the transcript, to have been filed. Halsey. The question is, what is evidence of the filing? Put- ting it in the office, is the act of filing; but it is not the practice of the justice to mark the papers filed. This court would not introduce a practice which would create still more difficulty in making appeals than at present exists. The party has a right to appeal any time before the terra, and if he does any act to make the appeal, and should omit the doing some act required to com- 232 NEW JERSEY SUPREME COURT. Black v. Ely. plcte the appeal, he might do it afterwards. There was suffi- cient evidence to convince the Court of Common Pleas that an affidavit had been made and filed, and, therefore, a peremptory mandamus ought to issue. Curia advisare vult. At a subsequent day in the term, the court said they were of opinion, that it ought to have appeared on the transcript of the justice, that the affidavit was filed with him at the time of filing the appeal bond. Therefore take nothing by yourmotion Mr. Halsey. CITED is Englc v. Blair, 6 Hal 340. Tichenor v. Hewion, 2 Gr. 26. THOMAS BLACK and JOHN BLACK againtt JOHN J. ELY. ON CERTIORAEI. Where the plaintiffs, having a mortgage on lands of defendant for the sum of $4000, obtain judgment on their bond, and execution is placed in the hands of the sheriff, if the sheriff, by virtue of this execution, levies on the mortgaged premises, but is prevented from advertising them by a letter from the plaintiffs, and these premises are afterwards sold by virtue of prior executions, and are purchased by the plaintiffs for six cents an acre more than the amount of their mortgage, the sheriff is not entitled to centage on the whole amount of the $4000, bat only upon the amount which the property brought over and above the amount of the mortgage. This action was originally commenced before a justice of the peace, and was brought by John J. Ely, late sheriff of the county of Monmouth, against Thomas Black and John Black, "to recover $93.84, for his centage, or sheriff's fees, on $4691, being the amount of, principal and interest, due upon a certain execu- tion issued at the suit of said Thomas Black and John Black against Thomas Cook, and put into the bands of said Ely to be executed." A judgment was rendered, by the justice, in favour of Ely, the sheriff, for $93.84, and the Blacks then appealed to the Court of Common Pleas. On the trial of the cause before the Common Pleas, "the appellee, in support of his action, read in evidence a judgment and execution returnable to October term, 1817, in favour of J. K. Van Mater against Thomas Cook, for debt, $470, and costs of suit. Also, a judgment of the appellants against the said Thomas Cook, and an execution issued thereon, returnable to the term of July, 1819, directing the sheriff to levy $4000, with inter- est from April 1, 1817, and costs, $5.78 Also, a mortgage .from Thomas Cook to appellants, to secure the payment of the NOVEMBEE TEEM, 1822. 233 Black v. Ely. said sum, dated April 1, 1817. It further appeared, that one William Hampton had a mortgage upon the said premises, prior to that of the appellants, given by the said Thomas Cook. There was also an execution against Thomas Cook, in favour of one Herbert, prior to that of the appellants. The appellee also read a letter from appellant, John Black, to him, dated August 17, 1819, directing him to stay all proceedings on their execution, till further orders. "It further appeared in evidence, that the execution of Van Mater was in the hands of Charles Parker, esq. late sheriff, and to satisfy which the defendant elected to have his real estate sold ; that the personal estate of the said Thomas Cook was sold under Herbert's and one Gordon's executions, and the proceeds were applied to payoff said Herbert's and Gordon's executions, Gordon having, also, an alias, and taking some property that Herbert's did not bind ; that the execution of the appellants was delivered to appellee, as sheriff, and they had an idea, that under their execu- tion they could come in for the personal estate, and wished to raise something for the costs from that source, but were told by the under-sheriff of appellee, that they could get no more from their execution than the land covered by their mortgage, as the personal property must be applied to Herbert's and Gordon's executions. Chai'les Parker advertised the mortgaged premises for sale, under Van Mater's execution, in October, 1819, and appellee advertised the same for sale under the executions of Herbert and Gordon, at the same time, and attended at the time and place of sale ; that he was prevented from advertising and selling on the appellants' execution in consequence of the letter of John Black, herein before stated ; that the sums due upon Hampton's mort- gage and the mortgage of the appellants, at the time of the sale, amounted to about $7000; that the equity of redemption in the mortgaged premises was sold by sheriff Parker, by virtue of Van Mater's execution, for six cents per acre, subject to the mort- gages of Hampton and the appellants, and bought by John Black, for himself and the other appellant; that the proceeds of such sale were applied to pay off Van Mater's execution, and that a balance still remained due thereon; that the said mortgaged premises were worth the amount of the mortgages and the six cents per acre ; and that the appellants have received and accepted a deed from Charles Parker, in pursuance of said sale. 234 NEW JERSEY SUPREME COURT. Black v. Ely. " There was another farm belonging to Cook, advertised by Parker and appellee, sheriffs, and was bid to more than Van Mater's execution, and was adjourned by the sheriff on Herbert's bid, at request of appellants, for the purpose of selling the equity of redemption of Cook, in the mortgaged premises, by virtue of the previous executions, which was advertised for sale at the same time and place. It was afterwards sold for more than the adjourned bid, and for more than the balance on Van Mater's execution, and the balance paid to Ely." The court affirmed the judgment of the justice, whereupon the Blacks brought this certiorari. And now Wood and Wall, for the plaintiffs in certiorari, con- tended, that the plaintiff was not entitled to centage upon the execution of 84691 in favour of the Blacks. The words of the statute were, that sheriff should have centago "on every dollar, to be computed on the amount of the debt or damages paid, or secured to be paid, to the plaintiff by sale or otherwise." Pat. N. J. Laws 424. Here the sheriff had not paid or secured any money to the plaintiffs, for they obtained, and were entitled to, the land by virtue of the pre-existing mortgage, and not by virtue of the sale on the execution. 2. If he was entitled to centage at all upon the execution, he could have it only on the value of the property levied on, if the property was not sold, and the amount of the sale if the property was sold, and was not entitled to centage on the whole amount of the execution, if it exceeded the value of the property levied on. 3. That in this case, the property levied on was only the equity of redemption of Cook, for Cook had no other right in the land, the mortgagee having the legal estate ; and that, therefore, the sheriff's fees must be calculated only upon the value of the equity of redemption, viz. what it brought at the sale, and not upon the value of the whole mortgaged premises or absolute fee. 4. That the letter from Black to the sheriff, telling him not to sell, could not vary the case, for if the sheriff had gone on and sold, he could only have sold the interest of Cook in the premises, viz. the equity of redemption, and, therefore, before the sheriff could derive any benefit from the letter, he ought to have shown, that if he bad been permitted to have gone on and sold under Black's ex- ecution, he could have raised the whole amount of the judgment. NOVEMBER TERM, 1822. 235 Black v. Ely. 5. That the purchase of the equity of redemption was not an extinguishment of the debt. Southard and E. Stockton contended, that by the purchase of the equity of redemption by the Blacks they had received satis- faction for their debt ; that it was the same, substantially, as if the money had been paid to them, and, therefore, as the money due on the execution had been substantially "paid or secured to them " the sheriff was entitled to his fees on the whole amount of the judgment. 2. When the sheriff levies on property, he has a right to cent- age on all moneys received on the execution, no matter whether the money is made by his own act, or the plaintiff himself inter- feres and makes the money; for the plaintiff, by coming in and receiving the money, could not defeat the sheriff of his fees. 3. That the sheriff was entitled to fees, not merely upon the value of the equity of redemption, but of the whole mortgaged premises ; for that the mortgagor, as to every other purpose but securing the payment of the money to the mortgagee, had the legal estate. It was so decided in the Court of Errors in the case of Montgomery v. Bruere. Therefore, when a sheriff levies upon mortgaged premises, he levies upon the fee; and the per- son purchasing buys the fee, consequently the fees must be cal- culated upon the value of the mortgaged premises, and not on the value of the equity of redemption only. Curia advisare vult. At a subsequent day, the court, without delivering any opinion, reversed the judgment. 236 NEW JERSEY SUPREME COURT. Gibbons v. Livingston. THOMAS GIBBONS against JOHN B. LIVINGSTON. 1. Under the act of (he 25th of February, 1821, entitled "A further supple- ment to the act entitled, an act to preserve and support the jurisdiction of the state," a citizen of this state, who nas been restrained by an injunction out of the Court of Chancery of New York from navigating with his steam-boat the waters between the ancient shores of the states of New Jersey and New York, may recover damages, with triple costs, against the person so restraining him. 2. Although the enjoining and restraining was, by virtue of an injunction, sued out and served before the passing of the act, and although the defendant did no act or thing, after the pascing of the act, to enforce the injunction, yet bis suffering it to remain in force after the passing of the act. and not dissolving it, was such a restraining and enjoining as to bring him within the words of the act. 3. The injunction issued by virtue or under colour of the laws of New York, because it is those laws which create the right upon which the. power of issuing the injunction was exercised. 4. Query. Can a citizen of the state of New York, acting within that state, and under its judicial authority, be called in question for such act in another state ? As a general rule he cannot. But it appears in this case he may. This was an action of trespass on the case, brought by Gib- bons against Livingston, under the statute passed 25th of Febru- ary, 1820, (Rev. Laws 689) entitled "A further supplement to the act entitled an act to preserve and support the jurisdiction of this state," to recover damages for restraining and enjoining him, under an order of the Court of Chancery of New York, from navigating, with his steam-boat, the waters on the bay of New York or in the Hudson river, between Staten Island and Powles Hook. [The declaration, in this case, was similar to that in the next case of Gibbons v. Ogden, except as to the dates, names, and lifferent orders of the Court of Chancery of the state of New fork on which the suits were founded. Quod videJ] This cause came on to be tried before his honour Justice Ros- sell, at the Middlesex circuit, in December, 1821, when the plain- tiff, in support of the issue on his part, gave in evidence the following laws of the state of New York, exemplified under the seal of that state, viz. 1. "An act for granting and securing to John Fitch the sole right and advantage of making and employ- ing, for a limited time, the steam-boat by him lately invented," passed the 16th March, 1787. 2. An act entitled "An act repeal- ing an act for granting and securing to John Fitch the sole right and advantage of making and employing the steam-boat by him lately invented," passed on the 27th March, 1798. 3. An act entitled "An act relative to a steam-boat," passed the 5th April, 1803. 4. An act entitled "An act to revive an act relative NOVEMBER TERM, 1822. 237 Gibbons v. Livingston. to a steam-boat," passed the 6th April, 1807. 5. An act entitled "An act for the further encouragement of steam-boats on the waters of this state, and for other purposes," passed the llth April, 1808. 6. An act entitled "An act for the more effectual enforcement of the provisions contained in an act entitled an act for the further encouragement of steam-boats on the waters of this state, and for other purposes," passed the 9th April, 1811. The plaintiff then gave in evidence a bill of complaint, which was exhibited by John R. Livingston against Thomas Gibbons and Aaron Ogden in the Court of Chancery of N. York, which bill sets forth at large, all the several acts of the state of New York, before mentioned. The exclusive privilege granted under thosr* laws, to Robert R. Livingston and Robert Fulton, of "making, using, employing and navigating all and every species or kind o/ boats or water craft which might be urged or impelled through the water, by the force of fire or steam, in all creeks, rivers, bay . and waters whatsoever, within the territory or jurisdiction of th > state of New York." The assignment by Robert R. Livingsto* < and Robert Fulton, to John R. Livingston, of the exclusive right to navigate from any place " within the city of New York lying to the south of the state prison and the Jersey shore, an* ' Staten Island, which lies to the south of Powles Hook Ferry , and to the south of Sandy Hook, to wit, to Staten Island, Eliza beth Town Point, Perth and South Amboy, and the river Raritop up to Brunswick." And then states "that Thomas Gibbons, ij contravention of the exclusive right and privilege of the said Johi R. Livingston, to navigate the waters of the state of New York had set in motion on the waters of that state, and within the jurisdiction thereof, a certain steam-boat called Bellona, which boat was employed and intended to be employed in the trans- portation of passengers between Elizabeth Town aforesaid, and New Brunswick, and actually navigated the waters of the state of New York, between Elizabeth Town Point aforesaid, and New Brunswick aforesaid, and had lately and within a few days, navigated the waters of the state of New York, between Eliza- beth Town and Powles Hook, and between Powles Hook and the city of New York," and concluded with "praying an in- junction against the said Thomas Gibbons and his agents, cap- tains, &c. to restrain them from using, employing and navigating the said steam-boat Bellona, or any other steam-boats, on the 238 NEW JERSEY SUPREME COURT. Gibbons v. Livingston. waters of the state of New York, between that part of the city of New York, south of the state prison, and any part of Staton Island, or the shore of New Jersey, south of Powles Hook Ferry." [The bill also sets forth charges against A. Ogden, for violating the exclusive right of complainant, but these it is thought unneces- sary to detail.] Then the plaintiff gave in evidence the answer of Thomas Gibbons to the bill of complaint of the said John R. Livingston, by which the said Thomas Gibbons denies that the said com- plainant hath any exclusive right to navigate or run a steam- boat or boats, or boats propelled by the power of steam or fire, from the city of New York to Brunswick, as aforesaid ; and admits, that he is the owner of a steam-boat called the Bellona, in the said bill of complaint mentioned, and that the said steam- boat called the Bellona, before the time of filing the said bill of complaint of the complainant, being moved and propelled by steam, was intended to be employed, and navigated, and run between the city of New York and the wharf of this defendant, in the state of New Jersey, at a place usually called and known by the name of Halsted's Point, which is within the bounds of the township of Elizabeth Town aforesaid, but is separated from Elizabeth Town Point by a large and navigable creek; and that the said steam-boat, in navigating and running to and from the said city of New York and this defendant's said wharf, in the state of New Jersey, and within the bounds of the said township of Elizabeth Town, would cross and pass over waters of the state of New York, and insists, might lawfully and right- fully be done, without any license therefor from the complainant, or from the said Robert R. Livingston and Robert Fulton, or any person or persons deriving title under them or either of them. But that the said steam-boat, called the Bellona, never was begun to bo employed, navigated, and run between the said city of New York and this defendant's s,aid wharf at Hal- sted's Point aforesaid, in the said state of New Jersey; but that he, this defendant, some time in the month of March last past, Ix-L'iin to run his said steam-boat, the Bellona, on the waters lying between the Jersey shore and Staten Island from New Brunswick to Elizabeth Town Point, navigating therein tho water of the Rariton river, and those lying between the New Jersey shore and Staten Island, commonly called the Sound, NOVEMBER TERM, 1822. 239 Gibbons v. Livingston. from one port to another port, both within the limits and juris- diction of the state of New Jersey. And that he still continues to navigate and run his said steam-boat, called the Bellona, from New Brunswick aforesaid, in the state of New Jersey, on the waters of the Rariton river, and the said waters lying between the Jersey shore and Staten Island, called the Sound, as afore- said, to Elizabeth Town Point aforesaid, or other points or places within the jurisdiction of the said state of New Jersey. And ad- mits, that since he began to employ and run his said steam-boat, called the Bellona, in the navigation aforesaid, she has occasion- ally, on her passage from New Brunswick aforesaid, been con- tinued and run from Elizabeth Town Point aforesaid, direct to the dock or wharf at Powles Hook at the city of Jersey, in the state of New Jersey, from thence returning again direct to Eliza- beth Town Point aforesaid, the same being a navigation from one port to another port, both within the limits and jurisdiction of the said state of New Jersey, and insists, not upon or over any water exclusively within the limits and jurisdiction of the state of New York, the waters lying between Elizabeth Town Point aforesaid, and Powles Hook at the city of Jersey, not being, as this defendant conceives and insists, exclusively the waters of the state of New York, nor within the exclusive jurisdiction of the said state, but being common both to the state of New Jer- sey and the state of New York ; and denies, that the said steam- boat, called the Bellona, now is, or ever was used, employed, navigated, or run over any waters, or to, or from, or between any place or places, or point or points, or for any purpose, or in any manner whatever, in contravention of any exclusive right or privilege whatever of the complainant. And that he admits that in running his said steam-boat from New Brunswick to Elizabeth Town Point, and from Elizabeth Town Point to New Brunswick, as aforesaid, he takes passengers therein, who are desirous to go with their goods and baggage to and from the said places. And that the said steam-boat Bellona, is, and dur- ing all the time of her said before mentioned navigation and employment, was, a vessel above twenty tons burthen, duly en- rolled at the port of Perth Amboy, in the state of New Jersey, in the manner and form in such case required by the laws of the United States of America in that behalf, and duly licensed to be employed in carrying on the coasting trade, according to the laws 240 NEW JERSEY SUPREME COURT. Gibbons v. Livingston. of the United States, in such case made and provided. And that the said steam-boat, called the Bellona, being of the burthen of one hundred and sixteen and thirty-five ninety-fifths tons, or thereabouts, was duly enrolled, according to law, at the said port of Perth Amboy, in the state of New Jersey, on or about the twentieth day of October, in the year one thousand eight hundred and eighteen. And that the said steam-boat, or vessel, called the Bellona, hath, ever since she was so enrolled, con- tinued, and that she now is, a regularly enrolled vessel, within the true intent and meaning of the laws of the United States of America, for enrolling and licensing ships and vessels, to be em- ployed in the coasting trade and fisheries, and for regulating th/i same. And that the said steam-boat or vessel, called the Bellona was, at or about the time of the said enrollment of her, as afore oaid, duly licensed for carrying on the coasting trade for om< year, in manner and form by law required ; and insists, that thi said steam-boat, called the Bellona, during all the time that the said last mentioned license has continued and been in force, law- fully might, and, while the same shall continue in force, lawfully may, be employed under the same in carrying on the coasting trade; and that the said steam-boat, called the Bellona, whether moved by steam or fire, or otherwise, may lawfully be navigated and employed under the said license, while it continues in force, in any lawful trade or employment permitted by the laws of the United States to vessels duly licensed to be employed in carry- ing on the coasting trade between different ports of the state of New Jersey, or between ports or places in the state of New Jersey and ports and places in the state of New York, and for that pur- pose navigate any waters within the jurisdiction of either of the said states, notwithstanding the said pretended exclusive right and privilege to navigate the waters of the said state of New York with boats moved by steam or fire, claimed to bo vested in him, the complainant, in the manner in his said bill of complaint for that purpose set forth, and without any permission or license from him, or from any other person or persons, for so doing." Then the plaintiff read in evidence an order of the chancellor of the state of New York, dated the 3d of May, 1819, by which it was ordered, "that the motion for an injunction to restrain the defendant, Ogden, bo denied ; and that the motion as to the de- fendant, Gibbons, bo also denied, so far as respects the naviga- NOVEMBER TERM, 1822. 241 Gibbons v. Livingston. tion of the Sound, between Elizabeth Town Point and Amboy, in the state of New Jersey ; and that it be granted only so far as to restrain and enjoin the defendant, Gibbons, from navigating, with any boat or vessel propelled by steam or fire, the waters in the bay of New York, or in the Hudson river between Staten Island and Powles Hook*." The plaintiff also read in evidence a petition to the said Court of Chancery of the state of New York, by the said John R. Living- ston, in the said suit between the said John R. Livingston, com- plainant, and Thomas Gibbons and Aaron Ogden defendants, which petition set forth, " that the said John R. Livingston had exhibited a bill of complaint against the said Thomas Gibbons in the Court of Chancery of New York, and that an injunction had issued thereon against the said Thomas Gibbons;" and then set forth the act of the state of New Jersey of the 25th February, 1820, (Rev. Laws 689); and that the said Thomas Gibbons had prosecuted attachments under that act against the boat of the said John R. Livingston ; and that his son, Montgomery Livingston, had, without the consent of the petitioner, John R. Livingston, ob- tained an order of the Court of Chancery of New York for dissolv- ing the injunction which had issued in the above mentioned cause against the said Thomas Gibbons, and prays that the said order may be vacated, and a new injunction allowed. The chancellor rejected this petition, and refused to restore the injunction. And the plaintiff further proved, by C. Yanderbilt, that he was the owner of the steam-boat Bellona ; that the said steam-boat was, and always had been, a coasting vessel, regularly enrolled and licensed under the laws of the United States; that the said plaintiff was a citizen of this state ; that the said injunction was, in June, 1819, served on the witness, (he being then master of the said steam-boat Bellona) on board the said boat, while she was lying at Staten Island; and again, in New York, in March, 1820; that within a few days after the service of the said injunctions, the witness informed the plaintiff of the same, and gave him copies of said injunctions; that between the 1st and 5th of April, 1820, the witness, at the request of the plaintiff, applied to John R. Livingston, the defendant, to state, whether he meant to continue to restrain the plaintiff, Thomas Gibbons, under his *See 4 John. Chan. Sep. 48. VOL. I. Q 242 NEW JERSEY SUPREME COURT. Gibbons v. Livingston. injunction aforesaid, from navigating with the said steam-boat, the Bellona, the waters on the bay of New York, between the ancient shores of the states of New Jersey and New York? and that said Livingston replied, he should give no answer. The plaintiff gave Borne further testimony, shewing the length of time he was pre- vented running his boat by means of the injunction aforesaid, and the damage he had sustained in consequence thereof. To the whole of the evidence, thus given on the part of the plaintiff, the defendant demurred. At the May term of this court, the argument of this demurrer came to be heard, when R. Stockton, in support of the demurrer, said, this is an action on the statute of New Jersey, passed the 25th February, 1820, entitled, "X further supplement to the act entitled, an act to pre- serve and support the jurisdiction of this state." Rev. Laws 689. The third section of that act enacts, "that if any citizen of the state of New Jersey shall hereafter be enjoined or restrained by any writ of injunction or order of the Court of Chancery of the state of New York, by virtue, or under colour, of any act of the legislature of that state, from navigating with any boat or vessel, moved by steam or fire, belonging or to belong, in part or in whole to him, the waters between the ancient shores of the states of New Jersey and New York, the plaintiff or plaintiffs, in such writ or order, shall be liable to the person or persons aggrieved, for all damages, expenses, and charges occasioned thereby, to be recovered, with triple costs, in an action of trespass or trespass on the case, in any court having cognizance thereof, or by a writ of attachment, in case the plaintiff or plaintiffs in any such writ or order of the Court of Chancery of the state of New York, shall not bo resident in the state of New Jersey." This act is not to go into operation until the 1st of April, 1820. To bring the defend- ant within this act, the plaintiff avers, that the defendant, upon a bill filed by him in the Court of Chancery of New York, did, in May, 1819, obtain an order for an injunction. The proof is, that the injunction was served within the state of New York, in June, 1819, by leaving a copy thereof with the master of the plaintiff's .boat, Bellona, on board the said boat, while she was lying at Staten Island; and again in March, 1820, in New York, by putting up a copy of the said injunction on a conspicuous part of the said steam-boat; and that between the 1st and 5th of April, NOVEMBER TERM, 1822. 243 Gibbons v. Livingston. 1820, the agent of the plaintiff, Gibbons, called on the defendant to know, whether he meant to continue to restrain the plaintiff, under his injunction, from navigating with his steam-boat, the Bellona, the waters on the bay of New York, between the an- cient shores of the state of New Jersey and New York? To which inquiry the defendant made no answer. These are the only acts of interruption of which the plaintiff complains. The general question is, whether, upon this law and these facts, this suit can be sustained? I shall hereafter contend, that the statute upon which this action is founded is unconstitutional and void ; but shall, at present, consider the case as if the statute was free from any such objection, and shall inquire, whether the defendant has been brought within it? 1. The plaintiff has not shewn in evidence, that the defendant, by any process of injunction, restrained or enjoined the plaintiff from navigating the waters between the ancient shores of New Jersey and New York, after the 1st of April, 1820. This is ab- solutely necessary. The proviso suspends the whole operation of the law, until the 1st of April, 1820. It is no law until then ; it can- not bo broken but by some act done after that time; it does not extend to the case of an injunction sued out before the Istof April, when no proceedings have taken place to enforce it after that day. The third section is prospective in its very terms. It makes use of the words, " if any citizen shall hereafter be enjoined," &c. It was incumbent on the plaintiff to shew, that after the 1st of April, the defendant enjoined or restrained him. The act requires it; the declaration avers it. This could be shewn only by proving some express substantive actof defendant, after the 1st of April, 1820, to restrain or enjoin the plain tiff; or that he had taken out or served an injunction, or tried to enforce the former by a seizure, or appli- c"ation for an attachment after that time. What is the testimony? That the injunction was taken out in May, 1819, served in June, 1819, and set up on board the Bellona in March, 1820. None of the acts will bring the defendant within the words of the law. All he did, after the first of April, was to refuse to answer; he stood mute, and for this, instead of being pressed to death, ac- cording to the old judgment of peine forte et dure, the plaintiff, very mercifully, asks only all the damages with triple costs. .This evidence is palpably insufficient. He had a right to hold his tongue. People often get into difficulty by talking too much, 244 NEW JERSEY SUPREME COURT. Gibbons v. Livingston. but I never before knew of a person bringing himself within the purview of a penal statute by holding his peace. Will his re- maining silent stand for the act, the positive act of restraint? Ho was not bound to answer to any question put to him by plain- tiff, much less was he bound to answer the question put " whether he meant to continue to restrain the plaintiff from navigating the waters in the bay of New York, between the ancient shores of New Jersey and New York?" The question was not, whether he meant to restrain him from navigating one-half of the Hud- son, or such part of the bay as is claimed by Now Jersey, as her territory? but the waters of the bay of New York? including what notoriously belongs to the state of New York, up to their wharves, evidently setting up the absurd pretence of the act of 1811, that New York had no right to grant an exclusive right to the use of her own waters. All that was done by way of restraint, was done before the existence of the law. He was not bound to retrace his steps, to dissolve his injunction, or to give notice that he would not enforce it; the law does not require it. Plaintiff had no right to impose it on him. To keep out of the penalties, he had only to do no more. If Gibbons had come into New York, and defendant had seized his boat, or served another injunction, there would haVe been a case within the act. But he did not. Why ? He was fearful of the consequences ; it was his own fears and apprehensions, then, which occasioned the fact, of his boat being laid up, and no act of the defendant, after the law was in force. To make an injunction, taken out and served before April, 1820, the ground of this suit, is to prove the law unconstitutional. It was lawful to sue out an injunction, awarded by the court, and served in New York, until April, 1820. When done, there was no law against it. To make it the foundation of penal proceeding, is to give it precisely an ex post facto opera- tion. II. If this injunction had been taken out after the 1st of April, 1820, is it such an injunction as is prohibited by the act ? Rev. Laics 689. The injunction prohibited is one awarded by the CourL of Chancery of New York, by virtue, or under colour of an act of the legislature of the state of New York. Such is the precise description of the process our act meant to countervail. Inflated and deceived, as the legislature might have been on this subject, they never meant to set themselves in array against a NOVEMBER TEKM, 1822. 245 Gibbons v. Livingston. sister state and her regular tribunals; they only meant to meet the extraordinary remedies given by New York to guard the exclusive title she had granted. The express provision, the casus fcederis is, that the citizen of New Jersey shall be enjoined or restrained by injunction sued out in virtue, or under colour, of an act of the legislature of the state of New York. The legislature, no doubt, were led to believe that the statutes of New York gave this process by express enactment, to prevent any Jersey steam-boat from navigating ; or, seeing the progress of legislation in New York, they apprehended that, by statute, its legislature might order the chancellor to issue such injunction. Upon this state of things existing, or which might happen, they provide, that if any interruption occurs by virtue, or under colour, of such legislative act, the consequence shall ensue. This act is levelled against interruptions under pretence of positive legis- lative provisions. The injunction denounced is a statutory injunction merely, not an injunction issuing as of common right, according to the law and practice of a court of chancery. Our legislature only provided a countervailing remedy, by statute, for a supposed statute remedy given by New York, to protect the exclusive right. Has the plaintiff given in evidence any injunction issued by virtue of, or under colour of a statute of New York? Has the chancellor of New York, in awaiting this injunction, produced on the ground, that this remedy is given by statute ? No such thing. How does the plaintiff get over this in his declaration? He recites the statutes giving the exclusive right to Livingston and Fulton ; statutes which constitute merely the title of the party to the exclusive right or franchise. But he does not show, nor can he, that these acts direct the chancellor to award an injunction. There is a statute of New York directing an injunction, and this provision, not understood at the time, probably produced the wording of our act. The only statutory injunction of New York is given by the act of the llth April, 1811, which relates to another subject. In April 1808, the legislature of New York, to protect the exclusive right, forfeited to Livingston and Fulton, and their associates, all boats infringing that right ; and by the act of 1811, they give the remedy of trover to recover the boat so forfeited, and enact, that pending this action, the chancellor shall, 246 NEW JERSEY SUPREME COURT. Gibbons v. Livingston. by injunction, prevent the removal of such forfeited boat. All this is bottomed on the forfeiture, and the action of trover to recover it. Now, Livingston's bill in chancery is not on this ground at all. There is no averment in the declaration, nor testimony to bring it within the case in which a statute of New York orders an injunction. This injunction, then, was issued not in virtue, or under colour, of a legislative act of New York. How was it issued ? What is its foundation ? It was awarded by the chancellor of Now York, setting in his court of equity, dispensing the law on principles of common right, according to the general law of that court. The acts of New York, set out in the declaration, and in the defend- ant's bill, are merely the title which the defendant, and those tinder whom he claims, have to the exclusive privilege. They are nothing more than grants on deeds from a public body to an individual. They merely give title ; they provide no remedy ; they direct no injunction. How then can it be said, that the chan- cellor awarded this injunction by virtue, or under colour, of an act of the legislature? If a complainant sets out bis title deeds and prays an injunction, can it be said that the injunction is by virtue, or under colour, of the deeds? The principle on which it was granted is one fully established, and fundamental in this branch of the law, viz. that if a person is in possession of an exclusive right or privilege, he shall not be disturbed until his title has been tried and overruled, 9 John. 587. Then, if the law is valid, we are not within it. 1. He did nothing contravening its provisions after it took effect. 2. No such statutory injunction, as is contemplated by the act, has been sued out at any time. But I shall now contend, that this section of the statute, upon which this action rests, is void in respect to the interruption in New York, because it violates the constitution of the United States in two distinct grounds ; and these points, though they cover only the interruption in New York, yet will bar the plain- tiff of his suit. What does the third section ordain ? How does it give cause of action against the defendant? What has he done to make him liable in a penal action in New Jersey? He, being a citizen of New York, has filed a bill in the Court of Chancery ; obtained, by judicial proceeding, an injunction, and served it on the plaintiff, within the state of New York. He is called in ques- NOVEMBER TERM, 1822. 247 Gibbons v. Livingston. tion, not only for enjoining the plaintiff in New Jersey, but also in New York. I acknowledge, that if I am wrong in my two first points, that the third section covers this case upon the construc- tion the plaintiff must give it. But had the legislature a constitu- tional right to pass the law? I deny it. It is not in the power of the legislature of one state to pass laws against the citizens of another. The legislature of New Jersey have no constitutional right to give an action against a citizen of New York, because he has, in a regular course of law, impleaded a citizen of New Jersey in New York, and obtained the remedy a court of justice has decided that he was entitled to. In short, a citizen of New York cannot be questioned, and be made liable to penalties in New Jersey for a judicial proceeding in New York, in a case clearly within the jurisdiction of the court. But as the sentence and award of the court would have been a full defence and pro- tection against any suit for damages in New York; so it is in New Jersey. 4th article of the Constitution of the United States. The act of congress declares, that the judicial proceedings of any state shall have the same credit and effect in every other state, as it has in the state where the proceeding was. This part of the constitution has received the proper decision in the Supreme Court of the United States. 7 Cranch. 481. 3 Wheat. 234. Then all we have to do is to ask, what would be the effect of this award of the chancellor, and of this injunction in New York? "Would it not be a complete indemnity? how can it be any thing less in New Jersey? The act, then, construed as the plaintiff's counsel does and must, construe it, in making penal a judicial act of New York, executed there, by a citizen of New York, is void. 2. The act of February 1820, if it means what the plaintiff asserts it does mean, and .as its words seem to import, to subject a citizen of New York to this action here, for enjoining or restraining a citizen of New Jersey from navigating by steam any of the waters between the ancient shores of New York and New Jersey, even though those waters are confessedly within the juris- diction of New York ; if this is the intent of this third section, it is radically and totally unconstitutional, as repugnant to the rights of a sister state and against the spirit and expressions of the constitution of the United States. Here I assume the constutionality of the monopoly laws of New York. Their legislature had a right to reward the persons 248 NEW JERSEY SUPREME COURT. Gibbons v. Livingston. who brought steam-boats into practical use, by giving them the exclusive right in their own proper waters. This cannot be here denied. The constitutionality of those laws has been decided by the proper tribunal ; it remains law, until altered and reversed. In New Jersey we claim and exercise the right. Stevens 1 law. Every state claims the same, as part of its sovereignty. Our legis- lature solemnly recognized them as constitutional when they re- pealed the act in favour of Ogden and Dod. Besides, the plaintiff, in suing on this statute, must concede the constitutionality of the New York laws, for the statute on which his action rests is pre- cisely the same as the enforcing laws of New York. If, then, New York has enacted a constitutional law, how can New Jersey, by an act of their legislature, declare that a citizen of New York, acting under that act, shall be subjected to a suit here forso doing? To legislate over its own territory, is an essential attribute of sov- ereignty, and, therefore, it is not competent, upon general princi- ples, for another state to attempt to control a legal act by passing countervailing laws. If there is any one principle most funda- mental in the scheme of the American confederacy, it is the abso- lute sovereignty of the states to regulate their own territory in all cases not interdicted by the constitution of the United States. But it will be said, that New York has gone further, and claims jurisdiction in the proper waters of New Jersey; that, by construction, her courts extend these acts to all the dividing waters, though the terms of their laws confine them to the waters of New York. Admitting it to be so, this forms no ground to sustain our act. We have no pretence of claim to any right to legiHlate over the proper waters or territory of New York ; and because New York makes claim without title, it cannot enable us to make criminal here a legal act there. The laws of New York are before us : on their face they are perfectly correct ; confined to their own territory. Because they claim part of our territory, by a title which they think good, and we bad, does this give a right in us, a right to prohibit or punish an act done within their proper territory, as acknowledged by us ? Again, it will be said, that New Jersey has, and does assert, a right to the free navigation, even of the waters of New York, and denies to New York the right to impair it in any manner, even by such regulations as these; and this may require a review of these laws for the support of the jurisdiction of tbis state. NOVEMBER TERM, 1822. 249 Gibbons v. Livingston. The controversy between this state and the state of New York arose thus: The duke of York grants to Berkley and Carteret "all that tract of land adjacent to New England, to the westward of Long Island and Manhattan Island, bounded on the east part by the main sea and part by Hudson river, and hath on the west Delaware bay or river, and extendeth south- ward to the main ocean, as far as Cape May, and northward to the northernmost branch of the Delaware, at 41 degrees 40 min- utes of latitude, and crosses over in a straight line to Hudson river." New York says, that this boundary excludes the Hud- son and New York bay, &c. And they deduce title under the duke for all to the east and north of the New Jersey line. New Jersey, though she cannot insist on her specific boundary cover- ing these waters, says, that they could not pass as a general residuum ; that it is the simple case of a mighty water flowing between two states, each has a right adfilum aquce. Commissioners were appointed, in 1806, to settle this contro- versy, but the attempt proved abortive. The New Jersey com- missioners claimed adfilum aquce. They reported, and the legisla- ture gave their sanction to the claim setup by the commissioners. On the 3d of October, 1807, they passed the first act to sup- port the jurisdiction of the state, (Rev. Laws 533) in which they assert the rights of this state, and put them upon solid and satis- factory ground. The claim is only ad filum aquce. This was a wise and just law ; it means what it professes, to support the juris- diction of the state, and stops there. This is the mother act, but some of the offspring which they gave her were spurious, and engendered for very different purposes. In January, 1811, (Rev. Laws 547) the steam-boat business came up, and the legislature departed from the true legal con- stitutional ground, and set up one rotten and unsound. "And whereas the citizens of New Jersey have a full and equal right to navigate, and have, and use vessels or boats on all the waters lying between the states of New Jersey and New York, in all cases whatsoever, not prohibited by the constitution of the United States." This denies the right of New York to pass these laws, by asserting a full right to all sorts of navigation in New Jer- sey on the waters of New York, and is bottomed on the opin- ion, that by the power given to congress to regulate navigation and the coasting trade, the states were deprived of the power to 250 NEW JERSEY SUPKEME COUflT. Gibbons v. Livingston. pass any acts giving particular privileges. This is altogether erroneous, and is otherwise decided. Then, as a general princi- ple, without reference to the constitution, this assertion is base- less, for, by the public law, the jurisdiction is adfilum aquce, and each has a right to regulate its own. Upon this ground rests ferries and tolls, &c. Yet this rotten steam-boat principle is adopted in this very act of February, 1820, (Rev. Laws 689) to support the jurisdiction of the state, and its provisions apply to acts on all the waters between the two states. 2nd section "any of the waters be- tween the ancient shores," &c. 3d section "the waters, 1 ' that is to say, "any of the waters." It is palpable, then, that in thin act of February, 1820, the legislature set up the same claim an in that of 1811, and on the same ground, to wit, that, by the constitution of the United States, the states are deprived of the power of passing such acts. But this is a mistake altogether. New York had a right to regulate her own waters so as to give citizens an exclusive right, for a limited time, to a new species of navigation. And having this right, the legislature of New Jersey can have no constitutional right to punish a man for setting up and maintaining his title under such act. It may again be said, that this provision is retaliatory ; that New York had, by their acts and judicial opinions, considered acts done in the waters of New Jersey as contrary to their laws, and had authorized seizure of boats for navigating with steam in those waters; and, upon the principle of retortion or reprisal, our legislature might, and have done the same. I deny the right of one state of this Union to adopt, against another, the doctrine of retortion and reprisal, both on the ground, that such conduct is against the principles and terms of the constitution of the United States, and upon general principles of public law. Our political system is that of a confederated republic, no Btate stands alone. There are relative rights arising out of this organization, different from those which exist between foreign nations. The peace and happiness of the whole, the very exist- ence of the Union, requires that the legislative acts of one state should not be under the legal control of another. A system of hostile legislation between the states is inconsistent with the na- tional constitution. One great object of that was, to put an end to it, to erect a barrier against the belligerent legislation of different NOVEMBER TEEM, 1822. 251 Gibbons v. Livingston. states. Strong indications of such a disposition had shewn itself. It was seen that such a state of things was incompatible with the tranquility and permanency of the Union. The consequences were certain ; each state would defend its own claims, and its own citizens. The injured would apply for redress ; retaliation and reprisal would be resorted to; they would begin with words, and end with blows. To prevent all this, the constitution takes from the states those powers, the imprudent exercise of which would most likely produce this state of things, as the power of making tender laws, ex post facto laws, laws violating contracts, laws of reprisal or war. Full faith and credit are to be given to the public acts or laws of each state in every other. Now do not these provisions, in their very terms and princi- ples, condemn and put down all retaliatory legislation ? If there can be neither reprisal or war, and if full credit is to be given to the legislative acts of each state in all the rest, how can they be met and controlled by respondent legislation ? In truth, it seems that our legislature have the same right to declare war against New York; and the act of 1811 is substantially an act of marque and reprisal, authorizing the seizure of the boat of any citizen of New York. 6 Cranch 137, 138, 144. In the Chancery case in New York, Kent considers all these acts retaliatory and void. Livingston v. Gibbons, 4 John. Chan. Rep. 571. Then it may be asked, must New Jersey and her citizens sub- mit? is there no redress? The answer is at haod; she has all the remedy that is consistent with her own interest, and that of her citizens. Is the injury to the state ? does New York claim, and are these proceedings by their legislature infringements upon part of our territory? If it is so, the constitution has given the rem- edy. Constitution of the United States, art. 3, sec. 1. It has erected a tribunal, which is a common arbiter for determining questions of this kind. Why not proceed against New York in the Supreme Court of the United States? If a citizen of New Jersey is un- justly vexed under an illegal act of the legislature of New York, the courts of the United States are open to him. The right to resort to that tribunal is vested by the constitution ; it is not de- pendant on congress. Congress cannot prevent the operation of this section of the constitution. If they will not pass a law declaring how process shall be served on a state, the Supreme Court, upon a bill filed, would make the proper rules to bring in New York. 252 NEW JERSEY SUPREME COURT. Gibbons v. Livingston. The rule stated in 3 Dallas 335, is still in force, applicable to all cases in which a state may yet be sued. These acts of ours are not even within the doctrine of retortion, as stated by the writers on public law. That right exists only between foreign nations who may make war, and is intended to precede or prevent it. And what is it? If one nation oppresses the subjects of another, residing in its territory, the nation whose subjects are injured may do the same to the subjects of the other, resident in the injured country. It grows out of oppressive legislation against the individuals of a particular foreign nation, by which they are put on a worse footing than the citizens of the country where they are, or other foreigners. But a municipal law, bind- ing every body, cannot be the subject of retortion or legislative reprisal. Now the laws in question are of this character, gen- eral, binding every body. If, then, this act of 1820 does mean to give an action against a man for enjoining a citizen of this state for navigating any of the waters between the ancient shores of New Jersey and New York, though those waters are within the acknowledged territory of New York, it is void, and void in toto. It is void although the interruption was in New Jersey, for a section in a statute con- taining a single connected proposition, if void because extended too far, must bo altogether void: you cannot divide it. This declaration goes for the whole; the gravamen is, that he was interrupted from navigating between the ancient shores. The court could not divide it, nor the jury, in an assessment. Upon the whole case it is then submitted, that the defendant is entitled to judgment on this demurrer. Wood, in answer. In this action two distinct subjects are pre- sented for the consideration of the court. 1. Supposed defects in the cause of action, which, if they really exist, must arrest the judg- ment. 2. A supposed failure on the part of the plaintiff to prove the issue on his part, by the facts exhibited in the demurrer to evidence. If the issue is completely proved, but the cause of action is defec- tive, the judgment will be arrested, and each party pay his own costs. If the cause of action is good, but there is a failure in the proof, judgment will be rendered for the defendant, with costs. I shall answer all the objections taken to this suit by the de- fendant's counsel, though not in the order in which he has stated NOVEMBER TERM, 1822. 253 Gibbons v. Livingston. them. The action itself is by him considered defective, because the act of New Jersey, on which it is founded, is unconstitutional. This is the only objection to the cause of action, as spread upon the record. The act on which this suit is brought, is only a part of a sys- tem pursued and adopted by our legislature, for the purpose of resisting what they consider an unfounded claim on the part of New York to the exclusive right to all the waters of the bay of New York and of the Hudson river. All the acts of our legislature, upon this subject, are to be taken together. They are in pan materia, and a view of the whole will throw light upon the construction of the one now in question. The laws of New York give to Fulton and Livingston, and their assignees, the exclusive right to navigate with steam-boats all the waters of the state of New York. By an act passed in 1808, New York asserts an exclusive right to the waters of the Hudson, including the bay of New York. Livingston v. Gibbons and Ogden, John. Chan. Rep. 48. In this argument I shall not bring in question the constitution- ality of the New York laws, which give the monopoly to Fulton and Livingston. It is unnecessary for my purpose. Still, as ir,. terpreted and enforced in their courts, they are manifestly' oppressive in their operation upon the citizens of New Jersey. 1. They prevent our citizens from navigating with steam-boatu from a port in New Jersey to a port in New York, and confino such navigation to their monopolists. A state, in creating sucb monopolies, should confine it to the navigation from port to port in their own territory. The communication between the ports of New York and New Jersey, with steam-boats or otherwise, should, in fairness and justice, be restrained and modified (where it is proper so to do) not by the acts of one state, but by tho concurrent acts of both. It is no answer to say, that this monop- oly to Fulton and Livingston was upon a meritorious considei a- tion. New Jersey should have been consulted, and had a ri<3 nt to judge for herself. When New York dispenses her favours, though meritoriously, she should not do it at the expense of her neighbours. The effect of this New York monopoly, before our legislature interfered, was to give to Fulton and Livingston, and their assignees, the exclusive navigation, with steam-boats, of all our waters, so far as respected the communication in that way 254 NEW JERSEY SUPREME COURT. Gibbons v. Livingston. between the two states. Hence those monopolists granted the exclusive right of such navigation to one, in our waters adjacent to Elizabeth Town, to another in the river Rariton, to a third in the waters of Monmouth county. 2. These New York monopoly laws, in the way in which they are enforced, prevents the citizen of New Jersey from navigat- ing, with steam-boats, the waters of the bay of New York and part of the Hudson river, over part of which we have an exclu- sive territorial right, and over all of which we have a right of nav- igation, in common with the state of New York and hercitizens ; These are the injuries growing out of the operation of the New York laws, of which New Jersey complains. To redress these injuries, the law in question, on which this suit is founded ind all the other acts relating to the subject, were passed. They oave produced a good effect: steam-boats, owned by our citi- tens, are constantly plying, under their protection, between our T>orts and the ports of New York. The price of a passage in a Bteam-boat from New Brunswick to New York is about one- third of what it was formerly, when the New York monopolists excluded our citizens. These acts of our legislature were not passed in heat and without deliberation : they are part of a sys- tem of legislation long pursued in New Jersey, under the sanc- tion of all parties, the object of which is to resist the encroach- ment on the part of New York. Steam-boats are particularly protected, only because the claims of New York, so unwarrant- able, were brought practically to bear upon that subject. The law in question is constitutional, and our legislature were authorized to pass it for the purpose of repelling and obviating both of the injuries above stated. 1. Admit the laws of New York creating this monopoly are constitutional, and even that the exclusive claim of New York to the Hudson river and bay is valid, and that the decrees of her chancery are valid, yet I shall contend, that New Jersey had a right to pass the law in question to repel their oppressive operation upon their citizens, by excluding them from an equal right of navigation, with steam-boats, between the ports of the two states. This law is an act of retortion. Vattel B. 2, ch. 18, sec. 341, p. 283, et vide sec. 339. As between independent states, such a power unquestionably exists. If we are deprived of it by the NOVEMBER TERM, 1822. 255 Gibbons v. Livingston. federal constitution, the defendant must shew how. An act is presumed to be constitutional, unless it is clearly shewn to be otherwise. 9 John. 564. Powers not delegated to the United States, nor prohibited to the states, are reserved to the states or the people. Vide amendment to the Federal Constitution art. 10. The rights of a state remain after the adoption of the constitution as before, except where they are abridged by that instrument. Sturges v. Crowninshield, 4 Wheat. 193. There must be a direct incompatibility between the power granted to the federal govern- ment, and the exercise of it by a state to deprive the state of it. Houston v. Moore, 5 Wheat. 17. Federalist, No. 32. 9 John. 576. From these authorities we may extract two rules of construction, which will safely guide us through this labyrinth. 1. A power not granted to the United States' government is reserved to the states. 2. A grant of power to the United States' government does not destroy the exercise of the same power by a state, unless there is a manifest and direct repugnancy, and until they are brought practically into collision. To establish the unconstitutionality of the law of New Jersey on which this suit is brought, the defendant must shew, either that it was prohibited by some clause in the federal constitution, or that there is a direct and manifest repugnancy between it and the exercise of some power granted to the federal government. Several clauses are relied on, none of .which will answer his pur- pose. It is not repugnant to the power given to congress to declare war, and to grant letters of marque and reprisal. When the pow- ers of the constitution prohibited the states from declaring war, they mount war in its strict and usual signification. It did not embrace the power of granting letters of marque and reprisal, or they would not have mentioned the latter in express terms. This shews that that instrument is cautiously worded ; that terms are used appropriately; and that a fanciful construction ought to be avoided. Acts of retortion are not acts of war; they are pacific. "When resorted to between independent states, they are intended to prevent the necessity of resorting to war. Nor can the passing of such an act be considered a granting of letters of marque and reprisal. Letters of marque and reprisal are a commission to attack the subjects of a foreign state on the high seas beyond the limits of the state, seize their property, and put it in sequestra- 256 NEW JERSEY SUPREME COURT. Gibbons v. Livingston. tion. It- is a hostile net of aggression. Marten's Law of Nations, 270. 1 Black. Com. 258. These terms were perfectly under- stood by the framers of our constitution, and they are used in the sense in which they are ordinarily understood by enlightened jurists. They did not think the prohibition to declare war embraced the granting of letters of marque and reprisal, nor that the latter embraced an act of municipal legislation, in its nature pacific, and intended to operate within the jurisdictional limits of the state. The defendant's counsel says, that one great object of the federal constitution was, to create a barrier against the con- flicting legislation of different states. If this object had been ir their view, they certainly would have used terms expressly t/, convey that idea, and not put the counsel to the trouble of col- lecting it by inference and ingenious conjecture. But it is said that this conflicting legislation might lead to war. This, however cannot take place, for the sword is taken from the states. Thej may legislate as much as they please, but they cannot fight. If a state is bound to submit to the oppressive legislation of a foreign state, it is more likely to lead to rebellion than if she can defend herself by counter legislation. Many acts are oppressive upon a neighbouring state and yet are constitutional, and, of course, no redress can be had in the federal courts. Many acts of a state may be lawful in themselves, and yet injurious to another. Valid 283. Important sovereign powers are reserved to the states, which are intended as checks to the federal government, and, of course, cannot be controlled by that government, or they would be no longer acts of sovereignty. Some inconveniences may result from this state of things, but they are overbalanced by the advantages. That a confederated republican government must be thus checked and limited, to exist over an extensive territory, is an opinion sanctioned by the ablest writers and by all experi- ence. The opinion of Chancellor Kent (4 John. Chan. Rep.} is cited, who considers this law in question as a reprisal, and pro- hibited by the constitution, and who gives the defendant, who was a party in that suit, some wholesome advice. The chancel- lor seems to think all countervailing legislation is a reprisal. In the suit in which the present plaintiff was prohibited by Chancel- lor Kent, from navigating the waters in question, (4 John. Chan. Rep. 48) he grants the injunction expressly on the ground, that New York had asserted such exclusive jurisdiction to the waters NOVEMBER TERM, 1822. 257 Gibbons v. Livingston. of the Hudson. The act of their legislature, in which it was so asserted, passed in 1808. John. Chan. Rep. 48, Our act, assert- ing a territorial jurisdiction to the middle of the river, passed in 1807. Rev. Laws 533. Their act was subsequent to ours; was an act of countervailing legislation, and, of course, a reprisal, and unconstitutional in the opinion of the chancellor, as since ex- pressed. It remains for that enlightened jurist to reconcile his decision in the one case, with his opinion expressed in the other. The judicial power of the federal government, it is said, ex- tends to this case, and, therefore, our law is unconstitutional. 1. The judicial power does not extend to the injury. It can give this state no redress. Our citizens are injured by a law of New York, which is supposed to be constitutional : they .are shut out from participating in the intercourse between the two states by employing steam-boats. This is not a common law injury: a federal court can only redress such injuries as one state may re- ceive from another in violation of some common law principle. There is no legislative power given to the federal government over the states, to create new and extraordinary remedies for the injuries which one state may sustain from the oppressive leg- islation of another. The only way to meet and prevent such injuries, is by countervailing legislation. 2. If the judicial power of the federal government did extend to the case, yet it does not impliedly take this power from the state. They are concurrent; there is no manifest repugnancy in the power of a state to redress herself by conflicting legislation, and her power to resort to a judicial tribunal for redress. Such concurrent powers are familiar to the law. A man may enter upon lands, or bring ejectment, may seize his personal property in the possession of another, or bring trover for it. 3 Black. Com. The defendant's counsel also rely upon that clause in the con- stitution which says, that full faith and credit are to be given to the acts, records, and judicial proceedings of a foreign state. By this it is meant, that they shall have the effect of record evidence, and conclusive as to the fact. The terms, faith and credit, con- vey the idea of evidence. It relates only to the degree of evi- dence which is to bo attached to foreign acts and. judicial proceedings, and was not intended to give them any greater ope- ration and efficacy than they had before. At common law, many acts and judgments of foreign states were carried into effect in VOL. i. E 258 NEW JERSEY SUPREME COURT. Gibbons v. Livingston. England. All statutes of foreign countries concerning marriages, and all marriages pursuant to them, would be recognized in Eng- land if the parties should come there, and the reciprocal duties of husband and wife would be enforced. All judgments of foreign countries, founded on contracts, and where there is a moral obli- gation to perform them, would be enforced in England. But the more positive laws of a foreign state, accompanied with no ante- cedent moral obligation, and judgments founded upon them, are never enforced or regarded at common law, but, on the contrary, if injurious and oppressive upon the subjects of Great Britain, they are retorted upon by their parliament. This doctrine, which is illustrated by Huberus, is not peculiar to England, but is adopted in all civilized countres, and prevailed in these states when the federal constitution was adopted. The records of foreign judg- ments, however, were not conclusive evidence of the debt, but they might be rebutted. This provision in the constitution was intended to make such records of a foreign state, as, upon, the principles then prevailing, were enforced in a state court, conclu- sive, and not morel}" prima facie evidence of the debt. It was not intended to give to the acts and judicial proceedings of a foreign state any greater efficacy or operation than they had before. It addresses itself to the courts of a state, and lays down for them a rule of evidence. It is not addressed to the state legislatures, to deprive them of the power of counteracting the oppressive legis- lation of a foreign state. If it imposes any restraint upon the state legislatures, it does it only impliedly, and only so far as to pre- vent them from restraining the operation and efficacy of such foreign acts and judicial proceedings of a sister state as were enforced, by law, when the constitution was adopted. The order in question of the chancellor of New York, authorizing the injunction of which we complain, was not such a decree as would, upon common law principles, have been enforced in our courts before the adoption of the federal constitution, and, of course, this clause of the constitution does not apply to it. But 2. Admitting, for the sake of argument, that we have no right to retort, by our acts, upon the oppressive legislation of the state of .New York, and that the judicial proceedings of their state are to have a binding operation in our state, and cannot be contra- vened here, still we contend, that the statute of New Jersey in is constitutional. New Jersey, as before observed, has NOVEMBER TERM, 1822. 259 Gibbons v. Livingston. an exclusive territorial right to the middle of the bay of New York, and of the Hudson, so far up as her territories extend along that river, and a common right of navigation over every part of those waters. The claim of New York to those waters, to the exclusion of New Jersey, is founded upon the idea, that the grant from the duke of York to Berkley and Carteret does not embrace those waters, or any part of them. Considering it as the transfer of a territory, with the powers of government, made for great public purposes, and to be construed upon the principles of public law, no jurist can doubt the correctness of the claims of New Jersey. New York also sets up a sort of pre- scriptive right, derived from long continued possession. But such a possession, if it could have such an effect, should have been exclusive, whereas it is notorious that the citizens of New Jersey have always used those waters. Though the respective territorial rights are several, each state going to the filum aquae, yet, the right of navigation is common between the two states. Formerly all the rights of two nations, as well territorial as otherwise, in a navigable water, which was the boundarj^ between them, were common and undivided. Grotius B. 2, chap. 3, sec. 8. And the right of navigation must, in the nature of things, still continue common, otherwise it could not be enjoyed. The vessels of a na- tion could not navigate on one side of the flum aqiice. Upon these principles we settled with Pennsylvania in 1782, in respect to the Delaware, (Rev. Laics 57) principles reasonable, fair, and equal. The laws of New York, then, giving this monopoly, do not extend to the waters in question, so far as respects the citi- eens of New Jersey. New York has no power to legislate over the rights of this state, either of territory or navigation, and any decision of a court of New York, attempting to extend this monopoly thus far, is void, as against New Jersey and her citi- zens, and we, under our statute, may recover damages for the proceedings of the defendant under such void decision. It is said, that though New York cannot grant a monopoly on our side of the/zftm aquce, yet they may on our side. She may regulate, and we must enjoy subject to such regulation. I admit, that the mere right of the citizens of New Jersey, or of any other state, to use the waters of New York, as derived from the federal constitution, is subject to such regulation. But New Jersey, as a state, and independently of her privileges under the federal con- 260 NEW JERSEY SUPEEME COURT. Gibbons T. Livingston. Btitution, (and this is a view of the subject to which the defen- dant's counsel has not adverted) has this common right. In the famous dispute about the navigation of the Scheldt, which agitated Europe in the last century, the claims of the em- peror Joseph, which were strongly supported, would have been indisputable if he had owned the territory on one side of that river to its mouth of navigation. This right of navigation in New Jer- sey, over these waters, is a public right, and part of the public domains of the state. See Hole's Treatise in Hargrave's Law Tracts, and Mundy v. Arnold, ante 71, 76. One state cannot legis- late over the rights of another state. They are equal and co- ordinate. Vattel Prelim, sec. 18. New York may pass laws reg- ulating her territorial right to the filum aquas, but not so as to bind the right of navigation in New Jersey and her citizens. The right of territory in public waters is subordinate and secondary. There is no modern Neptune who can command the waves to retire, while the earth below yields forth her fruits. The right of navigation, especially in a commercial country, is every thing, Even the public personal property of one sovereign in the terri- tories of another is exempt from the jurisdiction of the latter. The Schooner Exchange v. M'Faddon et al. 7 Cranch 116. "When the chancellor of New York, then, attempts to restrain, by injunction, a citizen of New Jersey from navigating these waters with steam-boats, on the ground, that the exclusive right of such navigation is vested by the New York laws in certain monopolists, ho goes farther than those laws will warrant be- cause those laws do not, and cannot affect the common right of navigation in the state of New Jersey and her citizens ; and when the chancellor attempts thus to affect them, he steps beyond his jurisdictional limits, and, of course, his proceedings are void. Admitting a valid decree of the chancery of New York may not be impugned in this state, yet a void decree, which is coram non judice, unquestionably may. It may be said, that our courts have no right to question the jurisdiction of the chancellor of New York ; that he had a right to judge of the extent of the operation of the New York laws, and whether New Jersey really has a common right of naviga- tion over the waters in question, which those laws cannot reach ; and that if he has erred, the plaintiff must resort to the federal courts by way of appeal. But there is no doubt, that a court of NOVEMBER TERM, 1822. 261 Gibbons v. Livingston. co-ordinate powers may decide collaterally upon the jurisdiction though not upon the regularity, of another court; and if it appears that the latter stepped beyond its jurisdiction, it will consider its proceedings as void. Admiralty courts consider the judg- ments of foreign admiralty courts as final and conclusive, but still they reserve the right to inquire, first, whether the latter are properly constituted? and second, whether they have jurisdiction over the subject matter? Rose v. Himely, 4 Cranch 241. Suppose New York, by statute, should assert a right to the whole county of Bergen, and her chancellor should decree possession of certain lands in that county to be delivered to the plaintiff, in a suit before him, by means of which the occupier should be turned out of possession; if the latter should bring trespass in our court, could the party to that decree rely upon it as a defence, and would our court be shut out from inquiring into the consti- tutionality of that decree and the jurisdiction of the chancellor? If so, one state, by its statutes and decrees, can completely sus- pend the jurisdiction of another state, to any extent, until the latter can get a decision in its favour in the federal court. It is said, that New York has a right to pass laws regulating her ports. Suppose she has, and that our common right of navi- gation may be affected by such port regulations, yet it will not be pretended, that these monopoly laws were passed for that purpose, and can be protected by that view of the subject. It is said, that if our claim, as spread upon the pleadings, is valid, yet the plaintiff has not supported his issue. On a demur- rer to evidence, the court will draw, in favour of the plaintiff, every conclusion which a jury might have drawn. 2 Tidd's Practice 794. It is objected, that the injunction in the present case was not served after the operation of the law. In answer to this we say 1. The injunction was served after the passage of the law; tho operation of the law only was suspended till the 1st of April, 1820. The service of the injunction is no part of the operation of the law. 2. The act says, if any citizen shall be restrained or enjoined, &c. It is immaterial when the injunction was served, if the operation of it continues the plaintiff is restrained. But it is said,the defendant should have done some positive act of enjoining ; that is not necessary. Upon a fair construction of our statute, it was his duty, in order to exempt himself from its operation, to 262 NEW JERSEY SUPREME COURT. Gibbons v. Livingston. do all, when requested, which ought to be done on his part to pot an end to the injunction. He is called upon for that purpose, and declines giving any answer. An actual refusal is not neces- sary. Durtll v. Mother, 8 John. 445. His subsequent petition to the chancellor shews his intention to continue the injunction. If A. should erect a nuisance on his land to the injury of B. and should afterwards sell to C., on request C. is bound to abate the nuisance. Penruddock's case 5, C. 101. In the present case Liv- ingston was bound, under the statute, to put an end to bis injunc- tion. When called upon to do so, he refuses to give an answer, and suffers his injunction to continue. It is said, that this not the kind of injunction contemplated by our act; that it refers to a statutory injunction ; and thai thia injunction issued upon the great general principles which regu- late courts of equity in such cases. Our act does not require that the law of New York shall expressly authorize and direct tho injunction to issue. It is sufficient that a law of New York is either the real or colourable foundation upon which a citizen of New Jersey shall be restrained by such injunction from navi- gating the waters in question. A chancellor of New York would not restrain the citizens of New Jersey from the exercise of this right, if he did not think the laws of New York gave tho exclu- sive right to the monopolists. If they do not expressly direct the injunction, yet they lay the foundation upon which alone the injunction is granted, and, of course, a citizen of New Jer- sey may be said to be restrained either by virtue, or under colour, of such laws; by virtue of them, if they really give the monopoly over these waters, and under colour of them, if they do not really give such a monopoly, but are erroneously con- strued to do so by the chancellor. This act is not pe'nal, but remedial, and is to be liberally construed. It gives damages only: the costs are treble, because, as the plain- tiff is put to the proof of aots in a foreign state, he is subjected to extraordinary expenses. Costs are in their nature remedial ; they are intended to reimburse a party, and they never do completely reimburse him. Besides,if the costs are penal, the other part of the statute, giving the remedy, is remedial, and is to bo liberally con- strued. You are, in such cases, to look to the mischief. A citi- zen of New Jersey, when this law passed, could not be re- strained by a statutory injunction in New York. Tho only case NOVEMBER TERM, 1822. 263 Gibbons v. Livingston. in which such injunction was expressly directed, was in the case of a forfeiture, and there could be no forfeitures under their laws after'the death of Fulton and Livingston, the original grantees. I have confined myself, in these observations, to that section of our statute on which this suit is founded. If any other parts of the statute should be considered unconstitutional, which it ia unnecessary now to discuss, and this section is valid, it is suffi- cient for our purpose. Ogden, in reply. The great question is, whether this defendant, who is a citizen of New York, can be made liable to damages here, for a lawful transaction there, in execution of a decree or judgment of a court of competent jurisdiction of that state? In support of the action, it has been contended I. That it is founded upon a statue of New Jersey to resist encroachments upon its territory and jurisdiction, under colour of statutes of the state of New York. 1. As to territory. The state of New Jersey, by a statutory declaration, admits the boundary line between the two states to be the midway of the intermediate waters, and no statute of the state of New York has been, or can be produced, which declares her territory to extend beyond the middle of the baj*, lying be- tween the Jersey shore and Long Island. The statute of New York, of April, 1808, (the only statute on the subject) gives jurisdiction to the city and county of New York over certain offences, within the Hudson river and "the bay between Staten Island and Long Island," excluding, as evidently appears from the maps, that part of the bay which lies between Bergen Neck, on the Jersey shore, and the shores of Long Island, in the state of New York, so that no part of the route between New York and New Brunswick (within which the trespass is laid to have been committed) falls within the asserted statutory claim of New York, and, consequently, is not within the purview of that statute of New Jersey on which the present suit is founded. It has been said, however, that certain commissioners, on the part of New York, laid claim to the whole of the intermediate waters to high water mai'k on the New Jersey shore, but this fell short of the requirement of our statute. So, on the other hand, the com- missioners on the part of New Jersey claimed Staten Island, and the whole waters, to high water mark, on the shores of New 264 NEW JERSEY SUPREME COURT. Gibbon* v. Livingston. York, but neither state, by statute, ever asserted claims co-exten- sive with those made by their respective commissioners. Again, it has been said, that the chancellor of New "York declared, in his decree, that the territory of New York extended over the whole bay; still, however, if this were so, it falls short of our statute, which requires, that the restraint should be in virtue, or under colour, of some statute of the other state. Besides, it is not laid in the declaration, neither was it proved, that plaintiff was ever restrained from navigating any of the waters which have been declared, by New Jersey, to bo within its territory, between the cities of New Brunswick and New York, from which it is evident that the restraint complained of was a restraint within the territory of the state of New York, and sO, also, not within the purview of our statue, made in sup- port of the jurisdiction of this state, for it is the duty of this court to infer, that the legislature never intended to support its own jurisdiction by punishing citizens of New York for acts done in that state, in execution of a decree or order of a court of competent jurisdiction there. To infer the contrary, would be to say, that the legislature meant to break in upon that fundamental principle of public law, whereby no sovereign power has any right to interfere with the lex loci or lexfori of any other state. Vattel JB. 1, chap. 4, sec. 5. Ib. sec. 46. 2. As to jurisdiction. It has been contended, on the other side, that New York has no jurisdiction, unless concurrently with New Jersey, over this intermediate navigation ; that the act of New Jersey of January, 1811, now repealed, made a declaration to that effect; and that a royal grant of a river was in trust for the whole public, and could not affect their common rights of navigation and of fishery. In answer, it may be observed : 1. That it is an established principle of public law, that the jurisdiction of every sovereign state is co-extensive with its territory over waters intermediate between it and another sovereign state. Vattel B. 1, chap. 22, sec. 3. Marten, 159, 165. Ifargrave 10. 2. The state of New Jersey has been in the constant practice of exercising jurisdiction over such parts of these intermediate waters, which she claims to be within her own territory, and very particular}-, in the act upon which the present suit is founded. What can be more inconsistent than to ask this court to exercise NOVEMBEE TEIIM, 1822. 265 Gibbons v. Livingston. a statutory jurisdiction over those parts of these waters which fall within its territory, and at the same time deny that the courts of New York have a similar right? This is really to blow hot and to blow cold in the very same breath. Besides, it is believed, that every state in the Union is in the constant exercise of the like jurisdiction. 3. It is a mistake to say, that the laws of New York, intended to be resisted by our statutes, give a preference to the citizens of that state; because their citizens, equally with ours, are bound by the operation of those laws. And so, likewise, under the con- stitution of the United States, the citizens of every state are liable to the same disabilities, and entitled to the same privi- leges, as the citizens of the state in which they may happen to be. Tros Tyrius que : nullo discrimine agetur. See Constitution of United States art. 4, sec. 2, which provides " that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." II. It has been urged, on the other side, that the statute of New Jersey can be defended on the principle of retortion or retaliation, as* found in public law; that these are rights incident to sovereign power, rights which have not been expressly prohib- ited by the federal constitution, and which, consequently, re- main in the several states, respectively, as before its adoption. In answer, it may be observed 1. The general principle, as found in Vattel, must necessarily vary, according to the subject matter to which it is to be applied. The rule, do as you would be done by, is equally a principle of public law as this, that you may do as you are done by, and, if applied without restriction, would step in between the criminal and judge, and justify retaliation in its most extensive forms. "Est modus in rebus, sunt certi denique fines, ultra, citraque nequit consistere rectum " If foreign tonnage be exacted, the nation which pays it may, by way of retortion, adopt a similar regulation in regard to the nation which receives it. So if one nation prohibit intercourse from her ports to other nations, such other nation may retort the measure by similar regulations from their own ports. So, likewise, if one nation should refuse to consume the corn of other nations, they may retort by saying, we will not consume your cloth. In the fore- going cases, ea^h party exercises a perfect right, and no party can complain if others exercise the same rights towards him that he 266 NEW JERSEY SUPREME COURT. Gibbons v. Livingston. exercises in regard to them, and this is in no way inconsistent with that moral principle which is the basis of all public law. In this view of the subject, Now Jersey might grant similar exclu- sive privileges, upon good and sufficient consideration, but it can- not extend this principle so far as to punish a citizen of that state, or any other citizen, for exercising a franchise granted to him by that state, declared valid by its highest judicial authorities, and sanctioned by the decrees and judgments of all its courts, which have had the proper cognizance of the subject matter. Such an extension of this principle has no foundation in reason, and is supported by no precedent, or even analogy, in that public law which has been set up against us. Suppose the state of New York should grant a several fishery, a case which has been mentioned, in her own territory, and the grantee should vindicate his right, by action in its court, against a citizen of this state, either by injunction or execution, and this state should pass a law making such grantee liable in New Jer- sey, on that account, for all the losses which such citizen of New Jersey may have sustained by reason of his having been so pre- vented from disturbing such grantee in the enjoymet of his fran- chise, so declared to be valid and lawful, could such an act of our legislature possibly be justified upon that principle of retor- tion, as found in public law? If so, this principle would destroy public law itself, by making acts done in every state, in pursu- ance of its laws and judgments of its courts, examinable and punishable in the courts of every other state. I might put the case under the same circumstances of an exclusive right, in nature of a ferry. Is it possible to suppose that a statute of New Jersey could bo supported on the ground of retortion, which would pun- ish in New Jersey the grantee of such ferry for exercising the right of his franchise against a Jerseyman, as well as against his own fellow citizens? Many other analagous cases might bo put, and if public law be as contended for on the other side, then I can see no reason why, upon the principle of retortion, (that is as is said, in all cases, to do as you are done by) a law could not be supported authorizing any citizen of New Jersey, from whom a debt had been recovered in New York, to recover back from his creditor the whole money here, and that too with double, or even triple, costs. Suppose the state of New York should imprudently adopt this NOVEMBER TERM, 1822. 267 Gibbons v. Livingston. same principle of retortion, and authorize a recovery, in that state, by this defendant against this plaintiff of double the sum that may be recovered here, with double costs, where would all this end ? Retortion would lead to retaliation, and retaliation to more direct hostilities, but for the control of that federal constitution, under which, happily for the peace and concord of these states, each one is firmly placed, and for the execution of which, and the pre- servation of all its benefits, every court within the Union is firmly bound by the highest obligation. 1 Federalist 27, 32, 33, 34, 40. III. For the sake of the argument, which I by no means admit, let us suppose that this act of New Jersey could be justi- fied among nations wholly independent of each other, upon the principles of retortion and retaliation, as found in the treatises on public law ; yet I contend, that this act cannot be supported under the laws and constitution of the United States, which, on all hands, is admitted to be the supreme and paramount law of the land. Art. 4, sec. 1, of the Federal Constitution provides, " that full faith and credit shall be given, in each state, to the public acts, records, and judicial proceedings of every other state, and that congress mmy, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof." Art. 6, of the same constitution, further provides, " that this constitution, and the laws of the United States made in pursu- ance thereof, shall be the supreme]&wof the land; and the judges in every state shall be bound thereby, any thing in the constitu- tion or laws of any state to the contrary notwithstanding." And "that the judicial officers, both of the United States and the several states, shall be bound, by oath or affirmation, to support this constitution." 1 vol. of the Laws of Congress 15, passed in pursuance of the foregoing article of the constitution, provides, "that such records and judicial proceedings shall have such faith and credit given to them in every court within the United States, as they have by law or usage in the courts of the state from whence the said records ai'e, or shall be, taken." It has been argued, however, by the adverse counsel, that the above provison does not extend to the effect which such records and judicial proceedings shall have in other states. In opposition 268 NEW JERSEY SUPREME COURT. Gibbons v. Livingston. to this, it is only nccessar}' to observe, that it has been solemnly decided, as well in this court as in the Supreme Court of the United States, that under the foregoing act of congress the effect of a judgment shall bo in every state the same as in the state in which it was rendered. Wheat. Dig. 119. Cranch 481, 483. 3 Wheat. Rep. 234. The declaration in this suit, and the exemplified acts and judicial proceedings referred to therein, and shewn in evidence, prove that the state of New York, in pursuance of a contract between it and Messrs. Livingston and Fulton, and their assigns, made to them a grant for the exclusive use of steam-boats on all the waters within its territory and jurisdiction, fora limited time, on consideration of their having brought such navigation into practical use, and of their having undertaken to keep up, for pub- lic use, a certain number of such boats on the North River, to run between the cities of New York and Albany. That Messrs. Livingston and Fulton assigned to John R. Livingston, the defendant, in the year 1808, a portion of that exclusive right in the territory of New York for the purpose of running steam- boats, amoung other places, between the cities of New York and New Brunswick. That after Mr. Livingston, the defendant, had been in the undisturbed enjoyment of this right for more than ten years, he was interrupted therein by the plaintiff, Mr. Gibbons, by his running, without any license, his^ steam-boat, the Bellona, between the cities of New Brunswick and New York, over waters in the territory, and within the jurisdiction, of that state. That this defendant filed his bill in chancery, in the state of New York, against Mr. Gibbons, complaining of such interrup- tion, and praying relief; and that such court, by an interlocutory order or decree, granted an injunction against the present plain- tiff, Mr. Gibbons, whereby it appears, that he was restrained from running his boat between the cities of New Brunswick and New York, as ho before had done. The declaration further shows the act of the legislature of this state of February, 1820, which provides, that if any citizen of New Jersey shall hereafter be restrained or enjoined by any order or decree of the Court of Chancery of New York, in virtue, or under colour, of any act of the legislature of that state, from navi- gating the waters between the ancient shores of the two states, that, in such case, the party so restrained shall, in an action of . NOVEMBEE TEEM, 1822. 269 Gibbons v. Livingston. trespass, recover all damages sustained thereby, with triple costs, against the plaintiff in such order or decree. It is perfectly evident, that the provisions of the above statute of New Jersey would give, in this court, an effect to judicial proceedings in the state of New York directly and diametrically opposite to the effect they would have in the courts of the state of New York, from whence they have been taken, for there they would be a complete justification in a suit for the restraint com- plained against, whereas here they are made the very basis and foundation of the action. Thus it turns out, that this statute of New Jersey comes in direct collision with an act of congress, made in pursuance of the constitution of the United States, and it is certainly unnecessary to add, that the latter must be con- sidered as the paramount law, and that it ought to be the inclina- tion, as it is the duty of the court to protect the defendant from the penalties of an act which is not only at variance with funda- mental principles, but expressly repugnant to the supreme law of the land. Let me, however, suppose otherwise for a moment, and that the act of our legislature and the act of congress are in perfect accordance. This act is highly penal, and it follows, if there be any dubiety in the terms made use of, that they must be taken in the stricter sense, and so as not to have any retroactive operation. The terms of the act are, " if any citizen of the state of New Jersey shall hereafter be enjoined or restrained by any writ of injunction or order of the Court of Chancery of the state of New York," &c. Now there is no charge, in the declaration, of any restraint after the 1st of April, 1820, when the operation of the law commenced, nor of any injunction whatever, except- ing the one which was sued out in the month of May, in the year preceding the law of New Jersey, and served in the month of March, between the passage of the law and the time when it went into operation. The question here is, whether the words "shall hereafter", in our act, do not apply to the whole of the sentence im- mediately following, so as to mean only a restraint in virtue of some subsequent injunction or order of the chancery of New York. I. The natural sense of every antecedent, is to cover the whole of the subsequent sentence, unless opposed to the evident mean- ing of the parties. 270 NEW JERSEY SUPREME COURT. Gibbons v. Livingston. 2. If the word "hereafter" does not apply to the order of the court in New York, it can have no operation whatever, for then the whole clause would have precisely the same meaning if the word was wholly omitted. This is contrary to the plain rule of construction, that every word, if possible, must have its natural effect. Suppose the terms of the act had been, if any citizen of the stgte of New Jersey shall " hereafter" be restrained of his liberty, by any writ of ca. sa. out of any court in the state of New York, is it not the natural sense, that to make a plaintiff there, liable here, that the writ should have been sued out after the passage of the law ? or must he, as is contended on the other side, go immediately and release the defendant, and so extin- guish his debt? Such a course could not be required, even if the words "shall hereafter" had been omitted, without giving the law a retroactive operation in destruction of a vested right, and in hostility with natural justice and every principle of fair and reasonable construction, but the words "shall hereafter' evi- dently shew that such could not have been the intent of the legislature. 3. If there be only a doubt as to the effect which these words, " shall hereafter", ough t to have upon the construction of th is clause of the statute, that which is the most favourable to the defendant ought to be adopted, inasmuch as the law is highly penal, and, to say the least of it, of a novel and very extraordinary character. On the other hand it has been contended, that this law ought to have the most favourable construction ; that it is remedial and grew out of the necessity of the case, as there was no other mode to resist the encroachments on the part of New York, which have been so loudly complained of. Has it been shewn how this law can have any possible tendency to settle this disputed lino ? Why (under our federal constitution, which declares, art. 3, sec. 2, that the judicial power shall extend to controversies be- tween two or more states, and that in such case the Supremo court shall have original jurisdiction) may not the state of New York be impleaded in that court by the state of New Jersey, and BO bring this controversy to a final end? This only legal and constitutional remedy has never been tried, and there has never been, that I have ever heard of, any legal opinion against its ef- ficacy. Why, then, talk here of the necessity of this warfare against an individual, an innocent individual, acting in strict con- NOVEMBER TERM, 1822. 271 I ' ______ ____ ___ _ _______^___ Gibbons v. Livingston. formity to the laws of the state in which he resides? Why, then, talk here of retortion and retaliation, to the ruin of individuals, the interruption of a great public accommodation, and all the numerous evils necessarily consequent, when the doors are open to courts fully competent? If this be proper, in regard to the state, why ought not individuals, out of the same plea of neces- sity, instead of vindicating their rights in courts, resort to the like measures of retortion and retaliation? I am sorry that this plea of necessity was ever set up as an argument in favour of a c6n- struction which cannot be maintained on ordinary rules. So, also, in regard to the complaint of an encroachment on jurisdiction, this plea of necessity has as little to do as in regard to the question of boundary. If the claim be well founded, it stamps nullity on the next section of this act, for there our own legislature has exercised jurisdiction over its own territory in. these intermediate waters, by prohibiting a licensed commerce between this state and that of New York, notwithstanding the provision in art. 1, sec. 8, of the constitution, " that congress shall have power to regulate commerce among the several states," and this without any such reason as has been urged in favour of the grant of the state of New York to Messrs. Livingston and Ful- ton for this exclusive right, on the ground of the property which Mr. Fulton bad in his own combination, and on account of which his name will live through all posterity. Now, can the state of New Jersey lawfully exercise this very jurisdiction over her waters, and deny the same right to the state of New York in her waters? Whether New York could constitutionally make that grant in favour of a meritorious citizen of the United States, (in consideration of the introduction, by him, into practical use of a navigation unknown in all former times, and of which the benefits are incalculable) is a constitutional question, now regu- larly depending before the Supreme Court of Washington, on appeal from the court of the last resort in the state of New York. And why not wait the event with patience? a virtue necessary for every suitor, as well as the plaintiff in this cause. What is there in his case which should require that all ordinary rules should be lost sight of, and the plea of necessity set up, of which the greatest characteristic is, that it knows no rule. I conclude by observing, that this suit is brought for a sup- posed transgression in the territory of the state of New York ; 272 NEW JERSEY SUPEEME COUKT. Gibbons v. Livingston. that the basis and entire foundation of the suit is a transaction in the state of New York, in execution of a lawful judgment or decree of the Court of Chancery there ; that the statute of this state, and constitution of the United States, and the act of con- gress made in pursuance thereof, are in direct collision, inasmuch as the effect of such judicial proceedings are, by the law of New Jersey, made diametrically opposite to the effect such proceed- ings would have in the state of New York, from whence they have been taken ; that the apparent unconstitutionally of our law could not be justified on any ground of retortion and retaliation; that the courts of the United States had full power to hear and determine every matter in controversy between this and our neighbouring state; that, independently of the matters just men- tioned, the fair construction of our statute could not comprehend the case of an injunction issued before the statute and the neces- sary consequences thereof; that this statute is highly penal in its nature, and ought to receive the most favourable construc- tion in behalf of the defendant; and that there is nothing in the supposed necessity of the case to alter the ordinary plain rules of construction thereto, and, therefore, I now pray that the judgment of the court may be entered for the defendant. KIRKPATRICK C. J. This is an action on the case brought by the plaintiff to recover damages against the defendant for enjoin- ing and restraining him from navigating, with bis steam-boat, the waters between the state of New Jersey and the state of New York. It is founded on the third section of the act entitled, "A supplement to the act entitled an act to preserve and support the jurisdiction of this state," passed February 25, 1820. This section is in these words, that is to say, "If any citizen of the state of New Jersey shall hereafter be enjoined or re- strained by any writ of injunction, or order of the Court of Chan- cery of the state of New York, by virtue, or under colour, of any act of the legislature of that state, from navigating, with any boat or vessel moved by steam or fire, belonging or to belong, in part or in whole, to him, the waters between the ancient shores of the states of Now Jersey and New York, the plaintiff or plaintiffs in such writ or order shall be liable to the person or persons aggrieved for all damages, expenses, and charges occasioned there- by, to be recovered, with triple costs, in an action of trespass, NOVEMBER TERM, 1822. 273 Gibbons v. Livingston. or trespass on the case, in any court having cognizance thereof," &c. This cause was brought to trial at the Middlesex circuit, in December last, when the plaintiff gave in evidence the acts of the legislature of the state of New York granting and securing to the persons therein named the exclusive privilege of navigat- ing the waters of that state by steam ; the proceedings of the Court of Chancery there upon a bill filed by the defendant against the plaintiff, complaining of an infringement of that exclusive privilege; a writ of injunction sued out by the order of that court, commanding the plaintiff to desist and refrain from navigating, with his steam-boat, the waters in the bay of New York and in the Hudson river, between Staten Island and Pow- les Hook, and, afterwards, by another order, limited to the waters of the bay of New York only, under the penalty of ten thousand dollars, until the further order of that court to the contrary; and the service of that writ on the plaintiff some time in June, 1819, at Staten Island, in the state of New York. He also gave in evidence some other things, rather of a formal nature, and not here necessary to be mentioned. To this evidence the defendant demurred, and that demurrer is now subjected to the consideration of this court. To support this demurrer, the defendant takes these three grounds : 1. That the enjoining and restraining, proved on the trial, was by an injunction sued out and served before the pass- ing of this act; that the defendant has done no act or thing, since that time, to enforce that injunction, or carry it into effect, or in any way to enjoin or restrain the plaintiff thereby ; and that, therefore, the plaintiff does not bring himself within the words of the act, which says, "if any citizen of New Jersey shall hereafter be enjoined or restrained by any writ," &c. 2. That the enjoining and restraining proved on the trial, even though the injunction had been sued out and served after the act went into operation, would not be within the description and pro- hibition contained in it, because that injunction was not by virtue, or under colour, of any act of the legislature of New York, but according to the ordinary course of proceeding of a court of chancery in the exercise of its ancient and essential jurisdiction, and so is not within the words of the act, "an injunction by vir- tue, or under colour, of any act of the legislature of New York" VOL. I. 8 274 NEW JERSEY SUPREME COURT. Gibbons v. Livingston. 3. That the defendant being a citizen of the state of New York, and acting within that state and under its judicial author- ity, cannot be called in question, or subjected to damages, in another state for such act. As to the first of these grounds. It is to be observed, that tho operation of a writ of injunction is not confined to the time of its service, nor to any limited time afterwards, but continues until it is regularly dissolved by the authority under which it is issued. In this case, the plaintiff could not, at any time within the period complained of, navigate these waters, with his steam-boat, with- out subjecting himself to an attachment for contempt; without subjecting himself to the imprisonment of his person and to the payment of the penalty expressed in the writ. Can it be said, then, that he was not restrained during that whole period ; that he was not restrained, as well after the act went into operation as before? It was not necessary that the restraint should com- mence after the act went into operation, in order to bring it within the words; if it continued afterwards, if the plaintiff was actually restrained afterwards, he is, in my view of the case, as clearly within the words of it as if the injunction had been sued out and served afterwards. The defendant was the party restraining ; the injunction was in his hands ; he kept it in operation ; he was con- tinually acting; he was restraining everyday; and if he would have avoided the penalty of this act he must have removed the restraint, he must have dissolved the injunction. As to the second ground. It must be admitted, that in order to entitle a citizen of New Jersey to an action under this section, the enjoining and restraining, spoken of, must be by a writ of injunction, or an order, of the Court of Chancery of the state of New York by virtue, or under colour, of some act of the legislature of that state; and it must be admitted, also, that the injunction in this case was not specially directed by any such act, but that it was sued out according to the usual course of the court in tho exercise of its ancient and essential jurisdiction. But though this be so, yet it may be said, I think, that it is by virtue, or under .dolour, of these acts, or some one of them. They do not, it is true, grant a special power to issue an injunction upon the in- ifriBgement of this exclusive privilege; the court, from time im- memorial, had that power in all cases of that kind, and, there- fore, tood in no need of such special grant in this particular one, NOVEMBER TERM, 1822. 275 Gibbons v. Livingston. but they do create the right upon which that power is exercised ; it is by virtue of, or upon the strength of that right, thus created by these acts, that the defendant comes into that court to demand this writ ; and it is by virtue of that right, and that alone, that the chancellor could grant it. And it is beyond all controversy, from the whole scope of the act, that it was in this light the legislature viewed it. They meant to prohibit totally the taking out of an injunction to secure this exclusive privilege against us. The injunction may, therefore, I think, fairly be said to be by virtue, or upon the strength, of these acts, or some one of them. They lie at the bottom of the whole proceeding. The third ground is, that a citizen of one state, acting within that state, and under its laws and judicial authority, cannot be called in question for such act in any other state. This position would appear to me to be well founded in the constitution of the United States. The constitution declares, that full faith and credit shall be given, in each state, to the public acts, records, and judicial proceedings of every other state. These words, full faith and credit, in this clause of the constitution, so far as they applj' to judicial proceedings, have been construed in this court, as well as in the Supreme Court of the United States, to imply full force and effect ; that is, such force and effect as they have by law or usage in the state from whence they are taken. .Now, if this action had been brought in the state of New York, as well it might, and these judicial proceedings in the Court of Chancery had been given in evidence there, as they have been here, and the defendant had demurred to that evidence, could there be a doubt but that the demurrer must ha,ve been adjudged to be conclusive against the plaintiff? It must have been so, even though erroneous, upon the principle, that the judgment of a court having jurisdiction of the subject matter must always be conclusive, until reversed upon error, or corrected upon appeal. And if so, how shall we avoid giving them the same force and effect here? In ordinary cases, it would seem that there could be no doubt on this subject. If a citizen of New Jersey should be sued in New York upon an account for goods sold, or upon a bond, or promissory note, or other matter of debt arising here, and should have judgment against him and execution upon his goods, and then should bring an action here to recover damages 276 NEW JERSEY SUPREME COURT. Gibbons v. Livingston. for the taking and detaining such goods, would any man say, that the judicial proceedings against him in the state of New York would not be conclusive against him here, would any man hesi- tate to say so, even if the state of New Jersey should, before that time, have passed an act giving an action to recover dam- ages in such cases? No man, it is thought, would hesitate to say so, because such act would be manifestly not only contrary to the spirit of the federal compact, but also to the very words of it, which have been already cited. What, then, is there in the case before us to vary it from the common case ? If it should be said, that the laws of the state of New York granting this exclusive privilege, and excluding the steam-boats of other states from their waters, are unconstitutional laws; or if it should be said, as the commissioners for settling with New York the eastern boundary of the state have said, that, independently of the constitution, all navigable rivers and arms of the sea are, in a certain sense, com- mon to all the citizens of the United States, for that all have a common right to their navigation, and a common right to sail through their waters, even though they cover the land of another state ; or if it should be said, that the law of the state of New York extending the boundary of that state, and asserting its ex- clusive jurisdiction up to high water mark on our shores, and so carrying their exclusive privilege and jurisdiction into our terri- tory, is wholly without colour of right ; and that, therefore, the judicial proceedings of the Court of Chancery of that state can never be admitted either to establish and give effect to such unconstitutional laws, or to impugn and take away such common right, and least of all, to sanctify such encroachments upon our territory, and such usurpation of our sovereign authority. And if it should be admitted, that all these things are so, (concerning which, however, I give no opinion at present) yet must it not be admitted, also, that the courts of that state have lawful jurisdic- tion of all questions arising on the laws of that state, subject only to an appeal to the courts of the United States; and that unless such appeal be actually made, their judgments must be final and conclusive, and have the same faith and credit, that is, the same force and effect here, as they would have had there ? Whether the state of New York had or had not a right to grant this exclusive privilege ; or in any way to regulate or re- strain her commerce with other states; or to interdict their inter- NOVEMBER TERM, 1822. 277 Gibbons v. Livingston. course by water in any manner they might think fit; are ques- tions arising under the constitution of the United States; for inde- pendent of that constitution there ca.n be no doubt but they had such right; whether the enforcement of that exclusive privilege against the plaintiff, who is a citizen of New Jersey, is a violation of any common right which he might have had, independently of the constitution, to navigate the waters of that state, is a question arising between citizens of different states ; so, also, of questions aris- ing upon their law of boundary and jurisdiction, for every private controversy growing out of it must necessarily be, as it is here, be- tween citizens of different states. So that in all the cases put, and in all the cases that can be put, so far as my imagination can carry me, the courts of New York have, upon these laws, unques- tionable jurisdiction, subject to an appeal to the courts of the United States; and if so, what reason can be offered that their judicial proceedings should not have full force and effect here as well as there? The constitution of the United States expressly provides, that the judicial power shall extend to all controversies arising under the constitution and laws of the United States; all controversies between two or more states, and between citizens of different states, or of the same state, claiming rights under different states; thus making provision and establishing tribunals for the determination of all controversies of this kind, and, in- deed, of every kind which can arise between the different states, or the citizens thereof, and especially those which arise upon the constitution itself. Can a state, then, which has agreed to this compact, and which has complete remedy in the tribunals of justice thereby established, resort to measures of force? can it, for every supposed injury, become its own judge, and retort such injury upon the supposed aggressor, or make recaptions or re- prisals by way of indemnification? What sort of a federal com- pact would this be, and how long could it possibly endure? To me it would appear, therefore, that the only constitutional mode of obtaining redress against these unconstitutional laws and judicial proceedings of the state of New York, and the acts done under them, if indeed they are unconstitutional, would be by appeal to the courts of the United States, where all questions of this kind may be settled by intelligent and disinterested judges, and all ground of controversy between different states, and the citizens thereof, be removed and taken away. 278 NEW JERSEY SUPREME COURT. Gibbons v. Livingston. But notwithstanding the subject presents itself to my view in this light, yet inasmuch as it is understood that the chancellor, who is the judge in a co-ordinate court, over which this has no control, and to whom the execution of this act is specially and principally committed, has so far adjudged it to be a constitu- tional act as to carry it into effect in sundry instances and to great extent; and inasmuch as it highly concerns the dignity of the republic, as well as the rights of private citizens, that the administration of justice should be uniform, and that the con- struction of the laws should be the same in all the courts, I have felt myself constrained to doubt the correctness of my own judg- ment, and to yield to that high authority. I am willing, therefore, upon this ground to say, that this demurrer must be overruled, and that judgment must be en- tered for the plaintiff. ROSSELL J. The constitutionality of the law of this state has been brought in question by the defendant, and this court, on that ground, strongly urged to stay its operation. This is always a question of the greatest delicacy and importance, bringing, per- haps, into mischievous collision the organized authorities of our country. The representatives of a free people, elected to make laws for the regulation of their own conduct, as well as that of their constituents, know no limits to their authority but their own consciences and the constitutions of the United States and of New Jersey, and a law passed by them must be in direct viola- tion of one or both these sacred charters ere a court would be authorized to declare it void. Although it might be inclined to the opinion, that it was an infringement of the spirit of those instruments, this would be setting up the understandings of a few to that of the many, in a doubtful question, for doubtful it might well be considered when the collected wisdom of a whole coun- try had, after due deliberation, passed upon it, and declared, by a solemn public act, that it was within the limits of their powers; aini a court might with propriety be accused of arrogantly as- suming to themselves a superiority of intelligence and patriotism in setting up their own opinions in opposition to it, and thus defeat, perhaps, the operation of a beneficial public law. If we might be permitted to suppose a legislative body so regardless of their duty, their oaths, and the fundamental charters of their NOVEMBER TERM, 1822. 279 Gibbons v. Livingston. country us to wantonly violate them, there are but few courts, I trust, that would lend their aid to support a usurpation of power so unjust in itself, and so ruinous to our best interests. The subject matter of this law has been for many years, from time to time before the legislators of this state, repeatedly discussed and acted upon, after due deliberation, and is not of a description that would at all justify this court to stay its execution. It has, in principle received the sanction of successive legislative bodies, composed of different members; has been put in execution by our Court of Chancery, and this Court is bound, I conceive, to execute it on all proper occasions. But it is urged, that it is a direct violation of the constitution of the United States, as that declares, "that full faith and credit shall be given, in each state, to the public acts and judicial proceedings of every other state ;" and that the defendant is now prosecuted in this court for putting in force, in New York, against the plaintiff, & public act of that state. But this clause of the constitution has been grossly misunderstood, not only in this, but in other states, if it compels us to submit our rights, our persons, nay the sover- eignty of our states, to the unjust usurpation of a foreign legisla- ture, who might be induced topassapublic act to their destruction. An officer of New York, under colour of a law of that state, has served compulsory process, on a citizen claiming the protection of this state, on our own shores. Was New Jersey to submit to this violation, under a plea, that full faith and credit was to be given to a public act of New York ? I presume this will not be pretended. Nor will it be denied, that our legislature (when, in 1807, they passed an act, called the mother act, to preserve the jurisdiction of this state, and making it highly penal to serve such process) were fully justified in so doing in the opinion of every Jerseyman. So when New York, in effect, claimed the exclusive right and jurisdiction to all the waters of New York bay and Hud- son river. The legislature of New Jersey, in 1811, by another act of that date, declared, " that whereas the state of New York does unjustly claim an exclusive jurisdiction over all the waters lying between the shores of the two states; and whereas the citizens of Now Jersey have a full and equal right to navigate vessels or boats on all the waters lying as aforesaid, &c. therefore, if any citizen of this state should have his boat, moved by fire or steam, seized on those waters, under colour of any law of the state of New York, the party so injured might seize on any steam-boat 280 NE\V JEESEY SUPEEME COUET. Gibbons v. Livingston. belonging to a citizen of New York, lying and being in any river, creek, or bay, the whole waters whereof are within the terri- torial jurisdiction of New Jersey, exclusive of New York, which boat should be forfeited, unless," &c. In 1813, in consequence of another law of New York, an act was passed in New Jersey more effectually to enforce that of 1811. In 1818, a supplement to the mother act of 1807 was passed, making it the duty of, and offering a reward to, the citizens of this state to apprehend all offenders against the first recited act. In all the foregoing, we see the labours of our legislature alto- gether on the defensive, following from time to time, and step by step, the previous laws and proceedings of New York, in defence of the rights of New Jersey, from what we deem the unjust pre- tensions and encroachments of New York; and, until these conflicting claims are decided against us by a competent judicial tribunal, it would bo a dereliction of an imperious duty should we abandon them. It is true, that by the law of 1807, the exclu- sive jurisdiction of New Jersey is confined to the middle of the Hudson ; but that law by no means gives up the right of navi- gation on all the waters leading to and from the sea that it may be necessary to pass and repass in order to the full and perfect enjoyment of a privilege so essential to our interests and happi- ness. This right we claim by the law of nature and of nations, as well as by grant from the duke of York to the proprietors of East Jersey, in 1682, "of the free use of all bays, rivers, and waters leading unto, or lying between, New York, &c. and East Jersey, for navigation, free trade, fishing, or otherwise. The law, on the third section of which this action has been brought, was in force from the 1st of April, 1820, and enacts, "that if any citizen of New Jersey shall hereafter be enjoined or restrained by any writ of injunction, or order, of the Court of Chancery of New York, by virtue, or under colour of any act of the legislature of that state, from navigating, with any boat or vessel moved by fire or steam, or fire, belonging to him, the waters between the ancient shores of New York and New Jer- sey, the plaintiff in such writ or order shall bo liable to pay all damages sustained by the person aggrieved, with triple costs," Ac. This act, being in some degree penal in its nature, should be strictly construed, and it is incumbent on the plaintiff to bring himself within its express provisions. NOVEMBER TERM, 1822. 281 Gibbons v. Livingston. On the posted, it is returned, as proved by the plaintiff, " that in March, 1820, his steam-boat, the Bellona, was fitted out to run from New Brunswick to the port of New York, through and over the waters between the ancient shores of New Jersey and New York, for the transportation of freight and passengers, and that he kept her so fitted from the 8th of May until the 5th of June, 1820; that from the 30th of March to the 5th of April she was employed carrying passengers from New Brunswick to the Nautilus, when the captain of the latter refused to receive them, &c.; that from the 5th of April to the 25th of June she was laid up, and not used ; that on the 25th of April she began to run to the steam-boat Nautilus, at Staten Island, carrying passengers for New York ; but that the intervening time, between the 8th of May, and the 5th of June, 1820, the plaintiff was restrained, by force of the said injunction of the defendant, from running his steam-boat, the Bellona, into the port of New York, or any part of the bay of New York, although during that period he intended to pass with said boat from New Brunswick to New York, over the bay of New York, lying between the ancient shores of New York and New Jersey, if he had not been re- strained by the injunction aforesaid." By the above proof it appears, that the plaintiff complains, that from the 8th of May to the 5th of June, 1820, he was restrained, by an injunction obtained by the defendant from the chancellor of the state of New York, from running the Bellona from New Brunswick to the port of New York, over the waters lying between the ancient shores of the two states, for which he claims damages. When the legislature of New Jersey passed the law of 1820, for the security of our citizens navigating the bay of New York and the waters between the ancient shores of the two states, they did not intend any interference with the right of the state of New York to interdict an entrance into her own ports, unless on such terms and in such manner as she by law had prescribed. New Jersey herself had so often exercised a similar power, that she could not, with a shadow of propriety, dispute that power merely because it was exercised by a sister state, and that too after her own example. Nor have the legislature so, in terms, expressed themselves: nor could they, for a moment, doubt the right of New York to grant to whom she will the exclusive right of entering her own ports, in the manner prescribed for the ad- 282 NEW JERSEY SUPREME COURT. Gibbons v. Livingston. vanceraent of a public good. If this right is denied to New York, in vain may New Jersey search for that so repeatedly exercised by herself, both alike possessed of all the inherent rights of sov- ereignty, not yielded but in the manner set forth in the constitu- tion of the United States : neither presumes to assume a power over the other. Whilst contending about rights, each believing justly their own, they claim no superiority, nor acknowledge themselves inferior sisters of a great and happy confederation. Interest, duty, and good faith, in the most imperative terms, for- bid it. If the plaintiff had confined himself, for the purposes of navigation, to the waters claimed by New York, there is no pre- tence that he would have been disturbed. Nay, it was stated on the argument, and not denied, that he run the Bellona to Powles Hook without interruption. But he expressly declares his pur- pose was to enter the port of New York, claiming a privilege by virtue of a law of this state, which was denied to the citizens of that. The gist of his complaint, and on which only he founds his claims to damages, arises altogether from his being restrained from carrying freight and passengers, in the Bellona, to and from that port. He, indeed, also states, that he was restrained from passing over the waters lying between the two states, but for what purpose did he desire this passage? Solely that his great ob- ject, a free entry into the port of New York, might be attained, and that too in open defiance of her laws. It is one thing, to merely navigate those waters; another, to enter the port of New York. He connects these together, and we cannot disjoin them. His purpose, as respects New York, was an unlawful one ; nor is it authorized by the law on which this action is brought, or any other law of this state. No word or sentence of the law of 1820 will boar such a construction. But if, by an ingenious and forced construction, it could be said to imply a power, such as is demanded by the plaintiff, no court would believe that the legi^- lature of New Jersey could have intended to commit so unpre- cedented 1 a violation of the rights and sovereignty of a sister state ; and as it is the manifest intention of the law makers that gives a direction to courts, their decisions would be in conformity to that intention. Nay, if the law, in terms, had authorized the purposes of the plaintiff', we are not without authority to shew that our courts are bound not to execute a law repugnant to the first principles of justice. 1 Black. Com. 91 "If there arise out of NOVEMBEE TEEM, 1822. 283 Gibbons v. Livingston. a law, collaterally, any absurd consequences manifestly contra- dictory to common reason, they are, with regard to those conse- quences, void. Thus if an act of parliament gives a man power to try all causes within his manor of Dale, yet if a cause should arise in which he is a party, the act is construed not to extend to that, because it is unreasonable that any man should deter- mine his own quarrel." It is laid down, as the law of nations, in Vattel 201-2, 215- 17. "Nations are forbid to hurt or offend any other nation, or in any way create disturbance or foment discord. Nothing is more opposite to the duties of humanity, nor more contrary to the society which should be cultivated by nations, than offences or actions which give a just displeasure, that we should avoid them if possible. A few medals and dull jests against Louis XIV. occasioned a war which brought the United Provinces to the brink of ruin. It is a necessary consequence of the inde- pendence of nations, that all have a right to be governed as they may think proper, and none have the least authority to interfere in the government of another state, or set itself up as a judge of its conduct. Of all the rights that belong to a nation, sover- eignty is the most precious, and that which others ought the most scrupulously respect if they would not do an injury." These principles are classed, by that celebrated writer, amongst the perfect rights of nations. New Jersey claiming, for the reasons before mentioned, a right to the navigation, free trade, fishing, &c. in the specified waters of New York, contends only for these, regulated by the general law, applicable to the subject matter she is in the exer- cise of, and not in defiance of all law. If, when under the colo- nial government of Great Britain, a subject of the colony of New Jersey had chosen to violate the revenue laws of New York, could he have set up as a legal defence, the right of nav- igation, founded on the law of nations, the common law of Eng- land, or the grant from the duke of York ? Since the declaration of independence, and our total emancipation from the government of Great Britain, when each of the thirteen states became com- pletely sovereign in its own right, could such an offender against the laws successfully claim an exemption by a pretension like that? It will not, I presume, be contended in either case, that the plea would have been of any avail. New York, then, became fully pos- 284 NEW JERSEY SUPREME COURT. Gibbons v. Livingston. sessed of all the inherent rights of a sovereign power ; and, unless in joining our great family compact she has surrendered these par- ticular rights, she still retains them. I see nothing in the constitu- tion of the United States that sanctions a belief that they are sur- rendered. Two sections of that instrument, only, appear to bear on this subject : the one regulates commerce, the other secures to the citizens of all the states the rights of citizens in each individual state, but no more. What is prohibited to a citizen of an individual state, no citizen of another state can be justified in practising there. New York, without contradiction or complaint, now has her port regulations established by law; her wharf, river or bay regula- tions, her quarantine laws, &c. ; can a citizen of New Jersey expect to enter her ports in direct violation of any, or all these, perhaps, in the pursuit of some supposed profitable speculation, and carry a mortal contagion into her ports and make desolate her capital. None can be hardy enough to support a proposition so absurd. Deeds for land, bonds or contracts under seal, are solemn instru- ments ; but if made in contradiction to the public policy or interest, or with unlawful intentions, they are declared void. A man may have a right of way over my lands, but if he is using this right only for the avowed purpose of burning my buildings, destroying my enclosures, or injuring my family, his right of passage will not avail him in an action, for that I had taken measures, with- out force, to prevent the completion of his nefarious object. If we, as a people, by the universal law of nations, have no possible right to control or violate the laws of an unconnected independent sovereignty, as a member of a great confederacy established for the express purpose " of a more perfect union to establish justice, ensure domestic tranquility, promote the gene- ral welfare, and secure the blessings of liberty to ourselves and our posterity." New Jersey is peculiarly bound by the strongest of all ties, self-preservation itself, to cleave to the constitution of the United States as the sheet anchor of its existence as an independent power, and "give full faith and credit to the public acts and judicial proceedings of our sister states," when not in violation of that independence; a contrary conduct, persisted in, would prostrate long settled public principles, founded on immu- table justice, violate the laws and sacred charter of our confed- eracy, and jeopardize, not only the peace and happiness, but tho very existence, of our republic. NOVEMBER TERM, 1822. 285 Gibbons v. Ogden. The purpose of the plaintiff is openly avowed; to consummate that unlawful purpose, only, was he desirous of navigating the waters between the two states. He declares, that he was restrained from its completion, not by force or violence, but by an injunction out of chancery ; and I cannot perceive any principle of law, justice, or public policy, that should entitle him to recover damages; and think, therefore, that judgment ought to be entered for the defendant. FORD T. concurred with the Chief Justice. Demurrer overruled. CITED IN Gibbons v. Ogdcn, 1 Hal. 285-299. Clark v. Collins, 3 Or. 473. THOMAS GIBBONS against AARON OGDEN. 1. Where an action is brought upon a public statute, it is not necessary to aver in the declaration, that the cause of action accrued after the passing of the statute. Thus upon the act of 25th February, 1820, it is sufficient if the enjoining is laid to be after the act went into operation, without specially averring that it was so. 2. An action upon the third section of the act of 25th February,1820, ( Rev Laws 689) "for restraining the plaintiff from navigating the waters between the ancient shores of New York and New Jersey," is not a local, but a transitory, action. 3. In an action upon this statute, it is sufficient to aver, that the restraint complained of " was on the waters of the bay of New York," which said waters lie between the ancient shores of New Jersey and New York, without setting forth any act done in either of the said states in particular. If it is material to the defendant to bring up this matter, he ought to do so by pleading. 4. If the declaration avers, that the restraining and enjoining was on the waters of the bay of New York, and that the said waters lie between the ancient shores of New York and New Jersey, and the fact should be, that the waters of the bay of New York are no part of the waters lying between the ancient shores of these states, yet this is a matter of fact to be tried by the jury, and cannot be determined by the court upon demurrer. 5. In an action upon the statute of 25th February, 1820, section third, for restraining plaintiff oy virtue, or under colour, of any laws of New York, it ia not necessary to set out those laws specifically, because they are mere matters of inducement. 6. Though this court is of opinion, that the statute upon which this action is founded is unconstitutional, so far as it makes a person liable for transactions done in the state of New York, under the lexfori of that state, yet inasmui-h as a court of co-ordinate jurisdiction has so far adjudged this law constitutional as to carry it into effect, and inasmuch as it is of importance that the administra- tion of justice should be uniform in this state, this court is induced to yield its own opinion, and to say, that the demurrer should be overruled. This was an action of trespass on the case, brought by Thomas Gibbons against Aaron Ogden, upon the statute of the 25th of February, 1820, (Rev. Laws 689) to recover damages because the said Thomas Gibbons had been restrained and enjoined from 286 NEW JERSEY SUPREME COURT. Gibbons v. Ogden. navigating with his steam-boat, the waters between the ancient shores of New York and New Jersey, by an injunction issued out of the Court of Chancery of the state of New York, in a suit wherein the said Aaron Ogden was complainant, and Thomas Gibbons defendant. The first count in the declaration was as follows: "Thomas Gibbons complains of Aaron Ogden for, that heretofore, to wit, on the twenty-first day of October, in the year of our Lord one thousand eight hundred and eighteen, at a Court of Chancery holden for the state of New York, at the city of Albany, to wit, at Newark, in the said county of Essex, a certain rule and order,* by the said Court of Chancery, in a suit wherein the said Aaron Ogden was complainant, and the said Thomas Gib- bons was defendant, was made at the instance of the said Aaron Ogden, whereby it was then and there ordered, that a writ or writs of injunction issue out of and under the seal of the said court, to be directed to the said Thomas Gibbons, and to all and every his confederates, agents, captains, pilots, engineers, mari- ners, and servants, commanding them and every of them, under a certain penalty therein to be expressed, absolutely to desist from using, employing, and navigating the two steam-boats in the said bill of the said Aaron Ogden particularly mentioned, the one named the Stoudingor, but usually called the Mouse, the other named the Bellona, or either of them, or any other steam-boat or Bteam-boats purchased or built by the said Thomas Gibbons, on the waters of the state of New York lying between Elizabeth Town, in the state of New Jersey, or any place within the town- ship of Elizabeth Town aforesaid and the city of New York, which said waters comprise, in part, the bay of New York, and lie be- tween the ancient shores of the state of New York and the state of New Jersey, until the said Thomas Gibbons should have fully answered the bill of the said Aaron Ogden, and until the further order of the said court in the premises. And thorsaid Thomas avers,^hat the said .order was then and there made by the said Court of Chancery of the state of New York, by virtue of divers acts of the legislature of the said state of New York, to wit, an act entitled, "An act repealing an act entitled an act for granting and securing to John Fitch the sole right and advantage of making and employing the steam-boat by him lately invented, and for * See the cases reported, in which the orders mentioned in the declaration were made. 4 John. Chan. Rep. 150, 174. NOVEMBER TERM, 1822. 287 Gibbons v. Ogden. other purposes;" an act entitled, "An act relative to a steam- boat;" an act entitled, "An act to revive an act entitled an act relative to a steam-boat ;" an act entitled, "An act for the further encouragement of steam-boats on the waters of this state, and for other purposes ; " an act entitled, "An act for the more effectual enforcement of the provisions contained in an act entitled an act for the further encouragement of steam-boats on the waters of this state, and for other purposes," which said acts are mentioned and referred to in the bill of complaint exhibited by the said Aaron Ogden, as complainant in the said suit in chancery. And the said Thomas further saith, that he, the said Thomas, on the said twen- ty-first day of October, in the year eighteen hundred and eighteen, and for a long timeibefore, and from thence hitherto continually has been, and still is, a citizen of the state of New Jersey, to wit, at Newark aforesaid, and that during all the time aforesaid he, the said Thomas, had been, and still is, the sole owner of a cer- tain steam-boat, called the Bellona, mentioned in said order, and moving with steam and fire, to wit, at Newai'k aforesaid ; and that the said steam-boat, during all the time aforesaid, continually Las been, and still is, a vessel above twenty tons burthen, duly enrolled at the port of Perth Amboy, in the state of New Jersey, in the manner and form in such case required by the laws of the United States, and duly licensed to be employed in carrying on the coasting trade, according to the laws of the United States, in such case made and provided, to wit, at Newark aforesaid. And the said Thomas further saith, that afterwards, to wit, on the twenty-fourth day of October, in the year eighteen hundred and eighteen, the said Aaron Ogden, pursuant to, and under, and by virtue of, the said acts of the legislature of the state of New York, to wit, at Newark aforesaid, caused and procured to be sued and prosecuted out of the said Court of Chancery of the state of New York, a' certain writ of injunction under the seal of the said court, and bearing date on the said twentj'-fourth day of Octo- ber, in the year eighteen hundred and eighteen, directed to the said Thomas Gibbons and his confederates, captains, pilots, engineers, mariners, servants, counsellors, attorneys, solicitors, and agents, and each and every of them, by which said writ the said Thomas Gibbons and his confederates, captains, pilots, en- gineers, mariners, servants, counsellors, attorneys, solicitors, and agents, and each and every of them, under the penalty of ten 288 NEW JERSEY SUPREME COURT. Gibbons v. Ogden. thousand dollars, to bo levied on their and every of their lands, goods, and chattels, were enjoined and commanded absolutely to desist and refrain from using, employing, and navigating the two steam-boats in the bill of the said Aaron Ogden particularly mentioned, the one named the Stoudinger, but usually called the Mouse, and the other named the Bcllona, or either of them, or any other steam-boat purchased or built by the said Thomas Gibbons, on the waters of the state of New York, lying between Elizabeth Town, in the state of New Jersey, and any place within the township of Elizabeth Town aforesaid and the city of New York, until the said Thomas Gibbons should have fully answered the bill of the said Aaron Ogden, and until the further order of the said Court of Chancery to the pontrary. And the said Thomas further saith, that afterwards, to wit, on the sixth day of October, in the year eighteen hundred and nineteen, at the said Court of Chancery, holden for the said state of New York, at the city of Albany, to wit, at Newark aforesaid, a cer- tain other rule and order by the said court in the said suit was made, whereby it was then and there; further ordered, that the said injunction, which had theretofore issued in said cause, should be confined in its operation to the whole of the waters in the bay of New York, on the passage or route between the city of New York and Elizabeth Town Point, or Elizabeth Town, or any part thereof, and that it should be understood not to apply to the waters of the Sound that lie between Staten Island and the state of New Jersey, so long as the boat or boats of the said Thomas Gibbons, the defendant, should not enter the bay of New York. And the said Thomas further saith, that afterwards, and on the second day of April, in the year eighteen hundred and twenty, and from thence continually, until the time of commencing this suit, and during all the intervening time between the said second day of April, in the year eighteen hundred and twenty, and the said time of commencing this suit, to wit, at Newark aforesaid, the said Aaron Ogden, under and by virtue of the said orders and the said writ of injunction, sued out and prosecuted by virtue of the said acts of the legislature of the state of New York, in the said suit in the Court of Chancery of the state of Now York, wherein he, the said Aaron Ogden, was complainant, caused the said Thomas Gibbons to be restrained and enjoined from navi- gating, with his said steam-boat, the Bellona, moved with steam NOVEMBER TERM, 1822. 289 Gibbons v. Ogden. and fire as aforesaid, the waters of the bay of New York, on the passage or route between the city of New York and Elizabeth Town Point, or Elizabeth Town, or any part thereof, which said waters lie between the ancient shores of the state of New York and the state of New Jersey, contrary to the form of the act of the legislature of the state of New Jersey, in such case made and provided, and thereby he, the said Aaron Ogden, hindered and prevented the said Thomas Gibbons from navigating, with his said steam-boat, the Bellona, the said waters in the bay of New York, on the passage or route between the city of New York and Elizabeth Town Point, or Elizabeth Town, or any part thereof, which said waters lie between the ancient shores of the state of New Jersey and the state of New York, during all the time aforesaid. And the said Thomas further saith, that before the said second day of April, in the year eighteen hundred and twenty, to ivit, on the twentieth day of October, in the year eighteen hundred and eighteen, at Newark aforesaid, he, the said Thomas, at great expense, procured agents, labourers, mari- ners, and servants to navigate and run his said steam-boat, the Bellona, from and to a place in the township of Elizabeth Town aforesaid, in the state of New Jersey, called Halsted's Point to and from the port of the city of New York, in the state of New York, through and over the waters on the bay of New York, on the passage or route between the city of New York and Eliza- beth Town aforesaid, lying between the ancient shores of the state of New Jersey and the state of New York, as aforesaid, in running and navigating to and from the said ports or places respectively, for the carrying and transportation of freight and passengers, and then and there had fitted out and equipped his said steam-boat with all necessary engines, tackle, apparel, and furniture, for pl}*ing and running between, and to, and from, the said ports or places respectively, and through and over the waters on the bay of New York, and on the passage or route aforesaid,- and lying between the ancient shores of the state of New Jer- sey and the state of New York, as aforesaid, and during all the time aforesaid, between the said second day of April, in the year eighteen hundred and twenty, and the said time of commencing this suit, he, the said Thomas, kept and retained the said agents, labourers, mariners, and servants for the purpose aforesaid, and kept and continued his said steam-boat, fitted out and equipped VOL. I. T 290 NEW JERSEY SUPREME COURT. Gibbons v. Ogden. as aforesaid, and for the purpose aforesaid, to wit, at Newark aforesaid, and by means of the restraining and enjoining afore- said, by the said Aaron Ogden, during the time aforesaid, of the said Thomas from navigating, with his said steam-boat, the waters above mentioned, he, the said Thomas, during all that time, lost and was deprived of the use of his said steam-boat, and thereby the said steam-boat became greatly spoiled and lessened in value, and the said Thomas was put and subjected to great damages, expenses, and charges in paying off the said agents, labourers, mariners, and servants, for their hire and wages which accrued during all the time aforesaid, between the said second day of April, in the year eighteen hundred and twenty, and the said time of commencing this suit, and in repairing the said steam- boat, her engine, tackle, apparel, and furniture, during the time aforesaid, amounting, in the whole, to a large sum of money, to wit, the sum of five thousand dollars, to wit, at Newark aforesaid. The second count in the declaration was precisely the same as the first, only it averred the order of the Court of Chancery for an injunction, issued " under colour of divers acts of the legis- lature of New York," instead of by "virtue of several acts of the legislature of New York." To this declaration, the defendant demurred specialty, and assigned for cause a variety of reasons, which are fully stated in the argument of the opening counsel. Ogden, in support of demurrer, said 1". Cause of demurrer. This action is founded on a recent statute, and it is not averred in the declaration, that the cause of action arose since its passage. In a recent statute, there must bo an averment, that the cause of action arose since its passage. 1 Saund. 309, a. note 5. This is al- ways necessary when time is material and traversable, as it is here. II. The cause of action, if any, is local, and not transitory, and the venue ought to have been laid in the county of Bergen, where it arose, and so, not in the county of Essex; or if it happened out of the state, with such an averment, with a videlicet, &c., of a county in this state. The restraints in the declaration are laid to be in the bay of New York, between the ancient shores of the two states, and so the court are bound to say, that they were imposed, partly in the county of Bergen, and partly in the state .of .New York. NOVEMBER TERM, 1822. 291 Gibbons v. Ogden. 1. Where the place is material or traversable, the action is local, and the venue must be laid accordingly. 1 Chit. 384. Now, in this case, the place is absolutely material, for if the restraint had been in any county on the Delaware, it could not have been obnoxious to this law ; the restraint must have been between the ancient shores of New York and New Jersey. Comyngs Dig. Action N. 4, 5. 2. Again if the cause of action could have arisen in one particular county only, it is local, and the venue must be laid there. 1 Chit. 270, 271, No. 51. Now this cause of action must have arisen in the county of Bergen, which alone comprehends waters lying between the ancient shores of the two states, within the bay of New York. Bloom. N. J. Laws, 177. 3. If the cause of action happened abroad, the description must be set out truly, and then the venue must be given for the sake of the trial, with a videlicet, 1 Chit. 270. No. 50, Ib. 281. 4. Local matters, arising out of the realm, ought not, gener- ally, to be tried any where but where they arise, although it be otherwise in matters ex contracto, and sometimes ex delicto. 1 Chit. 269, No. 48, 4 Term. Eep. 503. 5. If a local description, or venue, be omitted, where neces- sary, it is matter of demui*rer. 1 Saund. 74. Cowp. 170. 1 Chit. 285. III. Cause of demurrer. Declaration under the same venue, charges, as trespasses, acts done between the ancient shores of the two states, without any special averment of any such acts, as done within the territory and jurisdiction of New York, or within the territory and jurisdiction of New Jersey, whereby defendant is prevented from making a proper defence by justify- ing, in the one case, and pleading not guilty in the other case. The whole question, in regard to the third cause of demurrer, arises under this fourth venue, in the first count, and the fifth venue, in the second count, which are precisely similar. From the charges comprised with these two venues, alone, is it, that there is &ny restraint laid in this declaration, and, from a recurrence to them, the gravamen appears to be, that plaintiff is restrained from navigating the bay of New York, or any part thereof (without any averment of any restraint in either state) and within same venue. This court is bound to take notice, that the waters which lie 292 NEW JERSEY SUPREME COURT. Gibbons v. Ogden. in the bay of New York, on the westerly side of the midway line, are within the territory and jurisdiction of this state. Bloom. N.J, L. 177. And that the waters on the easterly sido of that line, on the route or passage aforesaid, are in the territory and jurisdic- tion of New York; and, consequently, that there is contained in the said venue, two distinct traversable facts, one, as to a restraint in the territory and jurisdiction of New York, and the other, as to a restraint within the territory and jurisdiction of New Jersey, which naturally require distinct defences, and are wholly dif- ferent as to their consequences, that is to say, as to the restraint in New Jersey, this defendant must necessarily plead not guilty, but as to the restraint in New York, defendant may justify under the decree of the court, or plead specially, that the cause of action was local, and arose out of the jurisdiction of the court, or in many other ways, and so keep the different questions, as to each territory, entirely distinct; but plaintiff has herein, for his own purposes, departed from a form of pleading, to the bene- fit of which this defendant was entitled ; for ho is not bound to plead matter which plaintiff ought to shew. There should be a distinct venue, distinctly laid, for every material and traversable fact. 1 Chit. 281, No. 37. IV. Cause of demurrer. For that the plaintiff has not shewn sufficient matter in his declaration to entitle him, under the statute of New Jersey, to bring the present suit. The statute requires, that the writ of injunction, or order, of the Court of Chancery of New York, by which the plaintiff was restrained, should be in virtue of some act of the legislature of that state; (Rev. Laws 689, sec. 3) that such restraint should be co-extensive with the waters between the two states; and that this defendant should have been plaintiff in such writ or order. 1. As to the statutes of New York. 1. The act of 9th April, 1811, of New York, provides, that in case of an action for for- feiture, the court should, by writ of injunction, retain the pro- perty within the jurisdiction of the court, pendente lite. The above statute is referred to in the declaration, but there is none other which makes any provision whatever for any injunction. 2. The other statutes merely grant the exclusive right over all the waters within the territory of New York, and add the statu- tory sanction of forfeiture, as in the Jersey law to John Fitch, in 1786, but does not aver, that such acts claim such territory to NOVEMBER TEEM, 1822. 293 Gibbons v. Ogden. be co-extensive with the waters between the ancient shores, &c., and no actual restraint is averred on the west side. The injunction, therefore, was neither prayed for, nor granted, in virtue of any delegated authority, but under the general power of a Court of Chancery to protect a right, precisely as patent rights are protected by injunctions. II. Let us suppose, for a moment, that this is a statutory in- junction, 3~et it does not satisfy our act. In order to do that, the statute of New York should authorize an injunction co-exten- sive with the waters between the ancient shores, whereas it does not pretend to extend beyond the territory of that state. 1. The order for the injunction of October, 1818, although laid' to be at the instance of this defendant, cannot satisfy our law, because it is confined to the territory of New York, and does not extend over the intermediate waters, neither can it be extended by any statute before the court, or in existence. 2. The order of October, 1819, cannot justify our laws, because not authorized, in any possible way, by the statutes which have been relied upon ; besides, it is not laid that this last order was made at the instance of this defendant, or that he was plaintiff therein. It extends over the whole bay of New York, and was made, on a motion to dissolve the injunction, on behalf of Mr. Gibbons, who, in his answer, had set forth these waters, as being in the state of New York. V. Cause of demurrer. For that the plaintiff has impleaded this defendant, on account of a transaction in the state of New York, done under the lex loci of that state, and in pursuance and execution of a decree of the Court of Chancery there, in a suit between the parties in the present action. [See the case of Livingston & Gibbons, for the argument on this point. Ante 236.] VI. Cause of demurrer. For that the ground of action is certain statutes, records, and judicial proceedings in the state of New York, and that they are not set forth with sufficient certainty and precision, so as to enable a defendant to plead thereto in a proper manner, and as by law he is entitled. In order to comply with the provisions of the statute of New Jersey, the plaintiff must shew a decree of the Court of Chan- cery of New York ; an injunction under that decree; and that such injunction was in virtue of, or under colour of, some act of 294 NEW JERSEY SUPREME COURT. Gibbons v. Ogden. the legislature of that state. All these are matters of record, and, being the foundation of the suit, the whole should be set forth with all that certainty which is requisite in pleading records. 1. As to these judicial proceedings: first, there is no averment of place; second, no specification of time; third, no specification of the parties;. fourth, no specification of the person before whom proceedings were had, and so, also, no specification of the judg- ment which was pronounced. And in regard to the statutes, which are also matters of record, there is no averment of date, none of place, nor any specification of contents; so that this court cannot perceive, from this declara- tion, whether this injunction or restraint was by any order of the Court of Chancery of New York; whether it was in virtue I have not been able to find any express adjudication upon thi.i subject, but such a doctrine would be highly unreasonable, and we think ourselves warranted to say, it is wholly without foundation, and that she may legally retain possession until her dower be assigned her. Three things, only, are essential to this estate marriage, seizin, and death of the husband : on the happening of the last, the title is complete. By the law anterior to William the conqueror, a widow was entitled to continue in the principal messuage of her husband for the term of one year after his death, and during this period an assignment was to be made to her of her dower. This privilege, except that this time was limited to forty days, called the widow's quarantine, is expressly recognized and protected by Magna Charta c. 1. But the heir is still bound to assign the dower within this period. The object of the law is clear and beneficient. The woman depends upon the husband during his life, and after his death the law not only assigns her a portion of his estate, but requires that it should be regularly placed under her control within the time allowed her to occupy the mansion-house of her husband. The language of the law is imperative, and enjoins upon the heir, or whoever may stand in his place, to perform his duty. It APRIL TERM, 1797. 3C9 Den v. Dodd. is highly proper that she should continue in the possession of the principal mansion until her portion is settled. Dower is one of those rights which the law always favours, and we are not dis- posed to restrict her in the exercise of the means necessary to attain it. The doctrine, that she may retain possession until assignment, though she cannot enter before, is by no means a novel one. In Goodtitle v. Newman, 3 Wils. 516, it is clearly recognized. Gould J. (p. 519) puts this question to the counsel who was arguing the cause : " If dower be not assigned to her within forty days, may she not continue until it be assigned to her? I think the court would not turn her out until dower was assigned to her." The counsel replied, "It must be admitted that the heir has no right to turn her out before dower be assigned to her." In the following page, the same judge speaks of her " holding the premises by way of compulsion to have- her dower assigned to her." Nares J. (p. 521) seems to recognize the doctrine, though he denies its application. Under the authority of this case in Wilson, and considering the extreme reasonableness of the doctrine, we are warranted in saying, that although the widow, when out of possession, can- not legally enter until her dower is assigned to her, yet, when she came upon the property during the lifetime of the husband, and remained there subsequent to his death, the heir, or one claiming under him, cannot maintain an ejectment against her, and oust her, without assigning to her that proportion of tha estate to which she is legally entitled, and that is the point to which the present defence is limited. On the first part of this doctrine, we are bound by repeated decisions; on the latter, we are supported by the authority referred to, and by the reaaoa, and equity of the principle. Judgment for the defendant.* CITED IN Woodruff v. Brown, 2 Harr. 246. Smallvoood v. Bilderback, 1 Harr. 506; *In Jackson ex dem. Clark v. O'Donagley, 7 John. 247, a contrary doctrine was held by the court, and it was adjudged, that after the quarantine of forty days have elapsed, the heir, or any person deriving title from the husband^ may expel the widow and put her to her suit to recover her dowor. VOL. L T 370 NEW JERSEY SUPREME COURT. ' Budd v. Crea. BUDD against CREA. IN ERROR. Where the judges refuse to allow all the evidence that haa been given in a cause to be inserted in a bill of exceptions, it cannot be taken advantage of by writ of error. Query. Whether by certiorari or mandamus f Crea, the defendant in error, brought an action against Budd in tbo court below, for breach of a promise of marriage. In mitigation of damages, and to shew the ground upon which ho had failed to comply with the engagement on bis part, Budd offered to prove, that, after the contract was made, Crea had been guilty of the most lewd and improper conduct, in offering to go to bed with one Cook, undressing herself beibre him, and other wanton and indecent behaviour. The evidence being objected to by the counsel for the plaintiff, was overruled by the court: to their opinion exceptions were taken, and the cause removed by writ of error. s Elisha Boudinot and A. Ogden, for the plaintiff in error, relied npon two grounds 1. That the evidence was improperly over- ruled. 2. That the court below had refused to insert all the evidence in the bill of exceptions. 1. The evidence that was offered was highly proper in an action of this description, where the amount of damages is to be estimated according to tbo injury that has been inflicted. It is impossible to contend, that where a woman so grossly outrages the laws of decorum, as the defendant below was prepared to prove in the present instance, she ought to be allowed to come into court to recover the same amount of damages, as if her conduct had been regulated by rules of propriety. Nor is a man, who upon discovering the woman to whom he has prom- ised marriage, to be a lewd and wanton character, dissolves the engagement, equally culpable in the eye of morality or of reason with him, who, from mere caprice or volatility, or from worse motives, aims a blow at the happiness of an innocent and stain- less victim, aggravating the actual wrong by the grossest insult. The one is exonerated from all censure in the eye of the world, the other justly incurs the disapprobation and contempt of his , neighbours. APEIL TERM, 1797. 371 Budd v. Crea. If, then, a difference of so important a kind may exist, and this difference is so materially to affect the measure of damages, it becomes a part of the inquiry to ascertain under what circum- stances, and from what causes the contract was dissolved? and what was the character of the woman who comes forward to com- plain of an injury to her rights, and to obtain compensation for her wounded feelings? The character of the plaintiff is directly in issue. In Roberts v. Malston, Bull, N. P. 271,* the doctrine is laid down, that in an action for criminal conversation, the defend- ant may give in evidence particular facts of the wife's adultery with other persons, or that she had a bastard before her marriage ; because, in an action of this kind, her character is directly in issue. The same case is reported, and the same doctrine con- firmed, in 1 Morgan's Essays 36. The principle is fairly applicable to this species of action. 2. The court refused to permit the whole evidence to be stated in the bill of exceptions. The entire evidence of a case is so con- nected, and that which is offered depends so much upon what precedes it, that it is almost impossible to determine whether the testimony offered was, or was not, properly overruled. In many casts facts may be proved, by way of rebutter, which of them- selves, and in the first instance, would be inadmissible. The court is presented with an imperfect and garbled state of the case, and the means of judging correctly are not afforded them. Ab. Ogden, contra. Without entering into a particular exam- ination of the different arguments which have been, and may be employed in a case of this nature, similar to those which have been urged, it may be proper to remark, that all the cases cited, furnish no ground upon which the court can decide, except by analogy. There is little similarity between an action for criminal conversation and an action for the breach of a marriage contract, and arguments drawn from the practice of courts in one, furnish little light in deciding upon the other. With regard, however, to this particular case, if any part of the evidence offered was inadmissible, even upon the extension of the principle that has been adopted in cases of criminal con- versation, the whole was properly rejected. Testimony was offered to prove general wanton and indecent behaviour, and this *See, also, Ekam v. Faweet, 2 Esp. Co.. 562. Peake's Ev. 7. Selw. N. P. 18. 372 NEW JERSEY SUPREME COURT. Badd v. Crea. part of the evidence was so connected with .the other that it would have been impossible for the court to have undertaken to divide them. At any rate, the offer made was to introduce testi- mony, some of which might, upon the principles contended for, have been proper; other parts of it, however, going to prove general character, are excluded by the authorities which they have themselves cited, and if the court, in overruling the whole, prevented the introduction of that which was legal, it must be attributed to themselves, who connected the whole together. 2. The refusal of the court to permit all the evidence in a cause to be introduced into a bill of exceptions, is now, for tho first time, brought forward as a ground for reversing a judgment on a writ of error. It was unquestionably an act of adjudication, but it is not less clear that a decision upon a collateral question of this kind, is not such a one as would authorize a writ of error: if it would not serve as a foundation for a writ of error, it is because the mistake, if any there be, is insufficient, or becauuo there is another and an adequate remedy for the party who con- siders himself as aggrieved. It is not a final judgment, ar/d therefore no writ of error will lie ; tho consequence is irresisti- ble, that it cannot, when error is brought upon another point, serve as a ground to reverse the judgment. The question, whether tho inferior court did right or wrong is perfectly imma- terial at this time? the proper remedy is by certiorari. KINSET C. J. Perhaps by mandamus. A. Ogden, in reply. In all assumpsits. or undertakings the law requires a consideration : and the party, on being sued upon his contract, is at liberty to go into the consideration upon which it stands. In a promise of marriage, tho undertaking, which the law and which common sense require on the part of the woman, is, that she should be chaste and faithful, and demean herself with propriety subsequent to the engagement. If there is any failure in this respect, she has violated her duty, she has destroyed tho consideration upon which the contract was founded, and the other party would sacrifice his prospects of happiness, and put, at least, in jeopardy his character in society, by uniting himself in mar- riage with a woman whose principles he had discovered to bo cor- rupt, and whoso behaviour he had ascertained to be infamous. APKIL TEEM, 1797. 373 % Budd v. Crea. As to part of the testimony being irrelevant to the issue, or legally objectionable, the court ought to have overruled only that which was inadmissible and received the rest. The error of which we complain is, that we offered testimony which we had a right to lay before the jury, and the court refused to admit it. It is no answer to this to say that we offered other evidence which was properly rejected. KINSEY C. J. delivered the opinion of the court. Two objec- tions have been urged why this judgment should be reversed. 1. That the court below refused to admit the defendant to prove, that the plaintiff had offered to go to bed with another man ; had undressed herself before him, and been guilty of lewd and inde- cent behaviour; and 2. That they refused to state upon the bill of exceptions all the testimony that had been given in the case. With regard to the last exception, it has long been settled in this court, that every part of the evidence ought to be stated ; and there can be no question but that it should always be done, for it may frequently be impossible for a court to determine upon the pertinency or legality of testimony, to know whether it was improperly admitted or erroneously overruled, unless they have a complete view of all that was before done in the case. But this error, however injurious to the party, however palpa- ble in the law, is not a ground of exception in this way, and it must be dismissed from our consideration. But with respect to the first exception, though I at first doubted whether the character of the plaintiff could be considered as fairly involved in the issue, yet more mature reflection has satis- fied me that no such doubt ought to exist, and that the evidence ought to have been admitted, at least, in mitigation of damages. A promise of marriage is a valid and an obligatory contract. But if a man, ignorant of the real character of a woman, enters into an engagement of this nature, and afterwards discovers her to be lewd and unchaste, it is a sufficient justification for him to refuse a compliance with it. See 3 Esp. N. P. Ca. 236, Foulket v. Selway. The case is similar to that in which a man sells a horse possessed of some latent defect, known only to the seller, for the full value of a sound one; it is a fraud which vitiates the whole contract. All promises of this kind are founded upon a presumption of 374 NEW JERSEY SUPREME COURT. State v. Van Waggoner. chastity on the part of the woman. This is the consideration of the contract, and where that consideration is discovered to have failed, she has herself been guilty of the first breach, and I should be strongly inclined to think the contract dissolved. We are not, however, called upon in this case to carry the principle to this extent: but we consider character to be so far in issue, that proof of lewd behaviour goes to the action, at any rate in miti- gation of damages, for a strumpet ought not to recover so much compensation for a violation of such a promise, as an innocent and modest woman. (Johnson v. Caulkins, 1 John. Ca. 116.)* THE STATE against VAN WAGGONER. Indians may be slaves under the laws of New Jersey ; what shall be consid- ered as sufficient proof of slavery. This was a habeas corpus, which had issued to bring up the body of Rose, an Indian woman, claimed by the defendant as a slave. Brown, whose affidavit was read, swore that he know the mother of Rose, who was an Indian woman, and lived with one Vangeson. Vangeson, never within his knowledge, claimed her as a slave, but called her a North Carolina squaw. Another wit- ness testified to facts tending to prove the mother an Indian. On the part of the defendant, it was proved that the mother was purchased as a slave, and had continued in that capacity for fifty-five years; that both mother and daughter were considered as slaves, and stated by the person under whom the defendant claimed to be such. Elisha Boudinot, for the prosecution. However variant the testimony of the witnesses may.be upon other points, they all agree that the mother of the prisoner was an Indian. This fact, which is not denied, furnishes at least prima facie evidence of her being free. The slavery of the unfortunate wretches who have been transported from Africa, however discordant it may be with the fundamental principles of our religion and our policy, has been so long recognized that greater evils would ensue * Though particular instances of lewdness may be given in evidence, yet general bad character between the promise and the breach, cannot be given in evidence in mitigation of damages. 3 Mass. 139. AP1UL TERM, 1797. 375 State v. Van Waggoner. from giving them liberty, than from retaining them in their state of servitude. But no views of policy authorize the slavery of the aborigines of this country. It is impossible to render them slaves under our laws, and the proof of being an Indian is equiv- alent to proof of freedom. At any rate, the court will not permit persons of this descrip- tion to be detained as slaves, without the most unequivocal proof that this is their actual state. When a negro, detained as a slave, claims his freedom, he is bound to prove the fact that he is free; the presumption of the law is the other way. In the case, how- ever, of an Indian, he must always be presumed free, and strong evidence ought to be required to overturn this presumption. The question then is, whether the testimony in this case is suffi- cient to authorize the court to say, that the prisoner is legally a slave. M ' Wliorter and R. Stockton, contra. The first principle upon which this application is made, appears to be founded in error. The argument is, that proof of being an Indian is equiva- lent to proof of freedom ; but Indians are recognized as slaves, by various acts of the legislature of this state, and fn Pennsylva- nia, the law is precisely the same. They are placed upon the same footing with Africans, and, when being detained as slaves, they prefer a claim for their freedom, they are bound to prove a, right to be libei-ated. In the "act for regulating of slaves," passed March 11, 1713-14, (Allinson 18) they are coupled with negroes : every section of that act uses the words " negro, In- dian, or mulatto slave." In the act of May 10, 1768, (Ib. 307) regulating the trial of slaves for murder and other crimes, the same language is used. And in the "act laying a duty on the purchasers of slaves imported into this colony," passed Novem- ber 16, 1769, (Ib. 315) no discrimination is made between ne- groes and Indians. The slavery of Indians therefore, by our laws, stands precisely upon the same footing, and is to be governed by the same rules as that of Africans. From the case of Pirate v. Dalby, (1 Dall. 167) it appears that our law is similar to that of Pennsylvania, in this respect. It will be difficult then, to draw the line, and to prescribe a certain degree of proof in one case, and a greater degree of it in another, as requisite to establish the same facts. It would be introducing a new law, to say that less 376 NEW JEESEY SUPREME COUET. State v. Van Waggoner. testimony shall bo required to establish the slavery of an Indian, than of a negro. But these considerations are not absolutely essential in this case, and, even admitting the doctrine that has been contended for, it is conceived that the proof of the slavery of the mother of Eoso, and of Eose hersdf, has been as precise as any that could be given in any case. The loose evidence that is opposed to it, would scarcely warrant the court in giving freedom to a person who, with her mother, has been held and considered as a slave lor so great a length of time. KINSEY C. J. delivered the opinion of the court. The habeas corpus, in this case seems to have been sued out under the supposition that an Indian could not be a slave under our laws. But this idea is contradicted by various acts of assembly, gome of which have been cited on the argument, and indeed it can- not be urged with any shew of reason. They have been so long re- cognized as slaves in our law, that it would bo as great a violation of the rights of property to establish a contrary doctrine at the present day, as it would in the case of Africans: and as useless to investigate the manner in which they originally lost their freedom. With regard to the proof in this case, that which has been ad- duced on the part of the state appears to have been almost ex- clusively founded upon the supposition which I have already shewn to be erroneous. The defendant has proved, that the mother of Eoso was purchased as a slave many years ago ; that for upwards of fifty years the mother and daughter have beeu held as slaves, and no claim for freedom was ever thought of before the year 1796. The slender circumstances and vague expressions on the other side are insufficient to overturn this testimony. We therefore think that the slavery of Eose has been sufficiently proved, and that she must be remanded to the custody of her master. NOTE. The question as to the slavery of Indians, has on several occasions come before the courts of Virginia, and the doctrines which have been held there are liberal, and honour- able to the respectable judges by whom they have been delivered. In Jenkins v. Tom, I Wash. 123; Coleman v. Dick, 76. 233; Hudgins v. Wright,-! Hen. and Munf. 123; Pallas v. Hill. 2 APEIL TEEM, 1797. 377 Burnet v. Bryan. Hen. and Munf. 149, it is laid down, that when an Indian is claimed as a slave, the onus probandi is thrown upon the claim- ant. The slavery of Indians was, in that state, founded upon an express act of assembly, in the year 1679, which declared Indian prisoners, taken in war, to be slaves. This act was repealed in 1691, and it is now held that no native American Indian brought into Virginia since 1691, could under any circumstances be law- fully made a slave. Executors of BURNET against administrators of BRYAN. IN ERROR. When there is open running account for some years, although some of the items may be of more than six years' standing, the claim is not barred by the statute of limitations. Where A. has a demand against B. which is not barred by the statute, ar B. dies intestate, the statute will not run until letters of administration ar taken out; though there may be an executor de son tort. The plaintiffs in error had commenced this action in the court below. The suit was brought to recover a book debt, and by the account presented and proved, it appeared that the item:* charged were for medicines and attendance as a physician, some of which, however, at the time of the death of the intestate, were of more than six years' standing. During every year some items were charged, excepting one, and nearly all of them wcro within six years preceding Bryan's death. No letters of admin- istration were taken out from the year 1777, when the intestate died, until the year 1794, within one year after which the present action was commenced. In addition to the foregoing circum- stances, it further appeared from the bill of exceptions, that soon alter the death of Daniel Bryan, the intestate, one of his sons had called upon the different creditors, in order to ascertain their respective demands, and had actually paid the accounts of two of them. He had called upon Burnet, for his account, who told him that he would not distress the family by an im- mediate demand but would wait. The defendants pleaded the statute of limitations, and the court being of opinion that the demand was barred by the stat- ute, a bill of exceptions was taken to their opinion, and sealed 378 NEW JERSEY SUPREME COURT. Burnet v Bryan. by the court. Otherquestions occurred in the case, which were in- cluded in another bill of exceptions, but as they were not consid- ered in the opinion of the court, it is unnecessary to state them. M ' Whorter, for the plaintiffs in error. The question is, whether under all the circumstances of this case, the claim of the plain- tiffs is barred by the statute of limitations? It appears that the account between the testator and the intestate, was an open and running account, some of the items of which were beyond the six years, but as others were within that period, and the account never was deserted, the testator at the time of the death of Bryan, might have sued for, and recovered the entire debt. Subsequent to this period, there was no person against whom an action could be brought. No letters of administration were taken out, and no laches can be attributed to the plaintiffs or their testator. In Joliffe v. Pitt, 2 Vern' 694, it was argued, that while there was no executor against w aom the action could be brought, the statute did not run, and the lord chancellor seems to have been of this opinion. In 1 Eq, Ca. Abr, 305, this case is considered as warranting this general doctrine. 4 Bac. Abr, 480, the same case is cited as establishing the same principle. So in Gary et ux. v. Stephenson, 2 Salk. 421, 4 Mod. 372, it was held that the title of the plaintiffs commenced by taking out letters of administration, and as the action was instituted within six years thereafter, the statute did not operate as a bar. Ab. Ogden, contra. It appears that some of the items in this account are of twenty-six years' standing, and the whole of them at least twenty years old: in such a case it is impossible for the defendants to come prepared to disprove thorn, and inde- pendent of the statute of limitations, the presumption is, that the account has been long since settled. Even in the case of a bond, the law will presume it to have been paid after a delay of twenty years. 1 Bur. 434. 4 Bur. 1963. 1 Term Rep. 271. 2 Atk. 144. 6 Mod. 23. It is an insufficient answer to this to say, that as letters of ad- ministration had not been taken out, there was no person against whom an action could be sustained. It appears that one of the sons of the intestate had actually called upon and settled with some of the creditors, and had applied to the defendant's testa- tor for his account. Here there was an opportunity presented APEIL TERM, 1797. 379 Burnet v. Bryan to have it adjusted and paid, and from this time, at least, the statute should be considered as running. But^the foundation of this argument fails. The son of the intestate had made himself executor de son tort, by thus inter- meddling with his father's affairs, and therefore rendered himself liable to an action by any creditor. Padget v. Priest, 2 Term Hep. 97. Edwards v. Harben, Ib. 287. The acts performed by Huch executor, would have been valid and binding. Parker v. Kelt, 1 Lord Ray. 66. A. Ogden, in reply. It is not intended to dispute the law, that jwi executor de son tort renders himself liable by an improper und illegal interference in the concerns and business of the deceased ; but it is presumed that every creditor is not considered as relinquishing his claims if he does not think proper to sue him. An option is indeed given him, but the doctrine, that he is im- peratively bound to pursue this remedy, is novel. In this case, however, there is no proof that the creditor knew that the eon had rendered himself liable. He cannot be presumed cognizant of what was done with other creditors; he himself was merely galled upon for his account, and this certainly would furnish no ground of action. KINSEY C. J. delivered the opinion of the court. The plaintiffs, as executors of William Burnet, have brought this action to recover the amount of charges in the books of their testator, against the defendants intestate, for medicine and attendance as a physi- cian. The defendants have pleaded three pleas, one of which, the statutes of limitations, will alone come under consideration. On an inspection of the account, it appears that it consists of a number of items, charged in a regular manner, from the year 1760 to the year 1770, the period of the intestate's death. Some items appear in every year of this period, excepting the year 1765, and some of them are for medicines and attendance during the last illness of the intestate. It further appears, that one of Bryan's sons, shortly after the decease of his father, acted as executor, so far, at least, as to call upon several of the creditors, with two of whom he actually settled. He called upon Mr. Burnet, who, in a liberal and hon- ourable manner declared, that he would not distress the family. 380 NEW JEESEY SUPREME COURT. Burnet v. Bryan. No letters of administration were taken out until the year 1794, and within a year afterwards this action was commenced. These appear to be the principal circumstances of the case, and we are to determine, whether the court below were correct in declaring, that under them the claim of the plaintiffs was barred by the statute of limitations. We are of opinion, on the authority of the case cited from 2 Vernon, recognized and confirmed as it has been, that the whole period, from the death of the intestate till the time when the letters of administration were taken out, is fully accounted for. During this interval, the statute of limitations did not run, because there was no person against whom the plaintiffs wore bound to bring their action.* This reduces the cause to a single question,whether Burnet him- self was bound by the statute in 1770, at the time of the death of the intestate? and upon this we are of opinion that he was not, and for the following reasons: The account appears to be open and unsettled, continued from year to year, and never deserted. According to Lord Hardwicke, in Welford v. Liddel, 2 Ves. 400, the exception in the statute, with regard to accounts, was to prevent dividing the account where it was a running account, when perhaps part might have begun long before, and the account never settled. It was determined in Crunch v. Xirkman, Peake's fV. P. 121, that though the statute excludes running accounts between merchants only yet when there is a mutual account of any sort between plaintiff and defendant, an item for which credit has been given within six j-cars, is evidence of a promise to pay the balance, and will take the case out of the statute. This doctrine appears to be sanctioned by Watson, Law of Partnership, 208.f Upon the whole, the defence in this case is an unrighteous one. The testator declined bringing forward his claim from the most liberal and praiseworthy motives; he was fearful of distressing *See the case of Webster v. Webster, 10 Vesey 93, where it was held, that this was an insufficient answer to a plea of the statute, when the testator died in 1786, and probate WHS not taken till 1802, because the defendant had possessed himself of the personal estate, and might have been sued as executor de son tort previous to 1792. {See Catling v. Skoulding, 6 Term Rep 189; Nichols v. Leavenworth, 1 Day, 243; Cogswell v. Doltiver, 2 Mass. Term Rep. 217, where the same doctrine ia laid down. But see Miller v. Colwell, 2 South, 577 ; though one item of the account is within six years, it does not take the whole out of the statute. APEIL TERM, 1797. 381 Austin v. Nelson. the family, and did the circumstances of the case render it neces- sary, we should consider the son as an authorized agent, and his proceedings as an acknowledgment binding on the defendants. Judgment reversed. CITED IN DeXay v. DarraKs ad., 2 Or. 288, 297. See Nix. Dig. 436 \ 15. AUSTIN, executor of NELSON, against NELSON. A statute was passed on the 9th of March, 1797, which declared, that no action should be removed from any of the courts of Common Pleas to the Supreme Court by habeas corpus, after plea pleaded, a plea in bar excepted ; held, that where a habeas corpus was presented on the 10th of March, after the general issue pleaded and the cause removed, aprocedendo should issue. This was an action of trover, which had been commenced in the Common Pleas of Salem county : to which defendant pleaded non cuL A habeas corpus had been offered by the defendant, and allowed by the court on the 10th of March last; and the causes being accordingly removed into this court, a motion was now* made by Leake, for the plaintiff, for a procedendo. JJeake, for the motion. The act of March 9, 1797, (Pamph., Laws 228 *) in the sixth section, explicitly enacts, that " no action, shall be removed from any of the courts of Common Pleas to tho Supreme Court, by a writ of habeas corpus, after a plea, has been filed in such action, a plea in bar excepted." The only ques- tion, then, is, whether this case is embraced within the statute. The law is dated March 9th, the habeas corpus was allowed on the 10th of the same month. Under the English law, a statute is considered as in force from the first day of the session at which it is passed. 6 Bac. Abr. 370. In New Jersey, a partic- ular date is attached to every law, and it is considered as binding from that time. The meaning of the legislature here is perfectly apparent, and the maxim, nulla expositio contra verba fienda est, is the only rule that it is necessary to keep in view. 2 Slack. Com. 379. When an act is conceived in clear and express terms; when tho sense is manifest, and leads to nothing absurd, it is unreasonable to refuse the sense which it naturally presents. It is not per- mitted to interpret what has no need of interpretation. Vattel 216, sec. 263. Lord Mansfield, in Eldridge v. Knott, Cowp. 215, held * Repealed March 16, 1798, Pamph. Laws 407. 382 NEW JERSEY SUPREME COURT. Austin v. Nelson. that the statute of limitations was so positive a bar that it operated conclusively, although both court and jury were satis- fied of the justness of the claim. The term plea in bar, has received a precise and definite meaning in acts of the legislature, and it would be manifestly improper to refer to the books of prac- tice in the courts of England, in order to find a meaning of a term the signification of which is clear and unambiguous. By the fifth section of the practice act of August 30, 1784, the legislature call a plea in bar " a plea that the action is illegal." This is, strictly speaking, a plea in abatement, but it shews the signification which the legislature has attached to the expression. L. H. Stockton and E. Stockton, contra. 1. Acts of assembly do not go into operation in this state until they are publicly pro- mulgated. Here the act was passed on the ninth of March, at Trenton, and the cause was removed on the succeeding day, at Salem. The same principle which has induced our courts here- tofore to contravene the established English law, which renders statutes operative from the commencement of the session of par- liament during which they are passed, requires that they should not be regarded as binding until they have been published. It is equally unjust, equally hostile to the fundamental principles of our government, to compel an individual to conform his conduct to a law of which he could not be cognizant, as to one which was not in existence at the time that he acted. 2. At any rate, it is conceived that this law, if extended by construction to this case, is ex post facto, and therefore uncon- stitutional. The right to remove his cause was a vested right, belonging to every party in a suit, and it could not legally bo taken from him. If such a law is considered as extending only to suits which should bo afterwards commenced, it could not operate unjustly, but would be in every respect unobjectionable. When, however, it operates upon actions already pending, its tendency is to deprive the party of a fixed and vested right, one in the contemplation of the parties originally, and it is therefore retroactive. 3. This case comes, however, within the exception, A plea in bar had actually been filed. It is now said, that the legisla- ture meant a plea in abatement. They have, however, used a term of settled and technical meaning; they have employed an APillL TERM, 1797. 383 Austin v. Nelson. artificial expression, and the presumption is, they knew what meaning it conveyed. The former act, which has been referred to, even if allowed to supply a meaning, can scarcely answer the purpose, the expression is, "a plea in bar that the action is ille- gal." The legislature cannot be understood to mean, that this is the only matter that can be pleaded in bar to an action: they have been mistaken in styling a plea of this description a plea in bar, but they never intended to imply, that every plea in bar went to the legality of the action. Per curiam. In England, we take the law to be settled, that a statute operates from the first day of the session during which it is enacted, (Latless v. Holmes, 4 Term Rep. 660) and we do not know that any other rule has ever been adopted in this state. Even in criminal cases this doctrine has been uniformly adopted in that country, and in a case highly penal, before this court, considerable anxiety was felt, whether we were authorized to adopt another rule. The difficulty, however, was avoided by the verdict of the jury, which rendered its decision unnecessary. In the present case, however, the question does not arise; here the act was passed before the cause was removed, and we think the case embraced by the statute. The doctrine of a statute's taking effect from its promulgation, arose during those ignorant ages when the custom prevailed of reading all the statutes publicly, by the sheriff, but it has long been exploded, and we cannot re-adopt it. Does this case, then, come within the exception? "We think not. If the term plea in bar is to receive the construction given to it in the books of English practice, the effect of the act will be nearly destroyed, and the proviso will be nearly as extensive as the prohibition. The term, however, has received a definite and precise meaning from the legislature; the statutes in which it is used are in pari materia, and we must presume that the same words were intended to convey the same meaning.* Wo are therefore of opinion, that the present cause was improperly removed into this court, and that a precedendo must issue. Precedendo awarded. * See 6 Bac. Abr, 379. Words and phrases, the meaning of which in a statute has been ascertained, are, when used in a subsequent statute, to be understood in the same sense. 384 NEW JERSEY SUPREME COURT. Peppinger v. Low. [MAY TERM, 1797.] PEPPINGER agaimt LOW. In an action for the breach of a promise of marriage, the declarations of the plaintiff, that she had promised to marry the defendant, made long before the sail brought, are good evidence for the plaintiff to shew the mutuality of the contract. This was an action brought to recover damages sustained by the plaintiff, in consequence of a breach of a marriage contract. At the trial before Mr. Justice Smith, at the Somerset Nisi Prius, his honour had admitted the plaintiff's declarations, mad' to third persons long before this action was instituted, stating, that she had engaged to many the defendant, and her willing ness to marry him, in order to prove the mutuality of the con tract. The jury found a verdict for the plaintiff. A motion wa i made for a new trial, on the ground that the judge had admitte i improper evidence to go to the jury. The motion was argued a c November Term, 1796, and the opinion of the court was no>f delivered by KINSEY C. J. The ground upon which this application ia made, is, that illegal testimony was given at the trial. Thiu was an action for the breach of a contract of marriage, and the judge admitted evidence of declarations made by the plaintiff herself to third persons, a long time before suit brought, to prove the mutuality of the engagement. In general it may be observed, that all the rules of evidence depend upon the nature of the case and the facts which are to be proved ; and the principles to bo observed in admitting or re- jecting testimony, must, in some measure, be accommodated to the particular circumstances which are in issue, taking care, how- ever, to adhere, as far as possible, to general rules of law. The case before us seems to be one of that description, in which a strict application of the general rule, that a party's own declara- tions shall never be admitted to support the action, would bo attended with inconvenience and injustice. This action is founded upon a promise of marriage by the defendant, and a subsequent breach of this engagement; and the law requires, what in itself is indeed highly reasonable, that it should be made to appear that the plaintiff was willing to marry the defendant, or, in other MAY TERM, 1797. 385 Peppinger v. Low. words, that there was an actual and mutual contract subsisting between the parties, and not a mere offer on the part of the defendant, which the plaintiff might be at liberty to accept or reject. The obligation must be mutual, or it is not a contract. The declaration, therefore, always states mutual promises, and they must be proved as laid. The promise on the part of the man is, indeed, in an action against him, the gist of it, and it must, in some manner or another, be proved on the trial. But it can sel- dom occur that positive testimony can be adduced to shew an express promise upon his part, and it is still more difficult to make out, by direct evidence, the assent of the woman. The privacy with which these arrangements are almost universally made ; the natural timidity of the sex ; and the general customs and opinions of the world, which seem to restrain the woman from making use of those open and direct avowals of a marriage con- tract, which may sometimes be proved upon the man, render this degree of testimony almost impossible. It is therefore suffi- cient, in an action by a woman for a breach of a contract of this kind, to satisfy the jury that she was willing to have complied with the terms of the contract, and that it was not broken. off by her. In order to establish this, it appears to be admissible, in such a case, to prove, that before the action brought the plaintiff had declared her willingness to marry him, or other expressions of the same import. This would be prima facie evidence that she had assented to his proposals, and, if the promise upon his part had been proved, throws upon him the necessity of shewing that there was a refusal subsequently by her. The case of Hutton v. Mansell, 6 Mod. 172, is in point, and the language of Holt, by whom it was ruled, is applicable, in its full extent, to tho case before the court. Evidence had been given proving an express promise on the part of the man, but none on the woman's side. Per Holt. "If there be an express promise by the man, and that it appear the woman countenanced it, and, by her actions at th time, behaved herself so as if she agreed to the matter, though there be no actual promise, yet that shall be sufficient evidence* of a promise on her side." He also stated, that in a case beforo> Chief Baron Montagu, the same point had been ruled, when be> himself was counsel, and, being dissatisfied with the determina- tion, he had proposed the question to eminent men of thosa. times, who all concurred in opinion with the chief baron. VOL. I. Z 386 NEW JERSEY SUPREME COURT. Fennimore v. Childs. Unquestionably the present case is at least as strong as that which has been referred to. What a woman expressly says can- not, upon principle, be distinguished from those acts which wore held not merely to bo admissible, but "sufficient evidence" of a promise by her. It is surely "countenancing" and "behaving as if she had agreed to the matter," and, in our opinion, is less equivocal evidence of her having assented to the defendant's proffer of marriage. Mere exterior conduct and behaviour may be ambiguous; it may be misunderstood; it may bo insincere on the part of the woman; but declarations and acknowledgments by her, to other persons, that she was engaged, are certain, un- equivocal, and obligatory. That the language comes from her- self, is no stronger an objection than it would be to conduct and behaviour which proceed equally from the same source. Let men be cautious in making no promises, except such as they intend to perform, or for the non-performance of which they shall be able to assign a sufficient reason, and they will be perfectly safe : the other sex, if evidence of this kind is excluded, will not be upon the same, or an equal footing. We are therefore of opinion with the judge who tried the cause, that such evidence was admis- sible, and the rule for a new trial must therefore be discharged.* Rule discharged. CITED IN Coil v. Wallace, 4 Zab. 310. FENNIMORE agaimt CHILDS. OH CEBTIORABI. 'Though referees are not held to the extreme strictness of the rules of evi- dence, the admission of the testimony of one of the parties will vitiate their award. This cause had been referred to arbitrators, and the judgment of the justice entered upon their award. The objections now urged on behalf of the plaintiff in certiorari were 1. That the plaintiff below was admitted to give testimony in his own cause. 2. That the referees decided upon his testimony alone. 3. That two of the arbitrators were of opinion with the defendant be- low, but signed the award under a mistake. 4. That a witness * In this action, evidence of an express promise not required, but may be inferred from circumstances usually accompanying such a relation between the parties. Wightman v. Coatet, 15 Mats. Rep. 1. MAY TERM, 1797. 387 Fennimore v. Childs. was objected to on the ground of interest, but his evidence was admitted without his being put to his voiredire. 5. That illegal testimony was received. Griffith, contra. Whatever errors may have been committed by the referees in this case, or however improperly and illegally they may have conducted themselves, these objections are not inquirable into now, or in this place. Application should always be made to the court under whose authority the arbitrators acted; and in England the court of equity will not grant relief, unless it has been refused by the court of law. Kyd 230, 232, (333, 336.) This is the language of the statute (Ib.~) and it has been uniformly adhered to. It would indeed wear a singular appearance, to permit the justice to enter his judgment upon an award, which had been improperly obtained, and then to bring the cause by certiorari to this court, involving the parties in much useless and unnecessary expense. Acting as he did upon the circumstances of the case as they appeared before him, with no objections urged to the legality of the proceedings of the arbi- trators, the judgment of the justice, was perfectly correct, and ought not to be examined into. Had application been made to him for relief, and had he decided erroneously, the objections would then have gone immediately and directly to the judgment. 2. With regard, however, to the exceptions that have been taken, the case of the present plaintiff is materially defective in one particular. Referees are not tied down by the arbitrary rules of evidence, but it must always appear that they have gone contrary to the real justice of the case, or technical .objections and informalities will be overlooked. It does not appear that any injustice has been done, and therefore no ground is laid for the interposition of the court. 2 Swift's System 7. 3. Whatever may be the foundations of the rule which pre- cludes parties from giving evidence in their own causes, and how- ever salutary and wholesome it may be in the general adminis- tration of justice, still there are cases in which exceptions are admitted. It is not a fatal objection to an award, that the state- ment of the parties themselves was listened to. Kyd 2, 3. Lines v. Miller, 1 Dall. 188. In this case, it has further been sworn, that Fennimore himself assented to, if he did not expressly re- quest, that the other party should be examined. The third objec- 388 NEW JERSEY SUPREME COURT. Ford v. Potte. tion is likewise negatived, by the testimony of the arbitrators themselves, as are also the fourth and fifth. M'llvaine, in reply. KiNSEYC.J. delivered the opinion of the court. Courts of justice have long manifested a strong inclination to support the decisions of arbitrators, who are judges of the parties' own choosing, and have repeatedly declared, that these voluntarily chosen tribunals are not to be held to the same strictness in their proceedings, as has been wisely required in other cases. But, with this evident bias, they never have carried this principle to such an extent, as to permit them to relax the best settled, and most valuable rules of evidence, and admit parties to testify in their own causes. Tech- nical niceties ought not to stand in the way of the administration of justice, but this objection is substantial, and not technical.* It has, however, been made out clearly to our satisfaction, that Fennimore consented to the examination of Childs, and thus waived the exception. If this fact were even dubious, the incli- nation of our minds would bo, to support the award of three honest, disinterested, and intelligent men, as these arbitrators unquestionably are, but wo are satisfied that they have acted properly, and are unanimously for affirming the judgment. Judgment affirmed. FORD against POTTS and others. IIT ERROR. It is not necessary that there should be a trial of a cause, in order to entitle a party to a bill of exceptions ; it may be taken to the opinion of the court, on the sufficiency of objections to an award. The court are not bound to receive reasons filed, or affidavits taken at so late a period, that they could not be answered, and the witnesses could not be cross- examined, unless reasons for the delay are shewn. Under the act of December, one thousand seven hundred and ninety-four, it ought to appear upon the face of the proceedings, that the referees were duly sworn. The act does not make void every award of arbitrators, who were not duly worn ; it may be waived by the parties. It does not extend to cases which had been referred previously to its passing. In November, one thousand seven hundred and ninety-one, cross actions of covenant had been brought by the present par- * In Mulder v. Cravat, 2 Bay. 370, the same objection was urged against an award of arbitrators, bat it was overruled by the court. MAY TEEM, 1797. 389 Ford v. Potts. ties, in the Common Pleas of Sussex county. In August, 1793, both suits were referred to the same arbitrators, whose award, or the award of a majority of whom, returned to the next, or any subsequent term, was to be final between the parties, and judg- ment was agreed to be entered accordingly. From various causes, the arbitrators did not make their report until May term, 1795, which was dated in the month of April, of the same year, and was regularly read, filed, and judgment entered accordingly. At the same term, a motion was obtained by Ford, to shew cause why the award should not be set aside, returnable to the first day of the succeeding term ; all proceedings in the mean time to be stayed. In August, following, this motion was dis- charged by the court, after argument, and bills of exception being tendered to the opinion then delivered, were sealed by the Court of Common Pleas, and the cause removed to this court. The objections taken, and which were the foundations of the bills of exception, to the opinion of the court below, were 1. The court refused to permit the defendant below to read bis reasons for setting aside the award, the principal of which was, that the arbitrators had not been qualified pursuant to the directions of the act of assembly, of December 2d, 1794. The ground upon which the court refused to hear these reasons, was, that they were filed only the day before the motion was to be argued. 2. The court refused, on the same ground, to hear affidavits that had been taken to support the objection to the award. 3. It was objected to the award, that it did not there appear that the arbitrators had been duly qualified, which objection was overruled by the court. Ab. Ogden, for plaintiff in error. There can be no question as to the truth of the facts upon which the exceptions to this award were taken. The act of assembly, of December 2d, 1794, (Paterson 141-2,) in the sixth section, requires in express terms, " that every arbitrator shall, before he proceeds to the business submitted to him, take an oath or affirmation," &c. faithfully, and fairly to hear and examine the cause, and to make a just and true report. Here a positive duty is enjoined, which has been violated ; a security is afforded to the party, of which he has been deprived. The reasons and affidavits were prepared 390 NEW JERSEY SUPRKMK COURT. Ford v. Potto. and ready for the court, at the time which had been appointed, and if the opposite party found themselves unprepared, or taken by surprise, they should have appled for a postponement. No injury could have resulted from such a course, and no delay would have been permitted, had none been necessary. Independent, however, of any difficulties arising from an alleged want of time, it is contended, that sufficient appears on the face of the proceedings themselves, to have authorized tho court to set aside the award. Objections appearing in tho record itself, or in the report, may be taken advantage of at any time. The exception which we thus consider fatal, is, that it no where appears that the referees were sworn. Inferior tribunals are always obliged to shew the regularity of their proceedings, and as the law has imposed upon them, as a pre-requisite to their acting, that they should take a certain form of oath or affirma- tion before their acts can be recognized as valid, it must appear that they have pursued the directions of the law. With regard to the objection which has been intimated, that a bill of exceptions will not lie in a case of this description, it may be observed, that there is no foundation for the principle upon which it rests, that bills of exception can only be taken at a trial. Buller 315. This proceeding is founded upon the statute of Westminster 2, 13 Edw. 1 c. 31, and the language used in the statute is perfectly explicit and unambiguous. "When one that is impleaded before any of the justices," &c. Occasions most generally present them- selves at trials, and accordingly most of the cases referred to are of that nature. They should be encouraged and admitted when- ever an inferior jurisdiction hastrepassed upon the limits assigned to it, or indulged in any illegal and arbitrary proceedings. R. Stockton, on the same side. A. Ogden, contra. The bills of exception constitute no part of the record. The statute of Westminster has never been held to extend to collateral motions for new trials. Bills of exception are spoken of in all the books, as taken only at trials ; (2 Tidd's Prac. 786) and as they servo for the foundations of writs of error, they never lied unless when a writ of error may be brought. If they were to bo taken to every collateral opinion that might be dropped by a judge,- in tho various stages of a MAY TERM, 1797. 391 Ford v. Potts. cause, and in the incidental proceedings of inferior tribunals, questions for litigation would be for ever occurring, and dis- putes would never be terminated. As to the errors complained of: the court had a right to order the argument on, and then every objection was proper. Nothing appeal's to shew that we had any notice of the fact, until the moment of argument. It is objected, that it does not appear the referees were sworn. It is not necessary that it should so appear. The parties appeared before the referees, and thereby acknowledged their authority so far, as to be estopped from questioning their jurisdiction. Andrews v. Linton, 2 Lord Ray. 884. The reasoning of Lord Holt, is peifectly applicable to the present case. The compldint should be made during the term of the irregularity, and after the term, all persons are precluded from saying the person was not sheriif. The objection to the arbitrators, on account of their not being sworn, should have been taken at an earlier period than the second term, and it has been waived by the delay. On another ground, this objection avails nothing against the award in this case. Whenever matter of error is apparent on the record, it may be taken advantage of at any time; but when the error is latent, it must be objected to at the time; it must be challenged, or the exception is waived. Vin. Abr. title Error, 474, pi. 3 ; 530, pi. 22. It is not assignable for error, that he who returned a writ was not sheriif. Further, it appears by the record, that the cause was referred before the passing of the act requiring referees to be sworn, and the words of the act direct them to be sworn before they proceed. Nothing appears to shew that they had not commenced the inves- tigation of the business before the law was made, and, in order to support a judgment and an award, such a presumption is fair. Stockton, in reply. KINSEY C. J. delivered the opinion of the court. (After stat- ing the case.) It is contended, on the part of the plaintiff, that a bill of exceptions would not lie in a case of this kind. This ob- jection we consider as entitled to little weight. The design of the statute was to provide a mode for examining errors which could not properly be inserted in the record, and allows an exception 392 NEW JERSEY SUPREME COURT. Ford v. Potts. wherever a party is impleaded, that is, sued or prosecuted; and I see no reason for restricting it to trials. I recollect a case where a challenge to the array was made, and, being overruled, a bill .of exceptions was taken, and the question carried before the governor and council, by whom it was determined ; and the right to except was never questioned. If the proceedings of the inferior court were illegal, and vio- lated the rights of the party, this court would, in some form or another, come at the error, and see that justice was done. Mease v. Mease, Cowp. 47. After removing this preliminary difficulty, we come to the error complained of. It is contended, that the court below ought not to have rejected the affidavits and reasons, because the witness being present might have been cross-examined, and because, had the opposite party complained of surprise, further time might have been allowed, which was the usual practice of the court. The circumstances of the case which has been re- ferred to as establishing a precedent, and authorizing this prac- tice, are not precisely known; but we think that every court possesses the right of rejecting affidavits, when offered at so late a period as not to allow a full hearing, when they perceive that the receiving them will be productive of delay, and that delay is attempted by the party thus guilty of laches; and when, as in the present case, the time for hearing the argument was fixed by the party who has delayed taking the affidavits at a period sufficiently early to admit of disproving the facts. The delay was altogether unnecessary and unaccounted for, and not to be encouraged. We cannot therefore say, that the justices below were wrong in rejecting this attempt to create delay. But however this may be, if the facts serving as the founda tion for the exceptions to the award are insufficient to vitiate it, the judgment ought to bo affirmed, although the court erred in refusing to hear the affidavits and reasons. There seems some weight in the observation, that if the sixth section of the act of 1794 applied to this case, and the referees should have been sworn before they proceeded to business, this fact ought, in some manner or another, to have been made to appear on the face of the proceedings themselves. The case of a jury is perfectly analogous: a jury is summoned to try facts be- fore the court; the universal practice is to state, on the record, MAY TERM. 1797. 393 Ford v. Potts et al. that they were previously and regularly sworn, and a failure to state this would be error. I cannot distinguish, in principle, be- tween the two cases. If it is not necessary that the fact should appear, the statute may become altogether inoperative. The case from Raymond is inapplicable. This is a special ju- risdiction, created for a particular purpose, and the regularity of the whole proceeding must be shewn. I do not think that the single circumstance of appearing before an arbitrator and de- fending a suit, would estop a party from questioning his autho- rity. Want of jurisdiction may be taken advantage of at any time. The next question to be considered is, whether the act of 1794 applies to the arbitrators in this suit? It is important here to attend with some exactness to dates. The reference was en- tered into in August 1793; the act of assembly requiring arbitra- tors to be qualified, was passed in 1794; the award, dated April, 1795, was filed in May, 1795. This act is almost a transcript of the 9 and 10 Will. III. c. 15. With the exception of the sixth section, the parts which re- late to references, it is chiefly confined to cases where no suit is actually depending, and seems intended to put such disputes on the same footing as if there had been a suit commenced. Where there is a suit depending, a reference depends on the common law ; it is not affected by the statute. Lucas v. Wilson, 2 Bur. 701. The words of the sixth section are more general, and do not seem restricted to any particular references. It directs, that in cases of arbitration, every arbitrator, " before he proceeds, &c. shall take an oath or affirmation," &c. These words, however, according to their usual acceptation, would seem to impose a duty rather on the arbitrator than on the party. If the direction is not complied with, the law subjects him to no penaltj-; it does not invalidate the proceedings, or empower any court to set them aside. The qualification appears to me to be required for the security of the parties. If they knowingly go to a hearing before the arbitrators, and either neglect or omit to avail themselves of the security oifered by the legislature, it would be unjust that they should be permitted to hold up the award as void. It is a principle quilibet potest renunciare jus pro se introducto. Many cases might be imagined, in which it would be in the highest degree unjust to declare the award void. If one of the parties 394 NEW JERSEY SUPREME COURT. Edwards v. Davis. were to suffer the arbitrators to proceed without being sworn, with the intention of availing himself of the defect, I should com- pare it to the case of Gil/man v. Hill, Cotcp. 141, where one knowingly executed a warrant of attorney in custody, with the design of availing himself of the circumstance, the court refused to set it aside. The legislature have not declared, that the omission to take the oath should invalidate the award, and we cannot suppose that this was their meaning. If such was their intention, it might easily have been expressed, but as it is omitted, we can only judge of their intentions by what they have done. We are also of opinion, that the act does not extend to cases which had been referred previously to its passing. The design of the legislature was to provide a rule for future cases. A parol proniido, made before the statute of frauds, to be performed af- terwards, is not within it, though the statute says, no suit shall be brought, after a certain day, on a parol promise, and the suit was brought after that day. 2 L'ev. 227. Judgment affirmed. CITED IK Inslee v. Flagg, 2 Dutch. 368 EDWARDS againtt DAVIS. IN ERROR. Unliquidated damages cannot be set off, although they might he recovered in indeoitatui atsumsit. The circumstances of the case are fully stated in the opinion of the Chief Justice. KINSEY C. J. delivered the opinion of the court. This is the first attempt that I have met with to offset a tort ; and so palpa- bly improper and illegal was the admission of the evidence, that it is scarcely requisite to state the grounds which have induced us to reverse the judgment of the court below. It appears that Edwards brought assumsit on an insimul com- putassent, for goods sold and delivered, &c. The defendant pleaded paj'ment, and, under this plea, offered to set off the value of a horse, which was in the possession of the plaintiff, and had never been returned. The evidence by which this defence was supported, went to shew that the carter in the plaintiff's ser- MAY TERM, 1797. 395 Edwards v. Davis. vice gave the horse in question a stroke with a whip, in conse- quence of which he jumped into a mill-pond and was drowned. It is contended, that this evidence was properly admitted, because the value of the horse might have been recovered in an action of indebitatus assumsit. . It is not alleged or pretended, that there was anything like a sale of the horse. It is therefore, in my opinion, clearly a tort, and not the subject of a set-off. The case of Hambly v. Trott, which has been cited, does not contradict this doctrine. From the language of the court in that case, it may be inferred, that assumsit might be brought against an executor to recover the value of trees which had been tor- tiously cut down by testator: but this is to prevent a failure of justice, and because trespass would not lie. It is no conclusion, however, from this, that damages for an act of this kind could be the subject of a set-off. Nothing can be set-off for which indebitatus assumsit would not lie, but the converse of the rule is not equally true. The act of assembly speaks of persons " in- debted to each other by bonds or the like," &c. The case of Hewlett v. Strickland, Cowp. 57, proves that unliquidated dam- ages cannot be set-off. The judgment of the court below must be reversed. Judgment reversed. CITED IN Cooper v. Crane, 4 Hal. 180. 396 NEW JERSEY SUPBEM3 COUKT. Si.t NEW JERSEY SUPREME COURT. Gratz v. Wilson. In reply. An attempt has been made to render this applica- tion odious, by declamatory remarks, rather than to prove it un- founded in law. So far as respects any personal application to the defendant, it is to be observed, that he is at this time attend- ing his official duties, many hundred miles distant; that this application is altogether unknown to him; that the demand is actually disputed; and that no idea can be entertained that Judge Wilson, means to evade a legal inquiry into the founda- tion of this suit. The idea that when a cause is removed by habeas corpus, tho court will not inquire whether the cause of action warrants the holding to special bail,' so far as it is applied to this case, rests upon a misconstruction of a dictum of Holt. The case of Page v. Price, to which Highmore refers, is reported, (1 Salkeld 98) and the meaning intended to be conveyed is, that tho court will not under such circumstances, look into the merits of tho caso to ascertain whether it was properly bailable or not; but it does not prove that when the motion is founded upon a circumstance, dehors the cause of action; that this fact would not be inquired into. Indeed tho exception which is made in favor of an exec- utor, warrants tho drawing of this distinction. In Lumley v. Quarry, 1 Salk. 101; 7 Mod. 9, S. C. which was a subsequent case, and decided by the same great judge, it was held that the superior court, would examine into the cause of action, even in a case removed by habeas corpus, and that if the action was vexatious, or such as required no bail, as an action against an executor, they would discharge upon common bail. 2. The authorities which have been cited, prove no more than that when the object of the application is to quash the suit altogether, it is necessary to shew, that tho court, the officer of which the defendant claims to be, has jurisdiction of the cause. The privilege claimed is not a total exemption from the opera- tion of the laws, it is not a discharge of the debt, but a judge of another and higher court asks of this, that in the administration of justice within its walls, care be taken not to stop the proceed- ings in other judicial tribunals. For the sake of argument, it is conceded that the Circuit Court of tho United States, could not entertain this suit, and that there can be no objection to tho ju- risdiction of this court; the application is still founded upon tho APRIL TERM, 1798. 423 Gratz v. Wilson. same principles as before. The objection is not to the jurisdic- tion, but to the manner in which it is exercised. 3. The last objection is so closely connected with the former, that by removing one, the other is shewn to be unfounded. If the defendant was to except to the right of this court to adjudicate upon his case, it would be highly proper that he should plead his privilege ; and indeed, it could not be legally taken advantage of in any other way ; but it would be in the highest degree prepos- terous to try the question, whether the defendant should be dis- charged on common bail in any other manner than by motion ? It is the uniform practice to examine questions of this kind on motion, and when privilege is claimed, any other mode would be so encumbered by difficulties and delays as effectually to defeat the salutary provisions of the law by which it was allowed. In this country, where the federal and state courts move in different orbits, and exercise various powers, it is highly incum- bent upon both, to extend these beneficial principles and honorary attentions as far as possible ; and while the interests of individ- uals are sedulously guarded, to allow to the judges of the United States' courts those privileges which have never been denied to the most humble state tribunals. Curia advisare vult. KINSEY C. J. and SMITH J. who were, alone, present at the argument in November, differing in opinion, and BOTTDINOT J. having been since appointed to a seat on the bench, the motion was argued again at this term by Griffith and R. Stockton, for the rule, and Aaron Ogden, against it, before all the judges. For the defendant. It is admitted that both parties are citizens of the same state, and that the defendant is likewise one of the associate judges of the Supreme Court of the United States ; and was about proceeding to the state of Georgia, where he was to hold a Circuit Court, at a period about thirty days subsequent to the time of his arrest. Under these circumstances it is contended, that he was enti- tled to be discharged on filing common bail. The rule of the common law is, that an attorney or other officer, whose attend- ance is required in the court to which he belongs, shall not be holden to special bail. 1 Bac. Abr. 331. This privilege arises 424 NEW JERSEY SUPEEME COURT. Gratz v. Wilson. from a supposition of law, that the business of the court, or their clients would suffer from their being drawn away. 5 Bac. Abr. 613. 1 Tidd's Prac. 171. In Redman's case, 1 Mod. 10, Kelynge cites Wolly's case, where the court discharged defendant on account of his privilege on common bail. It is a privilege of the court to which he belongs, or of the public, and is not allowed that they may attend to their private business. Poordage's case, Ibid 22. And whenever the public would suffer inconvenience it is allowed, as where an alderman is elected a constable, as in Abdy's case, Cro. Car. 585. It does not extend to discharge from the action, but merely to liberate from arrest. Wheeler's case, 1 Wils. 298. It is the court of which he is an officer, whose priv- ilege is claimed ; (Mayor of Norwich v. Berry, 4 Burr. 2109) and therefore he is not permitted to waive it. Gardner v. Jessop, 2 Wils. 42. It extends to all the members of the court, from the Chief Justice down to the tipstaff. Gerard' s case, 2 Bl. Rep. 1123-5. The case of Mayor of Norwich v. Berry, shew also, that the court of B. R. will protect the officers of C. B. On the former argument it was contended, that this privilege never was allowed when a cause was removed by habeas corpus. This idea is not warranted by the case of Page v. Price, 1 Salk. 98, and is expressly negatived by that of Lumley \. Quarry, 1 Salk. 101. 2 Ld. Ray. 767. 7 Mod. 9. For the plaintiff. A fundamental objection to this claim is derived from the circumstance, that the Circuit Court of the United States had no jurisdiction of the subject matter in con- troversy. The suit is between citizens of the same state, and consequently it cannot be entertained by the federal courts. Every exemption of this kind is hostile to the spirit of our government, and must be construed strictly. Unless the defend- ant brings himself within the rule, and shews that he is within the privilege, the rights of the plaintiff are not to be violated. The privilege now claimed must fall under that class which is said to belong to attorneys and other officers of a court. With regard to this, an important distinction exists, which may be traced throughout all the cases that have been cited. The rule is laid down correctly in 1 Bac. Abr. 305, whore it is said, attor- neys have a privilege not to be sued in any other court, except those in which they are sworn and admitted, because of the pre- APEIL TERM, 1798. 425 Gratz v. Wilson. judice that may accrue to the business of those courts, in which their attendance is required ; neither are they to be held to special bail, because they are obliged to attend, and therefore are pre- sumed to be always amenable. In the note which is subjoined, it is said, the attorney shall not have this privilege, unless there be the same remedy in his own court. The privilege is therefore twofold. 1. To be sued in the court to which he belongs. 2. To be admitted to common bail in the court where he is presumed to be always present. This is the doctrine of Lord Holt, also in Baker v. Svnndon, 3 Salk. 283 ; 1 Ld. Ray. 399, who says, "privilege is either of court or of pro- cess, as in the Court of Common Pleas, every person who belongs to that court as attorneys, &c. shall have the privilege of being sued, and this is the privilege of the court : but none shall be allowed the privilege of process, but those who are officers of the court, and are supposed to be always attending there." In this manner all the cases however seemingly con trad ictorj r , may be reconciled. No one instance has been adduced, where the former privilege was allowed, except where the court to which the defendant belonged, had jurisdiction ; and no instance in which the latter kind was allowed to an officer of a different court. KINSEY C. J. When this question was first argued, I felt my- self under some difficulties, which more mature reflection, though it has somewhat lightened them, has not altogether removed. It is the duty of every state court, and no duty could more com- pletely coincide with my inclination, to support the dignity and independence of the federal courts : but it is equally their duty not to throw any impediment in the way of a creditor, by which he may be prevented from enforcing his contract, or obtaining justice. With regard to the question before us, there can be no doubt, that the officers of the four great courts in England, from the attorney to the chief justice, have a right to be sued in their own courts, where their attendance is necessary, provided a remedy can be there attained. 2 BL Rep. 1125. There can be no doubt, further, that this privilege is extended so far as to protect them from arrest, and to entitle them to a discharge, if arrested. I am equally satisfied that this discharge may be claimed in 426 NEW JERSEY SUPREME COURT. Gratz v. Wilson. their own court, or in any other out of which the writ is issued; the only distinction which appears to exist, being, that the court to which the party belongs takes notice of the facts upon which the claim of privilege is founded, but a foreign court requires proof of them to be made, In Pitt's case, which has been cited, it was held, that the privi- lege might be claimed by motion, without the necessity for pleading it, notwithstanding some precedents to the contrary; and the doctrine is recognized by Lord Kenyon, in Bartlett v. Hebbes, 5 Term Hep. 686, whenever the facts are not contro- verted. In this state, this has been the practice for more than fifty years, with regard to members of the legislature, judges, and attorneys. After these preliminary observations, I come more immediately to the consideration of the question, whether a judge of the federal courts is entitled to the same privileges and exemptions as are claimed and exercised by the judges of the principal English courts ; whether he is to be held to special bail or not ? One very important difference exists between these tribunals and those from the practice of which the cases are drawn. Their jurisdiction is general, in some cases almost unlimited, and they have enjoyed their privileges from time immemorial. The courts of the United States, originated under the federal constitution, are limited in their powers, which are expressly defined by posi- tive law. This distinction appears material, for, in Lord Ander- son's case, 3 Leon. 149, it was said, that these privileges had been given to the courts when originally created, and that they had been exercised from that remote period. The word given shews that the foundation of this claim is prescription, which presupposes a grant from the king, who possessed, and fre- quently exercised an authority of this kind. The ground which has been assumed at the bar is founded upon views of public convenience and expediency: in this I can- not altogether acquiesce: I feel a much stronger disposition to coincide in the opinion of queen Elizabeth, of whom Lord Coke remarks, (1 Inst. 131) " that she granted few or no protections, and her reason was, that he was no fit subject to be employed in her service, that was subject to other men's actions, lest she might be thought to delay justice;" a reason equally forcible when applied to a claim of privilege. APEIL TERM, 1798. 427 Gratz v. Wilson. If there are any considerations of a public kind calling for the extension of privileges to cases of this description, they may with propriety be urged to the national legislature, who may so mod- ify and regulate its exercise as to render the federal judges inde- pendent of the opinions of state courts. Privilege is ever a matter stricti juris, and ought not, particu- larly one of so odious a character, to be extended by implication. The convention who framed the constitution evidently had the subject of privilege before them, and have secured, so far as they appear to have thought expedient, the independence of the federal judges. I am of opinion, that we cannot stretch it in a case so doubtful as the present, when the necessary consequence would be, to oust the plaintiff of a plain and unquestionable right. My opinion, therefore, is tn^ ^ae defendant take nothing by his motion. SMITH J. I regret much the necessity which compels me to differ from the opinion which has just been delivered, which, as I understand, is likewise the opinion of the majority of my brethren; but the perfect conviction which I entertain in my own mind, with regard to the propriety of the present applica- tion, compels me to express my dissent. The general rule, that judicial officers are not subject to arrest, either in their own or other courts, is undisputed, and the reason, upon which it is founded is equally clear. It is neither derived from an express grant, nor dependent upon any statute, but has its foundation in the common law, the fundamental maxim of which is, to prefer the interest of the community to private con- venience; and as there is no positive statute which deprives the judges of the federal courts of Jthe benefit of this exemption, I am of opinion, that it remains to them in full force, as recognized in the books of common law, and sanctioned by considerations of public policy. I conceive exemption from arrest on civil process, to answer, &c. as incidental to the office of judge, and attached to him on his appointment. The office is one which cannot be executed by deputy, and the interests of the community would suffer, and might be sacrificed by private wickedness, if they were not thus privileged. It has been urged, that there is no positive law by which this 428 NEW JERSEY SUPREME COURT. Grata v. Wilson. exemption is extended to the judges of the federal court; nor, I may answer, is there any positive exemption in any case; it is implied in the very appointment as judge, in the delegation of judicial authority, that they are to be clothed with all the powers, and vested with all the privileges, which are attached to the office, and essential to the exercise of its duties.' It would scarcely be contended, that an arrest of this kind might be made while the judge was actually presiding in his couft, and admin- istering justice from his own bench; and yet it would be difficult to shew, even in that case, any positive prohibition. The case has been called a new one; I must confess I cannot perceive the propriety of the phrase: the instance is novel, but the principle involved is as ancient as the common law. I think the case clearly within the M ,.jient and acknowledged principle, and, as the application is only for a discharge on common bail, I think the rule ought to be made absolute. KIRKPATRICK J. In deciding this question, I lay out of view two circumstances which have been urged on the argument, con- sidering them as wholly unconnected with the principle upon which the decision is to be made: first, that no affidavit of the existence of a debt was made previous to the arrest; second, that Judge Wilson was under appointment to attend the Circuit Court, in the state of Georgia. I also deem it unnecessary to express an opinion upon another question which has been raised, i iz. whether it is proper and consistent with the rules of-practico to examine into the propriety of admitting to bail on a habeas corpus f Independent of these collateral questions, I am against the motion on the merits. The case is this: the plaintiff and defendant are both citizens of .the state of Pennsylvania; the defendant, at the time of the arrest, was residing in this state, where he had been for some weeks, and was, at the same time, one of the associate judges of the Supreme Court of the United States. It has been contended, that he is entitled to his discharge on account of his privilege as officer; but no statute, no case, nor any constitutional argument of clear and precise application has been laid before the court. With regard to the authorities that have been cited, they are not strictly analogous: 1st. They prove that a court will protect its own officers; that is absolutely necessary, and the law is unquestioned, but it is not the caso APEIL TERM, 1798. 429 Hoffman v. Brown. before us. 2d. They shew that if an officer of one court is sued in another, he may apply to be discharged, but this must be in, toto, and not on common bail. This however, it has been shewn, will not be allowed, unless the plaintiff can have a remedy equally efficacious in the court to which the defendant belongs. It has not been contended, that the federal court, of which Judge Wilson is an officer, can entertain this suit between the present parties, they being citizens of the same state. This being the case, and it has been so conceded, I am clear there can be no discharge from the jurisdiction of this court. As to the cases of peers, members of the legislature, &c. they stand upon ground altogether different, and it is sufficient to say, this is not a case of that kind. Arguments have been laid before us, drawn from general views of policy, public utility and conven- ience ; but these cannot serve as the foundation of an introduction, by the judiciary, of a new rule. Where but little doubt remains, suggestions of this kind are proper and weighty, but they will not authorize us to discharge this defendant, unless he has a right to be discharged by law. The same argument would apply in numerous instances, to which the rule was never pre- sumed to extend, and if acted upon, would probably lead us farther than can now be distinctly foreseen. I am therefore of opinion, that the defendant take nothing by his motion. BOUDINOT J. I acquiesce in the opinion of a majority of my brethren, to overrule this application, on the ground, that the plaintiff cannot have a remedy against Judge Wilson, in the federal court. Were this difficulty removed, however, I should entertain a different opinion, and think the defendant entitled to be discharged. Rule refused. HOFFMAN against BROWN. A covenant, that a bond Bhall not be prosecuted until the happening of a certain event, cannot be pleaded in bar to an action on the bond brought before the time, but a special action may be brought and damages recovered for the breach of the covenant. This was an action of debt, and on a case stated for the opinion of the court, it appeared, that Brown, the defendant, on the 22d of August, 1795, entered into a bond to Hoffman, iii 430 NEW JERSEY SUPREME COURT. Hoffman v. Brown. the penalty of $400, with a condition in the usual form, to pay $200 in one year after date. In an action brought upon this bond, the defendant pleaded, that on the same day Hoffman became bound to him, in a bond for the payment of $400, with a special condition annexed, which reciting among other things, that Hoffman, had obtained letters of guardianship for one Joseph Kelly, an infant ; he, together with Brown, as his surety, had jointly entered into a bond in the surrogate's office, condi- tioned for the maintenance and education of the said infant: that in consequence of this suretyship, and in order to indemnify Brown, it was agreed between them, that Hoffman should not prosecute on the bond first mentioned, until Kelly died, or came of age; it being the intention of the parties, that Brown, should not be compelled to pay the debt, until it was ascertained whether or not he was to become liable as surety. The plea, after stating these circumstances, and setting out the condition at length, contained an averment, that Kelly was still an infant under age, and in full health. At Cumberland Nisi Prius, the plea was withdrawn, and a judgment confessed to the plaintiff, subject to the opinion of the court on a case stated, containing the foregoing fact. It was argued by Giles and Griffith, for the plaintiff. The bond to Hoffman, was absolute on the non-payment of the $200, within the year: the facts stated in the plea do not amount to a defeasance, to pay- ment or an offset, but merely an agreement, that the bond is not to be sued until the happening of a certain contingency. The law is clearly settled, that a covenant not to sue within a speci- fied time, cannot be pleaded in bar to an action on the bond, but damages may be recovered for the breach of the agreement. Deux v. Jefferces, Cro. El. 352. Carthew 63. 5 Sac. Abr. 683. Woodruff (attorney-general) and Davenport, contra. Per curiam. It is a clear case for the plaintiff; the law has been long settled. Judgment for plaintiff.* CITID IN Lippincott v. Tilton, 2 Or. 361. * Upon this point. Bee Bac. Abr. Release pi. 17. 18 Vin. Abr. 312. 2 Salk. 573. Show. 46. 12 Mod. 551. \Ld.Ray.\2Q. Comb. 123. Ouyler v. Cuyler, 2 John. 186. 4 Sin. 274, arguendo. APRIL TEEM, 1798. 431 Scott v. Stackhouse. DEN against FERIN IS EJECTMENT. Where there has been a judgment in ejectment by default, on which a hab. fac. pass, has issued, the court will, on affidavit of a real defence, open the judgment on payment of costs, but will not set aside the execution, or order restitution. The attorney for the plaintiff, had signed judgment by default, in November Term last, against the casual ejector, and issued a habere facias possessionem, in the vacation, which was executed. Griffith, for the tenant, moved to set aside the judgment, upon an affidavit of the attorney of the tenant in possession, which stated that there was a fair defence to the action, and that he was ready to enter into the common rule and file his plea instanter. Per curiam. As a trial has not been lost, the affidavit is suffi- cient to entitle the tenant to defend. Judgment ought to be set aside, on payment of costs, but it would be transcending our powers to set aside the habere facias possessionem, or to make any order for the restitution of the premises. Judgment opened. CITED IK Alderman v. Diament, 2 Hal. 199. Den, Sheppard v. , 2 Hal. 161. SCOTT against gTACKHOUSE. ON CERTIORABI. It is no answer to a plea of the statute of limitations, that the defendant baa been discharged under an insolvent law. Per curiam. The question in this case, is, whether a person discharged under an insolvent law, can plead the statute of limi- tations to a debt due before? I am not disposed to encourage a plea of this nature, when there is no pretence that the money has been paid, but the statute does not contain any exceptions of this kind, and we cannot make them. The plaintiff might at any time have prosecuted for hia debt and obtained judgment. Hartwell v.Vere, 2 Bl. Rep. 1307. CITED iw Bruce v. Flagg, 1 Dutch, 224. 432 NEW JERSEY SUPREME COURT. Cowell v. Oxford. ' [MAY TERM, 1798.] COWELL against OXFORD, executor. Before a legatee can sue an executor for a legacy, a refunding bond must be filed, even though the accounts of the executor are settled, and a sufficiency of assets appears. Advantage must be taken of the non-filing of the refunding bond, by a plea in abatement. i This was an action of debt, to recover the amount of a legacy, which had been bequeathed to the plaintiff, by the testator of the defendant. Johnson, for defendant, obtained a rule to shew cause, why tht suit should not be quashed, on the ground that no refunding bondi had been filed previous to the commencement of the suit, as is re quired by the act of assembly, of March llth, 1774. Allinson, 442 Johnson. By the 3d section of the act in question, it is enacted, "that no suit shall be maintained for any legacy or bequest, until reasonable demand made of the executor or executors, who oughl to pay the same, and an offer made of two sufficient securities, who shall become bound in double the sum of said legacies, that if any part or the whole shall appear to be wanting to discharge any debt or debts, &c. he shall refund," "otherwise the process shall abate." JJeake, contra. The fact is admitted, that no refunding bonds were filed previous to the commencement of the suit, but it is contended, that under a liberal construction of the act, they were unnecessary. The object of the law was to provide a security to the executor, who might be called upon to pay legacies before the amount of the debts and claims could be ascertained. But in this case the accounts of the executor have already been legally settled, the debts and legacies are ascertained, and a sufficiency of assets appears. The offer of a refunding bond would have been wholly nugatory, and ought not to be insisted on. KINSEY C. J. This case seems to turn on these two questions 1. Whether a refunding bond ought to have been filed previous to the institution of this suit? 2. Whether if the omission to file the bond bo fatal, it can bo taken advantage of by a motion to quash the proceedings ? MAY TERM, 1798. 433 Cowell v. Oxford. On the first of these questions, I can entertain no doubt, but that under the act of assembly, refunding bonds ought to be filed previous to the commencement of an action for a legacy. I cannot think that the epithet, rigorous, is properly applied to this provision of the legislature. It is an equitable provision, calculated and designed to secure an executor against debts of the existence of which he may be ignorant, and by which he might be involved in difficulty; neither can I see the propriety of the distinction, which it has been attempted to draw between an estate, the accounts of which have been settled before the Orphans' Court, and* one that has not. A settlement of this kind is not conclusive; it will not discharge an executor from the claims of a creditor of the estate, nor will it make any differ- efbce in the legal appropriation of the assets, f am therefore of opinion, that the case is clearly within the language and spirit of the act, and that it was essential to a recovery in this action, that a refunding bond should have been tendered. 2. Is it proper to take advantage of this defect by motion ? The section of the law upon which this entire case depends, Bays, that a bond of this kind shall be tendered, and if refused by the executor, filed in court, or the suit sliall abate. This word which has been selected by the legislature, implies, as I under- stand it, that the defect may be pleaded in abatement; it is the only mode in which it can properly be brought before the court: the fact may be denied, and if so, it is necessary that an issue should be tried, which can only be done upon a plea. This right to insist upon the refunding bond, is vested in the executor for his security, and may be waived by him. If he omits to plead the defect, he may be considered as waiving it, and the court cannot be called upon to determine the fact upon motion. I am of opinion, therefore, that the rule be discharged. SMITH J. KIRKPATRICK J. and BOUDINOT J. concurred. Rule discharged. The plaintiff then offered to file the bond which had been pro- pared, which was done with the consent of the defendant. CITED is Dillcy v. Henry's Ex., 1 Dutch. 302. VOL. I. 2 434 NEW JEESEY SUPREME COURT. Jessup v. Cook. [SEPTEMBER TERM, 1798.] JESSUP against COOK. A payment subsequent to the filing of the declaration, will not constitute a ground of action. One of the two obligors in a bond, may give in evidence in an action against the other, receipts endorsed upon the bond, out they will not charge the defend- ant without other proof. An account proved to be in the hand-writing of one partner, is evidence to go to the jury in an action between the partners, though it is not signed. A culpable neglect in one partner in pursuing the claims of the concern, may render him liable to the other partner, for the amount which has been lost by his neglect; but he is only obliged to take the same care of the partnership business as of his own. Evidence taken before arbitrators, not admissible in a court on a trial, of the Barne cause, though the witness be dead. In order to entitle a party to anew trial, on the ground of newly discovered evi- dence, such evidence must be important, and shew that injustice has been done. Query. Whether are affidavits of jurymen admitted to shew the principles upon which they founded their verdict ? This was a rule to shew cause why a new trial should not be had, on the ground that defendant had discovered new and im- portant evidence since the trial. The case had been' tried at Nisi Prius, in Gloucester county, in June, 1796, before KINBEY C. J. and CHETWOOD J. It was an action of indebitatus assumpsit, and the declaration contained seven counts. 1. Indeb. ass. for goods sold and deliv- ered. 2. Quantum meruit for the same. 3. A special court which elated that on the 15th of June, 1784, in consideration that Jes- eup had entered into an obligation to one Taylor, as security for Cook, in the penalty of 392 10s. conditioned for the payment of 196 5s. Cook undertook to pay Jessup all the moneys which he might pay on this bond; and an averment that he had paid 196 5s. and interest, on the 16th of June. 4. Indeb. ass. for 600 money lent and advanced. 5. Indeb. ass. for 600 laid out and .expended. 6. Insimul computassent. 1. Indeb. ass. for money had ; and received. The defendant pleaded 1. Non assumpsit. 2. Non assumpsit, .except as to seven shillings, and as to that, payment. ,For the plaintiff, the bond to Taylor was given in evidence, which appeared to be in the penalty of 392 10*. conditioned rfor the payment of 196 5s. with interest, in one year. The exe- -cution was proved by one of the subscribing witnesses. On this SEPTEMBER TEEM, 1798. 435 Jessup v. Cook. bond, several payments were endorsed between the date of the 19th of Dcember, 1786, and one payment subsequent, for 83, being the balance then due, dated 1st May, 1789. Leake, for defendant, objected to this evidence, as the receipt was subsequent to the commencement of this action, and to the filing of the declaration, which was in November, 1788. The bond has been admitted in evidence, but we are not precluded from objecting to any part of the instrument which is not legal testimony. Johnson v. Horker, 1 Dal. 406. Evidence of a cause of action, arising after the institution of the suit, is inadmissible. 1 Com. Dig. 1423, title Action E. Fos- ter v. Bonner, Gowp. 454. Per curiam. The receipt in 1789, no evidence to support a narr. of November Term, 1788 ; a payment subsequent to the placita is not evidence. Leake objected, that Jessup himself, being one of the obligors in the bond, he could not offer receipts signed by the obligee to charge the other obligor. Per curiam. The evidence is unquestionably proper ; it cannot certainly, of itself, have the effect of charging Cook, and unless the plaintiff shews further, that he executed this bond merely in the character of surety, and that these payments were made by him, they will not be of much importance in this suit. The pos- session of the bond is a circumstance of some weight, and that, with the receipt, is evidence that the bond has been satisfied. The plaintiff, after stating that Jessup and Cook had been partners; that Cook bought Taylor out, offered an account in Cook's hand-writing at the dissolution of their connexion, stat- ing himself indebted 314 6s. Leake objected to the account. This is an action of indebita- tus assumpsit, and it is improper to go into an examination of partnership accounts. The proper remedy in cases between partners, is by action of account render, which though much dis- used in England, is still the only common law remedy. James v. Browne, 1 Dal. Co. Lit. 172, a. The account is not settled between the parties; it is the act of one of them alone, and though assumpsit may be supported upon an account which has 436 NEW JERSEY SUPREME COURT. Jessup v. Cook. been struck, (Foster v Allanson, 2 Term Rep. 479) yet this case is wholly different. Here the different subjects of this suit are, for the first time, brought together by the plaintiff himself, and only in his declaration : the defendant has not committed himself so far as to warrant an action of assumpsit. Per curiam. The question is, whether this account shall go to the jury, as evidence likely to throw light upon the case? not, what inferences they may legitimately draw from it. Nothing further can be requisite to ensure a proper decision of this ques- tion than a plain statement of the fact which it involves, and of the truth of which there seems to be no sort of question. Two persons become connected as partners in business, and, after some time the partnership is dissolved. One of the parties draws out the account of the sales and different matters of busi- ness, and states a balance against himself: unquestionably in a case where both have authority to receive, and did receive, where the transactions are in a great measure secret, and known only to themselves, this is evidence to go to a jury, and tends to shew that this is the true situation of the accounts between them, at least as against the person who has stated it, and that he is indebted to this amount to the concern. It is objected, that this account is not a stated account, because not signed by both. Signing is, we think, not essential, in every case, to make it a stated account. As this paper now stands, in the hand-writing of the defendant, we think it evidence on the count for money had and received, or money paid, laid out, and expended, or insimul computassent.* With regard to the objection, that the action should have been account render, it may bo observed, that this is not a time nor a manner to take advantage of a defect of this kind, if it really be one. But the action of account render is tedious and expen- sive: the same ends may be attained in a court of chancery, where the accounts are so involved and complex as to be unfit for the examination of a jury, and whenever they are plain and intelligible I should bo disposed to favor this mode of settling differences. The action of account render has almost become obsolete in England ; the forms are intricate, and the books of practice throw so little light upon the manner of conducting it, *See this principle decided in 2 Atk. 252; 2 Cain. JV. Y. Rep. 297; Wait, on Partnerthip 410. SEPTEMBEE TEEM, 1798. 437 Jessup v. Cook. that our most experienced practitioners would find themselves involved in difficulties should they undertake to pursue this remedy. From these causes, or from others, the fact is, that I have never known an action of account brought in this state during the whole of my practice. On the whole, we can anticipate no injurious consequences from receiving evidence of this kind, there being little reason to appre- hend injury from a partner stating an account falsely against him- eelf. Evidence admitted. An attempt was made to prove the plaintiff responsible for 802 3s. which was charged in the partnership books to one Clinton. 1. On the ground that it was a private account between Jessup and Clinton. 2. That the partnership accounts and books, after the dissolution of the connexion, remained in Jessup's hands; that he had opportunities of suing Clinton, which were neglected, and that the debt was lost in consequence of this omission. Per curiam. The first question is one of fact, for the considera- tion and decision of the jury. With regard to the second, there are duties owing from one partner to another, and neglect in their performance may, in some cases, be so far culpable as to render him who has been neglectful liable for the consequences of it. If it was proved, that the plaintiff had been informed that Clinton was in bad circumstances ; that the partnership was in danger of losing the debt, is he to be allowed to keep the books in his possession for near two years without taking a step to recover the money? In this case it is proved, that Jessup took the books ; that ho now has them, and this is evidence to shew that they have been in his possession during the interim. But this, alone, does not render him liable. There is evidence that he actually exerted himself, and with some effect, to recover the money ; that he attached Clinton's property, and obtained upwards of 70. Pre- vious to these steps being taken, there is reason to believe, from the evidence, that he entertained no suspicions or distrust, and on the whole, though we think the evidence admissible, we are far from thinking that it establishes the fact which it is designed to prove, or that he has taken less care of the partnership con- cerns than a prudent man would do of his own. 438 NEW JERSEY SUPREME COURT. Jessap v. Cook. To prove the fact, that the credit given to Clinton was given by Jessup personally, the defendant offered to read the testi- mony of a witness who had been examined on a previous inves- tigation of the cause before arbitrators, from notes of his testi- mony taken by one of the arbitrators. It was objected to by the plaintiff. Per curiam. The evidence is inadmissible. The arbitrators were not called upon to take down the testimony of the witness, and probably took down only what was necessary for illustration. They did not constitute a court ; their authority was created by consent, and this consent never authorized them even to admin- ister an oath to a witness. This is the first time, we believe, that this kind of testimony was ever offered; and we are not disposed to establish a precedent. Evidence rejected. KINSEY C. J. charged the jury. This is an action of assumpsit, brought by one partner against another, and the action is founded upon the fact, that on a fair settlement of the accounts between the parties a balance has been found due to the plaintiff equal to the amount claimed. It may be important, in adjusting the balance between the par- ties, to understand the real legal doctrine upon a point that has been raised. It is contended, that the plaintiff ought to be an- swerable for the debt lost by the insolvency of Clinton. If it had been proved that Jessup knew that his circumstances were pre- carious, and that Cook had informed him of the danger, that ho himself was unwilling to give him further credit, and, that if it was done, Jessup should be personally responsible, there would have been some colour for the doctrine which has been held. Nothing of this kind, however, has appeared in evidence. The general rule of law is, that a partner is bound to take the same care of the concerns of the partnership as of his own. 1 Domat. 157. Dig. 1, 72. Cases have been cited to shew what shall bo deemed gross neglect in the mercantile law, upon bills of ex- change, so as to incur or remove a responsibility, but they are wholly foreign to a case of this kind between parties. You are to determine from the circumstances of the case, and the evidence that has been laid before you. 1. Whether the debt duo from SEPTEMBER TERM, 1798. 439 Jessup v. Cook. Clinton was a partnership concern? 2. Whether it was lost by the culpable negligence of the plaintiff? Verdict for the plaintiff, 138 7s 6 l-4d. and 6d. costs. A rule had been obtained by Leake, for defendant, to shew cause why a new trial should not be had, on the ground that the defend- ant had discovered important and new evidence since the trial. The affidavit of one Blackwood was read, who stated a con- versation between himself and Jessup, in which he understood Jessup to say, that the credit given to Clinton was on his own account; that he, (not they, the partners) expected to receive the amount from Clinton. The affidavit of one of the jurymen was offered, stating, that the jury, in making up the verdict, divided the debt due from Clinton between the partners. Stockton shewed cause, and cited Palmer v. Crowle, Andrews 382 ; Clark v. Stevenson, 2 Bl Rep. 803 ; Vaise v. Delaval, 1 Term Hep. 11; Jackson v. Williamson, 2 Term Rep. 281; 5 Bur. 2667; 2 Tidd 811, 817, to shew, that after a general verdict, the court will never receive the affidavit of a juryman to prove the grounds upon which the verdict was founded, or that the jury was guilty of any irregularity or improper conduct. i-ea/ce, contra. The cases which have been cited are inappli- cable : the intent of the affidavit is not to criminate any one, but to shew the grounds upon which the jury proceeded, and then to shew that they were mistaken. The court will, under special circumstances, grant new trials on the affidavits of the jurors, that the verdict was taken contrary to their meaning. 1 Sdlon's Prac. 488. Rex v. Simmons, 1 Wils. 329. In Cogan v. Ebden, 1 Bur. 383, Lord MansfieJd recommended the counsel to take a rule to shew cause why, upon the affidavits of some of the jury, a verdict should not be amended. This would scarcely have been done, had any doubts existed as to the propriety of receiv- ing the affidavits of jurymen. KINSEY C. J. The affidavit of the juryman, which is offered in this case, does not go to impeach the conduct of the jury, or to shew that, as the case actually stood before them, they were guilty of any impropriety, nor to vary its terms or opera- tion. Its object is to shew, that a party at the trial was precluded 440 NEW JERSEY SUPREME COURT. Jessup v. Cook. from the benefit of evidence which might have made a material alteration in his case. I do not think the fact can bo got at in any other manner, and 1 cannot anticipate any evil consequences when the question was actually argued at the trial, and when it is impos- sible for their verdict to be as it was upon any other principle. SMITH J. concurred. KIRKPATRICK J. and BOUDINOT J. thought the evidence inad- missible; and the court being divided it was not read.* Leake. From the charge of his honour the Chief Justice at the trial, the same fact appears, and the question is, whether the affidavit of Blackwood is sufficient to authorize the court to set aside this verdict? It appears that the jury actually thought that the loss ought to be equally apportioned between the two partners; this is working injustice to the defendant, if, as appears from tho acknowledgments of Jessup himself, the debt was a private one, in which Cook had no interest. In Broadhead v. Marshall, 2 Bl. Rep. 955, a new trial was granted on the discovery of evidence, which, at the time of the trial, was actually in the possession of the defendant's attorney, he not knowing of it. In Norris v. Freeman, 3 Wils. 38, the court pay, there are many cases in which new trials will be granted notwithstanding there was evidence on both sides, as where all the light has not been let in at the trial, which might and ought to have been. In Gryle v. Gryle, 1 Atk. 176, the Lord Chancel- lor says, that the discovery of new matter, after making a decree, furnishes a sufficient ground for allowing a review, though such matter was in existence at the time, if it was not known by the party until afterwards. In the Countess of Gains- borough v. Gifford, 2 P. Wms. 424, the master of the rolls stated, that if a plaintiff recovers a debt against defendant, and de- fendant afterwards finds a receipt under the plaintiff's own hand for tho money in question, the verdict will be relieved against. The same doctrine is established in Taylor v. Sharp, 3 P. Wms. 371, where the Lord Chancellor considers tho dis- covery of new matter as a sufficient ground fora bill of reviews Hinde's Chan. 56-7. Lord Hardwicke (1 Ves. 434, 435) con- * Sea 1 Pen. Rep. 389, where this point ia thus ruled. SEPTEMBER TERM, 1798. 441 Jessup v. Cook. aiders it as sufficient to shew that the new matter is relevant. This is sanctioned in Lewellin v. Mackworth, 2 Atk. 40, which shews that it is not necessary, in a case of this kind, that the evidence should be positive and certain, but merely such as the court may think reasonable. Hinde 57. The true rule, in all applications for new trials, is that which is cited by Lord Mans- field, (1 Bur. 395) as the doctrine established by Lord Parker, "doing justice to the party, or attaining the justice of the case." Again, the jury, in their verdict, went clearly without evidence in one respect. They divided the loss equally between the partners, when there was no proof that the amount of their interests in the stock was the same. The true rule in apportioning a loss, is to ascer- tain the respective shares of the different persons interested; it should be apportioned on the stock, not on the partners. Watson's Law of Partnership 40. Paley's M. P. 125. Puff. 1. 5, c. 8, fol 278-9. Stockton, contra. The evidence which is said to have been discovered since the trial, is not sufficient to warrant the court in setting aside a verdict. The materiality of the evidence ought to go to the whole case, and not to be confined to a particular item of account, which might or might not have been considered. The case cited from Black. Rep. is a case of one in which the evidence discovered went to the whole of the plaintiff's claim, shewed that it was founded in gross fraud or palpable mistake. In Norris v.' Freeman, the jury found against the opinion and direction of the court, and there were many circumstances in that case which seemed to call for the interposition of the court, by granting a new trial to preserve the rights of the party from being violated. The cases cited from the equity courts are wholly inapplicable; chancery does not proceed according to the same rules which govern courts of common law. 2 Atk. 320. It is always necessary, when an application is made for a new trial on this ground, to satisfy the court, not only that the evi- dence is material, but that it has been discovered, or come to the knowledge of the party since the trial. This is a fact which ought not to rest in conjecture or inference, but, being a pre-requisite, it must be proved by legal and unobjectionable testimony. The party himself, in his affidavit, has stated this circumstance, but there is no intimation of it in the affidavit of Blackwood. If the fact is a material one, and it has always been deemed to be all 442 NEW JERSEY SUPREME COURT. Jessop v. Cook. important, to grant a now trial upon the mere unsupported evi- dence of the party himself, would be to run counter to the most familiar principles of the law, and open a channel of fraud, and hold out temptations to perjury which would lead to the most frightful consequences. It is further incumbent upon the party, to prove that this evi- dence could not have been discovered or procured at the trial, by at least ordinary diligence. Wherever the party might have been prepared, the court has uniformly rejected the application. Price v. Brown, 1 Sir. 691. Cooke v. Berry, 1 Wila. 98. Nor is it believed that more than a single instance can be found in which a new trial has been granted on the discovery of parol testimony. All the instances that have been adduced have been where some written document had been found which shewed that manifest injustice had been done. The case of Fabritius v. Cook, 3 Bur. 1771, is the only exception, and that was one in which the whole case was alleged to have been supported by perjury, and the court, after a very strict scrutiny, granted a new trial. Extreme cases of this kind ought never to furnish a pre- cedent, unless where all the material circumstances are similar. This evidence, even if admitted to be perfectly true in every respect, is nothing more than the recollection of a person who felt no interest in what was stated, and, of course, his recollec- tion must be vague of a conversation which took place at a con- siderable distance of time. It does not establish the fact, that a mistake has actually been committed, but merely states circum- stances from which this inference might possibly be drawn. If new trials were to be granted under circumstances of this nature, supported by this kind of evidence, no case would be terminated by a single verdict. KINSEY C. J. The question before the court is, whether it has been made to appear that new evidence has been discovered since the trial, material in its character, and shewing that injus- tice has been done to the defendant? The important considerations, in all cases of this kind are, has justice been done? and has the party been guilty of no negli- gence or omission from the consequences of which ho is now desirous of escaping? If these are the real questions, I do not think that any difficulty can arise from the circumstance, that SEPTEMBER TERM, 1798. 443 Jessup v. Cook. the new evidence, which it is desired to introduce, is oral, except so far as regards the credibility of different kinds of testi- mony. If it can be made to appear, by parol evidence, that a new trial ought to be granted, I should not hesitate in allowing it, though testimony of this kind, as it is much more easily fabricated, ought to be examined with more strictness. The case of Fabritius v. Cook, shews that there is no foundation for this distinction. What then is the case which the defendant has laid before us, as the ground of this application ? He swears, that since the trial, he has discovered new and important testimony, and brings forward a witness who swears, that some years since he had a conversation with Jessup, in which the latter used expressions, from which the deponent thinks, that the credit given to Clinton, was a private credit, with which Cook had no concern. It appears, from my notes of the trial, that this fact was attempted to be proved; that it was the subject of inquiry then ; that evidence was given to the jury on the point; but that the fact was not made out. In the partnership books, the various items of this account are charged to Clinton, and not to Jessup : it has appeared, and the fact has been admitted in this discussion, that the books were kept by Cook himself, and no satisfactory explanation has been given of, these circumstances, so strong against the fact now set up and relied on. Blackwood, the witness, whose testimony is considered as so important, does not pretend to recollect the precise words employed by Jessup in the conversation which ho undertakes to detail. He gives us rather his recollection of the substance of what he heard, the impressions which he received as to its import, than the language itself that was used. It is scarcely necessary to remark upon the vagueness of such testi- mony, or the extreme difference which may be produced by the variation of a single word, or even syllable. Regarded in this point of view, I cannot but think that the circumstances furnished by the defendant himself, the entries made by him in the books, are entitled to much more credit than the necessarily indistinct recollections of a conversation which had taken place at a remote period, and on a subject not likely to impress itself deeply upon the memory. It has not, therefore, been made to appear, that a new trial is necessary for 444 NEW JERSEY SUPREME COURT. Jesaup v. Cook. the attainment of justice, and I am therefore of the opinion that the defendant take nothing by his motion. SMITH J. and KIRKPATRICK J. concurred with the Chief Justice. BOUDINOT J. Some difficulty has occurred in this case, from the want of a particular state or report of the case, which ought to have been applied for when the circumstances were fresh in the recollection of the judges before whom it was tried. It how- ever appears to my satisfaction, that the plaintiff and defendant were jointly concerned in a store, in which Cook was the acting partner and book-keeper; that one Clinton, a shipcarpenter in the employ of Jessup, contracted, on his own account, a debt to a considerable amount in the store; that Cook opened tho account, and changed the different articles which Clinton had, to him, as the immediate debtor of the firm, without mentioning tho plaintiffs name, as in any manner responsible. There was, in addition to this, a private account between Jessup and the partner- ship, in which no entr} r is made of a single article furnished to Clinton. At the trial of tho cause, one of the principle questions contested between the parties was, upon whom the loss should fall which had been occasioned by the insolvency of Clinton? whether it should be charged jointly to the concern ? or whether it was to be borne exclusively by tho plaintiff? Evidence was adduced by both parties, and it was settled by the jury. Since the trial, tho defendant now insists, that he has discovered a wit- ness who can throw more light upon the question, by stating what ho has heard the plaintiff himself state upon the subject, and therefore he applies to have the former verdict set aside. I am against this application, for these reasons 1. That as the defendant himself kept the books, and charged tho different items in the account to Clinton, as the debtor of the partnership, I should think it highly questionable, at least, whether upon a trial before a jury, he ought to bo permitted to come forward with oral testimony, detailing a loose conversation, and contra- dicting this higher evidence furnished by his own conduct. 2. As at the trial both parties adduced evidence to this par- ticular point, I think it would bo 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 SEPTEMBER TERM, 1798. 445 Den v. Watkins. evidence which he thinks entitled to more weight than any which he had produced at the trial. The jury may very probably have thought that all parol testimony ought to be disregarded, when set in opposition to the continued and deliberate acts of the de- fendant himself; and I cannot bring myself to dissent from this doctrine. If the law were established according to the views of the de- fendant, not one verdict in ten would stand. Some corroborating evidence may always be found or made, and, in deviating from the rules by which courts have heretofore been guided, the trial by jury would become the most precarious of all trials. I am, therefore, against the motion. Rule discharged. CITED IN Den v. Geiger, 4 Hal. 240. Jaques v. Hulit, 1 Harr. 38. Nichols v. Mechanics Fire Ins. Co., 1 Harr. 410. Van Riper v. Dundee Manuf'g Co., 4 Vr. 152. DEN ex dem. JOUET against WATKINS. A mortgage deed, though not recorded within the time prescribed by the act of assembly, is admissible in evidence; the objection goes to its legal effect. Will the interest in a mortgage pass by a conveyance of personal estate ? Query. This was a motion to set aside a nonsuit, and grant a new trial. An action of ejectment had been brought upon a deed of mort- gage, dated June 1, 1776, to secure a debt of 200, but the mort- gage was not recorded until January 4, 1796. After the execution of the mortgage to Cavalier Jouet, the mortgagee joined the armies of the enemy, and judgment was had against him for treason in January Term, 1779, whereby all his property becanio forfeited to the state of New Jersey. Some of this estate was sold for the benefit of the state, and on the 12th of March, 179(5, an act of the legislature was passed, vesting all the residue and remainder of the estate, which was undisposed of, in the daugh- ters of Jouet, by whom this action was brought on the mortgage to their father. On the trial of the cause at the Essex Nisi Prius, in October, 1796, before SMITH J. and CHETWOOD J. the plaintiff offered in evidence the mortgage deed to C. Jouet. The defendant insisted that he was a bonafide purchaser of the estate, and that the mortgage not being recorded pursuant to the directions of 446 NEW JERSEY SUPREME COUET. Den v. Watkina. the act of November 14, 1786, was void, and the court being of this opinion rejected the evidence. The plaintiff in consequence suffered a nonsuit, and now moved the court to take it off and grant a new trial. I. H. Williamson, A. Ogden, and E. Stockton, for the plaintiff. M. Williamson, for defendant. For the plaintiff . The court were wrong in refusing to permit this evidence to go to the jury. Even if the fact, that the defend- ant was a bonafide purchaser, had been proved beyond a doubt, it furnished no sufficient reason for rejecting the evidence. Unless the mortgage was absolutely void, it ought to have been admitted ; but upon the very statement of the defendant's case, it might never- theless have been perfectly good. 1. Against the mortgagor him- self. 2. If the defendant purchased subsequent to the recording of the deed. 3. If he was conusant of the mortgage at the time of his purchase. These were all facts, which the plaintiff had a right to demand should be determined by a jury, and not in a summary manner by the court, on a motion collateral to the merits of the case. The object of the act was exclusively to protect honest and bonafide purchasers, and resembles in some respects, the register- ing act of 7 An. c. 20, upon which the same construction has always been given. In Cheval v. Nichols, 1 Str. 664, it was held, that this statute was designed to protect against fraudulent sales, subject to concealed prior incumbrances, and therefore it did not relieve against an incumbrance, though not registered, if it was known to the purchaser. The same doctrine was held in Doe v. Routledge, Cowp. 705, and by Lord Harkwicke, (3 Atk. 651) in the case of Le Neve v. Le Neve The same principle has been adopted in this state, in the construction of the act of assembly, which provides for the recording of surveys. Allinson 51. Note. But there was no necessity for the enrolment or recording of this mortgage deed. The estate of Jouet, the mortgagee, became vested in the state in 1779, and the act in question was not passed until 1786. Statutes of this kind, impairing existing rights, and prescribing a more limited line of conduct, do not affect the sovereignty of the state, or impose rules for its exercise. Acts of parliament are never extended to persons or things superior in SEPTEMBER TERM, 1798. 447 Den v. Watkins. rank to those which are expressly named. 1 SI. Com. 88. .Nor ia the king, who in that respect represents the national sovereignty and dignity, bound by any act of parliament, unless named therein by special and particular words. Ib. 261. Wood's Inst. 21. Neither, under our system of government, can provisions of this kind be held to extend to the state. Allen v. Hoyt, Kirby 227. The plaintiff, deriving his title from the state, is vested with its rights, and entitled to the benefit of all its prerogatives. The act of assembly confirms to the lessor of the plaintiff all the right of the state to the land in question ; if, therefore, the defendant, at that time, would not be admitted to hold in opposition to the title then in the state, he cannot be permitted to set up the same defence against us. It may be objected, however, that the legislature have only granted to the lessor of the plaintiff the personal estate which remained undisposed of. A mortgage, however, is but personal property. Powell on Mort. 14-15. It is evidence of a debt. Ib. 106. It goes to the executor and administrator. Ib. 298-9. 2 Bur. 978. Green v. Hart, 1 John. 580. The act, therefore, passing the debt, the security is transferred. This nonsuit ought to be set aside without costs, it having been submitted to by the plaintiff, in consequence of an erroneous judgment of the court, which destroyed his action. Pochin v. Pawley, 1 BL Rep. 670. Buscall v. Hogg, 3 Wils. 146. For the defendant'. This action is brought in the name of the original mortgagee, C. Jouet, for the benefit of his daughters, in whom the residue of the personal estate of their father was vested by an act of assembly. The recording act was passed in 1786, since which period no mortgage is admissible in evidence, or can have any legal opera- tion, unless under particular circumstances, without it has been recorded within the time limited by the act. The defendant is not the mortgagor, and therefore it was incumbent upon the plaintiff to lay some ground for the introduction of this evidence, to bring himself within the exceptions which the act itself allows, ot which have been created by judicial construction. Whether he does come within the exemptionSj is at this time perfectly immaterial, it is sufficient that it was not made to appear to the court, at the time the evidence was offered. 448 NEW JERSEY SUPREME COURT. Den v. Watkins. With regard, however, to the grounds upon which this exemp- tion from the operation of statute is claimed, it has been con- tended, that, as the plaintiff claims under the state, he is entitled to all the privileges which are necessarily connected with tho sovereignty of the community. Exemptions of this kind, always odious, are particularly so in a republic, where it is the duty of every ruler to bear constantly in mind, that he is assisting in the administration of a government of laws, equally operating upon the high and the low, the magistrate and the citizen. But this prerogative is now pushed to an extent beyond what was thought reconcileablo to the ideas of English liberty, during the reign of James I. at which period the privilege was considered as personal 7 Co. 234. So far from there being any authority to warrant the doctrine, that a private individual, who claims under tho king, it entitled to all the exemptions and privileges annexed to theroyai person, it would be more rational to say, that when the kingderives a title to land from a private person, and claims through him, he is so far divested of his prerogative, and is considered as standing in the predicament of the person from whom his rights are derived. It is also necessary, whenever a claim is preferred for the ben- efit of the king's prerogative, that the interest of the king should appear on the record. One must sue nomine regis, otherwise he shall not avail himself of the prerogative. Bro. Abr. tit. Prerog. pi 68. 1 P. Wms. 252-3. Gilb. W. 37. The action of ejectment is a mixed action, and though the debt may bo personal, yet as the only property transferred by the act was personal, the claim upon the real property was not included. It is absurd, at the very time that an action is brought to recover real estate, to say, that tho plaintiff has no right to any thing that is not personal. The metaphysical distinctions that may be drawn between the substance and its inseparable concomitants, afford no rule by which the decisions of a court of judicature can be governed: the fact, that under this assignment an attempt is made to claim real property, shews that they con- sider it as transferring rights to other than the personality. In reply. It is an established rule of law, that every instru- ment under seal is admissible in evidence, provided it relates to the subject in controversy, and is one of tho foundations, or the muniments of title in. either of the parties. It is a question for the SEPTEMBER TERM, 1798. 449 Den v. Watkins. consideration of the court, what effect or operation is to be allowed it: this is entirely independent of its admissibility. 6 Mod. 45. (See 1 Dal. 64, 69. 1 Bin. 190. Faulkner v. Lessee of Eddy.} On this principle, the mortgage ought to have been admitted in evi- dence, unless the act of assembly render it an absolute nullity. Independent of all questions connected with royal prerogative and privilege, the case appears to depend entirely upon tho meaning that is to be given to the recording act. According to our understanding of this act, it does not in the slightest degree bear upon the present case. The legislature intended to regulate the common dealings between man and man. Instances were by no means uncommon in which honest purchasers had been deprived of their rights, or subsequent mortgagees had lost their debts in consequence of the bringing forward either real or fictitious claims of an earlier date, which absorbed all the funds upon the faith of which credit had been given. It was to guard against concealments of this kind, which whether actually or constructively fraudulent were equally inju- rious, that this act was passed. Could it have been presumed that the government would have committed actual fraud, or can laches or inattention, which, in the case of individuals, amount to legal fraud, be attributed to the state ? The treasurer of the state is not required to record the mortgages that are made to him. Incumbrances of this kind are of so public a nature, or so few in number, that any legislative provisions with regard to them would be altogether superfluous. Per curiam. The evidence was admissible upon the authority of the case of Ford v. Lord Erey, 6 Mod. 44. The mortgage ought to have been received, and if it was rendered of no valid- ity by any matter dehors, such circumstances should have been made to appear to the court, by way of defence against the claim set up under it. In refusing to hear it, the court then did wrong, and a new trial must be granted. The court, in answer to an inquiry of Mr. Ogden, intimated their opinion, that the mortgage was not void, because it was not recorded. New trial granted. NOTE. The court do not take any notice of one question which was argued, viz. whether the interest of a mortgagee in & VOL. I. 2D 450 NEW JEESEY SUPEEME COTJET. Den v. De Hart. mortgage is to be considered as personal estate, though indi- rectly they seem to have decided, that it was to be regarded in that light. In Hassel v. Tynte, Ambl. 318, Lord Hardwicke said, that it was a question upon which he felt very unwilling to give an opinion. His words are, "what has been argued at bar is .very true, that the money is the principal, and the land only the security : that the money would pass by will not attested according to the statute : and yet here is an interest in land, and it is a very considerable question, whether it can pass by parol gift?" The question was reserved.' Fonblanque b. 3, c. 1, s. 13, considers it as personal property, and in the same light it seems to be regarded by Lord Mansfield, in Martin v. Moivlin, 2 Bur. 969 ; recognized in Green v. Hart, 1 John. 583 ; 1 Caine Ga. Er. 69, Waters v. Stewart. But see Noys v. Mordaunt, 2 Vern. 581 ; Doe v. Parratt, 5 Term Rep. 652, which shew, that in certain cases it is looked upon as real property. See also Perry v. Bar- ker, 13 Ves. jun. 198, and Den ex dem. Jouet v. Spinning Post, 3 John. Ch. Ca. 145. 11 John. 538. [NOVEMBER TERM, 1798.] DEN ex dem. LOCKYER against DE HART. A voluntary conveyance from a father to his children, without any other con- sideration than natural affection, made at the time he is indebted, is fraudulent, as against creditors. A cognovit actionem, by executor, is an admission of assets. This was an ejectment for lands in the county of Essex. At the trial of the cause at the Nisi Prius in April, 1798, before Kirkpatrick and Boudinot, justices, it appeared, that the plaintiff claimed under a deed from Eobert Little to his daughter Phoebe Lockyer, for her life remainder in fee to her three children. This deed was dated January 14, 1761. All the children of P. iLock}-er, the grantee for life, are dead without issue, excepting Samuel Lockyer, the lessor of the plaintiff. It appeared in evidence, that John Lockyer, the husband of Phoebe, his wife and family, lived upon the land in question from .the death of Little, for nine or ten years, without any interrup- NOVEMBER TEEM, 1798. 451 Den v. De Hart. tion : at that time, however, the defendant obtained possession, which he had kept ever since. Some of the witnesses swore, that, even prior to Little's death, the land was generally consid- ered as belonging to Phoebe Lockyer; but her husband being (after a release was executed) admitted as a witness, swore, that at the time of the deed being made to his wife and children he was totally ignorant of the circumstance. One or two of the witnesses swore, that Little was generally believed to be in good circumstances. The defendant proved, that about two months previous to the execution of the deed from Little to his daughter and grandchil- dren, a cause of action accrued against him on a warranty deed: this was the foundation of a suit, in which the executor of Little confessed judgment by cognovit actionem to Mathias Halsted, some time in the year 1763. Under that judgment, the lands in ques- tion were taken in execution, and sold, by the sheriff, to Hal- sted ; but the deed from Hampton, the sheriff, to Hulsted was not executed until March 25, 1772, a short time, however, pre- vious to which be had acquired possession. Halsted conveyed, July 12, L790, to the defendant, for the consideration of 85. After argument, the court charged the jury that the question depended entirely upon the validity of the deed from Little to his daughter and grandchildren, in January, 1761. They were to consider, whether this was a fair and bona fide transaction? or, whether its object was fraudulent, to prevent those who had Legal claims upon his estate from obtaining justice? This, the court said, was in a measure a question of fact, for the consideration of the jury. The law, however, has established some general rules by which the jury are to measure the circumstances of the case. 1. It is not a sufficient ground to pronounce a deed fraudulent, that it is voluntary. It is perfect!}- fair and honourable for a man to make such a disposition of his property, in favour of the dif- ferent members of his family, when, by so doing, he works no injury to others. 2. But if a man, with a view to defraud a third person of a just debt, or of the benefit of his contract or covenant, shall make a conveyance of his land to his children, that it may not be liable to these demands upon it, such a transaction is fraudulent and invalid. 3. The policy of the law has carried these provisions in favour 452 NEW JERSEY SUPREME COURT. Den v. De Hart. of honesty, and in discouragement of fraud, still further, and holds, that if, without any actual fraud or moral turpitude, a man undertakes to make a voluntary conveyance of his land, the opera- lion of which must necessarily deprive a third person of a just debt, this conveyance is fraudulent in the eye of the law, and void against creditors. It is highly proper that a man should be just before he is generous; that he should pay his debts before he throws away his property. In this case, it is further to bo remarked, that the defendant has been in possession nearly twenty-eight years; the title under vrhich both parties claim has been well known, at least to tho plaintiff, and under such circumstances the title should be per fectly clear, to shake such a possession. An objection has been raised to the taking lands in execution on a judgment confessed by the executor, but in New Jersey lands are assets for the payment of debts.* Verdict for defendant. A motion had been made to set aside this verdict, and grant a new trial 1. Because of the misdirection of the court. 2. Because the verdict was against law and evidence. The motion was argued at the last September Term, by I. H. Williamson and A. Ogden, for the plaintiff; and M. Williamson and R. Stockton, for the defendant. For the plaintiff. The question was properly placed by the judge at Nisi Prius, upon the fact, whether the deed of January, 17G1, from Little to Mrs. Lockyer and her children was fraud- ulent and void? After a deed has been so long executed, and its validity remained so long unquestioned, the circumstances ought to bo very strong and indisputable to authorize the presumption of fraud. It is not every voluntary deed that is considered as tainted, and, independent of that circumstance, little has been, or can be urged against this instrument. In the case of Cadogan v. Kennett, Cowp. 432, Lord Mansfield went into a full investiga- tion of the law upon this subject, and the liberal and wholesome doctrines which he established have since been universally acqui- esced in. He expressly says, "the statute 27 Elizabeth c. 4, This is altered by the act of 18th February, 1799, (Pat. N. J. Laws 372) nd now no lands can be sold or affected by any judgment against executors or administrators. NOVEMBER TERM, 1798. 453 Den v. De Hart. does not go to voluntary conveyances, merely as being voluntary, but to such as are fraudulent. A fair voluntary conveyance may be good against creditors, notwithstanding its being voluntary." Why was not this deed questioned at an earlier period, and in a legal manner; when all the circumstances were fresh, and the evidence, which a knowledge of the characters of the agents in the transaction furnishes, is strong and clear ? The conveyance was properly executed and acknowledged, before a judge of the court, though it is now said to have been private and secret. John Lockyer, who now swears he was ignorant of the circumstance, lived on the property nine or ten years; he called it his during the lifetime of the old man ; he forbid the sheriff to sell under the execution in Halsted's suit. Respectable witnesses swear, that even during the lifetime of Little the land was considered as belonging to Phoebe Lockyer. If these circumstances on the part of the plaintiff rebut the presumption of fraud, they are strengthened by the evidence which the defendant himself furnishes. The suit against Little was never brought during his life ; it was not publicly tried, but judgment confessed by an executor; the ground of the action is now said to be a claim on a warranty deed; the judgment was suffered to lay dormant for nine years, and the property was never sold until Halsted had actually got into possession. But the selling of this land upon a judgment by confession against an executor is erroneous. Lands are assets for the payment of debts, it is true, but they are not to be taken until the 'personal estate is exhausted. There is no pretence of there being any other claims upon the property : Little was esteemed a man in good circumstances, and, where the case rests so much upon presumption, it is fair to presume, that there was other property sufficient to answer this demand. This inference is confirmed by the fact, that the executor con- fessed judgment. If he confesses judgment, or suffers it to go by default, he admits assets in his hands, and is estopped to say the contrary. Rock v. Leighton, Salk. 310. Skelton v. Hawling, 1 Wils. 258. (See also Ewing v. Peters, 3 Term Eep. 685.) It cannot now be presumed, that an executor would confess judgment without having assets, and in his own hands, for he renders himself answerable for the debt. Although real estate, under our law, is assets, yet it is not assets in the hands of the executor, but 454 NEW JERSEY SUPREME COURT. Den v. De Hart. it descends to the heir, though subject there to the debts of the ancestor. An executor would not commit himself by confessing judgment, when the assets were in the hands of another, of the value of which he must be ignorant : but if this can be presumed, it would be highly improper for him, by confessing judgment, to fix the debt upon the heir, without an opportunity being afforded him to rebut the claim. In addition to these circumstances, a will of Robert Little, dated about fourteen days previous to the execution of this deed, was given in evidence, in which he makes precisely the same disposition of this piece of property, and directs his debts to be paid out of his personal estate. The charge was also erroneous in another respect, it stated a8 a circumstance of weight, against the lessor of the plaintiff, that the defendant had been in possession for near twenty-eight years. This could not affect the lessor of the plaintiff, because his title had accrued within three or four years, on the death of his mother, who was tenant for life ; and it would be contrary to justice that the remainderman should be prejudiced by the omissions 01 negligences of the owner of the particular estate. For the defendant. All the cases upon the statutes of Eliza- beth shew that they are to be construed liberally, for the sup- pression of fraud : and under them the court would have been authorized, had they charged the jury, that the single circum- stance of Little's being indebted at the time of making the deed, was not only a circumstance from which fraud might be inferred, but was actually fraudulent in the eye of the law. This is the language of the law, confirmed by the opinions of tho ablest English chancellors; and this would preclude any examin- tion of the circumstances, which lead to the suspicion, not only of legal or technical, but of actual and moral fraud. If, however, there be any necessity for an inquiry, whether the conveyance from Little was executed under a premeditated and concerted plan, to defraud those who had claims upon his estate, it, at least, is not a matter of inquiry here. It was a question of fact, for the determination of the jury on the trial, distinctly submitted to their investigation and decision by the court, and their finding upon a question of fact, after evidence on both sides, is conclusive. It has been contended, that the plea of cognovit actionem is NOVEMBER TERM, 1798. 455 Den v. De Hart. an admission of assets in the hands of the executor, but not in the hands of the heir. The distinction is altogether novel. Assets in the hand of an executor, is a legal expression which never has been presumed, before this occasion, to imply that they must be in his manual grasp. The phrase is common, and its signification is plain ; it means, merely, that there are assets belonging to the estate of the decedent, with which the judg- ment may be satisfied. So that they are bound by the judgment, it is perfectly immaterial where they may be located, or in whoso immediate power they may be situated. If an executor should plead plene administravit at a time when there were real but no personal assets, can it admit of question how the jury ought to find upon this issue? The dangers which are apprehended cannot be completely guarded against, except by making the heir a party to a suit, which can never be done ; because there can be no doubt that on a judgment against an executor, real property may be taken in execution. It belongs to the other party to shew that this case is an exception. An objection has been made to that part of the charge of the court, in which he considers the long possession by the plaintiff, as a circumstance of weight in his favour. Reference need only be had to the facts of the case, to shew that this objection is utterly frivolous. This possession was not said to constitute a legal title, otherwise the plaintiff would have been nonsuited ; but the jury were directed, that the claim ought to be perfectly clear to overturn such a possession. All the parties lived in the neighbourhood, the defendant's title was a matter of public notoriety, founded upon public records, and upon transactions in the face of the world. 'The tenant for life was not a perfect stranger to the remainderman under the deed, but his own mother ; interested both on his account and her own, to prosecute her claim to the land, if she had considered it as having any legal foundation. Though her acts may not be legally binding upon him, yet in the mind of every reasonable man, until some expla- nation is given, they must be considered as possessing some weight; and this was the amount of the direction of the court. In reply. The counsel have argued, that under the statutes of Elizabeth, every voluntary conveyance is to be considered as 456 NEW JERSEY SUPREME COURT.. Den v. De Hart. fraudulent, which is made while the grantor is indebted. The opinion which Lord Mansfield entertained upon this point, was, however, somewhat different, lie considers voluntary convey- ances eo nomine as not objectionable. The iact, that the grantor was indebted, is a circumstance of fraud, but not conclusive, and it may always be rebutted by other evidence. If A. is worth 50,000 and indebted 5000, should make a voluntary convey- ance to his son on his marriage of property to the amount of 10,000, would any court, professing to be guided by the rules of the common law, which Lord Mansfield considered as extend- ing to every case embraced by the statutes in question, say that this deed was fraudulent and void? Upon the principle con- tended for, and in the broad extent to which it has been pushed in this argument, every voluntary conveyance would be invalid ; because it would be impossible for any individual, mixing in the ordinary transactions of the world, to be perfectly free from debt, or to know that he was so. It is perfectly immaterial to what amount, whether a six-pence or a million. It is impossible for any court of justice, or for any man who considers the law as " the perfection of reason," as a science, the foundations of which are the obvious and unalterable principles of common sense, seriously to utter a doctrine of so monstrous a nature. The true doctrine of the law, if indeed any one fact, without explanation, should necessarily taint every transaction in which it appears with fraud, is not that whenever the grantor is indebted, but whenever he was insolvent, the conveyance must be taken to be invalid and dishonest. There is in this case no evidence leading to the supposition, that the grantor was insolvent at the time he executed the con- veyance in question. Such circumstances as can be collected after such a lapse of time, authorize a contrary inference. The deed corresponds in every important particular, with a will which he had previously made, and in which he directs his executor to pay all his debts out of his personal estate. The instrument was gener- ally known of at the time, and publicly acknowledged before an officer of character and station. The property was generally supposed to belong to the grantees. The grantor was considered, in the neighbourhood, as a man of property. All these circum- stances, which it is impossible to believe could have been fabri- cated, negative every presumption of either concealment or fraud. NOVEMBER TERM, 1798. 457 Den v. De Hart. If then, there was neither technical nor actual fraud, the title of the plaintiff was unexceptionable. The charge of the court on the point of possession was erroneous, and calculated to mislead the jury. It is impossible to ascertain upon what precise points they erred, but it is evident that their verdict was against the justice and equity of the case, which is the important point of inquiry in every application for a new trial. The opinion of the court was delivered at this term by KINSEY C. J. (After stating the circumstances of the case.) On the trial of this cause at Nisi Prius, the court charged the jury, that the deed upon which the title of the lessor of the plaintiff rested was not fraudulent, from the single circumstance of its being voluntary; but that if the jury should believe that it was executed with a design to defraud honest creditors, or if its operation was to defeat fair claims which might exist against the estate, it was fraudulent. 2. That to authorize a recovery against a possession, of at .least upwards of twenty years, the plaintiff ought to shew a clear title. 3. That the confession, by an executor, of a judgment by cog- novit actionem was an admission of assets, whether real or per- sonal, sufficient to satisfy the judgment. With regard to the two latter questions, upon which consider- able ingenuity has been displayed in the argument, I shall only observe, that in the case of Wright v. Hartshorne, decided in this court as early as 1756, it was settled on demurrer, that real estate was assets in the hands of an administrator, for the pay- ment of debts: this doctrine has been uniformly recognized and practised under since. The principal question then, which remains to be considered, is, whether the deed from Little, to his daughter and grand- children, was fraudulent and void, as against creditors under the statute of 13 Elizabeth, from the circumstance, that the grantor was indebted at the time of its execution ? If this question be decided in the affirmative, the verdict in favour of the defendant must stand. Fraud, under our law, is either express or a legal inference from circumstances. The true doctrine which is now recognized in our courts, so far as it bears upon the present question, may be gathered from two cases decided in the Court of Chancery, by Lord Hardwicke. 458 NEW JERSEY SUPREME COURT. Den v. De Hart. In the case of Russel v. Hammond, 1 Atk. 13, that enlightened judge holds the following explicit language, "there are many opinions, that every voluntary settlement is not fraudulent: what the judges mean, is, that a settlement being voluntary, is not for that reason fraudulent, but an evidence of fraud only. Though I have hardly known one case in which the person con- veying, is indebted at the time of the conveyance, that has not been deemed fraudulent; there are, to be sure, cases of voluntary settlements that are not fraudulent, and those are, where the person making is not indebted at the time, in which case subse- quent debts will not shako such settlement." In Townshend v. Windham, (2 Vesey. 10, 11,) after a lapse of several years had allowed him time to examine and weigh his former determinations, and to measure with precision the doc- trines which he had promulged, he holds language of, if possible, a still more decided character. " There is no case where a person indebted, makes a voluntary conveyance of real or chattel inter- est for benefit of a child, without the consideration of marriage or other valuable consideration, and dying indebted afterwards, that that shall take place." "I know no case on the 13th Eliza- beth, where a man indebted at the time, makes a mere voluntary conveyance to a child without consideration, and dies indebted, but that it shall be considered as part of his estate for the benefit of his creditors." "A man actually indebted, and conveying voluntarily, always means to be in fraud of creditors, as I take it." (See Den ex dem. Chews v. Sparks, ante, vol. I. 56.) In Twine's case, Rep. 80, in which the leading doctrines upon this point are laid down, it is held, that natural affection is not a sufficient consideration to give validity to a grant as against creditors ; the consideration must be a valuable one. These cases fully establish the point, that a conveyance may be legally fraudulent and void, though there is no dishonesty in the mind of the grantor; and although a deed is not deemed fraudulent, from the single circumstance of its being founded solely on consideration of natural affection, yet the principle, that a voluntary deed, made when the grantor is indebted, is in- valid as against such creditors, is recognized by numerous author- ities, sanctioned by the ablest judges, and questioned by none. This I consider as the settled law, and it is built upon this ground, that no man shall be permitted to create an estate in his own KOVEMBEK TERM, 1798. 459 Den v. De Hart. family, and among his own kindred, at the expense of bus credi- tors. The case of Cadogan v. Kennet, reported in Cowper, does not appear to me, when carefully examined, to controvert this doc- trine. Lord Mansfield's language, when taken together, is not at variance with that of Lord Hardwicke, and if it was I should feel no inclination to give it the preference. He says, in that case, "the circumstance of a man being indebted at the time of his making a voluntary conveyance, is an argument of fraud." Compare this language with that held by the same eminent judge in page 711 of the same book, in the case of Doe v. Houtledge, where he says, "one great circumstance, which should always be attended to in these transactions, is, whether he was indebted at the time? If he was, it is a strong badge of fraud." I agree with Lord Hardwicke, to the full extent of his lan- guage, that to give away an estate, without making provision for the payment of debts, is a fraud, which it is the duty of all courts to suppress: I will go further, and declare it to be my opinion, that whenever an attempt of this kind is made ; whenever a credi- tor can discover property which has been conveyed under such circumstances, it is unreasonable to require of him, nor can he be called upon to m'ake any examination or inquiry in order to ascertain whether other property has descended to the heir which might be sufficient to satisfy his claim. Such a deed is not only voidable, upon proof that there is no other, or not sufficient prop- erty, but it is absolutely void. Viewing the case, therefore, in this light, I consider the charge of the court at the trial as even more favourable to the plaintiff than the law warranted, and therefore he has no right to com- plain. I should have felt myself constrained to have told the jury, that as the grantor conveyed the estate while a claim existed against it, and died without satisfying the demand, the deed was absolutely void; not that these were circumstances from which they might infer fraud. I have omitted every observation upon the question of actual fraud. This rests altogether upon circumstances, which, whether they furnish conclusive or probable proof of a dishonest inten- tion, or not, depends so much upon the characters of the parties, and is so completely a question of fact for the decision of the jury, that I will not venture to intimate an opinion. 460 NEW JERSEY SUPREME COURT. Den v. De Hart. On the other grounds, however, 1 am of opinion that a new trial ought not to be granted. Rule discharged. NOTE. Lord Thurlow in the case of Stephens v. Olive, 2Sr. C. C. 90, recognized the doctrine of Lord Hardwicke, and it has since been confi rmed in Glaister v. Hewer, 8 Ves. jun. 99. Kidney v. Couss- maker, 12 Ves. jun. 136. Some of the difficulties in the way have been removed bythe judiciousrestrictionsstated in Lushv. Wilkin- son, 5 Ves. jun. 384, where it is said, that it is not sufficient that the grantor is indebted at the time of the conveyance : a single, or an inconsiderable debt is not enough; every man must be indebted for the common bills of his house, though he pays them every week. It must depend upon this, whether he was in insolvent circum- stances at the time. If, however, the limitations introduced by this case are necessary and equitable, so is the extension which has been given to it in another direction, in the case of Montague v. Lord Sandwich, cited 12 Ves. jun. 148, 156, note, in which it v;as held, that if the conveyance is void against creditors whose claims existed at the time of the grant, and has been set aside as to them, subsequent creditors are let in. 1 Schoale & Lefroy 156. See Osborne v. Moss, 7 John. 161.* With regard to another question which wasargued by thecoun- eel, though not expressly noticed by the court, viz. whether a con- fession of judgment by anexccutorisconclusiveagainsttheheirof Ibe real estate, it is one which can derive little illustration from English cases. In the case of Mason's devisees v. Peters' administra- tors, 1 Munf. 437, in the state of Virginia, it was held, that a judg- ment against the executors only, is no proof against the devisees of land; for there is no privity between an executor and the heir or devisee of land, however it may be between an executor and a legatee of personals. On this last point, Anderson v. Fox, 2 Hen. & Munf. 245. AtwelCs administrators v. Milton, 4 Hen. & Munf. 253. That the claim on the estate was, in this case, for unliquidated damages, furnished no ground of objection to apply ing the statute of Elizabeth, which has been held to extend not only to the credi- tors, but to all others who have any cause of action or suit, or any penalty or forfeiture, either to the king or subject. Gil. Eq. 29. CITED IB Hainet v. Price, Spen. 482. Mulford v. Peterton, 6 Vr. 135. *See 2 John. Ch. 48. 3 Ib. 500, 501. Whartont Dig. 291. Lessee of Ridgway V. Underwood. NOVEMBEE TERM, 1798. 461 Grieve v. Annin. GRIEVE and MOFFAT against ANNIN and HENRY. Where the condition of a bond is to pay a certain snm of money in article? of merchandise, on a certain day, under a plea of payment at the day, a tender and refusal cannot be proved: nor will the defendant be permitted to avail himself, in mitigation of damages, of the circumstance, that the current price of the article agreed to be paid, was, at the time when the payment was to have been made, lower than the price fixed in the bond. This was an action of debt on a bond. The defendants had bound themselves, under a penalty, to pay the sum of 391 5s. in good merchantable leather, at Albany, on the 15th October, 1796 : the price of the sole leather was to be 2s. 6d. and the upper leather at 4s. Id.: three pounds of the former were to be fur- nished for one pound of the other. The defendants pleaded 1. Non estfactum. 2. Performance. At the trial of the cause, the defendants offered in evidence, under the plea of performance, that at the time fixed in the bond for the performance of the condition, they had tendered tho leather agreeably to the condition, but the plaintiffs refused t > receive the same, alleging that it was of an inferior quality. They also offered to prove that the price of the leather, as fixe.! in the condition, was higher than the market price at the time i\ was to be delivered ; and that therefore, in estimating the dan- ages sustained by the non-delivery, it should be calculated on tb amount of leather which it was agreed to furnish, rather than 01 > the amount of money whicb was to be paid for it. By making th ) calculation in conformity with the rule suggested, a considerably abatement would be made from the 391 5s. the sum stated id the bond. This evidence was overruled, and the question as to its admis- sibility was reserved for the opinion of the court before whom it was now argued. Williamson, for the plaintiffs. The condition of this bond binds defendants to pay the sum of 391 5s. in good leather, at a cer- tain time and place, at fixed prices, and in settled proportions. The defendants have pleaded non est factum and performance. Under the plea of performance, they offer to prove, that a ten der was made ; a fact which is never admitted in evidence, tiniest it is pleaded, which contradicts the plea which is considered at covering it, because the fact of a tender admits a refusal, and shews there was no actual performance. An excuse for not per- 462 NEW JERSEY SUPREME COURT. Grieve v. Annin. forming, is certainly a different thing from an actual performance ; the one negatives the other. The doctrine of tenders is one of strict law, and in the plead- ing it is necessary to point out, and, of course in the tendry, to set out, the particular articles whereby they can be known and distinguished from others: for if the tender be good, it is a bar to an action on the contract, and the articles vest in the person to whom they are tendered, they continue at his risk, and he ought to be able to identify them. 1 Swift's Syst. 404. This has not been done in the present case ; no plea of tender has been made, and the evidence therefore is inadmissible. 2. Nor is the evidence of a difference in the price of the articles covenanted to be delivered, such testimony as can affect the nature of the undertaking. The rule of the law is, that if the value of any thing be expressly stipulated in a contract, the value shall be in- tended as things are at the time when the contract takes effect. 1 Powell on Contracts 408. Money is the measure of value, (4 Bur. 2228) and the sum fixed upon is the amount of the debt ; it is the sum fixed and agreed upon between the parties, and is therefore the proper quantum of damages. Bur. 2229. 1 Fonbl. Tr. on Eq, 142. Small v. Lord Fitzwilliaris Free, in Chan. 102. A. Ogden, contra. The first question is, whether the proof of a tender is admissible under a plea of performance. With regard to the plea of performance of covenants, the rule is, that where- ever they are affirmative, a general plea of performance is an absolute bar to the action ; where they are negative, it must be shewn how they were performed. Esp. 372. The covenant is here affirmative to do a certain thing, and the plea is technically unobjectionable. What acts, then, were necessary on the part of the defendants? and, in what manner could the undertaking by them be fulfilled? Clearly, if they were prepared with the leather, if it was offered to the plaintiffs, and they have refused to accept the tender, without some legal reason, the covenants have been performed, and the right of action is extinguished. The price of leather had diminished in the market, and if the principles contended for by the plaintiffs are to bo received in a court of justice, the most glaring injustice must result: the plain tiffs would never receive the article if the price had fallen ; they would en- force the payment of it specifically if it had risen. All the risk NOVEMBER TERM, 1798. 463 Grieve v. Annin. of a change in the state of the market is thrown upon the defen- dants, who must lose under whatever circumstances may arise. Supposing, however, that the facts which it is offered to prove do not amount to a bar of the action, they are clearly admissible in mitigation of damages. Wherever the non-payment of a debt has proceeded from the negligence of the creditor, he forfeits his right to damages or interest ; it is but a slight extension of the rule, to apply the same principle to a case of this description. Williamson, in reply. The defence set up is founded upon two grounds, which are manifestly repugnant to each other. 1. It is contended, that the facts offered to be proved amount to an actual bar of our demand. We admit this to be so, and, upon this ground, object to its admission. If it amounts to a bar in itself, the rule of law requires that it should have been pleaded in a regular manner; or the plaintiffs apprized of the nature of the defence, that he might have been prepared with testimony to shew that no leather was in fact tendered, or to .shew that it was of a kind not suitable for the plaintiffs' purposes, and not such as the defendants had stipulated to deliver. It not having been pleaded, and no notice having been given, the evidence is clearly inadmissible. Nor is the ground upon which it is offered, in mitigation of damages, more substantial. If it can have any operation, it must be by shewing that the defendants have legally performed their covenants. "We answer to this, it is a surprise. It cannot operate in any other manner, because evidence which shews that the plain- tiff's have no legal ground of action, must be a bar or nothing. To pffer it in mitigation of damages, or in other words, to shew that we ought to recover no damages, is only a circuitous mode of attaining an end which the law will not permit directly. KINSEY C. J. This is an action of debt on a bond conditioned to pay 391 5s. in good leather, at Albany, on the 15th Octo- ber, 1796, at fixed prices, and the different kinds in certain pro- portions. The defendants have pleaded payment. Under this plea, they offered to prove 1. That at the day stated in the condition of the bond, they actually tendered the leather which they had undertaken to furnish, at the time agreed upon, and that it was refused by the plaintiffs. 464 NEW JERSEY SUPREME COURT. Grieve v. Annin. 2. That the price fixed in the bond, as that at which the lea- ther was to be received, exceeded the current market price at the time, and therefore the damages should be proportionably diminished. The question, as to the admissibility of this evidence upon this state of the pleadings, seems to be incumbered with little difficulty. The rule of Iwa is clear and explicit, that the evidence offered on the part of a defendant must always correspond with the defence stated in the pleadings. This rule is wholesome and necessary, and no circumstances of apparent hardship will, in any case, authorize a departure from its strict letter, or any abate- ment of its rigour. The plea, then, is payment at common law as a performance, and consequently a discharge of the bond, an absolute bar to the action: tender can in no instance be so con sidered.* So far from being a bar to the action, or discharge o)' the debt, it is an express acknowledgment of a subsisting righ' to demand, and of an obligation to pay. It goes only in bar 01 damages subsequent to the refusal ; it is pleaded with an uncor< prist, and the money must be brought into court. It must b< pleaded, and can in no instance be admitted in evidence undei the general issue. It is an issuable fact, and the party against whom it is to operate ought always to have notice, that ho may come prepared to controvert the fact. This evidence, then, was properly overruled. As to the second point. There are two facts which appear distinctly in the case : first, that the defendants were indebted to the plaintiffs 391 5s.; second, that the plaintiffs agreed, in sat- isfaction of the debt, to receive a certain quantity of leather at a fixed price. The defendants, therefore, had their election on, tbo day specified, to make a tender of the leather, agreeable to the items of the contract. If it had borne a higher price, the plain- tiffs, we think, would, under the circumstances, have been pre- cluded from enforcing their claim for more than the amount of the money; if the market price was less, the right still existed for the money; if the leather was not paid. It may bo, that the market price continued the same as at the time of making the contract ; that the plaintiffs might have occasion for that quantity *Se the case of Alcorn v. Wettbrook, where it was held, that a tender on the one Bide, and a refusal to accept on the other, were, in point of law, equivalent to payment. 1 Wilt. 116. Phil. Ev. 164. NOVEMBER TERM, 1798. 4G5 ' Grieve v. Annin. of leather at the time mentioned, and, in order to ensure its being there, might have found it advantageous to be satisfied with paying more than the current price of the article.. Be this, however, as it may, as the leather was not delivered agreeably to the undertaking, the right of election, on the part of the defendants, ceased. It would be, indeed, a most singular construction of this agreement, to allow the defendant to omit the payment of both the money or the leather at the time, and then to demand an abatement of the debt, on the ground, that he might have furnished leather at a lower price. There is no mutuality in such a construction of the instrument, and certainly as little equity. The defendants had their option to pay the money or the leather, at the stipulated time and place. If the leather had been legally tendered, and refused without an adequate reason, the consequences would have rested on the plaintiffs, and by pursuing a proper course, the right to bring this action would have been defeated. The parties have made their own contract; they have expressed it in their own words, and the language admits of a legal and explicit construction : the court have no authority to alter its terms and create an obligation to which no assent was ever given. It would be almost superfluous to cite authorities to warrant so reasonable a rule of construction as we have given : but there is a short report of a case in Bro. Abr. title Debt, pi. 159, so per- fectly analogous that we may refer to it as authoritative. One had undertaken to pay 20, or deliver twenty bales of wool. The obligee demanded the money, and it was held, that before the day fixed for payment, the obligor had his election to pay either ; after the day, without any tender being made, the obligee might demand the money. The principles of the cases are pre- cisely similar. There are no grounds of reason or equity", nor any principle of law, on which this application for an abatement can be supported. The evidence, therefore, on this point also, was properly overruled, and there must be Judgment for the plaintiffs. VOL. i. 2 E 466 NEW JERSEY SUPREME COURT. Den v. Spinning. [FEBRUARY TERM, 1799.] DEN ex dem. JOUET against SPINNING. The interest of the mortgagee is personal estate, and passes under a convey- ance of personal property ; but the assignee claiming under the transfer, by the legislature, of the personal estate of the mortgagee, which had been confiscated for treason, may bring ejectment on the mortgage. Query. In whose name must the action be brought? This was an action of ejectment for lands in Essex county. A verdict had passed for the defendant, and on a motion for a new trial, by the plaintiff, it appeared : That Jouet, in whose name the suit was brought, had loaned a sura of money, for which Spinning and two others had given their bonds for 270, and Spinning himself a mortgage on the premises in controversy, dated in November, 1775. The money secured by the mortgage became payable in June, 1776. During the revolutionary contest, Jouet, the mortgagee, joined the British armies; and in January, 1779, final judgment was entered against him on an inquisition of treason, regularly taken under the acts of assembly. , In May and June, following, two several payments were made to the commissioner of forfeited estates, on behalf of the said debt, and the whole sum remaining duo and unpaid, including interest to the time of trial, was 32 12s. 6d. The plaintiff gave in evidence an act of assembly, passed March, 1795, by which the state of New Jersey transferred all the residue of the personal estate of said Jouet, remaining undisposed of, to his daughters. (See the case of Den ex dem. Jouet v. Wat kins, ante.) The principal question arising in the case was, whether under the act of assembly above mentioned, any interest in the mort- gage deed vested in the daughters, upon which this action of ejectment could be maintained, they being the real plaintiffs in the cause ? It was argued by I. H. Williamson and A. Ogden, for the plaintiff; and M. Williamson for defendant. For the plaintiff. Under the act in question, the whole per- sonal estate of C. Jouet, the mortgagee, remaining undisposed of, was transferred to his daughters. The debt due from the defend- ant is clearly within th'e terms, as well as the spirit of the act, and consequently, the right to demand it is vested in them. Tho mortgaging of real estate, to secure the debt, cannot alter the FEBKUABY TEEM, 1799. 467 Den v. Spinning. nature of the property: it is considered merely in the light of a pledge, as a collateral security. {Powell on mortgage 106) and the transfer of the debt carries also the security, and the means by which the payment is to be enforced. 2 Bur. 978. Chan. Ca. 88, 283. Prec. in Chan. 11. The giving the debt was the princi- pal end of the statute, and the remedy, or security, goes with it as a necessary consequence. The rule of law is clear, that when- ever a power is given by a statute, every thing necessary to the making it effectual is given by implication ; for the maxim ig quando lex aliquid concedit, concedere videtur et id quod devenitur ad illud. 12 Rep. 130-1. 2 Inst. 306. 6 Bac. Abr. 369. In fact, so far as regards this formal part of the case, the estate never has been divested out of Jouet. All his property was confiscated, in consequence of the treason committed by him, but the state never could have prosecuted for the recovery of this debt, or sued on the mortgage, except in his name. In the third section of the act of April 18, 1778, (Wilson 43) this is expressly provided for, and the commissioners of forfeited estates are directed to prosecute and sue for the debts, &c. due to the offender, in the name of such offender. This debt never having been recovered by the commissioners of forfeited estates, and it being a chose in action, which until reduced into possession by legal prosecution, was never totally divested out of the. real owner: the moment the treaty of peace was ratified, his rights were preserved to him, and he became entitled to prosecute this action on his own account, and for his own benefit. No impediments are to be interposed to prevent a recovery by a British subject of his just debts, and this treaty being under the constitution of the Dnited States, the supreme law of the land is obligatory upon this court. Whether the estate then, was transferred by the act of assem- bly, or whether, being a chose in action, it never was taken out of the offender, the plaintiff is clearly entitled to recover in this action. There is no pretence for saying, that the debt has been destroyed, or that the state can prosecute for it. The act in question, if it passed the bond or debt, must either have given to the representatives of Jouet, the remedy by which its pay- ment was to be enforced, or it must have had the effect of annulling the mortgage deed, and relieving the defendant from the pledge which had been given. KEW JERSEY SUPREME COURT. Den v. Spinning. For the defendant. Tho main question to bo considered, involving in itself the entire merits of the case, is, whether tho plaintiff is entitled to recover in the present action ? If no recovery can legally be had, the verdict is right, and no ne\v trial -will bo granted. Jouet, the offender, convicted of high treason for joining the armies of the enemy, whoso entire estate has been confiscated on account of his treason, has been considered by the opposite counsel, in the light of a British subject, whoso rights are pre- served and guaranteed by the treaty of peace. The benefit of that instrument, which was designed to protect the interests of an innocent and suffering class of men, who had been guilty of no moral crime or political offence, but who had, in the warmth of a furious and protracted war, been involved indiscriminately in the same punishment with the crafty traitor and pusillanimous deserter of his country's standard, it is contended, is to extend to protect rights which had been appropriated, and secure property which had been confiscated in consequence of a notori- ous act of treason. It is sufficient barely to state this propo- sition to establish its utter weakness. Jouet was an American: instead of making his election between the two parties when the government was dissolved, he remained here ; ho took upon himself tho duties of a citizen of the independent state of New Jersey; became amenable to its laws, and violated his allegiance and his duty by a subsequent act of treason. It would be a manifest perversion of the terms of the treaty, to include him within its provisions. Under the act of assembly, transferring to the daughters of Jouet, all his personal estate remaining undisposed of, it is con- ceived no recovery can legally be had. The express language of the act embraces only personal property, and although the interest of the mortgagee is sometimes considered as a personal interest, because intended to secure a debt, yet by bringing an action of ejectment, it is treated as a real right. Before the mort- gage becomes forfeited by the non-performance of the condition of the bond, the debt is the principal, tho security merely collat- eral. Upon the forfeiture of the bond, however, at strict law, the estate is absolute, and the permission to redeem at any subse- quent time is an instance of extraordinary liberality, allowed to tlie mortgagor to prevent him from absolutely losing his property. FEBRUAEY TEEM, 1799. 468 * . Den v. Spinning. The mortgagee however, is always considered, strictly speaking, as the owner of the land ; he may maintain an ejectment at any time after the execution of the deed, and it seems a solecism in language to call a right to real property a personal interest. It is conceded, that the debt was personal property; that it passed under the act of assembly, and the claim might have been legally enforced by an action of debt on the bond. There will be no defect of justice in supporting the present verdict: the interests of all parties will be preserved, and the present defend- ant, who is alone called upon in this action, will only be respon- sible with the other obligors in the bond, who must be joined with him in an action of debt. Instead, therefore, of compelling the present defendant to pay the whole debt, the others will be forced to contribute according to their respective interests. If this verdict is set aside, and the plaintiff recovers in another action of ejectment, the consequence will be, that he will acquire a valuable estate, which, at the time of executing the mortgage in question, was considered as an ample security for the whole amount advanced, in consequence of the non-payment of little more than one-tenth of that sum. This property has since increased greatly in value, and this will become the right of the plaintiff, if he ia allowed to recover in an action of ejectment ; or the defendant will be compelled to have recourse to a tedious and expensive chan- cery suit, which must terminate precisely as the action of debt would now do. On the contrary, the remedy of the plaintiff is per- fect and adequate, by an action of debt; he can sustain no damage by refusing a new trial, while the defendant may by granting one. It is not meant to deny, that in some instances the interest of the mortgagee is considered as part of his personal estate; it has been so held to prevent injustice, and for the same reason wher- ever it will operate hardship, it will be regarded as real property, to which it is far more nearly assimilated. In reply. It has been urged, that the debt secured by mort- gage is real pi*operty: no ground has been stated as the founda- tion of this opinion, which is contradicted by the uniform current of authorities. It never passes by a devise of real estate; tho right to receive the money goes to the executor. An ejectment is merely to recover possession of the pledge, which, agreeably to the general law of mortgages, continues in the possession, and 470 NEW JERSEY SUPREME COURT. Den v. Spinning. under the control of the mortgagor, until changed by the judg- ment of the court. But, when the possession is thus altered, the property still continues a pledge, which may bo redeemed within a reasonable time, until the party by his own negligence, forfeits his claim and his right to the property. From the principles contended for, it would follow, that the act of assembly transferring the interest of the state to the daughters of Jouet, would operate, so far as regards the present case, chiefly by discharging the land of the debt which it was intended to secure. The debt is acknowledged to have passed : the state, after assigning the bond, can have no further interest in the security. Either the mortgage deed must be cancelled, a conclusion certainly never contemplated by the legislature, enur- ing to the benefit of one whose interests never were in their view, or it must go with the debt, as inseparable from it. The law gives the debt, the remedy follows of course. The act under which the inquisition was had, confiscates all the estate of C. Jouet, and the commissioners of forfeited estates are directed to sue in the name of the offender. By the act, transferring the personal estate to the real plaintiffs in this suit, they likewise are authorized to prosecute in the name of their father. No objection, therefore, can be raised on that ground, and every difficulty in the way of a final recovery is removed. KINSET C. J. This is an ejectment on a mortgage, brought for the recovery of lands in Essex county. The premises were mort- gaged, in November, 1775, by the present defendant, to the nomi- nal plaintiff, as a security for a debt. Jooet, the plaintiff,' having committed an act of treason, final judgment passed against him, on an inquisition under the act of April, 1778, and his entire estate, being confiscated, vested in the state of New Jersey, in January, 1779. Payments were made on account of this debt to the com- missioners of forfeited estates, but a balance still remaining due, this ejectment is brought to the use of the daughters of Jouet, to whom the legislature, by an act of March 5, 1795, conveyed all the interest of the state in the personal property of the offender. The main question arising on these facts, is, ought a recovery to be had in this form of action ? if it can, the verdict is erroneous, and ought to be set aside; if not, whatever may have been the grounds of the decision, no new trial should be granted FEBRUARY TERM, 1799. 471 Den v. Spinning. It appears to me to be, at this time, the settled doctrine of the law, whatever opinions may have been formerly held, that a mortgage is merely personal estate, and the land a security for the payment of a subsisting debt.. The mortgagee can exercise no act of foreclosure; he can neither lease nor commit waste. The mortgagor may, in an action of ejectment, bring the money into court, and tender it to the plaintiffs; and a payment with- out deed revests in the mortgagor all the estate and interest which he previously had in the premises. Thus the interest is considered as merely a personal one. Still, however, before payment, an action of ejectment can be sustained, as one means of enforcing the demand. By the act of April, 1778, sec. 3, the commissioners of forfeited estates may prosecute for the debts and demands due to the offender, in the name of such offender. This was in the exercise of a power clearly belonging to the legislature, and against which it appears to me there can exist neither a legal nor equitable objection. By the act of 1795, the legislature conveys all the interest in the personal estate of C. Jouet, then remaining undisposed of, to the daughters of Jouet, authorizing them to sue for the recovery of the same, either in their own names or in the name of their father. The money not having been paid on the bond, an ejectment is a remedy to enforce the claim, which the law recognizes as formally correct. This action is properly brought in the name <5f C. Jouet, and it does not strike me, that any just or technical difficulty exists to prevent a recovery. The verdict was, there- fore, against evidence, and must be set aside, and without costs. BOUDINOT J. (after stating the circumstances of the case.) The defendant's counsel has objected, that the sum remaining due being so small, the action for its recovery should have been debt on the bond, and not ejectment on the mortgage. The question, however, in an action of ejectment is not, what is the amount of the'debt? but has the plaintiff a right to the land? It is perfectly immaterial, whether 10 or 10,000 is due on the mortgage; the right of possession is equally perfect in either case, and of consequence his right to a recovery. The law allows to the plaintiff several remedies, he is allowed to elect between them, or to pursue them all at the same time, and I am 472 NEW JERSEY SUPREME COURT. Den v. Spinning. not aware that this court has any authority to interpose or to control him in the exercise of this power. Neither am I able to comprehend in what manner the evils contemplated by the counsel, can flow from this doctrine. The defendant may tender the amount due, and in that case the plaintiff must proceed at his peril. If, however, any legal objections exist to a recovery in this case, it is perfectly immaterial upon what grounds the verdict may have passed for the defendant; it would be in vain to grant a new trial, if in the end the result must be the same. This brings me to consider the main question in the case, viz. : Can the present action be maintained in the name of C. Jouet, the mort- gagee, as lessor of the plaintiff? There is no principle in the law better settled, than that the plaintiff in ejectment, must shew that his lessor was seized, or possessed of such an estate in the premises, as to warrant him in making the lease set forth in the declaration. The lessor of the plaintiff, on this record, is C. Jouet, and the question arises, is he, either in law or equity, vested with such a title to the prem- ises in question, as to enable him to make a lease? By the first section of the act of December 11, 1778, forfeit- ing to and vesting in the state of New Jersey, the real estate of certain fugitives and offenders, it is enacted, that all and singu- lar the lands, tenements, and hereditaments, of such offender; all his estates real, of what nature or kind soever, which he shall have been seized or possessed of, interested in, or entitled to, shall bo forfeited to, and vest in, the state of New Jersey for ever. Under this general language, all the estate of the offender, and his right of possession, is divested out of him, and vested in the state: and unless there is some after grant, reconveying his in- terest in proper and appropriate terms, so as to enable him to maintain an ejectment for the same, the inquisition and judgment must operate as a perpetual bar. There is no question, in my mind, as to the power of the legis- lature to pass a law authorizing Jouet, or any other person, to whom the estate was given, to sue for the same in an action of ejectment. No such authority has, however, been given, nor can I find that any legislative act was passed, declaring in what man- ner or in whose names, actions for the recovery of real property should be brought. The third section of the act of April 18, 1778, FEBRUARY TERM, 1799. 473 Den v. Lippencott. unquestionably relates exclusively to personal actions, as at that time no real estate had been made forfeitable. The counsel for the plaintiff, have urged, that a debt secured by mortgage is considered as a specialty debt; that the legislature having given the debt, and the right of suing for it, the grantees are entitled to all the remedies which the state could have employed for reduc- ing this claim into possession. Of this, I entertain no question, the proposition is sound law ; and I have accordingly considered the case as between the state and the defendant. If the state would have been entitled to a recovery in the present form of action, in the name of Jouet, I should have no doubt that the real plaintiffs in this case might do the same. But while I acknowledge that the interest of the mortgagee is a personal interest; that the daughters of Jouet might have brought an action of debt on the bond, in the name of their father, yet I regard this as an action of a peculiar kind, intended to enforce a personal demand by proceedings of a real nature. The act authorizing personal suits, does not in my opinion extend to actions of ejectment, and thinking that in this form of action no recovery can be had, I am against disturbing the verdict. * DEN ex dem. LAURENCE against LIPPENCOTT. A voluntary conveyance to a child or grandchild, the grantor being indebted At the time, is void as against creditors. A purchaser at sheriff's sale, at the suit of such creditors, will be protected in his purchase, though he knew of such previous voluntary conveyance. Evidence to prove that the property was purchased at an under value^ not admitted, because the deficiency of price might have arisen from the circum- stance of the fraudulent deed. Where the bail on a writ of error in an action of ejectment are excepted to, they must justify in double the annual value of the lands, or the whole may be treated as a nullity. At the trial of this ejectment at the Gloucester Nisi Prius, in October, 1798, before Kinsey C. J. and Smith J. the following points were resolved. 1. That a voluntary conveyance to a child or grandchild, the grantor being indebted at the time, is, as against creditors, fraud- ulent within the purview of " the act for the prevention of frauds * See ante, note to the case of Jouet v. Watkins. 474 NEW JEKSEY SUPREME COURT. Den v. Lippencott. and perjuries," (Pat. 133) passed November 26, 1794. The cir- cumstance, that there was a good consideration, as blood does not bring it within the proviso contained in the sixth section. The court said it was unnecessary, in such case, to prove any actual intent on the part of the grantor to act in a fraudulent manner. The moral fraud is not essential, but the legal fraud is the legal conclusion upon the fact, that the effect of the instrument, if supported, will be to deprive creditors of their remedy. 2. A purchaser of the land thus voluntarily conveyed, at a sheriff's sale on an execution at the suit of the creditor, although he knew of such voluntary conveyance, will be protected in his purchase. The conveyance was fraudulent and void, and the knowledge of a void grant cannot vitiate a good title : the cred- itor, by his execution, has avoided the deed quo ad hoc, and the purchaser stands in his place. 3. The court refused to permit the defendant to give evidence, that at the sheriff's sale the property was bought at an under value. The existence of the conveyance which the law adjudges fraudulent, was known ; no one likes to purchase a title involved in disputes, and which must be enforced by action : the inade- quacy of price was, in all probability, the consequence of the fraudulent grant under which /the defendant claimed, and of which he cannot be permitted to avail himself. Judgment for plaintiff. In February 1799, on a motion for leave to take out execution. Leake, for plaintiff. A writ of error was brought on this judg- ment, and, bail being filed, it was excepted to, November 28, 1798, of whiph notice was regularly given. The defendant, himself, having entered into the recognizance on December 12th, 1799, gave a bond, with one Hammill, for 8100, conditioned for the payment of costs. February 23, 1799, an exception was filed as to Hammill. The first ground on which this application is made, is, that the writ of error is a nullity, no bail having been filed. Under the act of February 18, 1747-8, before any writ of error is allowed, the plaintiff in error must give security to pay costs to the other party, in case the judgment be affirmed. Exceptions have been filed to the sufficiency of both, and no bail is therefore in fact filed. SEPTEMBEE TERM, 1799. 475 Den v. Inslee. The sura stated in the recognizance is sufficient. The yearly rent of the premises in controversy are ascertained to be 40, and the costs have been taxed at 20. By the statute of 16 and 17 Car. 5, c. 8, sec. 3, in cases of ejectment, the plaintiff in error shall be bound to the other party in such reasonable sum as the court to which the writ of error is directed shall think fit. By the practice of the courts of Westminster, this reasonable sum is fixed at double the annual rent. 2 Cromp. 364. Thomas v. Goodtitle, 4 Bur. 2501. The act in Allinson is affirmative, and does not alter the practice which had before obtained in our courts under the statute. Woodruff, contra. Per curiam. Take your execution.* [SEPTEMBER TERM, 1799.] DEN ex dem. EOSSELL against INSLEE. The defendant in ejectment will not be compelled to enter security for costa, on the ground, that he had removed out of the state after entering into the common rule. LEAKE, for the plaintiff, had moved, that the defendant might be ordered to enter security for costs in this ejectment. In support of the motion, he contended, that the court always assumed a conti'ol over the action of ejectment, and in their dis- cretion compelled the parties to conform to such terms as the circumstances of the case rendered it expedient or equitable to impose. Under the rule established in this court in November, 1794, if on the trial in ejectment the defendant shall refuse to confess lease, entry, and ouster, he shall be compelled to pay costs. After these costs have been demanded and refused, the court will compel the payment of them by attachment. Run- nington on Eject. 132-3. This was formerly confined to the Court of Common Pleas, but now, where the plaintiff is non- suited for the defendant's not confessing lease, entry, and ouster, the plaintiff must proceed in the King's Bench, also, by attach- ment upon the consent rule. 2 Tidd's Pr. 905. 2 Sellon's Pr. * See ante Den ex dem. Lockyer v. De Hart, and the note. 476 NEW JERSEY SUPREME COURT. Den v. Inslee. 111. Running. 75. (See Christian's note 3, on SI. Com. 205) Lord Mansfield (3 Bur. 1295) declared, "that he had it at heart to have the practice upon ejectments clearly settled, upon largo and liberal grounds for advancement of the remedy," and "that the great advantage of this fictitious mode of proceeding is, that being under the control of the court, it may be so modelled as to answer in the best manner every end of justice and convenience." In this case, when the defendant was admitted to enter into the common rule, he was within the jurisdiction of this court, and amenable to the process of attachment; he has, since that time, removed into the state of New York, and there exists no power in the court to compel his compliance with the consent rule, or to punish his contumacy by enforcing the payment of costs. If the court has, in any case, a power to impose, terms upon a party claiming a favour, it ought to be exercised here, because tho plaintiff will otherwise be remediless. fi. Stockton, contra. There is no precedent to be found, either in the English books or our own practice, to authorize such a cofirse. The defendant has a clear and unquestionable right, in- dependent of any arbitrary rules of practice, to continue in the possession of his property until legally evicted by due course of law. With as much propriety might the defendant, in any other action, be called upon to enter security for costs: the plaintiff may have a legal right to demand them, and yet be without the means of enforcing that right. The action of ejectment is, it is true, completely under the control of the court, because being wholly a fictitious proceeding; unless the court did interpose its authority, any one might be ousted from his possession without any legal adjudication upon his title. No instance, however, has been or can be produced, in which courts have exercised such a power, and we solemnly protest against any such innovation, at this time of day, upon the established rules of proceeding. KINSEY C. J. It is clear that an ejectment is almost entirely a fictitious proceeding, introduced from views of general conve- nience, which courts have assumed the power of moulding, so as to answer tho purposes of justice, and in order to prevent a fiction from working injustice to any one. If the lessor of tho plaintiff removes out of the jurisdiction of the court, after the commencement of the action, wo have com- SEPTEMBER TEEM, 1799. 477 Den v. Inslee. pelled him to give security for costs. Such a case, however, is not within the terms of any act of assembly, but is founded upon this discretionary power, claimed and exercised by the court in this species of proceeding, to effectuate the objects of justice. It appears to me, that in order to attain the same ends, we have, and may exercise the same control over the defendant. We will not permit him to defend the suit, without entering into such terms as it has thought fit to establish in general cases: and when other circumstances arise, requiring a further exercise of our controling powers, I am at a loss to conceive upon what grounds we are to be restricted in so doing. When the defendant entered into the rule, he was a resident; we admitted him to make himself a party to the cause, because he undertook to pay costs, and we had the means of compelling a compliance with this undertaking. He has since removed beyond our jurisdiction and control, and the court not bein.; able in any other manner, than in the one suggested on the part of the plaintiff, to compel the defendant's compliance with hi^ engagement, have a power in the fair exercise of their discro- tion to adopt that. If any one applies to be made defendant in ejectment, agaimt whom the court cannot enforce the payment of costs, it is clea t to me, that he ought not to be admitted without giving security . If the same incapacity accrues afterwards, in consequence of hid own voluntary act, it strikes me that the same course should be pursued. The object in the first instance is, to ensure the plain- tiff from being exposed to unnecessary expense, and being unfairly dealt with ; the same reasons applying with equal force in the latter case, seem to call for the same interposition of the court. SMITH J. concurred. K.IRKPATRICK J. and BOUDINOT J. being against it, Leake took nothing by his motion. 478 NEW JEESEY SUPEEME COUET. Den v. Fen. DEN ex dem. NATHAN against FEN Burntt tenant. The mortgagee may be admitted to defend in an action of ejectment, unless the lessor of the plaintiff will discharge the mortgage. M'WHORTER, on behalf of himself, and Elias Boudinot, esquire, who had a mortgage on the premises in controversy, in this ejectment, which had become forfeited since the action was brought, moved, that they might be admitted to defend the suit on the authority of Espinasse 783, and Loveback ex dem. Norris v. Dancaster, 3 T. R. 783. Per curiam. If the lessor of the plaintiff thinks proper, he may bring into court the money due on the mortgage the next term, or in the mean time discharge the mortgage; otherwise, the mortgagees may be admitted to defend. Eule nisi. NOTE. The counsel in Fairclaim v. Shamtitle, 3 Bur. 1293, said, the landlord claiming to be admitted to defend, must have actually received rent, " except in cases of mortgages after for- feiture, and the like," which doctrine is further stated p. 1299. Runnington 68, (edit, of 1792) says, generally, "it should seem that a mortgagee who is out of possession, may be admitted to defend on the tenant's refusal; though, in one case, it is said to have been otherwise determined." See Barnes 193-4. In Doe ex dem. Tilyard v. Cooper, 8 T. C. 645, the court permitted a mortgagee to be made defendant in an ejectment with the mort- gagor. 2 Setton's Pr. 1067.* * In note z. to Mr. Adamt' Treatise on Ejectment, p. 231, he seems to consider this circumstance of the mortgagee's having previously received rent, immater- ial. And in Coleman's case, Mese 56, it is said: "A person may be admitted to defend as landlord, between whom and the defendant a priority of interest exists, although he does not receive rents, which is not the true test." In Jack- son v. Babcock, 17 John. 112, it is decided, that the assignee of a mortgage may be let in to defend as landlord. APPENDIX. [The Reporter, having been favoured by the Secretary of State with copies of the original ordinances constituting our Justices' Courts, Courts of Commoa Pleas, and Supreme Court, has deemed them worthy of insertion in this volume, particularly as they shew the original extent of the jurisdiction of these courte, and remain, as far as he has been able to discover, unrepealed ] AN ORDINANCE concerning Justices' Courts, County Courts for holding Pleas, and Supreme Court. Made April 29, 1723. GEOKGE, by the grace of God, of Great Britain, France, and Ireland, King, Defender of the Faith, &c. %'fttff8i9l WE have thought fit, by advice of the most honourable the Lords of our Privy Council at our court at St. James', on the twentieth day of January, in the eighth year of our reign, to disallow some laws or acts of General Assembly of the Province of New Jersey, and enacted by the Governor, Council, and Assembly of that Province, in General Assembly met and assembled, viz. : One act entitled, "An act for shortening lawsuits and regulating the practice of the law." One other act entitled, "An act for acknowledging and recording of deeds and conveyances of land within each respective county of this Province." And one other act entitled, "An act for enforcing the observation of the ordi- nances for establishing fees within this Province." 'jkuft tt'hcffatf the late ordinance for establishing courts of judicature in the same Province, was in some measure made conformable to one of the said laws, so as aforesaid disallowed,WE have therefore thought fit to ordain, and WE do hereby ordain, direct, and empower every justice of the peace residing within any town or county within the Province of Nova Cffisarea, or New Jersey, to have cogni- zance of all. causes and cases of debt and trespass of the value of forty shillings, or under; all which causes and cases shall and may be heard, tried, and finally determined, without a jury, by any of the said justices of the peace, as aforesaid, excepting such cases where the titles of land are, or may be any wise concerned. And WE do hereby further ordain and direct, that the process of VOL. i. (I) APPENDIX. warning against freeholders and inhabitants shall be by summons under the hand of any of the said justices of the peace, directed to the constables of the town or precinct, or to any deputed by him, where the party complained against doth dwell or reside; which summons shall be served upon the person, or left at the house or place of abode of the defendant, four days, at least, before the time appointed for the hearing of the plaint. And in case the defendant does not appear at the time appointed, on affidavit made by the said constable or his deputy, that the said summons was duly served on the defendant's person, or left at the defendant's house or place of abode, with some of family of the said defendant, the justice granting such summons may, and shall not otherwise, proceed to hear such causes or cases, and determine the same in the defendant's absence, and grant execu tion thereupon, directed to the said constable, or his deputy, to be laid upon the defendant's goods and chattels, and, for wani thereof, upon the person of the defendant, which he is hereby empowered and directed to execute accordingly. And WE o& hereby further ordain and direct, that the process against a a itinerant person, inmate, or foreigner, shall be by warrant froifl any justice of the peace, to be served by any constable, or his deputy, within that county, who shall, by virtue thereof, arreot the party, and him safely keep, till he shall be carried before the said justice, who shall, and may, immediately hear, try, and finally determine all such causes and cases of debt and trespass, as aforesaid, to the value of forty shillings, or under, by awarding judgment and execution ; and if payment be not immediately made, the constable shall deliver the said party to the sheriff of that county, who is hereby empowered and required to take him into custody, and him safely keep, until payment be made of the same, with charges: Provided always, and WE do hereby further ordain and direct, that an appeal shall be allowed to the jus- tices of the same county, at the next General Court of Sessions of the Peace held, for any sum upwards of ten shillings, in all causes and cases cognizable before them, guifl ttfhma;* WE are given to understand, that many of the inhabitants of our said Province live remote from the places in which WE have appoii;U-l our Supreme Court to be held, and that it will be of great cane and convoniency to the said inhabitants that a court be held in each county for the hearing, trying, and determining of such APPENDIX. iii actions and causes of actions as shall arise within each of the said counties, and determinable by juries of the same. WE being willing and desirous to promote the ease, well being, and security of all our loving subjects, inhabitants of the said Prov- ince of New Jersey, and that right and justice may be dis- tributed amongst them, and that all matters of difference may be determined by their equals and neighbours, as nigh as the present circumstances of our said Province will admit, according to the good and ancient laws and usages of our Kingdom of Great Britain, do ordain and direct, that the County Court for holding of Pleas continue to be held and kept in each of the several and respective counties of our Province of New Jersey, to hear, and by the verdict of twelve good, honest, and lawful freeholders, in- habiting within the said respective counties where the said court is held, to try and determine all suite, controversies, quarrelf/, and differences that may arise within the said counties between our loving subjects, for any sum above the value of forty shil- lings, (causes wherein the right or title of any lands, tenements, or hereditaments, in any wise concerned, excepted) which said suits, controversies, quarrels, and differences shall be tried and determined in the said courts by a jury of twelve good and law- ful freeholders as aforesaid, and not otherwise. <3wfl WbtftBJf it may so happen, that by the craft and artful practice of the persons concerned in the said causes, quarrels, and controver- sies triable in the said County Court for holding of Pleas, the causes, quarrels, and controversies may be drawn, contrary to our royal intention, from the examination of the jury, to the great delay and hindrance of justice. And it may also happen, that upon special verdicts given in our said County Courts for holding Pleas, and, upon the pleadings, matters of law may arise, WE have therefore thought fit to ordain and direct, that on any spe- cial verdict found by a jury in any of the said courts, or any joinder in demurrer, or pleading whereby any point of law may be in issue, (such points of law as are necessary to be determined by the judges of the said courts, for the regulation and informa- tion of the jury only excepted) that then, and in such case, the clerk of any of the said County Courts respectively, where tho same shall happen, shall make up a record of all the pleadings, or special verdict, as the case may happen, and transmit the same to the Chief Justice of the Supreme Court, at the next Supreme VOL. i. 2 F iv APPENDIX. Court that shall sit after such joinder in demurrer, pleading made, or special verdict given, that judgment may be given therein by the justices of our Supreme Court. And WE do hereby ordain and direct, that the Courts of General Sessions of the Peace and County Courts for holding Pleas shall be held and kept in each respective county within this Province at the times and places hereafter mentioned. [Here follow the times and places of holding the courts in the different counties.] Vttfl tvhma.S the times of the sittings of our Supreme Court of our said Province of New Jersey are by experience found to be inconvenient, and to occasion delays in the administration of justice, to the great hurt of several of our loving subjects who have causes depending in our said Supreme Court, for the remedy whereof WE have thought fit to ordain, and do hereby ordain and direct, that our Supreme Court for our Province of New Jersey shall sit and be held at the places following, and shall sit at, and during the times hereinafter mentioned, that is to say : The next Supreme Courts at Burlington and Perth Amboy, at the times unto which the said courts were last respectively adjourned, and afterwards, on the fourth Tuesday of September, at Burlington ; the second Tuesday of November, at Perth Amboy ; the fourth Tuesday of March, at Burlington ; and the fourth Tuesday of June, at Perth Amboy, yearly ; which Su- preme Courts shall continue for any time not exceeding five days, and is hereby fully empowered to have cognizance of all pleas, civil, criminal, and mixt, within this Province, as fully and amply, to all intents, constructions, and purposes whatsoever, as the Courts of King's Bench, Common Pleas, and Exchequer have, or ought to have, in our Kingdom of Great Britain : in which court all and every person or persons, whatsoever, may com- mence and prosecute any action or suit, real, personal, or mixt, above the value of five pounds. And any action, suit, or con- troversy, information, indictment, or prosecution depending, or on'whifh judgment has been given in any of our inferior courts, may by certiorari, habeas corpus, writ of error, or any other law- ful writ or method, be removed into our said Supreme Court from any of the inferior courts within our said Province. And WE do hereby further ordain and direct, that the office of clerk of the Supreme Court of Judicature shall be kept by himself, or his APPENDIX. sufficient deputy, at Perth Amboy, in the eastern division, and Burlington, in the western division. And that all writs and pro- cesses of the Supreme Court for our Province of New Jersey shall issue out of the office in either of the said places indiffer- ently, and that the courts at Perth Amboy and Burlington shall take cognizance of such writs and process accordingly, never- theless, so that all actions and causes of actions, arising in either the eastern or western divisions of this Province, are to be tried ID, and a verdict given by, jurors of that division only in which the cause of action shall arise, as near and agreeable to the laws, customs, and usages in our Kingdom of Great Britain, as may be. IN TESTIMONY WHEREOF, WE have caused these, our letters, to be made patent, and the seal of our said Province to be here- unto affixed. 88ttttC# our trusty and well beloved William Burnet, esq. our Captain-General and Governor in Chief of our Provinces of New Jersey, New York, and the territories thereon depending in America, and Vice-Admiral of the same. In Coun- cil, this twenty-ninth day of April, in the ninth j*ear of our reign, Anno Domini, 1723. (GREAT SEAL.) Recorded in book C of Commissions, No. 2, pages 57-60. B AN ORDINANCE to lengthen the several terms of the Supreme Court of the Province of New Jersey. Made April 8, 1742. GEORGE the second, by the grace of God, of Great Britain, France, and Ireland, King, Defender of the Faith, &c. To all our loving subjects of our Province of New Jersey, and to all others, whom it doth or may concern, greeting: Whrrcatf it has been represented unto our trust}- and well beloved Lewis Mor- ris, esquire, our Captain-General and Governor in Chief of our Province of New Jersey, in Council, that the time, by ordinance appointed for sitting of our Supreme Court of our said Province, is too short for the despatch of the business depending in our said court, and a great hindrance and delay to the administra- tion of public justice: for the remedy whereof, for the future, WE have thought fit to ordain, and do hereby ordain and direct, vi APPENDIX. that from and after the term of May next, ensuing the date hereof, the several terms of our said Supreme Court shall bo, and con- tinue to sit and be holden from Tuesday, the commencement of the said term, to Tuesday, in the week thereafter. IN TESTIMONY &c. Home. Recorded in book A A A of Commissions, page 152. AN ORDINANCE respecting the Supreme Conrt. Made August 1, 1751. GEORGE the second, by the grace of God, of Great Britain, France, and Ireland, King, Defender of the Faith, &c. To all our loving subjects, inhabitants, and being within our Province of New Jersey, and to all others whom it doth and may concern, greeting: 3f$hevf&0 it has been represented unto our trusty and well beloved Jonathan Belcher, esquire, our Captain-General and Governor in Chief in and over our Province of Nova Csesa- rea, or New Jersey, and territories thereon depending, in Amer- ica, Chancellor and Vice-Admiral in the same, &c. that tho times appointed, by ordinance, for holding our Supreme Court, and our annual Circuit Courts, in and for the several and respective counties of our said Province, for trial of such causes, arising in the said respective counties, as should bo brought to issue in our said Supreme Court of our said Province, have by experience been found to be attended with divers inconveniences to the inhabitants of our said Province, gmil U'liwajS applica- tion hath been made to our said Governor and Commander in Chief for remedy therein, and WE, being desirous that the said inconveniences should for the future be remedied, have thought fit to ordain, and WE do hereby ordain and direct, that our said Supreme Court, for our said Province of New Jersey, shall begin, sit and bo held at our city of Burlington, at tho several times following, to wit: On the first Tuesday in November and the second Tuesday in May, in every year. AND ALSO, that our said Supremo Court, for our said Province of New Jersey, shall begin, sit, and be held at our city of Perth Amboy, at the several times following, to wit: On the third Tuesday in March and the second Tuesday in August, in every year, which eaid courts APPENDIX. vii shall sit and continue to be held on and from each of the said days on which it is to begin, daily and every day, until the Sat- urday next immediately following the Tuesday on which it is to begin, when and on which said Saturday, our judges of our said court for the time being, or either of them, may adjourn our said Supreme Court until the next term, unless they, our said judges, or either of them, should, upon the account of the multiplicity of business then depending, thinks it necessary and expedient to prolong the said term, in all which cases WE do hereby further ordain and direct, that our said Supreme Court shall continue to eit and be holden from the Tuesday (the commencement of the said term) to the Tuesday in the week thereafter, both days in-, elusive; in which court there shall be two return days in each of the said terms, or sittings, to wit: On the first Tuesday and Thursday following, or on such other day or days as the judges of the said court for the time being, or either of them, in their discretion, shall think proper and expedient to appoint. And WE do hereby fully empower the said Supreme Court to have cog- nizance of, to hear, try, and determine all pleas, civil, criminal, and mixt, and all other actions and suits in law and equity, as fully and amply, to all intents and purposes, whatsoever, as all or any of our Courts of King's Bench, Common Pleas, or Ex- chequer, in that part of the Kingdom of Great Britain called England, have, or of right ought to have, and any person or per- sons may commence and prosecute any action or suit in our said 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 commencing and prosecuting any action, suit, or plaint in the said Supreme Court, and the removal of any information, indictment, or any cause, matter, or thing to be removed from any of the said County Courts, Sessions of the Peace, or any other inferior courts, into the said Supreme. Court, be so commenced, prosecuted, and removed, according to, and as near as may be, agreeable 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. And WE do hereby further ordain and direct, that the office of viii APPENDIX. clerk of the said Supreme Court of Judicature shall be kept by the Secretary, or his sufficient deputy, at Perth Amboy in the eastern division, and Burlington in the western division, and that all writs and process of the Supreme Court for our Province of New Jersey shall issue out of either of the said places indiffer- ently ; and that the courts of Perth Amboy and Burlington shall take cognizance of such writs and process accordingly, never- theless, so that all actions and causes of actions, arising in either of the eastern or western division of the Province, are to be tried in, and a verdict given by jurors of that division only in which the cause of action shall arise, as near and as agreeable to the laws, and customs, and usages of our Kingdom of Great Britain, as may be ; and in whichsoever of the divisions the venue is laid, there, that is to say, the secretary's office of each division, shall the declaration, pleas, and all other pleadings in that cause be filed. And WE do further ordain, that our justices of our Supreme Court for the time being, or either of them, shall annually, and every year, go into every county in our said Province, and there hold a court for trial of such causes arising in the several and respective counties, as are brought to issue in the said Supreme Court, which causes our justices, or either of them, is hereby empowered to hear and try by jurors of the said counties, and on any verdict in any of the said counties within our said Pro- vince, judgment to give at the Supreme Court of Judicature to be holden at our city of Perth Amboy, for the eastern division, or city of Burlington, for the western division, next after such ver- dict given in any of the said counties within our said Province of New Jersey ; which courts for the trial of causes shall be held in our several counties, (except Cape May) for and during a term not exceeding five days. And WE do hereby further ordain and direct, that the time and place for holding the yearly Circuit Courts in the several counties of our said Province, for the trial of such causes as aforesaid, shall be such as are hereafter men- tioned, that is to say : That the said Circuit Courts for our coun- ties of Bergen, Essex, Monmouth, Somerset, and Morris shall be held at such times in the months of September or October, yearly, in such places in each of the said respective counties as our judges of our said Supreme Court for the time being, or either of them, shall yearly, in the next preceding term, or at any other time appoint for that purpose; and that the said Circuit APPENDIX. Courts of our counties of Hunterdon, Gloucester, Cumberland, and Cape May shall be held at such times in the months of April or May yearly, and at such places in each of the said respective counties, as our judges of our Supreme Court, for the time be- ing, or either of them, shall yearly, in the next preceding term, or at any other time appointed for that purpose : Provided always, and it is hereby further ordered and directed, that the causes arising in the county of Cape May shall be tried in the county of Cumberland. And WE do hereby require and com- mand our high sheriffs, justices of the peace., the mayor and al- dermen of any corporation within any of our respective counties of our said Province, all officers, magisterial or ministerial, within our said respective counties, to be attending upon our said jus- tices of our said Supreme Court, or any one of them (going the circuit), as well at the times of their or his coming into and leav- ing the said respective counties, as also during their stay upon the circuit, within any^ of the said counties, on pain of our highest displeasure, and of being proceeded against, according to law, for their or any of their neglect or contempt of our royal autho- rity and command hereby signified. IN TESTIMONY WHEREOF, WE have caused the great seal of our said Province of New Jersey to be hereunto affixed. SlVitnc.e.S' our trusty and well beloved Jonathan Belcher, esquire, our Captain-General and Governor in Chief in and over our said Province of Nova Cse- sarea,or New Jersey, and territories thereon depending in Amer- ica, Chancellor and Vice-Admiral of the same, &c. at our city of Burlington, the first day of August, in the twenty-fifth year of our reign, Anno Domini, 1751. Recorded in book A A A of Commissions, page 313. INDEX TO THE PRINCIPAL MATTERS. A ABATEMENT. 1. It is a good plea in abatement to an indictment for a rape, that one of the grand jurors by whom the bill was found, was not a freeholder as he is directed to be by the act of assembly. State v. Rockajellow, 332 2. Advantage must be taken of the non-filing of a refunding bond, by a plea in abatement. Cowell v. Oxford, 432 ABSENT AND ABSCONDING DEBTORS. See ATTACHMENT, 1. ACCOUNT. See EVIDENCE, V., 2. ACTION. 1. An action upon the third section of the act of 25th February, 1820, (Rev. Laws 689.) " for restraining the plain- tiff from navigating the waters between the ancient shores of New York, and New Jersey," is not a local but a transi- tory action. Gibbons v. Ogden, 285 2. An action will not lie to recover back an unreasonable amount of costs, which had been taxed and paid : the proper remedy is by relaxation, Allen V. Hickson, 409 See MEADOW BANK, 1. ACTION ON THE CASE. 1. An action on the case lies against a constable, for not returning a writ of attachment. Stout v. Hopping, 125 VOL. I. 2. Under the act of the 25th of Feb- ruary, 1821, entitled, "A further sup- plement to the act entitled an act to preserve and support the jurisdiction of the state," a citizen of this state, who has been restrained by an injunction out of the Court of Chancery of New York, from navigating with his steam- boat, the waters between the ancient shores of the states of New Jersey and New York, may recover damages, with triple costs, against the person so restraining him. Gibbons v. Liv- ingston, 236 3. An action on the case may be maintained by a father, for a personal injury done to his child and servant, under a per quod. Vanhorn v. Free- man, 322 4. Though the child may be living in another family, at the time she receives the injury, such action is maintainable under certain circumstances: the slight- est evidence will be sufficient to shew the existence of the relation of master and servant. ib. 5. An action on the case will lie for debauching plaintiff's daughter, when the damage laid in the per quod, arose from mental affliction, she not having heen pregnant. Query. ib. See COVENANT, 2. CONSTABLE, 2. ADMINISTRATION BOND. 1. The non-payment of a void judg- ment cannot be assigned, as the breach of the administration bond, in order to subject the administrat&rs or their sure- ties, to the payment of it Dickerson V. Robinson et al. f 195 2. A creditor cannot sue an adminis- tration bond, and assign for breach of the condition thereof, the non-payment Xll INDEX. of a debt upon a demand in pait; nor even upon a judgment at common law, and a dcvaslavit upon it. ib. 3. But he may sue an administration bond, in order to obtain a complete and perfect inventory. And he may assign as a breach, the not rendering a true and perfect inventory of the estate of the intestate, but he cannot sue the bond and get judgment upon it for his own individual debt. ib. 4. If the administrator made a final settlement, in Orphans' Court, and a confirmatory decree of said court was passed upon it, then the balance found in the hands of the administrator is a surplus, to be distributed according to the statute. But there can be no such final settlement, until all the debts known, exhibited and allowed, are paid. But if the settlement was not such final settlement, then the creditor may assign for breach of the condition, the not mate- ing a true and just account of the ad- ministration/- ib. See EXECUTORS AND ADMIHISTRA- TOE8, 1. AFFIDAVITS. See PRACTICE, III. TRANSCRIPT, 3. AGREEMENT. An article of agreement, stating, that the plaintiff "hath granted, bargained, and sold, and did absolutely grant, bar- gain, and sell," and covenanting to give a good and sufficient title at a future day, upon the defendants making cer- tain payments, does itself convey the land, and the agreement to give a good title afterwards, means a mere formal deed, rather than title, strictly speak- ing. Scott v. Conover, 222 See COVENANT, 1. ALTERATION. 1. The law does not presume, that an alteration apparent on the face of a note, was made after its execution. Cumberland Bank v. Hall 215 2. But whether the alteration was after or before the execution of the note, appears to be a question for the jury to decide, ib. AMENDMENT. 1. A writ of dower cannot be amend- ed by inserting a place of appearance, which had been omitted. Anon. 166 2. The Court of Common Pleas, may at the third term after filing the appeal, permit the transcript of the justice to be amended by affixing a seal thereto, provided no delay is occasioned thereby. Thompson v. Sutton, 220 3. Where the sessions have made a return to a certiorari, which was ad- judged incomplete, and another return made, the court will not refer to the first, in order to settle any ambiguity in the second. But a rule may be taken on the sessions to amend their second return. State v. Hunt, 303 4. When statute of limitations plead- ed, leave given to add a count stating a promise oy administrator. Saltar v. Saltar, 405 See COSTS, 1. AMERCEMENT. See NOTICE, 1. APPEAL. See AMENDMENT, 2. ARBITRATORS. See AWARD, 1, 2, 5, 6. ASSIGNMENT. See SET-OFF, 1. ASSUMPSIT. See COSTS, 4. EQUITY OF REDEMPTION, 1. MEADOW BANK, 1. PLEADINGS, I., 1, 2. PRACTICE. VI , 4. F-74 rr OF DEMAND. 5. INDEX. Xlll ATTACHMENT AGAINST ABSENT AND ABSCONDING DEBTORS. 1. The Court of Common Pleas may refuse to enter judgment in attachment, on the report of auditors, and may re- fer the matter back to them, if they think that the auditors have made a mistake in law. Berry v. Caltet, 179 2. This Supreme Court will not grant a mandamus to compel the Common Pleas to enter judgment on a report of auditors, while a rule is pending in that court to shew cause why the report should not be set aside. ib. See CONSTABLE, 1. ATTACHMENT FOR CONTEMPT. The answer to interrogatories, in case of an attachment for a contempt, should be delivered ore tenus. The State v. Fisler, 305 AWARD. 1. When the arbitrators expressly de- cline deciding upon some of the matters submitted, their award is void. Rich- ards v. Drinker et al. 307 2. In an action of debt upon an award, an award made by the arbitra- tors, though liable to legal objections, is admissible in evidence ; its operation must be determined in another mode. ib. 3. Whenever the plaintiff declares upon an award which is absolutely void, he cannot have judgment upon it, though the defendant may have pleaded erroneously. ib. See REFEREES, 1. 4. The court are not bound to re- ceive reasons filed, or affidavits taken, in support of an objection on award, if they were taken at so late a period that they could not be answered, and the witnesses could not be cross-examined, unless reasons for the delay are shewn. Ford v. Potts. 388 5. Under the act of December, 1794, it ought to appear upon the face of the proceedings, that the referees were duly sworn. ib. 6. The act does not make void every award of arbitrators who were not duly sworn ; it may be waived by the par- ties, ib. 7. It does not extend to cases which had been referred previously to its pass- ing, ib. 8. The publication of the award is the reading and filing it in court. Den ex dem. Pancoast v. Curtis, 415 See EVIDENCE, II., 5, 6. PBACTICE, VI., 5. BAIL AND BAIL PIECE. 1. Defendant having been held to bail, and a judgment rendered against him in another state, cannot be held to bail in this state in an action on that judgment. Lambert v. Jones and Moore, 131 2. Where a person contracts a debt in Pennsylvania, for which he is sued in this state, and, during the pendency of the suit here, goes to Pennsylvania, and being arrested by other creditors there, takes the benefit of the insolvent laws of that state, this court will order an exoneretur to be entered on the bail piece in the suit pending here. How- land v. Stevenson, 149 3. In a capital case, the court have a power to bail, but they will not exer- cise this power when there exist strong doubts as to the innocence of the pris- oner, particularly after an attempt to escape. State v. RockafeUow, 332 4. A judge of the Supreme Court of the United States, if arrested on a capias ad respondendum, in a case of which the federal court has no jurisdiction, shall not be discharged on common bail. Qraiz v. Wilson, 419 2. Where the bail on a writ of error in an action of ejectment are excepted to they must justify in double the annual value of the lands, or the whole may be treated as a nullity. Den ex dem. Laurence v. Lippencott. 473 XIV INDEX. BANK NOTES. See DEBT, 1. BANK STOCK, TAX ON. 1, Under the act of November 2, 1810, " to tax bank stock," although the capital of the bank may have been diminished by losses, yet the tax must be paid on the whole amount of the capital stock subscribed and paid in. Neither the treasurer, or the Supreme Court could look into the losses of the bank and make proportional allowances upon the tax to be paid. Peter Gordon V. Brunswick Bank, 100 2. But where fhe legislature reduces the shares of the stock two-fifths, it is in effect declaring, that the capital is reduced two-fifths, and the bank shall only pay tax on the remaining three- fifths, ib. BEQUEST. 'See WILL No. 1. BILL OF EXCEPTIONS. 1. Where the judges refuse to allow all the evidence which has been given in a cause to be inserted in a bill of exceptions, it cannot be taken advan- tage of by writ of error. Budd v. Crea, 370 2. It is not necessary that there should be a trial of a cause in order to entitle a party to a bill of exceptions : it may be taken to the opinion of the court on the cufficiency of objections to an award. Ford v. Pottt, 388 3. No bill of exceptions lies, in a settlement case, to the proceedings of the sessions. Overseers of Newton v. Overseers of Gloucester Town, 405 BOND. Bet EQUITY OF REDEMPTION, 1. BOND AND WARRANT OP 'ATTORNEY. 1. Under the act of January 29, 1817, to prevent the fraudulent con- fession of judgments "the affidavit to be produced to the judge before whom the judgment is confessed, need not state the true consideration of the bond." It is sufficient if it state that the true cause of action is the bond. Burroughs et al. v. Condit, 300 2. It is not necessary that the bond and warrant to confess judgment should be given at one and the same time, and to one and the same person. It will not be error, though they were given to different persons and at different times. ib. 3. It is not necessary that it should appear upon the record, that the bond and warrant of attorney were produced before the judge at the time of entering the judgment. ib. 4. It is not necessary that the war- rant of attorney should be directed to any attorney in particular. It is suffi- cient if it is directed only generally to any citizen of New Jersey. ib. BOND, REFUNDING. See LEGACY, 2. BOOKS OF ACCOUNT. 1. Charges of cash, paid, advanced, or lent, written on one of the last leaves of a book, detached from the daily entries and accounts, by sundry intervening blank leaves, and dated during the time of such entries and accounts, not evidence to go to the jury. Wilson v. Wilson, 95 2. Books of account, not evidence of a single charge of cash, or of two or three charges of cash standing alone. to. 3. Query, whether they are evidence of cash at all. to. See OHDEE TO PBODUCE BOOKS, 1. INDEX. CAPIAS AD RESPONDENDUM. See INSOLVENT LAWS, 1. CASH, CHARGES OF. See BOOK or ACCOUNT, 1. CENTAGE. See SHERIFF, 3. CERTIFICATE OF APPRAISERS. See EVIDENCE, II., 2. CERTIORARI. 1. The obtaining an injunction out of Chancery, to prevent commissioners from proceeding in a certain matter, does not deprive the party of his remedy in this court by certiorari. King aland v. Gould et al. 161 2. There being a court of appeal does not prevent the proceedings of the inferior court, from being brought before the Supreme Court by certiorari. ib. 3. A certiorari operates as a superse- deas, and the court below cannot pro- ceed after the certiorari is granted, ib. CHALLENGE. Where there has been a rule for a struck jury, and upon the striking before the judge, the sheriff's book is objected to as incomplete, and the objection overruled, the incompleteness of the book is no ground of challenge to the array upon the trial, unless in cases of imposition or fraud, the decision of the judge who struck the jury is conclusive. Maffit ads. Den ex dem. Tonkins, 228 CHARLES II. GRANT OF. See GRANT I., 1. CHARTER OF INCORPORATION. Sec CORPORATION. CHARGE. See JUSTICE, 1. ERROR, 2. CITY. See CORPORATION, COGNOVIT ACTIONEM. A cognovit actionem by executor is an admission of assets. Den ex dem. Lockyer v. Hart, 450 COMMON COUNCIL. See CORPORATION, 2. CONFESSION OF JUDGMENT. See JUDGMENTS CONFESSED. CONFESSIONS. See EVIDENCE, III., 2. CONFINEMENT FOR DEBT. See INSOLVENT LAW, 1. CONFISCATION. See MORTGAGE, 1. CONSTABLE. 1. An action on the case, lies against a constable for not returning a writ of attachment. Stout v. Hopping, 125 2. Constable has not such a possess- ion of the goods of the de/endant, upon the delivery of the execution, as will enable him to maintain trover for them. He can only acquire such possession by making an inventory of them. Wintermute v. Hankinson, 140 CONVEYANCE. 1. Conveyance of personal chattels, unaccompanied with possession, is void. Chumar v. Wood, 155 XVI INDEX. 2. A voluntary conveyance from a father to his children, without any other consideration than natural affec- tion, made at the time he is indebted, is fraudulent, as against creditors. Den ex dcm. Lockyer v. DC Hart, 450 3. A voluntary conveyance to a child or grand child, the grantor being indebted at the time, is void as against creditors. Den ex dem. Laurence v. Lippencott, 473 4. A purchaser at sheriff's sale, at the suit of such creditors, will be pro- tected in his purchase, though he knew of such previous voluntary convey- ance, ib. 5. Evidence to prove that the property was purchased at an under value not admitted, because the de- ficiency of price might have arisen from the circumstance of the fraud- ulent debt. ib. CORPORATION. 1. Where the freeholders and inhabi- tants of a city are empowered by the charter of incorporation, to raise by tar, in the manner directed by the charter, such sums of money as the exigencies of the city may require, a tax imposed for the purpose (as declared in the law) of raising money to assist the county in building a court-house, on condition that the board of justices, Ac. would contract to allow the cor- poration the right of buildings which might be erected, is not authorized by the charter, and the law by which it is laid is void: the board of justices, Ac. cannot legally enter into any such stipulation, and therefore the founda- tion of the transaction fails. Bergen v. Clarkson, 352 2. When the common council calls an extraordinary meeting of the free- holders, Ac. it seems it is bound to state particularly the objects: but if it does specify a particular purpose, a law imposing a tax for a certun object. passed at such meeting, unless it was stated among the reasons for calling the meeting, is void. ib. 3. When a tax has been legally assessed by a corporation clothed with competent powers, the proportion of it which each individual is bound to pay, becomes a debt which may be recovered in an action at the suit of the corpor- ation ; but unless they are expressly authorized by the charter, summary proceedings by distress and warrant of sale to collect this tax, though directed by a by-law, are void : and such by- law is no justification in an action of trespass brought against the officer exe- cuting the process, at the suit of a person whose goods have been seized. ib. COSTS. 1. Irregularity in entering costs may be corrected, and is not sufficient ground of reversal. Stout v. Hopping, 125 2. If an action, wherein the title to land must come in question, be com- menced in the Common Pleas and be removed by the defendant into the Supreme Court, the plaintiff shall re- cover full costs, although the judgment in his favour should be less than $200. Hankineon v. Baird, 130 3. Where the defendant puU off a cause upon affidavit, he will not be compelled to pay the costs of striking a jury, which has been summoned on a rule of the plaintiff for that purpose. Kennedy v. Nixon, 159 4. An action will not lie to recover back an unreasonable amount of costs, which had been taxed and paid : the proper remedy is by relaxation. Allen v. Hickson, 409 5. The defendant in ejectment will not be compelled to enter security for costs, on the ground, that he had removed out of the state, after entering into the common rule. Den et dem. Rostell v. Intlee, 475 COURT FOR TRIAL OF SMALL CAUSES. 1. Although the demand of the plain- tiff, if interest be calculated at seven per cent, would exceed $100, yet if he demands no more interest than with the principal amount* to f 100. the justice may try the cause. Inhabitant of township of Saddle River v. Ooljax, 115 INDEX. xvn 2. Justice bound to charge the jury upon a point of law, when called upon so to do. Todd v. Collins, 127 3. In an action against three, the return of the summons must shew on whom it was served, and on whom not, and such return cannot be dispensed with unless all the defendants appear. Stults et al. v. Outcalt, 130 4. The justice cannot proceed to try a cause in the absence of the plaintiff, if he does, and renders judgment against him it will be set aside. Cavalier v. Doughty, 227 5. It is necessary that it should appear upon the transcript of the justice's docket, that the affidavit re- quired by the 6th section of the supplement to the small cause act, passed November 23, 1821, was made and filed with the justice, at the time of filing the appeal bond. Anon. 230 COURT OF QUARTER SESSIONS. 1. The Court of Quarter Sessions may grant a new trial upon the merits. State v. Parker, 148 2. The Supreme Court cannot compel the sessions to state the case, nor receive affidavits that they acted improperly. Overseers of Newton v. Overseers of Gloucester Town, 405 COURT OF COMMON PLEAS. 1. Courts of Common Pleas have a right to set aside verdicts, and to grant a new trial, and they have this rignt as well in cases of appeals under statute as in other cases. Squier, Pierson et al. v. Gale, 157 2. The Court of Common Pleas may refuse to enter judgment in attachment on the report of auditors, and may refer the matter back to them, if they think that the auditors have made a mistake in law. Berry v. Collet, 179 3. The Supreme Court will not grant a mandamus to compel the Common Pleas, to enter judgment on a report of auditors, while a rule is pending in that court, to shew cause why the report should not be set aside. t&. COVENANT. See STATE OF DEMAND, 4. 1. Upon articles of agreement to pay a certain sum in bank notes, debt will not lie, for they are not money. The action should be covenant, in which the plaintiff can recover his real damages, according to the value of the notes. Scott v. Conover, 222 2. A covenant that a bond shall not be prosecuted until the happening of a certain event, cannot be pleaded in bar to an action on the bond brought before the time, but a special action may be brought and damages recovered for the breach of the covenant. Hoffman v. Brown, 429 D DAMAGES. See SET-OFF, 4. 1. In an action of trespass, if plain- tiff recovers less than 50 damages, he shall not recover costs. 2. The rule is the same whether the damages are assessed by a jury on the trial, or on writ of inquiry. White v. Hunt, 415 DECLARATION. See PLEADING, I. EVIDEKOE, III. DEBT. An action of debt will not lie upon articles of agreement, to pay a certain sum in bank notes. Scott v. Conover, 222 See CoRroBATios, 3. DEVISE. See WILL, 1 XVI 11 INDEX. DEMURRER. In an action upon the statute 25th Feb. 1820, (Rev. Laws 689) if the declaration avers, that the restraining and enjoining was on the waters of the bay of New York, and that the said waters lie between the ancient shores of New York and New Jersey, and the fact should be that the waters of the bay of New York, are no part of the waters lying between the ancient shores of these states, yet this is a matter of fact to be tried by the jury, and cannot be determined by the court upon demurrer. Gibbons v. Ogden, 285 DISCHARGE UNDER INSOLVENT LAW. See INSOLVENT LAW, 2. DISTRESS WARRANT. Bee OBDEE FOB DISTRESS WARRAHT, 1. DOWER. Though a woman entitled to dower, cannot enter upon land and take possession without suit, or before assignment, yet if she is in possession, legally, her right to dower is a good bar in an action of ejectment. Den ex dem. Halsey v. Dodd, 367 See EVIDEKCE, I., 3. DUKE OF YORK'S GRANT. See GRANT. E EJECTMENT. 1. Though a woman entitled to dower, cannot enter and take poswession without suit or assignment, yet if she is in possession, legally, her right to dower is a good bar in an action of ejectment. Den ex dem. Halsey v. fiodd, 367 See JUDGMENT, I., 6 2. The interest of the mortgagee is personal estate, and paste* under a conveyance of personal property, but the assignee claiming under the transfer by the legislature, of the personal estate of the mortgagee may bring ejectment on the mortgage. Den ex dem. Jouet v. Spinning, 466 3. Query, in whose name the action must be brought. ib. 4. The defendant in ejectment will not be compelled to enter security for costs, on the ground, that he had re- moved out of the state, after entering into the common rule. Den ex dem. Rossell v. Instee, 475 5. The mortgagee may be admitted to defend in an action of ejectment, unless the lessor of the plaintiff will discharge the mortgage. Den ex dem. Nathan v. Fen, 478 EQUITY OF REDEMPTION. A purchase of the equity of re- demption by the mortgagee, is not an extinguishment of the attendant bond, and therefore, in an action of assumpsit by the mortgagor, against the mortga- gee for goods sold, the mortgagee may set off his bond, notwithstanding his purchase of the equity of redemption. Cattel v. Warwick, 190 ERROR. 1. It ia not enough to be in doubt, the error must be manifest, in order to reverse a judgment. Westcott v. Garri- son and Danzenbaker, 132 2. Not error to refuse to charge a jury, when there is no question of law in dispute, or any point on which the charge is requested. ib. See WRIT or EBBOB. EVIDENCE. I. What may be proved by parol. II. Matters of record and legal pro' ceedings. III. Confessions and declarations. IV. Competency of witnesses. V. Evidence between partners, and before arbitrators, under plea of payment, &c. INDEX. xix I. What may be proved byparol. 1. Parol evidence of a person's act- ing as constable, admissible. Stout v. Hopping, 125 2. In an action on the case against a constable for not returning a writ of attachment, the judgment will not be reversed because the justice over- ruled testimony offered by the con- stable, of what became of the property attached. ib. 3. The fact of a widow's having no title or inchoate right to dower, at the time of making the will, or afterwards, may be made out by evidence dehors the will. Perrine v. Perrine et al. 133 4. In an action of trover for a promis- sory note, the maker of the note is a good witness for the defendant. Wood- ruff 'v. Smith, 214 5. Parol evidence admitted to prove a defendant a judge. Qratz v. Wilson, 419 II. Matters of record and legal pro- ceedings. 1. A transcript of the justice's docket not evidence to prove the delivery of execution to constable. Hunt v. Boy- Ian, 211 2. The appraisers' certificate of dam- ages done to the plaintiff may be given in evidence in an action of trespass, after the appraisers themselves have been both examined. Crane v. Sayre, 110 3. Administration cannot be proved by parol. Hay v. Bruere et al. 212 4. In an action of debt upon an award, an award made by arbitrators, though liable to legal objections, is ad- missible in evidence : its operation must be determined in another mode. Rich- ards v. Drinker et al. 307 5. Upon a plea of no award the de- fendant is not permitted to introduce evidence to prove the illegality of the award. ib. 6. Under a plea of no aware? evidence of performance is inadmissible. ib. III. Confessions and declarationt. 1. In an action on the case against a constable for not returning a writ of attachment, the absconding debtor's acknowledgment of the sum he owed the plaintiff, is good evidence against the constable. Stout v. Hopping, 125 2. Evidence of the wife's confessions, made subsequent to the marriage, of a debt due by her previous to the marri- age, are inadmissible to charge the hus- band. Ross and wife v. Winners, 366 3. In an action for the breach of promise of marriage, the declarations of the plaintiff, that she had promised to marry the defendant, made long before the suit brought, are good evi- dence for the plaintiff to shew the mutuality of the contract. Pepping jr v. Low, 384 IV. Competency of witnesses. Though referees are not held to the extreme strictness of the rules of evidence, the admission of the testi- mony of one of the parties will vitiate the award. Fennimore v. Childs, 386 V. Against and between partners before arbitrators, &c. upon plea of pay- ment, &c. 1. One of the two obligors in a bond may give in evidence, in an action against the other, receipts endorsed upon the bond, but they will not charge the defendant without other proof. Jessup v. Cook, 434 2. An account proved to be in the hand-writing of one partner, is evidence to go to the jury in an action between the partners, though it is not signed, ib. 3. Evidence taken before arbitrators not admissible in a court on a trial of the Fame cause, though the witness be dead. ib. 4. Where the condition of a bond is, to pay a certain sum of money in articles of merchandise, on a certain day, under a plea of payment at the day, a tender and refusal cannot be VOL. I. 2a INDEX. proved : nor will the defendant be per- mitted to avail himself in mitigation of damages, of the circumstance, that the current price of the article agreed to be paid, was, at the time when the payment was to have been made, lower than the price fixed in the bond. Grieve ana Moffai v. Annin and Henry, 461 EXCEPTIONS. See BILL or EXCEPTIONS. EXECUTION. 1. Where the justice of the peace issues an execution or tax warrant for fines imposed by a military court upon persons neglecting militia duty, without having any list of delinquents returned to him by the officer whose duty it was to make such return, the execution or tax warrant will be set aside. The State v. Kirby, 143 2. Upon the reversal or affirmance of a judgment of the Supreme Court by the Court of Errors, and a remittitur of the record, no application to the court for leave to issue execution is necessary. Heading v. Den ex dem. Heading, 186 3. The court will not undertake to determine the question of priority between two executions, on the appli- cation of one of the parties interested. M' Donald v. Lawry, 414 See CONSTABLE, 2. EVIDENCE, II., 2. EXECUTORS AND ADMINISTRA- TORS. 1. The power of administrators is joint only : they must sue and be sued jointly, appear and plead jointly ; they cannot plead severally, as executors may, and judgment against them must be in their joint capacity. Dickerton v. Jlobinson et al. 195 2. A cognovit actionem, by an execu- tor, is an admission of assets. Den ex dem. Lockyer v. De Hart, 450 See LIMITATIONS, 1. EXONERETUR. 1. Where a person contracts a debt in Pennsylvania, for which he is sued in this state, and, during the pendency of the suit here, goes to Pennsylvania, and being arrested by other creditors there, takes the benefit of the insolvent laws of that state, this court will order exoneretur to be entered on the bailpiece in the suit pending here. Rowland v. Stevenson, 149 FEES OF SHERIFF. See SHERIFF. FINE. For neglect of militia duty irregu- larity in collecting. See TAX WARRANT, 1. FISHERY, SEVERAL. See GRANT, II., 1. FORCIBLE ENTRY AND DETAINER. 1. To an inquisition of forcible entry and detainer, the defendant protesting the insufficiency of the charge, and that the prosecutor had not been at any time within three years before inquisition found in possession of the premises, pleaded I. As to the force and arms, not guilty. 2. That those under whom he held had been in possession for eight years next before, Ac. without this, that the defendant, on the day and year alleged, entered, dis- seized, Ac. Held this plea bad on demurrer. State v. Covenhoven, 396 2. Defendant may avail himself, in his defence, of his three years' posses- sion, and may put in issue the forcible entry, &c. but one should be pleaded under a. protestando. otherwise the plea will be bad for duplicity. ib. INDEX. zxi 3. Possession is not a plea in bar to the inquisition, but it is a good plea to prevent restitution. ib. 4. The right to restitution is a civil right, and when a plea is pleaded in bar of restitution, the prosecutor may reply in his own name. ib. 5. Plea, that those under whom de- fendant holds have been in possession three years next before, Ac. bad. ib. 6. Plea of possession for eight years before, &c. bad : it puts in issue an immaterial fact. ib. 7. Whether a defective plea to an inquisition of forcible entry and de- tainer may be amended. Query, ib. a GRANT. T. Grant of Charles II. to the Duke of York. II. Grant from Duke of York to pro- prietors. I. Grant of Charles II. to the Duke of York. 1. By the grant of Charles II. to the Duke of York, those royalties of which the rivers, forts, bays, and coasts were a part, passed to the Duke of York, as the governor of the province exercising the royal authority, and not as the proprietor of the soil, and for his own use. Arnold v. Mundy, 1 2. Upon the revolution, all those royal rights vested in the people of New Jersey, as the sovereign of the country, and are now in their hands. ib. 1 1. Grant from Duke of York to pro- prietors. The proprietors of New Jersey, did not under the grant from the Duke of York, take such a property in the soil of the navigable rivers in this state, that they could grant several fisheries therein. Arnold v. Mundy , 1 HUSBAND AND WIFE. Evidence of the wife's confessions, made subsequent to the marriage, of a debt due by her previous to the mar- riage, are inadmissible to charge the husband. Ross and vrifev. Winner$,36Q INDIANS. See SLAVES, 1. INDICTMENT. See ATTACH MENT, 1. INJUNCTION. 1. Under the act of the 25th of February, 1821, entitled "A further supplement to the act entitled an act to preserve and support the jurisdiction of the state," a citizen of this state who has been restrained, by an injunction out of the Court of Chancery of New York, from navigating, with nis steam-boat, the waters between the ancient shores of the states of New Jersey and New York, may recover damages, with triple costa, against the persons so restraining him. Gibbons v. Livingston, 23b 2. Although the enjoining and re- straining was by virtue of an injunc- tion sued out and served before the passing of the act, and although the defendant did no act, or thing, after the passing of this act, to enforce the injunction, yet, his suffering it to re- main in force after the passing of the act, and not dissolving it, was such a restraining and enjoining as to bring him within the words of the act. ib. 3. The injunction issued by virtue, or under colour of the laws of New York, because it is those laws which create the right upon which the power of issu- ing the injunction was exercised. t4. INDENTURE, NATURE OF. See OVERSEERS OF HOPEWELL v. AM- WELL, 175. XX11 INDEX. INVENTORY. See CONSTABLE, 2. INSOLVENT LAWS. Effect of discharge under insolvent laws of Pennsylvania. See EXOHEEETUE, 1. 1. One -who has been arrested on a co. res. and permitted by sheriff to go at large, is not "in confinement for debt" within the meaning of the in- solvent law. Timothy Brush, 404 2. It is no answer to a plea of the statute of limitations, that the defend- ant has been discharged under an in- solvent law. Scott v. Stackhouse, 431 INTENDMENT. 1. All intendments to be taken in firvour, and not against a record. West- cott v. Garrison and Danzenbaker, 132 INTEREST. The mode of calculating interest, where there has been partial payments, ia, to calculate to the time of payment, then the sum paid deducted from the amount, and interest calculated on the residue to the next payment. Meredith V. Bankt, 408 INTERROGATORIES. The answer to interrogatories, in case of an attachment for a contempt, must be delivered ore tcnnt. The State v. Fitter, 305 IRREGULARITY IN COSTS. See JUDGMENT, I., 3. J JEOFAILS. See AMENDMENT. JUDGE OF THE SUPREME COURT OF UNITED STATES. See BAIL, 4. JUDGMENT. I. Reversal and vacation of. 1. Judgment not reversed because the verdict is entered in figures, if the judgment thereon is entered in words at length. Stout v. Hopping, 125 2. Where a judgment has been ren- dered against a constable, in an action on the case, for not returning a writ of attachment, the judgment will not be reversed because the justice overruled the testimony offered by the constable, of what became of the property at- tached, to. 3. Judgment not reversed for irregu- larity in entering costs. ib. 4. To reverse a judgment, the error must be manifest. Westcott v. Garri- son and Danzenbaker, 132 5. This court will not order a judg- ment to be vacated because the plain- tiff thinks he has discovered a partner of defendant, to enable the plaintiff to bring an action against the defendant and such supposed partner. Black v. Budd, 152 6. Where there has been a judgment in ejectment by default, on which a hab. J'ac. post, has issued, the court will, on affidavit of a real defence, open the judgment on payment of costs, but will not set aside the execution, or or- der restitution. Den v. Ferin, 431 JUDGMENTS CONFESSED. 1. The authority of a person confess- ing a judgment for another, must ap- pear on record. Campbell?. Cooper, 142 2. It is not necessary that the bond and warrant of attorney under (the act of 29th January, 1817, to prevent fraud- ulent confession of judgments) should be given at one and the same time, and to one and the same person. It will INDEX. XXlll not be error, though they were given to different persons and at different times. Burroughs et al. v. Condict, 300 3. It is not necessary that it should appear upon the record, that the bond and warrant of attorney were produced before the judge at the time of entering the judgment. ib. 4. It is not necessary that the war- rant of attorney should be directed to any attorney in particular ; it is suffi- cient if it is directed only generally to any citizen of New Jersey. ib. See PRACTICE, III. AFFIDAVIT, 3. JURISDICTION OF JUSTICE OF THE PEACE. See COURT FOE SMALL CAUSES. JURISDICTION OF THE STATE. See INJUNCTION, 1. JURY. I. Petit. II. Grand. III. Struck. I. Petit. If after a jury has retired, they re- quire further explanation i'rom the court, and the court, after calling upon the counsel of the defendant, to go with him, who refuses, and after seeking for the defendant, who cannot be found, goes into the jury room and gives them the explanation they require, this is not error. Cook v. Green, 109 II. Grand See ABATEMENT, 1. III. Struck. Struck jury, costs of, in putting off trial. See COSTS, 3. JUSTICE OF PEACE. 1. Bound to declare the law to the jury, when called upon so to do. Todd v. Collins, 127 2. The justice cannot proceed to try a cause in the absence of the plaintiff; if he does, and renders judgment against him, it will be set aside. Cavalier v. Doughty, 227 JURISDICTION OF JUSTICE. See COURT FOR THE TEIAL OF SMALL CAUSES. TRANSCRIPT, 3. ERROR, 2. VERDICT, No. 1. L LANDLORD. Landlord not liable under the statute, (Rev. Laws 146, sec. 1) for the act of his tenant, who, by setting tire to his own woods, consumes woods of hu neighbours. Todd v. Collins, 127 LEGACY. 1. A legacy given to a wife in lieu of dower, the wife having no title or inchoate right to dower at the time of making the will, or afterwards, will abate m proportion to other legacies. Perrine v. Perrine et al. 133 2. Before a legatee can sue an execn- tor for a legacy, a refunding bond must be 61ed, even though the accounts of the executor are settled, and a suffi- ciency of assets appear. Cowell v. Ox- ford, 432 LEX LOCI. Can a citizen of the state of New York, acting within that state, and under its judicial authority, be called in question for such act in another state? As a general rule, he cannot But under the act of this state of the 25th February, 1821. it appears k may. Gibbons v. Livingston, 236 XX K7 INDEX. LIMITATION OF ACTIONS. 1. Where an executor pays money to a legatee, and six years after the pay- ment, upon a settlement in the Orphans' Court, discovers that he has paid the legatee more than he was entitled to, brings an action to recover the money overpaid, the action is barred by the statute of limitations. Ely v. Norton, Executor of Lee, 187 2. When there is an open running account for some years, although some of the items may be of more than six years' standing, the claim is not barred by the statute of limitations. Execu- tors of Burnet v. Adminittraton of Bryan, 377 3. Where A. has a demand against B. which is not barred by the statute, and B. dies intestate, the statute will not run until letters of administration are taken out : though there may be an executor de ton tort. ib. 4. When statute of limitations plead- ed, leave given to add a count stating a promise by administrator. Saltar v. Saltar, 405 5. It is no answer to a plea of the statute of limitations, that the defend- ant has been discharged under the in- solvent law. Scott v. Stackhouse, 431 LOCAL ACTION. See AOTIOH, 1. M MANDAMUS. 1. Though a mandamut will lie to an inferior court, to command the judges thereof to proceed to judgment, yet it will not lie to command them to proceed to any particular judgment, and much leas, to command them to pet aside a verdict and grant a new trial, or even to grant a rule to shew cause for that purpose. Squier Pienon et al. v. W, 157 2. Supreme Court will not grant a mandamut to compel the Common Pleas to enter judgment on a report of auditors while a rule is pending in that court to shew cause why the report should not be set aside. Berry v. Cat- let, 179 MARRIAGE. See EVIDENCE, III , 3. MALICIOUS PROSECUTION. What the state of demand in an ac- tion for, must set out. See STATE OF DEMAITD. 3. MEADOW BANK. Under the 18th section of the statute of 29th November, 1788, (Pat. 84) rela- tive to bank meadows, if the bank get out of repair, so that immediate repairs are necessary, and the person to whom that part of the bank has been assigned neglects to repair it, if any of the own- ers enter and make repairs they may maintain an action against the person whose duty it was to repair. Westcolt v. Garrison and Danzenbaker, 132 MILITIA DUTY, FINES FOR NEGLECT OF. See TAX WABBAST, 1. MORTGAGE. 1. The interest of the mortgagee is personal estate, and passes under a con- veyance of personal property : but the assignee claiming under the transfer, by the state, of the personal estate of the mortgagee, which had been confiscated for treason, may bring ejectment on this mortgage. Den ex dem. Jouet v. Spin- ning, 466 2. Query. In whose name must the action be brought? ib. 3. The mortgagee may be admitted to defend in an action of ejectment, unless the lessor of the plaintiff will discharge the mortgage. Den ex dem. Nathan v. Fen, 478 INDEX. XXV N NEW TRIAL. I. By what courts granted. II. On what terms, and when. I. By what courts granted. 1. Court of Quarter Sessions may grant a new trial upon the merits. The State v. Parker, 148 2. Courts of Common Pleas have a right to set aside verdicts, and to grant a new trial, and they have this right as well in cases of appeals under statute as in other cases. Squier, Pierson et al. v. Gale, 157 II. When and on what terms granted. 1. Where every reasonable diligence has been employed by a defendant to prepare for trial, but he has been unable to attend himself on account of sick- ness, and an important witness, for him, had left the country before the trial, and other circumstances are laid before the court, exonerating the party from laches, and shewing a real and equitable defence, and the merits of the case have not been investigated, the court will grant a new trial. Sherrard v. Olden and Gardner, 344 2. On an application for a new trial, the affidavits of the parties themselves are admissible to shew the grounds on which it is made. ib. 3. In order to entitle a party to a new trial, on the ground of newly dis- covered evidence, such evidence must be important, and shew that injustice has been done. Jessup v. Cook, 434 NOTICE. Service of notice of amercement on the sheriff, must be a personal service. Anon. 159 O OBLIGORS. See EVIDENCE, V., 1. ORDER. I. For distress warrant. II. To produce books. I. Order for distress warrant. An order of two justices for issuing a distress warrant against overseers of the poor, made without any notice of the application for such distress warrant given to the overseers, against whom it is to be issued, is irregular and will be set aside. Overseers of Tewksbury v. Overseen of Washington, 177 II. Order to produce books. In an action of assumpsit for goods sold, this court will not make an order on the plaintiff, to produce their books and papers relative to the issue, pre- vious to the trial, to be left with the defendant's attorney for his inspection. Knox and Nixon v. Executors of Rol- ston, 183 OYEK See PRACTICE, VII., 1. OYSTERS, PLANTED. A person who plants oysters on the bed of a navigable river, below low water mark, has not such a property therein as to enable him to maintain trespass against a person taking them away, although the oyster-bed should be adjacent to his own shore. Arnold v. Mundy, 1 P PARTNER. 1. A culpable neglect in one partner, in pursuing the claims of the concern, may render him liable to the other partner, for the amount which has been lost by his neglect: but he is only obligea to take the same care of the partnership business as of his own. Jestup v. Cook t 434 XXVI INDEX. 2. An account proved to be in the hand writing of one partner, is suffi- cient evidence to go to the jury in an action between the partners, though it is not signed. if>. PAYMENT. 1. A payment subsequent to the filing of the declaration, will not con- stitute a ground of action. Jeaaup v. Cook, 434 2 When the condition of a bond is to pay a certain sum of money in arti- cles of merchandise, on a certain day, a tender and refusal cannot be proved ; tinder a plea of payment at the day, nor will the defendant be permitted to avail himself, in mitigation of damages, of the circumstance, that the current price of the article agreed to be paid, was, at the time, when the agreement was to have been made, lower than the price fixed in the bond. Orieve and Moffat v. Annin and Henry, 461 PERSONAL PROPERTY. Bee MORTGAGE, 1. ^LEADING. t Declaration. il. flea. I. Declaration. 1. A contract* with B. in writing, to convey certain land to him the next "Wednesday, when B. is to pay A. $295, and give a note for $25 more, payable in four months. In an action by B. against A. for not making a deed for the land, the state of demand must aver, that the $295 were tendered by B. Harvey v. Trenchant, 126 2. A count for money paid to and for the use of defendant, ana at his request to A B is good in justices' court Vanderveer v. M'MaeJnn, 213 3. When an action is brought upon ' a public statute, it is not necessary to aver in the declaration, that the cause of action accrued after the passing of the statute. Thus, npon the act of 25th February, 1*20, it is sufficient if the enjoining is laid to be alter the act went into operation, without specially averring that it was so. G-ibbons v. Ogden, 285 4. In an action upon this statute, it is sufficient to aver, that the restraint complained of "was on the waters of the bay of New York," which said waters lie between the ancient shores of New Jersey and New York, without setting forth any act done in either of the said states in particular. ib. 5. In an action upon the statute, 25th February, 1820, section 3d, for restraining plaintiff by virtue, or under colour of any laws of New York, it is not necessary to set out those laws specifically because they are mere mat- ters of inducement. ib. 6. Whenever the plaintiff declares upon an award, which is absolutely void, he cannot have judgment upon it, though the defendant may have pleaded erroneously. Richards v. Drinker et al. 307 II. Flea. 1. It is a good plea in abatement to an indictment for a rape, that one of the grand jurors by whom the bill waa found, was not a freeholder, as he is directed to be by the act of assembly. State v. Rockajellow, 332 Pleas in forcible entry and detainer. See FORCIBLE ENTRY AND DETAINER, 2, 3, 4, 5, 6. 2. A covenant, that a bond shall not be prosecuted until the happening of a certain event, cannot be pleaded in bar to an action on the bond brought before the time, but a special action may be brought and damages recovered for the breach of the covenant. Ho/man v. Brown, 429 See PATMENT, 2. PROMISSORY NOTE. See EVIDENCE, I., 4. INDEX. XXVll POSSESSION. 1. Constable can only acquire such possession of goods, as will enable him to maintain trover, by taking an in- ventory of them. Wintermute v. Han- kinson, 140 2. A conveyance of chattels un- accompanied with possession is void. Chumar v. Wood, 155 See EJECTMENT, 1. FOECIBLE ENTET AND DETAINER, 2, 3, 5, 6. POSTEA. See PEACTICE, VI., 1. PRESUMPTION. See ALTERATION, 1, 2. PRIVILEGE OF JUDGE OF SUPREME COURT, U. S. See BAIL, 4. PRACTICE. I. Process. II. Bail and bail piece. III. Affidavits. IV. Changing venue. V. Assessment of damages. VI. Motions, arguments, and notices of motion, service of rules, &c. VII. Oyer. I. Process. Writ of dower cannot be amended by inserting a place of appearance, which had been omitted. Anon. 166 II. Bail and bail piece. See BAIL AND BAIL PIECE, ante. III. Affidavits. 1. Affidavits to hold to bail for money due on articles of agreement, must state the breach of the articles of agreement, or the defendant will, be discharged on common bail. Administrators of Sneed v. Meguire, 152 2. The affidavit required under the fifth section of the act directing the mode of entering judgments on lands with warrants of attorney, must state the consideration of the bond, and it ia not sufficient to state the consideration of the assignment of the bond only. Woodward ads. Cook, IbO 3. Under the act of 29th January, 1817, to prevent the fraudulent confes- sion of judgments, "the affidavit to be produced to the judge before whom the judgment is confessed, need not state the true consideration of the bond." It is sufficient if it state, that the true cause of action is the bond, &c. Bur- roughs et al. v. Condit, 300 4. Query. Whether the affidavits of jurymen are admitted to shew the prin- ciples upon which they founded their verdict? Jessup v. Cook, 434 IV. Changing venue. A motion to change the venue on the common affidavit must be before plea filed ; if a special ground is laid, the venue may be changed after plea pleaded. Wildes v. Mairs, 320 V. Assessment of damages. After an interlocutory judgment by default, in an action for assault and battery, the court have the power, in case of difficulty, or when special cir- cumstances are laid before them, to direct a special jury to be summoned, in order to assess the damages, and the inquiry to be held before a judge at Nisi Prius, but the mere circumstance of the battery having been very severe, is not sufficient to take the case out of the ordinary course. White v. Hunt, 330 VI. Motions, arguments, and notices of motions, service of rules, &c. 1. When a plaintiff moves for judg- ment upon a postea, which states, that the defendant made default at the cir- cuit, and this motion is opposed upon the ground, that notice of trial was not served, proof of due notice may be made, either at the circuit or at bar. Eoqua v. Ware, 151 sxvni INDEX. 2. Service of notice of amercement on the sheriff must be a personal ser- vice. Anon. 159 3. Rules to plead must be served on defendant's attorney, though he was in court when the rule was taken. v. Dill, 168 4. In an action of assumpsit for goods sold, this court will not make an order on the plaintiffs to produce their books and papers relative to the issue, pre- vious to the trial, to be left with the defendant's attorney for his inspection. Knox and Nixon v. Executors of Rol- ston, 183 5. Upon the reversal or affirmance of a judgment of this court by the Court of Errors, and a remittitur of the record, no application to the court for leave to issue execution is necessary. Reading v. Den ex dem. Reading, 186 6. When statute of limitations plead- ed, leave given to add a count stating a promise by administrator. Saltar v. Saltar, 405 7. The court will not undertake to determine the question of priority be- tween two executions, on the applica- tion of one of the parties interested. M' Donald v. Lawry, 414 8. The party has until the last day of the term succeeding the publication of an award, to except to it : but the argument ought to be brought on at the second term. Den ex dem. Pancoatt V. Curtis, 415 See AWARD, 4. JUDGMENT, 6. VII. Oyer. Where oyer is demanded, and the manner in which it is given is unsatis- factory, the objection must be made at the trial, and not by motion, to pro duce the papers that are wanted. Brooks \. Executors of Brooks, 404 PROCEDENDO. A statute was passed on the 9th of March, 1797, which declared, that no action should be removed from any of the courts of Common Pleas to the Su- preme Court, by habeas corpus, after Clea pleaded, a plea in bar excepted ; eld that where a habeas corpus was presented on the 10th of March, after the general issue pleaded, and the cause removed, a procedendo should issue. Austin, Executor of Nelson, v. Nel- son, 381 PROPRIETORS OF NEW JERSEY. See GEANT, II., 1. PUBLICATION OF AWARD. See AWARD, 8. B RECORD. See lUTEHDMENT, 1. RECEIPTS. See EVIDENCE, V., 1. REFEREES. 1. Though referees are not held ti the extreme strictness of the rules of evidence, the admission of the testimony of one of the parties will vitiate tha award. Fennimore v. Childs, 386 2. Under the act of December, 1794, it ought to appear upon the face of the proceedings, that the referees were duly sworn. Ford v. Potts, 388 3. The act does not make void every award of arbitrators who were not duly sworn : it may be waived by the par- ties, ib. 4. It does not extend to cases which had been referred previously to ite passing. ib. 5. Where referees have been appoint- ed under the directions of an act of the legislature, the court will not examine into the legality of this appointment until the referees have proceeded to act. Harrison et al. v. Sloan. 410 REFUNDING BOND. See LEGACY, 2. INDEX. XXIX KEMITTITUR. See EXECUTION, 2. REPORT OF AUDITORS. See COUET OF COMMON PLEAS, 2, 3. RESTITUTION. See FORCIBLE ENTRY AND DE- TAINER, 4. RETURN OF ATTACHMENT. See CONSTABLE, 2. RETURN TO CERTIORARI. 1. Where the sessions have made a return to a certiorari, which was ad- judged incomplete, and another return made, the court will not refer to the first, in order to settle any ambiguity in the second ; but a rule may be taken on the sessions to amend. State v. Hunt, 303 RETURN OF SUMMONS. Bee COURT FOR TRIAL OF SMALL CAUSES, 3. ROYALTIES. See GRANT, 1, 2. RIVERS. 1. Navigable rivers, where the tide ebbs and flows, the ports, bays, coasts of the sea, including both the waters and the land under the waters, for the purposes of passing and repassing, nav- igation, fishing, fowling, sustenance, and all other uses of the water and its pro- ducts, are common to the people of New Jersey. Arnold v. Mundy, 1 2. A grant of land bounded upon a fresh water stream or river, where the river neither ebbs nor flows, extends ad filum aquce ; but a grant bounded upon a navigable river, extends to the edge of the water only. to. 3. A person who plants oysters on the bed of a navigable river below low water mark, has not such a property therein as to enable him to maintain trespass against a person taking them away, although the oyster bed should be adjacent to his own shore. ib. RULE. See PRACTICE, VI., 3. S SALE'OF CHATTELS. See POSSESSION, 2. SESSIONS. See COURT OF QUARTER SESSIONS. SCIRE FACIAS. A scire facias is anew and independ- ent action, and a writ of error remov- ing the record in the original action, will not remove the proceedings in the scire facias. Greenway v. Dare, 305 SCROLL. A scroll by way of seal not goo