REPORTS CASES ARGUED AND DETERMINED IN TH1 SUPREME COURT OF JUDICATURE OP THE STATE OF NEW JERSEY. SAMUEL L. SOUTHARD, REPORTER. VOLUME H. THIRD EDITION. JOHiT H. Counsel or- t- Law. TRENTON, N. J.: THE W. S. SHARP PRIXTIMO Co. 1886. V&A5 NOTE. In cases cited from Southard's Reports, the " star " pages are referred to. 778583 TABLE OF CASES. Abrams, Flatt v.. 544 Angus v. Radio 815 Applegate, diver v 479 Arnold, Den v 862 Ashcroft v. Clark 577 Ayres & Vandorn v. Vanlieu 765 Ayers & Thompson v. Swayze 812 B. Banks et al. v. Murray et al 849 Barnet, Miller v 547 Baylor, Shepherd v 827 Beardslee, Buckley v 570 Blanchard, Sayre v 551 Brearley, State v 555 Brookfield, Sayre v 564 Brookfield, Sayre v 737 Brookfield, Winans v 847 Brnere, Montgomery v 865 Buckley v. Beardslee 570 Buchanan v. Rowland 721 Budd & Jones, Hunter v 718 Burrough v. Thome 777 Burrough v. Vanderveer 809 O. Carhart v. Miller 573 Carhart, Miller v 720 Chamberlain v. Letson 452 Cheeseman, State v 445 Christie, Harker v 717 Clark v. Ashcroft 677 Clark v.Read 486 Clawson v. Gustin...! 821 Cliver v. Applegate 479 Collins, Lacey & Earle v 489 Colfax, Corse v 684 Colwell, Miller v 577 Conine v. Scoby 510 Cook, Thompson V- 580 Corse v. Colfax 684 Coryell v. Croxall 764 Cory v. Lewis 846 Crane, Mead v 852 Craig, Hendricks v 567 Craig v. Berry 852 Cramer, Tunison v 498 Croxall, Coryell v... 764 Cumberland Bank v. Hall 718 Curtis v. Hulsizer. 496 D. Dean v. Wade 719 Decker v. Hardin 579 Decker, Hamilton & Edsall v 813 Demund v. Gowen 687 Demund v. French 828 Den v. Taylor & Sheppard 413 Deu v. Hugg 427 Den v. Johnson 454 Den v.Moore 470 Den v. Kinney 555 Den v. Vancleve 589 Den v. Vancleve 719 Den v.Wilson 680 Den v. Robinson et al 689 Den v. Franklin & Sharp 851 Den v.Arnold 862 Doolittle, Miller v 845 Douglass, Norris v 817 E. Estell v. Vanderveer 782 Everitt, Vandoren v 460 F. Ferguson, Matthews v 822 Flatt v. Abrams... ~)44 Folly, Ward v 482 Folly, Ward v.... 485 Franklin & Sharp, Den v 851 French, Demund v 828 vi TABLE OF CASES. [5 LAW a. Gibbons, Ogden v 518 Gibbons, Ogden v 853 Gowen, Demund v 687 Gustin, State v 744 Gustin, State v 749 Gustin, Clawson v 821 Harris v. White & Mayhew 422 Hallet, Olden v 466 Hamilton, Vanhorne v 477 Hayden, Hillman v 575 Hardin, Decker v 579 Harker v. Christie 717 Hall, Cumberland Bank v 718 Halsey, Jersey Company v 750 Hamilton & Edsall v. Decker 813 Hendricks v. Craig 567 Hendricks, Mount and Crane v... 738 Hibler, Swisher v 808 Hillman v. Hayden 575 Howell, Oliver et al. v 581 Hopper, Vandien v 764 Hoff v. Taylor 829 Hugg, Den v 427 Hnntv. South 495 Hulsizer, Curtis v 496 Hunter v Budd and Jones 718 Hughes v. Ogden 718 Huffman, Miller v 719 Hunt v. Young 813 J. Jersey Company v. Halsey 750 Johnson, Den v 454 Johnson, Smith v 511 Jones, Lawrence v 825 Judson v. Storer 544 Judges Orphans Court, State v.... 554 K. Kerry. Phillips 818 Kinney, Den v 552 Kirby, State v 835 L. Lawrence v. Patent Cloth Manu- facturing Co 433 Lamb, Newbold v 449 Lacey & Earle v. Collins 489 Larzaleer, Oliver v 513 Lanning v. Shute 573 Lanning v. Shute 778 Latourette and Gartzman, Lin- bergerv 809 Lawrence v. Jones 825 Lawrence et al., State v 850 Lawrence v. Squier 861 Letson, Chamberlain v 452 Lewis v. Little 685 Lewis, Cory v 846 Little, Lewis v 685 Linn, Strong & Havens v 799 Linberger v. Latourette and Gartzman 809 Lum, Wierv 823 Lum, Searing v 683 M. Marsh v. Pat. Cloth Man. Co 433 Marsh v. Squier 861 Marsh, Vantyl v 507 Mairs v. Sparks 513 Manning v. Shotwell et al 584 Matthews v. Ferguson 822 Mead v. Crane 852 Meeker v. Potter 586 Mendham v. Morris 810 Miller v.Stoy.. 476 M'Dole, Wills v 501 M'Eowen v. Rose 582 M'Kown, Shotwell v 828 Miller v. Miller 50* Miller v. Barnet 547 Mills v. Sleght 565 Miller, Carhart v 57$ Miller, Carhart v 720 Miller v. Colwell 577 Miller v. Huffman 719 Miller v. Tuttle 810 Miller v. Doolittle 845 Montgomery v. Bruere 865 2 SOUTH.] TABLE OF CASES. Vll Morris, Mendham v 810 Mount & Crane v. Heiulricks. 738 Montfort v. Vanarsdalen 686 Moore, Den v... 470 Murray et al., Banks et al. v 849 N. Nafie, Vanness v 683 New-bold v. Lamb 449 Nichols, State v 539 Nixon v. Vanhise 491 Northampton v. Woodward et al., 788 Norris v. Douglass 817 O. Ogden v. Gibbons 518 Ogden, Gibbons v 853 Ogden, Hughes v 718 Oliver & Tilman v. Howell 581 Oliver v. Larzaleer 513 Olden v. Hallett 466 Overseers of Weatfield, Roll v 493 P. Pat. Cloth Manufacturing Co., Stansbury v 433 Pat. Cloth Manufacturing Co., Lawrence v 433 Pat. Cloth Manufacturing Co., Marsh v 433 Parker, Rose v 780 Petty, Sutton v 504 Phillips, Kerr v 818 Potts et al., State v 862 Potts, Sterling v 773 Polter, Meeker v 586 Price v. Summers 578 B. Raborg, State v... 545 Radin, Angus v '. 815 Read, Clark v 486 Roll v. Overseers of Westfield..... 493 Rose, M'Eowen v 582 Robinson, Den v 689 Ross, Thorp v 720 Rowland, Buchanan v 721 Rose v. Parker 780 Rose & Leonard, Wame v 809 Sayre v. Blanchard 551 Sayre v. Brookfield 564 Sayre v. Brookfield 737 Scudder, Wade v 681 Scoby, Conine v 510 Scudder, Stevens v 503 Searing v. Lum. 683 Sharp ATuttlev. Young & Young, 845 Shute, Lanning v 553 Shute, Lanning v 778 Shinn, State v.. 553 Shotwell, Manning v 584 Shotwell v. M'Eowen 828 Shepherd v. Baylor 827 Sinnickson, Sterling v 756 Sleght, Mills v 565 Smith v.Johnson 511 Smalley & Cornell v. Vanorden- 811 Sneed v. Wallen 682 South, Hunt v 495 Sparks, Mairs v 513 Squier, Lawrence v 861 Squier, Stansbury v 861 Squier, Marsh v- 861 Stansbury v. Pat. Cloth Man. Co., 433 Stansbury v. Squier 861 State v. Cheeseman 445 State v.Nichols 539 State v. Raborg 545 State v. Shinn.. 553 State v. Judges of Burlington 554 State v. Brearley 555 State v. Gustin 744 State v. Gustin 749 State v. Lawrence et al.. 850 State v. Kirby 835 State v. Potts et al 862 Stevens v. Scudder 503 Sterling v. Sinnickson 756 Sterling v. Potts 773 Stoy, Miller v.. 476 Storer, Judson v 544 Strong & Havens v. Linn.. 799 Vlll TABLE OF CASES. [5 LAW Sutton v. Petty 504 Summers, Price v 578 Swisher, Wintermute v 682 Swisher v. Hibler 808 Swayze, Ayers & Thompson v 812 T. Taylor & Shepherd, Den v 413 Taylor, Hoff v 829 Thompson v. Cook 580 Thorp v.Ross 720 Tliorne, Burrough v 777 Tunison v. Cramer 498 Tuttle, Miller v.- 810 V. Vandoren v. Everitt 460 Vanhorn v. Hamilton 477 Vanauken, Westbrook v 478 Vanhise, Nixon v 491 Vantyl v. Marsh 507 Vanauken v. Wickham 509 Vancleve, Den v 589 Vancleve, Den v 719 Vanness v. Nafie 683 Vanarsdalen, Montfort v 686 Vandien v. Hopper 764 Vanlieu, Ayres & Vandorn v 765 Vanderveer, Estell v 782 Vanderveer, Burrough v 809 Vanpelt, Whitlock v 810 Vanorden, Smalley & Corriell v... 811 Vangiesen v. Vanhouten 822 Vanhouten, Vangiesen v 822 W. Ward v. Folly 482 Ward v. Folly 485 Wade v. Scudder 681 Wallen, Sneed v 682 Wade, Dean v- 719 Warne v. Rose & Leonard 809 Westbrook v. Vanauken 478 White & Mayhew, Harris v 422 Whitlock v. Vanpelt 810 Wills v.M'Dole 501 Wickham, Vanauken v 509 Wilson, Denv 680 Wintermute v. Swisher 682 Willson v. Willson 791 Wier v. Lum 823 Winans v. Brookfield 847 Woodward et al., Northampton v., 788 Y. Young, Hunt v 813 Young & Young, Sharp & Tut- tle v. . .. 845 "CASES DETERMINED IN THE SUPREME COURT OF JUDICATURE OP THE STATE OF NEW JERSEY, FEBRUARY TERM, 1819. DEN, on the demise of HARRIS and wife, v. WILLIAM TAYLOR and DAVID SHEPPARD. A devise, " I give to S. S., his heirs and assigns forever, but in case lie should die before he arrives to lawful age or have lawful issue, then over " Ac., creates estate in fee with executory devise &c. (a) In ejectment. This cause came up on a special verdict, formed at the Cum- berland circuit in June, 1816, which was subsequently amended by agreement of parties in May, 1817, and presents the follow- ing facts : Stephen Sheppard was seized of the premises in ques- (a) Cited in Den v. Snitcher, 2 Or. 59 ; Dm, Brown v. Mugway, S Or. SSO ; Den, Abrahams v. English, 2 Harr. 289 ; Morehouse v. Cotheal, S Zab. 440 ,- Moore v. Bake, S Dutch. 585 ; Kent v. Armstrong, S Hal. Ch. 643; see, also, Den, Van Middlesworth v. Schenek, S Hal. 9 ; Pennington v. Van Houten, 4 Hal. Ok. *72, affirmed on appeal, 4 Hal. Ch. 745; Jones v. Stites,4 C. E. Or. 3*4 f Wurts v. Page, 4 C. E. Or. 365; Den, Trumbull v. Gibbons, S Zab. 117; Wal- lington v. Taylor, Sax 314; Kennedy v. Kennedy, 5 Dutch. 185 ; Den v. Huyy, post 431 ; Condiet v. King, 2 Beat. 375; Den v. Allaire, Spen. 6; Seddel v. Wills, Span. 23; Vredand v. Jilauvelt, 8 C. E. Or. 483. 485 *413 486 NEW JERSEY SUPREME COURT. [5 LAW Den v. Taylor. tion, and on the 22d of September, A. D. 1783, made his will in due form of law, and among other things devised the premises as follows : " Item. I give unto my brother, Gibbon Sheppard, the use of all my lands, buildings and improvements, meadows and appurtenances, during his natural life and no longer, and then I give the said lands, meadows and improvements to Ste- phen Sheppard, my nephew, son of my brother, Gibbon Shep- pard, aforesaid, all which is hereby given to my said nephew, his heirs and assigns, forever ; but in case my said nephew should die before he arrives to lawful age or have lawful issue, then and in that case, I give the same to John Sheppard and Hannah Sheppard, son and daughter of my brother, Joseph Sheppard, deceased, and to Louisa Sheppard, daughter of my brother, *Gibbon Sheppard, to be equally divided among them, the said John Sheppard, Hannah Sheppard and Louisa Sheppard, or the survivors of them, when they arrive to lawful age, then to them, their heirs and assigns, forever." Stephen Sheppard, the testator, before the 28th day of September, in the year of our Lord 1790, died seized of the tenements aforesaid, and the said Gibbon Sheppard, in the said will named, entered and enjoyed the same during his natural life. The said Gibbon Sheppard died before the 7th day of June, in the year of our Lord 1796 ; on the decease of the said Gibbon, Stephen Sheppard, the devisee, entered and became seized thereof, as the law directs, and continued seized and possessed thereof until he arrived to the age of twenty-one years, to wit, on the 25th day of June, 1802, and still continued possessed thereof until the 28th day of the same month of June, at which time, by deed duly executed, he sold and conveyed the same land to David Sheppard, one of the defendants, to have and to hold to the said David Sheppard, his heirs and assigns, forever. On the 25th day of June, 1802, in the court of common pleas of the county of Cumberland, one Jonathan Couch recovered, by the judgment of the same court, against the said Stephen Sheppard, the sum of $144 of debt and $10.70 costs ; and on the same day, in the same court, Forman Sheppard recovered, by the judgment of the same court, against the said Stephen, the sum of 72 13s. lie?, of *414 2 SOUTH.] FEBRUARY TERM, 1819. 487 Den v. Taylor. debt and $10.70 of costs ; upon which judgments, executions were in due form of law issued on the same day, against the goods and chattels, lands and tenements of the said Stephen Sheppard, and on the same day delivered to Jeremiah Bennct, Esq., the high sheriff of the county of Cumberland, by virtue whereof the said sheriff levied on the lands in question, and afterwards, on the 27th day of September, 1802, the land was, by the said sheriff, in due form of law, exposed to sale at public vendue, and the said David Sheppard, being the highest bidder, l)ecame the purchaser, and the said sheriff executed and delivered to the said David Sheppard a deed or conveyance therefor, bear- ing date the 27th day of September last aforesaid. Stephen Shep- pard, the devisee aforesaid, died on the 1st day of March, 1804, having attained the age of twenty-one, but with*out lawful issue, he never having -had any issue. John Sheppard, named in the will aforesaid, arrived to full age and died in the month of April, 1802, having lawful issue, to wit, John and Hannah ; John died under age and without issue and Hannah is now living ; that Hannah Sheppard, named in the said will, intermarried with William Blackman and had lawful issue and died before the year 1796 ; the child of the said Hannah died within a few days after the death of the said Hannah ; John and Hannah, in the said will named, died before Stephen Sheppard, in the said will named; William Blackman is still living; Louisa Sheppard, named in the said will, intermarried with John Harris on the 22d day of December, in the year of our Lord 1 798. The said John and Louisa are the lessors of the plaintiff. The said de- fendants, William Taylor and David Sheppard, were in posses- sion of the premises. Stephen Sheppard, the testator, died without issue, having a brother, Gibbon Sheppard, in the said will named, and a nephew and niece, viz., John Sheppard and Hannah Sheppard, son and daughter of his deceased brother, Joseph Sheppard, devisees named in the will. The said Gibbon died, leaving issue the said Stephen and Louisa, devisees in the said will mentioned, and that William Taylor, one of the defendants, was tenant under the said David Sheppard. *415 483 NEW JERSEY SUPREME COURT. [5 LAW Den v. Taylor. R. Stockton, for plaintiff, maintained that Stephen Sheppard, the devisee, took, under the will, an estate tail, with contingent remainder to John Hannah and Louisa. He cited 4- Cm. 270, 271, 272, 274; Saun. 388 note 8; 1 Ld. Raym. 207 ; 4. Oru. U4-, 456, 467 ; 1 Ld. Raym. 505; 2 Vern. 388; 3 Bur. 1634; Oro. Eliz. 525; 4 Cru. 269; 2 Ves. 243 ; 4 Or. 270. Ewing, for defendant, argued that Stephen Sheppard took an estate in fee, defeasible on a condition subsequent, which never can happen, and therefore the estate remains. He read 4 Com. Dig. 431; Oro. JOG. 590; 3 Atk. 193,390; 1 Wils. 140; 2 Str. 1175; 1 Johns. 440; 6 Johns. 54; 2 Bin. 532 ; 4 Dal. App.12; 2 Mass. 554; 3 Mum. 510 ; 7 Ora. 459; Co. IM. 125. The opinion of the court was delivered by WT ^"N T KlRKPATRICK, C. J. This is a special verdict in ejectment taken at the Cumberland circuit in June, 1816. The devise *which it presents, and upon which the controversy turns, is, in substance, this : 1 give att my lands to my nephew, Stephen Sheppard, his heirs and assigns, forever ; but in case he should die before he arrives to lawful age, or have lawful issue, then over to his nephew, John Sheppard, and his two nieces, Hannah Sheppard and Louisa Sheppard, equally to be divided &c. The question raised upon this devise for the consideration of the court, respects the estate which Stephen Sheppard took under this will ; whether an estate tail with a contingent remainder, or an estate in fee with an executory devise only, to John, Hannah and Louisa. If the former, it is admitted on all hands that the plaintiff is entitled to recover, and if the latter, that judgment must be for the defendant. It will not be material for us, therefore, to take notice of the events which passed after the death of the testator. They cannot change the nature of that estate. The question is upon the devise itself; the parties have agreed as to the consequences. The course which the argument *416 2 SOUTH.] FEBRUARY TERM, 1819. 489 Den v. Taylor. at the bar has taken in this cause has induced sundry observa- tions which, otherwise, would have been deemed altogether unnecessary. They touch either self-evident propositions or principles so well settled as long since to have ceased to be the subject of controversy. I will rest upon them, however, but for a moment, and then apply them, as well as I can, to the ques- tion before us. Upon the inspection of the whole will, it cannot escape obser- vation that Stephen Sheppard, the devisee, was the object of the testator's special bounty ; he bore his name ; he was to take the estate singly and alone, and in preference to the other nephew and nieces ; he was selected as the successor to the inheritance. Such construction, therefore, is to prevail as will carry these views of the testator into effect, so far as that can be done con- sistently with the rules of law. The devise in the principal clause is to Stephen Sheppard, his heirs and assigns forever. These words, standing singly and alone, carry an estate in fee simple the greatest, generally speak- ing, that can be in lands ; they leave no remainder which can be limited over after that estate is spent ; for it is considered in the law as unlimited, and therefore can have no remainder as infinite, and therefore can never be spent. It is admitted, however, that these words, though standing *singly and alone in the principal or devising clause, may never- theless be limited in their application by other words in subse- quent clauses so as to extend only to special heirs, as heirs of the body, and instead of creating a fee simple, to create an estate tail only. To refer to authorities to prove this would be wholly useless, for they are almost innumerable. It is as well settled that a devise to one and his heirs, and if he die without issue then over to another, creates an estate tail, as if the principal devise had been in the most technical language to him and the heirs of his body. The words of the devise over, if he die vnthout issue then over to another, limit the generality of the term heirs in the principal devise and lead us to the inevitable conclusion that the testator intended heirs of the body only, and not heirs generally. And whenever this intention can be col- Mi? 490 NEW JERSEY SUPREME COURT. [5 LAW Den v. Taylor. lected from the whole will taken together, let the phraseology in the particular clauses of it be what it may, it has been always construed to make an estate tail. The modes of expression to be found in our books which have received this construction are very many. They sometimes ap- ply more clearly to the principal devise, and sometimes less so, so that this doctrine of contingent remainders and executory devises so frequently arising upon them has become one of the most subtle and intricate doctrines of the law. To disentangle ourselves from these niceties, and to ascertain with the greater precision the intention of the testator in cases of this kind, we inquire, first of all, whether the devise over is to take effect upon the indefinite failure of the issue of the first devisee, which by possibility may not be for a hundred or a thousand years, or upon a definite failure of such issue, which must happen, if at all, within a given time, as at .or before his death. If upon the former it will limit the generality of the term heirs and be an estate tail with a remainder over, and if upon the latter it will not so limit the term heirs, but will be a fee limited by way of executory devise. There can be no ex- ception to this rule. It arises upon the very nature of the thing itself. The whole force of the argument for this constructive limitation of the term heirs rests upon it. Take this case, for instance. The principal devise is to one and his heirs ; the de- vise over is that if he shall die without issue it shall go to another, and the conclusion drawn from thence is, that because he has *given over the estate after the failure of such issue, the testator, by the term heirs in the principal devise, must have in- tended heirs of the body and not heirs general, otherwise he could not have given over the estate, for the law does not con- template a failure of heirs general. It is the giving over of the estate then upon the failure of the issue that raises the argument ; the conclusion is not drawn at all from his speaking about issue, but wholly from his giving the estate over to another on the failure of that issue ; for let him have said what he would about issue in the devise over, if he had not made the estate over to depend upon the failure of it, it would not have so qualified the *418 2 SOUTH.] FEBRUARY TERM, 1819. 491 Den v. Taylor. word % AVs in the preceding devise as to make it an estate tail. In the case of Pells v. Brown, Cro. Jac. 590, the devise is to Thomas and his heirs, and if he die without issue, living William, then to William. Now here in the devise over the testator speaks of the issue of Thomas and of his dying without issue, but as the estate is not to go over upon the failure of it, but upon a different contingency, it is held not to be an estate tail but a fee. Nay indeed, it is a standing rule that if an estate in fee be limited over after a death without issue, but upon another con- tingency, that is, a contingency different from the failure of the issue, it does not make an estate tail with a remainder, but it remains a fee with an executory devise over. It is the rule upon which Comyn, in his digest, places the distinction in the collec- tion of his cases. It is a principle so plain that it is almost insusceptible of argument, and certainly so plain that it needs none. Let us proceed, then, to inquire whether in this case the devise over to John, Hannah and Louisa is to take effect upon the indefinite failure of the issue of Stephen, or upon some other contingency ; and in doing this let us remember that the words usually employed in those devises over are not to be understood in their common acceptation, but according to that sense which the law has put upon them in such cases. As if a devise be to a man and his heirs, and if he die without issue, or without leaving issue, or without issue surviving him, or words to that effect, then to another. A plain man would say that if such devisee should have issue and should leave such issue surviving him at the time of his death, the estate should not go over, for that the contin- gency upon which it was limited had not happen*ed he had not died without leaving issue ; and this seems to be the natural import of the language. But still that is not the sense in which it is to be understood in the law when applied to devises of land ; there it means an indefinite failure of issue; and therefore, though such devisee should leave issue living at the time of his death, yet such devise over is not defeated, but shall go to the remainder-man, or his heirs, when such issue fails, how remote soever that period may be. This will not be controverted. *419 492 NEW JERSEY SUPREME COURT. [5 LAW Den v. Taylor. But what particular words or modes of expression, notwith- standing, are to be so construed as to limit an estate upon such indefinite failure of issue, and what not, has at all times been a fruitful source of controversy. The very case before us is one proof of this. Here the words in the devise over, which are supposed to make such a limitation, are these, and if he shall die before he have lawful issue, then over &c. I have not been able to find a case where those words, or words of exactly similar import, standing alone, have been holden to limit the term heirs, in a preceding clause, or to convert that into an estate tail which otherwise would have been a fee simple. In a certain connection, indeed, they are so construed in the case of Newton v. Barnar- dine, Moore 127, but that construction arises from that particu- lar connection, and not from the import of the words simply considered. There the question was whether they would raise an estate tail by implication, and not whether they would limit an estate in fee already expressly devised. There is, also, in the case of Panbury v. Elkin, 2 Vern. 766, something of the same kind laid down, but it is in so loose and unsatisfactory a manner that we cannot rely much upon it. Certain it is, that the words themselves are not apt words to create such a limitation. They assume, as the very contingency upon which the estate shall go over, that Stephen shall die before he have lawful issue, and not that the issue which he may have shall fail. How, then, can they be said to limit the inheritance to an isstte which, upon that very assumption, never can exist? But I do not rest altogether upon this, for the mere form of words is nothing, the intention is all. But even if those words, if he die before he have lawful issue, were such, when standing alone, as to be universally taken to create such limitation, yet it is not conclusive, for here they are connected with other words which govern their application, and *which, if well considered, will settle, with precision, their effect in this devise. After giving the estate to his nephew, Stephen Sheppard, his heirs and assigns, he says, but in case he shall die before he shall arrive at lawful age or have lawful issue, then over &c. Now, according to the terms of this devise over, taken *420 2 SOUTH.] FEBRUARY TERM, 1819. 493 Den v. Taylor. exactly as they stand, and according to their grammatical con- struction, if Stephen shall marry and have issue, a son, and then die before he arrives at the age of twenty-one years, the devisees over will take the estate, for in that case, though he will not die without lawful issue, yet he will die before he arrives to lawful age. All the cases upon the subject of alternate contingencies, as well as the plain import of the language, show that this would be so. In disjunctivis sufficii cdteram partem esse veram. Co. Lift. 225. Indeed, so obviously is this true, that in the case of Soule v. Gerard, Cro. Eliz. 525, on a devise similar to this, in order to enable them to make it an estate tail, the court was obliged to say that that part of the devise over which respected his attaining the age of twenty-one years, was void. If, then, this be so, upon the events which I have stated, the estate would take effect, not upon the failure of the issue of Stephen, but upon a different contingency, and before such failure of issue had happened. Besides, as the going over of the estate in this way, living the issue of Stephen, would be exceedingly unreasonable in itself, so it would be contrary to the intention of the testator clearly, to be collected from the whole will ; for it is impossible to conceive that under such circumstances he would have disinherited the son of Stephen, the nephew whom he had distinguished by his particular favor. In order to give a more rational construction to devises of this kind, and to come nearer the intention of the testator therein, the courts of justice have thought themselves bound to say that, in those cases, the disjunctive or may be con- strued to mean and, and the conjunctive and to mean or, as may best subserve the general intent of the devisor, (a) This, there- fore, has become a settled rule of construction. It was so deter- mined in the case of Soule v. Gerard, above mentioned, more than two hundred years ago. And though that case is not to be depended upon as to the principal matter, the doctrine of execu- (o) Nevison v. Taylor, S Hal. 4$ ; Den, Brown v. Mugway, S Or. SSO ; Abraham* v. English, Harr. SSO; Den, Nelson v. Combs, S Harr. 38; Den v. Allaire, Spen. 19 ; Holcomb v. Lake, 4 Zab. 688 ; affirmed in error, 1 Dutch. 60S; Ely v. Ely. 5 C. E. Gr. 44. 494 NEW JERSEY SUPREME COURT. [5 LAW Den v. Taylor. tory devises not having been then well settled, yet as to this par- ticular, the principle of it has prevailed ever since, with *but one exception that I can find. That exception is in the case of Wood- ward v. Glassbrook, 2 Vernon 388, where Lord Chief-Justice Holt expressed a different opinion. But, though great consider- ation is to be given to that opinion, yet it stands alone on that side, and therefore cannot overthrow the rule. In Hilliard v. Jennings, 1 Ld. Raym. 505, he inclined to the same opinion, but in that case there was no decision on this point. On the other side we have the cases of Barker v. Suretees, 2 Sir. 1175 / Frammingham v. Brand, 1 Wil. llj,0, the same case with Lord Chancellor Hardwicke's argument, 3 Atk. 390, and Walsh v. Peterson, 3 Atk. 193, all which go upon the same ground and in support of the rule. And if we should indulge ourselves in looking into the juridical history of Westminster hall, as well as that of the chambers of justice in our neighboring states, we should find that to be the prevailing opinion ever since. It must be admitted, indeed, that it has been the subject of much litiga- tion, and that in some instances it has drawn forth the powers of some of the ablest men in opposition to it ; but still it has prevailed, and therefore seems to be the more firmly settled. If, then, we apply this rule to the present case, and read the devise over in these words, and if Stephen shatt die before he ar- rives to lawful age, and have lawful issue, it will show incontro- vertibly that this devise over was not intended to take effect upon the indefinite failure of the issue of Stephen, but upon a certain contingency connected with that event which must take place, if at all, at or before his age of twenty-one years. In whatever light, then, this devise may be viewed, whether as standing upon the words dying before he have lawful issue, dying before he arrives to lawful age, or have lawful issue, or dying before he arrives to lawful age and have lawful issue, the effect of it is the same. It gives to Stephen, the devisee, an estate in fee, with a limitation to John, Hannah and Louise, by way of ex- ecutory devise, and not an estate in tail with a remainder over. *421 2 SOUTH.] FEBRUARY TERM, 1819. 495 Harris r. White. *WILLIAM HARRIS V. JOHN MOORE WHITE and ELEAZER MAYHEW, surviving executors of ISAAC HARRIS, deceased. If executor voluntarily pay legacy without refunding bond, and afterwards the estate be found to be insolvent, if legatee sues for debt due him from testa- tor, the executor may set off what he has paid upon the legacy beyond the pro- portion which ought to have been paid, (a) In debt. This action was brought on a judgment by default, obtained in this court November term, 1813, against the defendants as surviving executors of Isaac Harris, deceased, for $553.28, for a debt due from Isaac Harris in his lifetime to the plaintiff, and suggesting a devastavit by the defendants. There was a plea of payment of the judgment October 10th, 1814, with notice of set-off for goods sold and delivered by de- fendants to plaintiff, and for money had and received by the plaintiffs to the use of the defendants. On the trial of the cause at the Cumberland circuit, in June, 1818, the defendants offered to prove that Isaac Harris, by his last will and testament, bequeathed to the plaintiff a pecuniary legacy of $650, which, on the 29th day of August, 1808, they paid to the plaintiff; that on a settlement of the accounts of the defendants as executors of the said Isaac Harris, deceased, in the orphans court of the county of Salem, at December term, 1813, a balance of remained in their hands, which is not sufficient to pay all the pecuniary legacies bequeathed in the will of the said Isaac Harris ; and that the plaintiff had received of the defendants a greater sum on account of his legacy than he was entitled to receive. This evidence was objected to by the counsel for the plaintiff, and overruled. A verdict was rendered (a) Cited in Lloyd v. Rom, Spm. GS4 ; see GUI ads. Dnunmond, 1 South. 95. *422 496 NEW JERSEY SUPREME COURT. [5 LAW Harris v. White. for the plaintiff for $493.68. On the return of the postea the defendants obtained a rule to show cause why a new trial should not be awarded. It was agreed, if the court were of opinion that the evidence was properly overruled, judgment was to be entered for the plaintiff for the amount of the verdict and inter- est. If of a contrary opinion, judgment to be entered for such sum as should, on calculation, appear to be due, after allowing the proportion of the legacy which ought to be refunded. The question was submitted without argument, but the court was referred by Elmer, counsel for the plaintiff, to Pat. J. Laws 266; Bui N. P. 181; Saun. Rep. 2 16, note 8 ; 1 Vern. Rep. 90, 453, 460; 2 Vern. Rep. 205; 2 Ves. 194; 3 Eq. Gas. Abr. 558; Gas. 26; 4 Bac. Abr. tit. "Legacies" p. 427, Wik.'jed. *The court was referred by White and Armstrong, counsel for the defendant, to 4 BOG. Abr. 427, 4%8 tit. " Legacies." KIRKPATRICK, C. J. This case is submitted to the consideration of the court without argument. It is not quite so fully stated as could have been wished, and yet, perhaps, we may collect from it all the materials necessary for a just decision. It states, in substance, that Wil- liam Harris, the plaintiff, was both a legatee and a creditor of Isaac Harris, the testator ; that the executors paid him his legacy in full ; that he sued them for his debt and obtained a judgment by default ; and that this action is upon that judgment, suggest- ing a devastavit. The executors plead payment, and offer to give in evidence, by way of set-off, that upon the final settlement of the estate it proves to be insufficient to pay both debts and lega- cies ; that, therefore, William Harris has received more than his proportion, and is bound to refund, and that they ought to be allowed to set up the sum so to be refunded, against his debt. I shall take it that the defendants, as executors of the will of Isaac Harris, paid to William Harris, the plaintiff, his legacy of $650 in full count, voluntarily, without suit, and without taking a refunding-bond ; that they afterwards settled their accounts in *423 2 SOUTH.] FEBRUARY TERM, 1819. 497 Harris r. White. the orphans court of the proper county ; that upon such settle- ment the estate proved to be insufficient to pay debts and lega- cies ; and that therefore they call upon this legatee to refund in favor of such deficiency. And if this be so, the case will present these two questions : 1. Whether William Harris, the legatee and the plaintiff in this cause, is liable to refund to the executoi'8 at all for this pur- pose ; and if so 2. Whether the sum to be refunded can be set up against him by way of set-off in this action. 1. The first of these appears to me to be an important ques- tion, and I could have wished to hear it discussed at the bar ; but as it is I will make a few observations upon it, indicating my present impressions, and leaving it to be spoken to after- wards if it shall be thought necessary. It is well settled that if the estate of the testator be insuffi- cient originally, and without the waste of the executor, to pay debts and legacies, the pecuniary legacies shall abate proportion- ably *in favor of the debts first, and then in favor of one another ; and after they are exhausted the specific legacies shall contribute in like manner in favor of debts, but never in favor of pecuniary legacies. This is the rule. In order to carry it the more easily into effect, the spiritual court in England, upon a suit for a legacy, will, at the request of the executor, compel the legatee to give bond and security to refund in case the estate should prove to be deficient ; and if the court, after such request, should proceed without such bond, a, prohibition will go from the chancery. The same course is pre- scribed by our statute here upon commencing a suit for a legacy in our common law courts. But yet, this refunding-bond does not create the duty oi obligation to refund ; that exists in the fundamental principles of the law itself; it is the condition or trust (says Gilbert in his Lex Prcetwia) upon which the legatee receives the legacy, and the bond is merely to sf 2ure the per- formance of that condition or trust; and, therefore, if such Ixmd should not be taken, it does by no means follow that the duty ceases, ir that the obligation is discharged. *424 32 498 NEW JERSEY SUPREME COURT. [5 LAW Harris v. White. Hence we find that if a legacy be decreed in chancery, though there be no bond taken, yet if there be a failure of assets, the common justice of the court will compel the legatee to refund. 1 Fern. 90. So, too, if upon an undertaking to pay a legacy there be an action of assumpsit in a court of common law and a judgment thereupon, though there be no bond, the legatee shall refund. Cowp. 284- Indeed, it is a general principle that if there be a deficiency of assets, without waste, and the executor pay one legatee in full, the other legatees, as well as the credit- ors, may ultimately follow the assets into the hands of such legatee and compel him to refund for their benefit ; and even in case of waste the same thing may be done by creditors, but not by legatees, for peradventure they might, by due diligence, have recovered their legacies before the waste committed, and, there- fore, it is their own negligence ; they, in that case, can look to the executor only. I conclude, therefore, that the executors, in this case, neglect- ing to take a refunding-bond, of itself and simply considered, does not exonerate the plaintiff from his liability to refund in favor of creditors and other legatees. But though it should be granted that this be so as to the ulti*mate rights of such creditors and legatees, yet still it may be said that these executors cannot call for such refunding, for that having made a voluntary payment of this legacy, without suit and without bond to refund, they have thereby admitted assets in their hands for that purpose, and that they are therefore now totally precluded from averring the contrary. I am aware that we find sayings like this in our books ; and I am aware, too, that some of them carry it still further and say that such voluntary pay- ment is a confession of assets not only for the particular legacy paid, but also for all other legacies, and of course for all debts, for they are to be paid first. This has always appeared to me to be a strange doctrine, and one which cannot be supported upon sound principles of reason. This admission, which is to conclude the executor, frequently to his utter ruin, is but a presumptive admission arising by con- struction, a presumption fixing upon him an assent to a fact *425 ->UTH.] FEBRUARY TERM, 1819. 499 Harris t>. White. which he never intended to give, and raising up against him an acknowledgment which is contrary to the truth, and which he never actually made. That such voluntary payment should be prima facie evidence of assets, and raise a presumption to that effect against the executor, would consist with the principles of evidence in other cases, but that it should preclude him entirely from showing the truth, is contrary to all principle. The ad- mission contended for certainly is not an express admission, but a presumptive one only. Now, is it possible that a court admin- istering justice shall be bound to take this presumption in exclusion of the naked truth laid open before them in the judicial records of the very tribunal to which it exclusively be- longs to ascertain the amount of the assets ? And yet the whole argument here rests upon taking this presumption in exclusion of such record. Will it be said that an executor may guard against this dif- ficulty by taking a refunding-bond ? It is true he may do so. But if the duty exists and the bond is only for the greater secu- rity of the executor, and if the not taking of it is for the benefit and easement of the legatee, and not for his injury or loss, how is it possible that he can set it up in his defence ? Indeed, it is nowhere pretended that he can set it up per se, but only that it goes in corroboration of the admission of assets, and of this I have before spoken. *The good sense of the thing seems to be that the executor .shall be responsible for the estate of the testator, so far as the same comes to his hands, or by due diligence might have been reduced into his possession, but for nothing more ; that if through misapprehension or mistake he shall pay a legacy in full count, and debts are afterwards discovered of which he had no notice, or if losses are sustained upon outstanding risks, responsibilities or contingencies, which no common prudence could either fore- see or prevent, so that the estate becomes insufficient to pay all, such legatee is bound, not only ex equo d bono, but also upon the implied conditon on which he received his legacy, to refund, (a) (a) See Ely v. Norton, 1 Hal. 187. *426 500 NEW JERSEY SUPREME COURT. [5 LAW Harris v. White. Such payment, it is true, as against others, would be a devastavit in the executor pro tanto, and he must auswer it out of his own goods, but it would be pro tanto only ; nor does this at all mili- tate against the responsibility of the legatee who has received the money, or in any manner or way discharge him from his liability to refund to the executor. It must be admitted, however, that there is a train of cases, which though somewhat contradictory to one another, seem to countenance this doctrine, and some of them to speak of it aa settled law. Yet I am inclined to think that if these cases be carefully examined, and stripped of all gratuitous sayings, they will be found to turn upon particular circumstances, and by no means to support the doctrine in the extent in which it is some- times laid down. But as I am diffident of my own judgment upon this subject, and it is my intention at present rather to in- vite investigation than to express an opinion, I shall not now enter upon such examination. If my impressions upon this first question should be found to be well grounded, then we have only to inquire further 2. Whether the sum so to be refunded can be set up against the plaintiff by way of set-off in this action. In considering this we may lay out of the case all objections as to the length of time, for none such were set up at the trial ;. and if there had been, probably the duty would have been con- sidered as arising, in certainty, at the time of the settlement be- fore the orphans court, and not before. The only thing, then, to be inquired of is whether the money so to be refunded would belong to the executors, as such, or in their own private right ; for if in their own private right, it could *not be set up by them in this action. And if it be true, as Lord Keeper Finch says in Chamberlain v. Chamberlain, 1 Ch. Cos* 257, that " a legacy being paid remains as a legacy in the hands of the legatee even after payment, till all debts are paid," there- can be no doubt ; for the obvious meaning of the lord keeper is that the money, even in the hands of the legatee for this pur- pose, continues to be the property of the executor ; the legatee is but the keeper of it for*his use. Indeed, the whole doctrine of *427 2 SOUTH.] FEBRUARY TERM, 1819. 501 Den v. Uugg. refunding goes upon the principle that the money refunded is assets in the hands of the executors for the payment of debts. Unless it should be desired, therefore, by the counsel to speak to the subject, I should incline to say the defendants were en- titled to their set-off, and that the judgment upon the agreement must be entered accordingly. Of this opinion were the whole court. JOHN DEX, on dem. of William Hugg, v. SARAH HUGO. Devise " to S. to hold during her life, and after her death to the heirs of her body, if any such her surviving, and for want of such heirs to W. and the heirs male of his body, if any such him surviving," S. takes estate tail general and W. vested remainder in tail male, and is entitled to the estate after the death of R., a daughter who survives S., and died without issue, (a) In ejectment. At the circuit court of the county of Gloucester, October term, 1817, the following case was stated by the parties for the opinion of the supreme court. 1st. William Hugg (called William first), being seized in fee simple, devised the premises in question in the words following, to wit : " I give and devise to my daughter, Sarah Ellis, my house and lot of ground and appurtenances thereunto belonging and therewith usually enjoyed, to hold to her, my said daughter Sarah, for and during her natural life, and after her decease to (a) See Den, Oranc v. Fogg, Penn. *819 ; Den v. Robinson, post 6S9 ; Den, Ewan v. Cox, 4 Hnl. 10; Den v. Fox, 5 Hal. S9 ; Den, Doremus v. Zabritkie, S Or. 404; Den, Spachius v. Spaehius, 1 Hear. 17S ; Den, Wilton v. Sm Spen. 223 ; Vreeland v. Blauvelt, 8 C. E. Or. 483 ; Condict v. King, 2 Seas. 875 ; Wurts v. Page, 4 C. E. Gr. 365; Den, Harris v. Taylor, ante 413; Den, Trum- b>M v. Gibbons, 2 Zab. 117 ; Den, Secquil v. Moore, Cue 386; Nix. Dig. 1032 \ 27. *432 2 SOUTH.] FEBRUARY TERM, 1819. 507 Den v. Hugg. is, heirs of the body of William the second), then to my sons Joseph- Hugg (who was his eldest son and heir-at-law) and Sam- ud Hugg, their heirs and assigns forever ; thereby disposing of the whole estate and leaving no reversion. To say, therefore, that he intended it should revert to his heirs-at-law upon any intermediate contingency, or that it should at all come into his liaiils before the failure of the issue male of William the second, or in any other way or proportion than by the words of the devise, would be going directly contrary to the express declara- tions of the testator. Upon the most critical exposition of the words, then, as they are used and understood hi the language of the law, I think the construction is plainly against the defendant, and as to the gen- eral intent it completely overwhelms him. Nothing can be more obvious than that the testator intended to give this property to his daughter, to be enjoyed by her during her lifetime, and then to her lineal descendants, and when they failed, to his son William in tail male. Now, if it be admitted that Sarah Ellis took an estate tail general there must have been some part of the estate left, there must have been either a remainder or a rever- sion for somebody upon the failure of her issue. Can it be sup- posed that this was intended to go to the testator's heir-at-law ? He certainly attempts to make an estate tail and to limit the re- mainder over, but does he say a word about the heir-at-law or about the estate returning to him ? Not a word. Would any rational man, upon the whole will, draw the conclusion that he intended it should so revert? Well, then, on the other hand, if it be not an estate tail in Sarah Ellis, but for life only, and the words heirs of the body can be tortured to mean child or children, which I believe in such a connection they never did mean, then such child or children, if they could take at all, must take an estate for life only, for there are no words of inheritance, no words of perpetuity, to carry a fee to them, and, therefore, if Rebecca, the only child of Sarah Ellis, had had a son and died, he would not have *taken, for his mother had but an rotate li>r life only, and the inheritance must have gone to the heir-at-law, as in the other case, in exclusion of the whole family of Sarah. *433 508 NEW JERSEY SUPREME COURT. [5 LAW Stansbury v Patent Cloth Manufacturing Co. Could this have been the testator's intention ? Shall we, then, torture the whole instrument, beat down the testator's arrange- ments and prostrate the settlement which he made for this branch of his family in order to give a fanciful application to words, which, as they stand in this will, are merely superfluous and without meaning ? As to the second ground of argument, to wit, that William fourth is not the heir male of the body of William second, I am persuaded that, upon a more careful perusal of the case, it will not be insisted upon. I am, therefore, as before, of opinion that judgment must be for the plaintiff. Judgment for plaintiff. ISAAC STANSBURY v. THE PATENT CLOTH MANUFACTURING COMPANY, (a) WILLIAM LAWRENCE v. the same. ISAAC MARSH v. the same. 1. Amercement of sheriff. 2. Construction of the act for relief of creditors against corporations. In case. Motion to amerce the sheriff of Essex county. The writs of summons in these cases were all returned " not summoned" on the last Tuesday of February, 1817. The necessary affidavit that the process could not be served was made and filed, and the court directed an order for the appearance of the defendants, to be entered upon its minutes at February term, 1817, and published pursuant to the third section of the act passed January 31st, 1817, for the relief of creditors against corporations. The defendants did not cause their appearance to be entered, and at the term of May, 1817, the clerk, by direction of the court, entered an appearance for them. The causes were (a) Reverse-! on writ of error, post 861. 2 SOUTH.] FEBRUARY TERM, 1819. 509 Suiisluiry r. Patent Cloth Manufacturing Co. regularly put at issue, and at the circuit in Essex, in September, 1817, were tried. There was a verdict for Stansbury for $292.- 37, costs, $90.25; for Lawrence for $550.28, costs, $90.38; and for Marsh for $97, costs, $73.60. The whole of these verdicts amounted to $1,193.88. Judgments were enter*ed on the llth of November, 1817, and 'executions were issued on the 18th of the same month, and on the same day delivered to the sheriff of Essex, and by him levied on real estate of the defend- ant, and advertisements for the sale immediately made ; several adjournments took place, and the sheriff, at last, altogether re- fused to sell under the executions. Writs of venditioni exponaa were also issued, returnable to May term, 1818. The sheriff paid $600 on these executions. On the 7th of March, 1817, the defendant confessed a judg- ment to Joseph Shotwell for $1,013.60, and another to John Jacobs and Joseph Shotwell for $5,234.37, which judgments were recorded in the Essex pleas as of January term, 1817. Executions were issued on these judgments and on the 8th of March, 1817, delivered to the same sheriff of Essex, and the -aid real estate of the defendants sold, on the 3d of October, 1817, for the sum of $4,200, subject to prior encumbrances. John F. Coxe was the purchaser; received a deed from the sheriff and has since sold to Abijah Weston. The sale by the ~li -riff was subsequent to the trials at the circuit but previous to the judgments at bar. Coxe and Weston were present at the sale and had notice that the first-mentioned actions were depending, but that no judgments had been entered. The whole property, real and personal, of the defendants in Essex was sold under the executions in favor of Jacobs and Shotwell and of Shotwell. The real estate was bound by mortgages to an amount exceeding SI 1,000, which has since been paid by the purchaser, Weston, and he has also expended $1,500 in necessary and useful repairs. The sales amounted to $7,231.75, and the sheriff had $ remaining in his hands after paying the judgments of Shotwell and of Jacobs and Shotwell. The actions by Lawrence, Stansbury and Marsh were the first which were commenced against the defendant, and the orders for *434 510 NEW JERSEY SUPREME COURT. [5 LAW Stansbury v. Patent Cloth Manufacturing Co. the appearance of the defendants in those actions were the first which were made. Several actions against the defendant were brought in the common pleas of Essex, and like orders made subsequent to those before mentioned, and judgments by default obtained pre- vious to the time that Stansbury, Lawrence and Marsh obtained their judgments. Executions on the judgments in the common *pleas were also issued and put into the sheriff's hands before those in favor of Stansbury, Lawrence and Marsh. The sheriff paid, out of the proceeds of the sales, $ , on the executions from the common pleas of Essex, in preference to those out of the supreme court, on which there is yet due $613.88, with interest from the llth of November, 1817. He also paid the whole of the judgments in favor of Shotwell and of Jacobs and Shotwell. It was submitted to the court whether the first-mentioned actions were not a lien upon the real estate of the defendant from the time of obtaining the orders for appearance in Feb- ruary, 1817, and whether the judgments confessed in March, 1817, could be preferred to those entered in November, 1817. Whether the judgments by default in the common pleas are also to be preferred to these last. If the judgments in the supreme court are entitled to priority over all others, then it was agreed that the sheriff be amerced in the sum of $613.18, with interest from the llth of November, 1817. If they have not priority over the judgments confessed to Shotwell and to Jacobs and Shotwell, but have priority over the judgments by default in the common pleas, then the sheriff to be amerced in $ , the sum which he paid on the last- mentioned actions. Scudder, for the plaintiffs, in support of the motion to amerce, contended that the " Act for the relief of creditors against cor- porations," passed 31st of January, 1817, created a lien on the property of the defendant after the entry of the order mentioned in the third and fourth sections. This act being in force from its passage, and the order of publication in these suits being *435 2 SOUTH.] FEBRUARY TERM, 1819. 511 Stansbury r. Patent Cloth Manufacturing Co. entered on the last Tuesday in February, the lien was in force from that day, and the judgments which were confessed subse- quently, viz., on the 7th of March, must hold the land subject to U. The sales which were made were subject to all prior en- oumbrances; these actions were such, and the purchasers were fully informed of their existence, and could not, therefore, com- plain. When these executions came into the hands of the sheriff he advertised, and he ought to have sold such right as there re- mained to the defendant, after the previous sales, and which had been bound by these actions. For not proceeding to sell he is subject to amercement. *But, in another respect, this motion ought to be sustained. The law made these actions a lien on the land. The defendant could not sell until it was satisfied. But the confession of judg- ment to Shot well and to Jacobs and Shotwell was, in a liberal view of the law, and within its object, a sale. It, in effect, con- veyed the title out of the defendant. It was therefore void, and so were all the proceedings under it, and the proceeds of the sale ought to have been devoted to these executions. Jacobs and Shotwell had no claim to them. The legislature intended to give a full remedy against corporations ; to secure their property from the commencement of the suit. And the judgments to Shotwell and to Jacobs and Shotwell must be viewed in the light of a sale made where there was a previous lien. Such sale is good as between the parties, but the thing sold is subject to the lien. These executions ought, therefore, to have preference, and he cited 8 Perm. 734. Hornblower, for the sheriff. 1 . The construction contended for by the plaintiff would in- volve creditors of corporations in greater difficulties instead of relieving them. If every action commenced before an actual sale under execution was a lien in the sense contended for, the property could never be sold until judgment was entered in every action, or, if sold, would inevitably be sacrificed, as no persons *436 512 NEW JERSEY SUPREME COURT. [5 LAW Stansbury v. Patent Cloth Manufacturing Co. could purchase with safety subject to the contingent result of pending actions. For example, in the present instance the pur- chaser, Weston, had he been advised that the premises were liable to be resold on the judgments thereafter to be entered in the various actions then pending against the corporation, some of which are yet undetermined, instead of bidding enough to pay the judgment creditors, at whose suit the property was sold, could not with any safety have given more than a nominal price, or rather could not have purchased at all, not knowing how much the premises would cost in the end. Thus the first judg- ment creditor, whether his judgment should be obtained by con- fession or by the ordinary course of the court, would be in a worse situation than the last, for he would have less chance of raising his demand out of the property. Besides, the commence- ment of an action, under the statute, after judgment entered in a former suit, but before a sale by execution, would be as much of a lien *as an action instituted before a judgment, consequently, if the judgment creditor should be obliged to wait until every plaintiff had perfected his judgment, he might be delayed in- definitely. On the other hand, if he proceeded to a sale, he must encounter all the hazard of selling subject to contingent and uncertain encumbrance, and generally a complete sacrifice of the property would be the result. But the counsel, aware of this absurdity, has attempted to assimilate a confession of judg- ment by the defendants to a grant, sale or conveyance by them. It might be answered that a purchaser at sheriff's sale is not bound to inquire into the regularity of the judgment, and it does not appear, in the case stated, that either Coxe, the immediate purchaser, or Weston, his vendee, knew that the judgments were by confession. But 2. A confession of judgment is in no sense a grant or convey- ance of lands, though a sale takes place under it. It might as well be said that a warrant of attorney to confess judgment is a bill of sale for a horse, because judgment may be entered there- on, execution issue and the horse be sold under it. It is no an- swer to say that the intent of the legislature may be defeated if corporations may confess judgments and thus effect a sale of their *437 2 SOUTH.] FEBRUARY TERM, 1819. :>13 Staiisbnry r. Patent Clot'.i Manufactnriug Co. real estate. If such was their intent they have failed to express it. If corporations confess judgments fraudulently, the proceed- ings would be void without the aid of this statute. The ques- tion then occurs, Did the legislature mean to say that corporations should not confess judgments to their honest creditors for debts bonafide due to the.m ? Did they mean to say that corporations, in such cases, should always stand it out and subject their credi- tors to the delays of a lawsuit, and themselves to a bill of costs ? 3. The act prohibits " a grant, sale, alienation or conveyance " after the order for appearance entered, and it meant to do no more. It was to prevent the corporation, after suit brought, from turning their real estate into money and thus withdrawing it from the reach of honest creditors. The action becomes a lien upon the property as between the plaintiff and defendants, leav- ing other creditors to pursue their legal remedies. It would be extremely unreasonable that the action first commenced, how- ever tardily prosecuted, however litigated, and however uncertain its event, should keep at bay other creditors whose claims are indisputable. *The case of an attachment against an absconding debtor, cited from 2 Perm. Rep. 734, is wholly inapplicable. There the prop- erty attached is in the custody of the law, for the benefit of all applying creditors, pro rota. No priority or preference is given to the plaintiff or any other creditor. The law in that case looks forward to and makes provision for the consummation of the whole proceeding, in a limited time. It is true the plaintiff had a lien upon this property ; but a lien subject to be defeated by operation of law. Lands in New Jersey are bound in the hands of the heir, after process served or suit instituted " against him on the contract of his ancestor ; so far, I apprehend, as that a sale made by him after action commenced, would not protect the purchaser. Yet, if two or more suits were brought against an heir, a sale niuK-r the judgment first obtained, though in the action last commenced, would be effectual. So the act authorizing a sale of the testator's or intestate's lands by decree of the orphans court, says the deed shall convey all the *438 33 514 NEW JERSEY SUPREME COURT. [5 LAW Stansbury v. Patent Cloth Manufacturing Co. estate &c. which the heir-at-law had at the time the decree for sale was made. This decree becomes a lien as against the heir so as to prevent his conveying. Yet, if execution comes on judg- ment against the heir, a sale under it subsequent to the decree would be effectual. Lastly. It has been intimated by the counsel that the sheriff was bound to go on and sell ; that he had no right to decide &c. The sheriff knew, as the case states, that he had already sold all the defendant's property and estate. But the sheriff's con- duct is praiseworthy. He suspended his proceedings to give the parties an opportunity of getting the opinion of this court, and if the court are of opinion that nothing remained to be sold on plaintiff's execution, they will justify the sheriff, and refuse the plaintiff's motion. Attorney- General, on the same side, remarked that the act had been passed for the relief of creditors, not to embarrass and defraud, and the construction contended for would produce this result. The proper mode to arrive at the true intent and construc- tion of the law was to inquire what was the evil which was complained of, and what the remedy. The evil here was the conversion of the property of corporations and its removal out *of the state, or beyond the process of the court. The object was to prevent corporations from doing this. All, therefore, that the legislature had to do was to bind the property, so that it should be subject to the claim of the creditor when that claim should be finally decided. ^This was done by making the action a lien for this purpose, and no other, so that the debtor could not sell it. It never was designed to be carried so far as to give one creditor a preference over another. . Scudder, in reply, supported the positions laid down in open- ing the case. The motion was argued at November term, 1817. The opin- ion of the court was pronounced by the chief-justice. KlRKPATKICK, C. J. This is a motion to amerce the sheriff of the county of Essex *439 2 SOUTH.] FEBRUARY TERM, 1819. 515 Stansbury v. Patent Cloth Manufacturing Co. in these three actions, upon a case stated and submitted to the consideration of the court. The motion rests wholly upon the " act for the relief of creditors against corporations," passed the 51st of January, 1817. The act directs " that the first process to be used against cor- porations shall be a summons ; that if such summons shall be returned not summoned or not served, the court shall make an order directing the defendant to appear and, and in the metaphorical sense in which the law uses it, it signifies such hold or claim upon a thing for the satisfaction of a debt, duty or demand, as that it cannot be taken away until the same be satisfied and paid. It is in this sense properly applicable, and I believe originally, in our books, only applied to chattels, things movable and easily passing from hand to hand ; and with respect to these, this claim which one has upon them is meta- phorically called a lien, a string, which binds them fast and holds them in his possession. In most instances in which one has such lien, if the debt or duty be not paid upon reasonable request and within reasonable time, the party himself may sell the chattel so held, without the intervention of any judicatory, as in the case of pledges &c. ; but in this case the act in expressly making the land liable to the plaintiffs' execution, impliedly directs that it shall be sold in that way, and in no other; and this, too, is more analogous to the common course of this country in selling lands for the payment of debts. In this hypothecated state, then, or rather in this condition of being tied fast by this lien in the hands of the plaintiffs for the payment of their debts, this land was a proper subject to be taken in execution and sold for that purpose. It seems to me that some confusion has arisen in this case, from comparing this lien to a judgment. A judgment binds the land from the time of the entry, and it is in the nature of a lien upon it in the hands of the plaintiff for the payment of his debt ; and yet if there be two or more consecutive judgments, and the land be sold upon the last, it cannot again be taken in execu- tion and sold upon those that preceded, or any of them; if they are to be satisfied at all, they must be satisfied out of the surplus of the moneys arising upon such sale, and the land goes quit in the hands of the purchaser. But then it is to be remembered that this is a special provision, created by statute, in case of judgments *only, and not according to the course of the common law, in the case of liens generally. For, considering the judg- ment as a lien upon the land from the entry, if it were left as at common law, the sale upon the lat judgment would not preclude *442 518 NEW JERSEY SUPREME COURT. [5 LAW Stansbury v. Patent Cloth Manufacturing Co. another sale upon the preceding. In this case there is no such special provision ; nay, indeed it is, on the contrary, expressly- directed that the land shall be sold to satisfy the lien, any other conveyance to the contrary notwithstanding. For his refusal to proceed upon these executions, and to sell this land, therefore, for the benefit of the plaintiff, the sheriff must be amerced in the sum settled and agreed upon by the- parties. SOUTHARD, J. The case presented upon this motion shows that the sheriff has performed his duty strictly, so far as relates to the levy upon and subsequent sale of the property of the defendant. It further shows that he has not improperly retained any part of the money > but has paid the whole to persons claiming it under the execu- tions in his hands, according to the dates of the judgments and executions ; paying those first which were first obtained and is- sued. This, in ordinary cases, would have been correct, and what the law required him to do. It is supposed, however, that these judgments and executions upon which the motion to amerce is made, were entitled to priority, notwithstanding they were the last ; and this right to priority is supposed to arise from the facts ; that in these actions an order for the appearance of the defend- ant was made under the third section of the " act for the relief of creditors against corporations," passed January 31st, 1817 ;. that this order was made before any other orders or judgments- were entered, and thus the actions became a lien which must first be satisfied. The motion, therefore, will rest on the construction of this third section, and terminates in the inquiry, What kind of lien is created by the entry of this order ? Is it such a pure, unqualified lien as will hold the property against every claim of every kind, and give the plaintiff a preference to other judgment creditors ? I cannot view it in this light. Let us look at it.. The first section of this law directs the mode in which process shall be served on corporations. The second section determines the effect of such service. The third section directs the court to enter an order for *the appearance of the defendant where the *443 2 SOUTH.] FEBRUARY TERM, 1819. 519 Stansbury r. Patent Cloth Manufacturing Co. sheriff cannot serve the summons. The fourth section, which governs this, case enacts : " That it shall not be lawful for any corporation against whom any such order shall be made, after the entry of such order in the minutes of the court, to grant, bar- yam, sell, alien or convey any lands, tenements or real estate &c. of which such corporation shall be seized or entitled to at the time of making such order, until the plaintiff in the action *hall be satisfied his legal demand, or until judgment shall be entered for defendant, and the said action shall be and remain a lien on such lands, tenements and real estate from the time of entering the said order for publication in the minutes of the court ; and the said lands, tenements and real estate shall and may be sold on execution, as if no conveyance had been made by the said corporation. It has been supposed that there are two leading ideas i this section. First, that the corporation shall not grant, bargain, sell, alien or convey after the order is made. And second, that after this order the action becomes a lien on the land, which fol- lows it everywhere. The first of these propositions is unquestionably true. After the order for publication is made, the defendant has no longer the power to sell or transfer his estate until the determination of the cause. He cannot sell or convey it away. It must remain subject to the just and legal demands of creditors. But I do not perceive that this will at all avail the plaintiff upon this motion. It has indeed been argued that a confession of judg- ment was in effect a conveyance of the land, as it occasioned its transfer. But this argument seems to me to confound definitions and distinctions of words. It might as well be said that a con- fession of judgment was a sale of personal goods and chattels because they were sold under the execution. The statute take> away from the party a portion of the ordinary right over and use of his property, and ought not to be extended beyond the usual meaning of the terms. He may not sell or convey, but he may confess judgment. A judgment may be entered again.--t him ; but the action is to be a lien on the lands ; and they may be sold under the execution as if no conveyance had been made ; 520 NEW JERSEY SUPREME COURT. [5 LAW Stansbury v. Patent Cloth Manufacturing Co. and it is argued that this lien is unqualified and must first of all be satisfied. I apprehend that an error on this part of the sub- ject arises from giving to the word lien a force which it was never intended to possess. What *was the evil which the legis- lature intended to remedy by this law? Before its passage various companies, designed to effect a great variety of objects, had sprung up in the state with mushroom growth and were in- corporated. In some cases not one member of the corporation resided in the state, and when it became necessary to sue them there was nobody upon whom process could be served ; and by a sale of the estate which they held, they altogether eluded the payment of their debts. It was an evil worthy of legislative interference ; and this act was passed as well to provide a mode in which process should be served, as to retain the property in such way as to make it answerable to the just demands against the corporation. This last was the sole and exclusive object of the fourth section. It was for this purpose, and this only, that the action was made a lien on the land. It was to be an effectual lien between the corporation and the creditors ; so that the one could not part with it to the injury and defrauding of the other. But it never was designed to give a preference to one creditor over another, and by the mere entry of an order on the minutes of a court in favor of one to prevent another from obtaining that priority which the regular prosecution and speedy termina- tion of his suit would give him. The sole object was to keep the property unchanged within the process of the court. This is manifect, too, not only from the reason and object of the law, but from its very words. It does not say that the action shall be a lien and there stop ; it adds that the lands may be sold on execution as if no conveyance had been made. On what execu- tion may it be sold ? Not alone on the execution in favor of the creditor who obtained the order, but on any execution in favor of any creditor. After this order is entered, if the corporation sell the land, it shall nevertheless be subject to the claims of judgment creditors so long as that action is depending. A different construction of the statute would lead to conse- quences the most serious and unjust. There is in it no provision *444 2 SOUTH.] FEBRUARY TERM, 1819. 521 Stansbury r. Patent Cloth Manufacturing Co. to compel the plaintiff who has obtained the order to progress with and terminate his suit. He can suspend it, and if it be an unqualified lien no judgment creditor can have the land sold, except subject to his uncertain claim, which may swallow up the whole. If this be so, all that a corporation has to do when it is in difficulty is to induce a friend to commence a suit, get his *order, let the cause delay and laugh at honest creditors. But again a claim which has regularly progressed until within an hour of judgment may, by this construction, be postponed to one which has only just been put in suit. Nor does the evil rest here. If the doctrine contended for be true, the lands of a corporation must be sold subject to as many liens of this kind as either friendship or fraud may have been induced to create ; and who could purchase under the un- certainty of their extent ? A finer device to make property sell for nothing and cheat creditors could not have been contrived by legislative ingenuity. Such a construction of the law never can be given. In this case I am of opinion that the law effected its object by keeping this property within the process of the court and the reach of creditors ; that the sheriff has done right in paying the money arising from it, upon, the judgments and executions, according to their dates, and that the motion for amercement ought not to prevail. Judgment of amercement entered. *445 522 NEW JERSEY SUPREME COURT. [5 LAW State v. Cheeseman. THE STATE v. PETER T. CHEESEMAN. Habeas corpus not the proper mode for guardian to obtain the custody of his ward where the ward was under fourteen and chose to remain with his- mother, (a) This was a writ of habeas corpus, directed to the defendant, commanding him " that the body of Joel Clark, a minor under the age of twenty-one years, in his custody &c., he have before the justices &c., to undergo and receive what the said justices should consider of and concerning him in that behalf." To this writ the defendant returned that he had the body of said Clark, who was a boy about thirteen years and four months old, the only son of Joel Clark, late of the county of Gloucester, de- ceased, who died in January, 1807, intestate, leaving his widow, the mother of the boy ; that the defendant married the said widow in December, 1808 ; that the boy had lived with the de- fendant, under the care of his mother, ever since their marriage, and had always expressed his wish to remain with his mother and had never been detained contrary to his own will. Upon this return the matter was heard, and it appeared that the prosecutors had been appointed by the orphans court of *Gloucester county, guardians of said boy, and letters of guardian- ship in the usual form, in which they are given by surrogates to guardians, were presented to the court. It was also admitted that a demand had been made by the guardians to have the boy delivered to them about two years ago, and that the defendant replied, " take him, but I'll make you bring him back faster than you take him away." (a) See Mayne v. Baldwin, 1 Hal. Ch. 454 ; Valentine v. Valentine, 4 Hal. Oh. IS 19 ; Sennet v. Sennet, 2 Seas. 114; State, Saird v. Torrey, S C. E. Or. 194, modified on appeal, 6 C. E. Or. 384; State v. Clover, 1 Harr. 419; State v. Stigall, 2 Zab. 286; Magee v. Holland, S Dutch. 99. What custody of ward testamentary guardian is entitled to, Matter of Van Houten, 2 Or. Ch. 220 ; Van Dorvn v. Everitt, post 4&2 ; and see Graham v. Houghlalin, 1 Vr. 553 ; Al- bert v. Perry, 1 McCart. 540. *446 2 SOUTH.] FEBRUARY TERM, 1819. 523 State v. Cheeseman. Ewing and M'llvaine, for the guardiaas, insisted that in New Jersey, under the age of fourteen years, the child is considered as having no discretion to choose his guardian or place of resi- dence, and, therefore, that the court ought to give him to the person in whose hands the law has placed him. That the stat- ute and the forms of letters of guardianship direct that the guardian is entitled to the custody of the person of the minor, and that the court would deliver the child to the guardian even against the will of the child. 8 Mod. 214- ; 8 Burr. 1436. That this was the only mode by which the guardian could ob- tain the child, as this court was the only power that would in- terfere in the case. Griffith, for defendant, alleged 1. That the guardians had taken no care or notice of the child since it was five years old, but it had, since that time, been kept and educated by the mother, and she ought still to retain it. The true rule to be found in the books was that the court should exercise its discretion and ad- judge whether, under all the circumstances, it was proper to de- liver over the child. 2. That the letters of guardianship had been improperly issued and were void, because they ought to have been given to the mother. The opinion of the court was expressed by Southard, J. SOUTHARD, J. I consider this question of very considerable importance under the laws of this state, and one which in its decision must have extensive and powerful operation upon the interests of society. If this be the proper mode of settling the question of right to the possession of the person of an infant who is under guardian- ship, there will be a very ready and easy mode of settling those disputes which now exist, and thousands more will be created by the very means which are established for determining them. Nevertheless, if the law require a decision in *favor of tin-si- guardians we must meet the consequences and establish the pre- cedent. *447 524 NEW JERSEY SUPREME COURT. [5 LAW State v. Cheeseman. The first inquiry which presses itself upon my mind is the right of these guardians to the person of the child. And this I consider complete and perfect ; such a right as they would be justified in enforcing, and if resisted, he who should oppose them would lay himself liable to severe chastisement. The nature of the guardianship created by our statute nay, the very relation of guardian and ward gives the right. The principles applicable to this subject, before the enaction of our statute, and the words of that statute, place the guardian in loco parentis, and as the father is entitled to the possession of the person of his child, so is the guardian to that of his ward. It is also manifest to my mind that no difficulty, in this case, results from the mode of proving the guardianship. The orphans court, which granted the letters which we have before us, is expressly authorized by the statute to grant letters of guardianship. It is expressly vested with the power to determine in what cases and to whom the guardianship shall be entrusted, and being a court which has authority, and having exercised that authority, we are bound to regard it as properly exercised unless when the exercise of the power is fairly brought up and contested, (a) Nay, further, this court has no right to say that the guardianship was improperly given to these men. The appeal from the decision of the or- phans court is to a different tribunal. (6) It is not, then, either from the right of a guardian to the per- son of his ward, or from any doubt that these applicants really are the guardians and are so to be considered, that any difficulty results in the present case. But it is from the doubt whether the writ of habeas corpus be the proper mode of contesting the rights of these parties under facts like these. What is this writ of habeas corpus ? The writ used, in this case, is the great and efficacious writ, ad subjiciendum, which is directed to a person detaining another, and commanding him to produce the prisoner with the day &c. 3 Bl Com. 131; 8 St. Trials 11$. It is called a high prerogative writ, and issuing by common law, and (a) Eldridge v. Lippencott, Coxe 397 ; Den, Vanderveere v. Oaston, 1 Dutch. 15; Acts of 1871 p. 102. (b) But see Tenbrook v. McColm, 5 Hal. SS8 ; S. C., 7 Hal. 97. 2 SOUTH.] FEBRUARY TERM, 1819. 525 State Cheeseman. running throughout the kingdom, because the king is entitled at all times to have an account why the liberty of his subject is re- strained. Qro. Jac. 543. It is for the relief of the prisoner, and the prisoner only. It is to inquire why the liberty of the citizen *is restrained. This, then, is its legitimate and only ob- ject to relieve from restraint and imprisonment. Wherever there is no imprisonment there is no ground for the writ of habeas corpus. And I apprehend no case has been cited, nor can any one be cited, where this writ is either used to determine a ques- tion of property or the conflicting rights to the possession of the person ; it looks to another object altogether. If one of two par- ties unlawfully restrain and imprison the person about whom the contest arises, the writ steps in and relieves from the restraint, but leaves the contest, as to possession, to be decided in another mode. This principle is amply maintained in the case of Rex v. Smith, 2 Str. 982. And if we were permitted to pursue the history of judicial proceedings in England to a later period, the cases of The King v. Reynolds, 6 T. JR. 4^7 and Rex v. Edwards, 7 T. R. 745, would abundantly confirm the doctrine there ad- vanced. In the first-mentioned case the court expressly refused to decide upon the claim of possession to the guardianship, but said it could only deliver the boy out of the custody of his aunt and tell him to go where he pleased ; that the guardian might maintain his right by other modes of action. I recollect noth- ing which at all questions the propriety of this decision unless it be the case cited from 8 Mod. 214, and 3 Burr. 1436. The case in Modern is not very satisfactorily reported there but is better in other books ; and in the case in Burrow, which is indeed a leading and conclusive case, that in Modern as well as the other cases on this subject, are correctly abridged by Lord Mansfield, and the doctrine he lays down I take to be law. He there says : " In cases of writs of habeas corpus directed to private persons the court is bound to set the infant free from all improper re- straint, and this ex debito justitice, but it is not bound to deliver him over to anybody nor to give him any privilege. This must be left to the discretion of the court under the circumstances." In the case of Mary Johnson the court did not even order the *448 526 NEW JERSEY SUPREME COURT. [5 LAW Newbold's Executors v. Lamb. child into the possession of the guardian but permitted him to take her. When we look into this case I am free to say that I think the guardians entitled to the infant. They have a right to take possession of it and the stepfather has no right to resist. If he do, he does it at his peril, and that peril by no means small. But when we inquire why this court, on this writ, should interfere, *I do not find any imprisonment or restraint which alone authorizes us to interfere, and, therefore, I am of opinion that no order for delivery of the infant to the guardian should be made, but let the child go where he will ; and let the guard- ian, if he pleases, either take possession of him, or, by course of law, enforce his right to the custody of his person. ROSSELL, J., dissented. He thought that the guardians were entitled to the custody of the person of the ward ; that the habeas corpus was a proper mode to obtain the possession of his person, and that the circumstances of the case required that the court should order the defendant immediately to deliver the boy to his guardians. The executors of DANIEL NEWBOLD, deceased, v. JOSEPH LAMB. Proof of the handwriting of subscribing witness is not sufficient to send to the jury a bill having ink-scroll for a seal, and which does not, in the body of it, say that it was sealed, (a) On rule to show cause why a new trial should not be granted. This was an action of debt originally brought in the common (a) See Hoagland v. Sebring, ante 105; Force v. Craig, 2 Hal. 272 ; Corlies v. Van Note, 1 Harr. 329 ; Hopewell v. Amwell, 1 Hal. 176; Ourtis v. Hall, 1 South. 148; Perrine v. Cheeseman, 6 Hal. 174; Acts of 1875 p. 56. *449 2 SOUTH.] FEBRUARY TERM, 1819. 527 Newbold's Executors r. Lamb. pleas of Burlington county, and removed by habeas corpus into the supreme court. The plaintiffs declared against the defendant on a sealed bill and made profert of the same. The defendant prayed oyer, and after setting out the instru- ment pleaded non est factum. Upon the issue thus joined between the parties, the cause came on for trial at the Burlington circuit in November, 1817. The plaintiffs, after proving the death of William Coate, the subscribing witness to the following paper-writing, and proving the handwriting of the said William Coate, offered in evidence the bill of which oyer had been given, in the following words, viz. : " For value received I promise to pay Daniel Newbold or order, on or before the first day of May next, one hundred and seventy dollars, with interest. April the first, one thousand eight hundred and six. Jos. LAMB. [SCROLL.] " Witness present, " WILLIAM COATE." *To this instrument the defendant objected until some proof was offered to show that it had been sealed and delivered, and contended that it was, without such proof, inadmissible on the issue joined and insufficient to sustain it on the part of the plaintiffs. His Honor Judge Rossell overruled the objections. No other evidence was offered either by the plaintiffs or defend- ant, and the jury found a verdict for the plaintiffs for $307.93. The case was not argued, but Coxe, for the defendant, referred the court to 1 Shep. Touch. 64, 66, 67; Coke Lit. 6 a 85 b ; IS Viner W tit. "Faits" let. H 9; Bro. Plea. 113 tit. "Fait"; Peake Ev. 100; 6 Johns. $46; 1 Wash. 170; 1 Mun. 487. Earing, for plaintiff, referred the court to Swift Ev. 26; PhiL "JIW/ 1 Johns. $30; IS Mod. 607. The chief-justice delivered the opinion of the court. KlRKPATRICK, C. J. This is an action of debt upon a sealed bill, in these words, to wit : *450 528 NEW JERSEY SUPREME COURT. [5 LAW Newbold's Executors v. Lamb. " For value received, I promise to pay Daniel Newbold or order, on or before the first day of May next, one hundred and seventy-five dollars, with interest. April the first, one thousand eight hundred and six. JOSEPH LAMB. [SCROLL,.] " Witness present, "WILLIAM COATE." Upon the trial the plaintiff proved the death and handwriting of the said William Coate, the subscribing witness, and then offered his bill in evidence, (a) To this it was objected by the defendant, unless some proof should be offered to show that the said bill had been sealed and delivered, but the objection was overruled, and a verdict rendered for the plaintiff. Upon the coming in of the postea the defendant took a rule to show cause &c. The case was submitted without argument. The objection could not be to the scroll or the ink-seal, for the statute is positive " 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 ad- judged to be of the same force and obligation as if it were actu- ally sealed with wax." Neither can it be to the mode of proof, for it has so many times been determined, and has become a *principle so well settled that proof of the death and handwriting of a subscribing witness to a deed is sufficient to pass the deed to the consideration of the jury, that it cannot now be questioned. Were it otherwise, a bill or bond or other obligation under seal would be a very uncertain security indeed ; for, as Lord Coke hath observed upon this subject, no man can keep his witnesses alive, and time weareth out all men. The objection, then, must rest upon the form of the attestation, if I may so call it, or the his testibus clause, which does not ex- press, as is usual, that the instrument was sealed and delivered in the presence of the witness. The only reason why the proof of the handwriting of the subscribing witness is taken as suffi- cient proof of the execution of a deed is founded upon the pre- (a) Patterson v. Tucker, 4 Hal. 332; Boylan ads. Meeker, 4 Dutch. 294; Van Doren v. Van Doren, Penn. *1022 ; Reformed Church v. Ten Eyck, 1 Dutch. 40 ; Servis v. Nelson, 1 McO. J. JOHNSON. Verdict not set aside where contradictory evidence and the judge certifies that he is satisfied. Definition of the testamentary capacity. In ejectment. This cause was tried at the Bergen circuit, in October, 181 6- At the subsequent term a rule was granted to show cause why (a) Nn-ius v. Martin, 1 Vr. 4&* ; Jackson v. JVmiw, 6 Fr. 144 i Aeb* v. Wfotoii, 7 a E. Or. 446; but see Cto v. Sennet, 1 Or. 167; Leigk v. Savitige r 1 McQxrt. 1S5. *454 2 SOUTH.] FEBRUARY TERM, 1819. the verdict should not be set wide. The state of the ewe, as igned by the chief-justice, is in the following words : (a) " It was in evidence on the trial of this cause that one Sav- annah Bailey was seized in fee of the premises in question, and being so seized, died without issue, on or about the 20th day of April, 1813 ; that she left one brother, Abraham Merritt, the lessor of the plaintiff, and four children of a dfrrancd sister, and that beside these she never had brother or sister ; the lessor of the plaintiff claimed two-thirds of the premises, under the statute of dements, as brother of the said Susannah Bailey. " The defendant, by wa y of defence, proposed to show not a title in himself, but a title out of the plaintiff, and for this purpose gave in evidence a paper purporting to be the trntanirnt and bat will of the said flimr k Bailey, bearing date the 18th day of April, 1813, devising her whole estate, both real and personal, to the said four children of her said deceased sister, and consti- tuting Josiah Pnrdy and Joseph Pnrdy, two of the said child- ren, and Josiah Johnson, the ^familantj to be executors thereof And the validity of this will was the whole matter of controversy in this suit. M Tbe plaintiff alleged that the testatrix, at the time of sign- ing the will, was so far broken by the pressure of her Hjty^^ which *had been very violent and very rapid, and that the hand of death was so heavy upon her that she was incapable of the exercise of a sound and disposing mind and memory ; that the said will had been written by the said Josiah and Joseph Pnrdy, in the kitchen, according to the contrivance of their own minds, without any consultation with or direction from the said testa- trix; that the said testatrix had never read the said will, being, in her situation, altogether incapable of doing so, and that the same had never been read to her by any other person. u To establish these facts the plaintiff called not only the testa- mentary witnesses but also a number of others who were visitors and attendants during the illness of the testatrix, who were very . Everitt. custom, and therefore the settled law, that the tenant, after the expiration of his term, should have liberty to enter, cut and carry away his way-going crop, as it is called, that is, all the grain which he had sown, but which was not then yet ripe, (a) And what can possibly be more reasonable ? Here leases are usually from year to year, from April to April. Shall the lessee have, for his year, the benefit of the spring crop only and be deprived of the winter crop, which is by far the most important ? It may be said that he ought to guard himself by covenants. It is true he may do so. But still, the very essence of the con- tract is that he shall have one year's course of crops. He pays a year's value, he bestows a year's labor, he must sow in its sea- son or not at all, he must eat in the winter as well as in the sum- mer. The very nature of the thing shows that he is to have the successive crops of the year. Shall the tenant be deprived, then, of the substantial benefits of his lease, unless he shall fortify himself with covenants of entry? I have always understood the universal custom of the country to be otherwise, as well as the course of decision in all the courts. Indeed, the matter appeared to me to be so well settled that I was surprised to hear it even made a question. But besides, in this case, there is a particular stipulation con- tained in the lease itself, " that the plaintiffs, in the first year, are to plant the field next the barn, southward, and sow the same with rye or oats, and to sow the corn ground next the woods with oats and clover-seed ; and that, in the second year, they are to plant the young orchard back of the house together with the field next adjoining, westward, and to sow the same with rye or oats and clover." The lease was for two years, beginning on the 1st of April, 1813. It is expressly stipulated that the tenants should have the privilege of sowing two crops of rye ; the crop of the last year could not possibly be reaped before the expiration of the lease. (a) Debow v. CW/az, 5 Hal. 1S8 ; HmoeU v. SchmcJe, 4 Zab. 89; Smith v. Clayton, 5 Dutch. S57 ; see The Society e the latter, and although, by the terms of the lease, he was to give possession of the farm to the guardian on the 1st day of A pi il, *465 35 546 NEW JERSEY SUPREME COURT. [5 LAW Olden v. Hallet. 1815, common sense would forbid us to suppose, for a moment, that this surrender of possession of the farm included the fields on which his crop was growing or to grow ; of these he held a virtual possession until this crop was harvested ; and whether he worked in perfecting the intention of the lessor as well as his own, agreeably to the manifest meaning of the lease, before or after the 1st of April and before he had delivered possession of said fields, ought not nor could it change the situation of the parties. One had, for a valuable consideration, leased to the tenants those fields for his benefit, and he was entitled to it. The land*lord would neither gain nor lose by the circumstance of the tenants not having fully completed putting in their crop until after the day they were to deliver possession of the rest of the farm. Thus thinking, I am of opinion that the postea should be delivered to the plaintiffs. GILES W. OLDEN and HART OLDEN, executors of SAMUEL OLDEN, deceased, v. RICHARD S. HALLET. Insolvent laws of New York discharging the debt, unconstitutional. In debt on demurrer &c. This action was commenced by attachment against the prop- erty of the defendant, directed to the sherifi of Somerset, on which he seized a quantity of hides or unfinished leather, belong- ing to the defendant, in the hands of Elisha Clark. The defendant filed special bail. The declaration has two counts. 1. On a bond in the penal sum of 1,000, New York money, given by the defendant and one Jeremiah Hallet, deceased, whom the plaintiff has survived, to Samuel Olden, dated the 1st of May, 1797, conditioned for 500 with lawful interest. 2. On a judgment obtained against the defendant on that *466 2 SOUTH.] FEBRUARY TERM, 1819. 547 Olden v. Hallet. bond, as survivor, at the suit of the plaintiffs, as executors of Samuel Olden in the supreme court of the state of New York, in the term of August, 1804. The defendant pleaded seven pleas. To the first count 1. The judgment obtained in the state of New York stated in the plaintiffs' declaration j the plea concludes with a verifica- tion. 2. The same plea concluding to the record with a prout paid per recordum &c. To these first two pleas the plaintiffs demurred and the defend- ant joined in demurrer. To the second count 3. Nul tid record. The plaintiffs reply that there is such a record, concluding to the record in the usual form. *4. Nil detinet, issue tendered to the country and joined by the plaintiffs. 5. A statute of the state of New York called an insolvent law and a discharge of all prior debts due from the defendant, made by the recorder of the city of New York on the 20th of June, 1807. This statute was passed on the 3d of April, 1801, and authorizes the recorder, on the petition of three-fourths in value of the creditors and upon the debtor making an assign- ment of his estate and complying with the other provisions of the act, to discharge any insolvent debtor from his debts, whether he was imprisoned or not, and bars all future actions for the .recovery &c. The plea avers that the defendant was an insol- vent debtor within the act, and had been in custody, upon execution, for more than sixty days, and that having complied with all the directions of the act and been duly discharged, he pleads the discharge in bar of this action. 6. Same in substance as the last, but sets out the discharge at large. To these last two pleas the plaintiffs demurred and the defend- ant joined in demurrer. 7. That the plaintiffs sued out a ca. sa. upon the judgment, upon which the defendant was arrested and detained until the *467 548 NEW JERSEY SUPREME COURT. [5 LAW Olden v. Hal let. 20th of June, 1807, when he was discharged under the insolvent law &c. To this plea the plaintiffs demurred and the defendant joined in demurrer. The cause was argued by R. Stockton, for the plaintiffs, and Ewing, for defendant. KlRKPATRICK, C. J. In this case there was a bond given in New Jersey ; a judg- ment entered upon that bond in the supreme court of the state- of New York ; a ca. sa. sued out on that judgment; the de- fendant taken and imprisoned thereupon and afterwards dis- charged under the act of the said state of New York, entitled " An act for giving relief in cases of insolvency," passed April 3d, 1801. After this discharge there was an attachment taken out here,, upon which the defendant appeared and gave special bail. The declaration contains two counts, one upon the bond and another upon the judgment in New York. To the first of these *there are two pleas setting up the said judgment in New York as an extinguishment of the bond ; the first concluding with a general verification and the second with a verification prout patet by a copy of the record of that judgment authenticated accord- ing to the act of congress &c. And to these two pleas there are general demurrers and joinders in demurrer. To the second count in the declaration there are five pleas^ First. Nul tiel record. Secondly. Non detinet. Thirdly. A dis- charge under the act of the state of New York. Fourthly. The same, setting out the discharge particularly. And fifthly. The imprisonment of the defendant upon a ca. sa. on this judgment and his discharge therefrom. The counsel have not thought proper to go into an argument, upon the pleas to the first count; but as the demurrers are general, they must be intended to be taken to matter of sub- stance and not to matter of form ; for though the pleas should be thought to be informal, concluding with a general verification *468 SouTrf.] FEBRUARY TERM, 1819. 649 Ohlen r. Hal let. and not with a proui patet per recordum, or in other similar respect (which I by no means say is the case), yet such iu for- mality is cured by the act respecting amendments and jeofails. I see no ground, therefore, upon which they can be taken, unless it be that the judgment in the state of New York did not oj>er- ^te as an extinguishment of this bond debt, and that, therefore, the bond still remains in its full force and may be made the foundation of an action here. That the judgment operated as an extinguishment of the bond debt in the state of New York cannot for a moment be doubted, (a) Can the party, then, by coming into this state again revive it and set it up? Or will it be said that a judgment in the state of New York is, as to us, a mere matter in pais, which, in- deed, may be the foundation of an assumpsit or of debt, as upon a simple contract the regularity, justice and foundation of which may be inquired of here by a jury as other matters of fact are inquired of ; but that it cannot be pleaded or taken notice of as judgment, or have the effects and operation of a judgment f If this be the ground upon which the demurrers are taken, and I can really see no other, I am inclined to think they are not good. The clause of the constitution of the United States on this .subject, and the act of congress to carry that clause into effect, notwithstanding the very respectable opinions to the contrary *rendered in some of our neighboring states, I think place such judgments upon a different footing from what are commonly called foreign judgments and give them all the force and effect of judgments in every other state. (6) To say less of that clause -and of the act consequent thereupon, would be to nullify them -altogether. But as the counsel have not argued this question so (a) Prett v. Vanarsdalm, 6 Hal. 194; Barnes v. Gibbs, S Vr. S17 ; Cm T. MtuiaJU, 7 Vr. 390. (6) Moulin v. Insurance Co., 4 Zab. MB; GulicJe v. Loder, 1 Or. 68; Doug- lass v. Steward, Penn. *710 ; Lanning v. Shute, post 778; Qavit v. Snowhill, * Dutch. 76; Robert v. Hodges, 1 C. E. Or. SOO ; see Davis v. Headley, 7 C. Ef . 196. *490 576 NEW JERSEY SUPREME COURT. [5 LAW Lacev v. Collins. 1. This instrument is not, in its nature, assignable. No as- signment of it could justify Collins in bringing an action upon it in his own name. Chit, on Sills 90 ; Perm. ^#,7## &c. 2. If it were assignable yet is there no such assignment actually made as will give the plaintiff any interest, or enable him to maintain the suit. It is in blank, and although it would autho- rize the plaintiff, if it were a promissory note, to put the neces- sary words of assignment over the name, and this even after the commencement of the trial and before it was offered in evidence, yet, in such cases, the assignment must be actually made before it can be received. In this case no such assignment could be put on the paper, and the justice erred in admitting it as proof of a debt due the plaintiff. Penn. 911, 987. 3. Some doubt may rest upon the operation of the defendant's- acknowledgment of the note, whether it was sufficient, without other proof, to make it competent evidence ; but as the note or paper was really not assignable, and as no endorsement was upon it which could justify its admission even if it were assignable, it is not necessary to express any opinion respecting this confession. I think there ought to be a reversal. KIRKPATEICK, C. J. I perfectly concur with my brother Southard in the reversing of this judgment upon the principles stated. I am not satisfied that upon a paper like this or any other paper or instrument, not in its nature assignable, the mere endorsement of the party's name upon the back of it will enable the holder to write an assignment to himself over that name, even if such endorsement were intended to pass the interest. I do not recollect any de- cision to that effect, and I think it would be contrary to prin- ciple. As to negotiable paper the law-merchant has determined the import of a general assignment, and for the greater conve- nience has permitted it to pass by the mere endorsement of the name and authorized the holder to write over it the assignment in form ; but if he were to write anything *special or different from a common assignment, it would be bad. But as to those papers or instruments not assignable in their nature, every assign- *491 2 SOUTH.] FEBRUARY TERM, 1819. 577 Nixon v. Van Hise. ment must be considered as special and standing upon its own strength. BY THE COURT. Let the judgment be reversed. LEVI NIXON v. THOMAS VANHISE. 1. Insufficient demand. 2. Promise to answer for default of another, (a) On certiorari. Wall, for plaintiff. R. Stockton, Jr., for defendant. SOUTHARD, J. This was an action of debt brought by Vanhise against Nixon, and the state of demand sets out the following case : Vanhise became bound, in writing, on September 16th, 1816, to Tilton Pearce, a constable, for the delivery to him of certain goods, taken in execution as the property of Samuel Nixon, father of Levi. Levi Nixon claimed the goods as his own property and prevented Vanhise from delivering them to the constable, in consequence of which the constable sued Vanhise and recovered judgment against him. Levi Nixon became the (a) Dills v. Parley I South. 19; Hoppock v. Wilson, 1 South. 149; Scudder v. Wade, 1 South. 49 ; Bucldcy v. Beardslee, post 570; Ashcroft v. Clark, port 577; Rose v. Johnson, Penn. *5 ; South v. Toomey, Penn. *98 ; Ayres v. Her- bert, Penn. *668 ; Youngt v. Shough, 3 Or. 7; Mundy v. Ross, S Or. 466; Hetfidd v. Dow, S Dutch. 440 / Joslin v. A. J. Oar Spring Co., 7 Vr. W ; Saxton v. Landis, 1 Harr. SOS ; Williams v. Doran, 8 C. E. Or. S85 ; Aliter, if founded on a new consideration, Kutzmeytr v. Ennis, 3 Dutch. 372 ; Clark v. Hall, 6 Hal. 78; Heijield v. Dow, S Dutch. 440; Cnwenhoven v. Howell, 7 Vr. 33. 37 578 NEW JERSEY SUPREME COURT. [5 LAW Nixon v. Van Hise. security of Vanhise in a certiorari bond, and the judgment was reversed by the supreme court. At the time Levi Nixon signed the certiorari bond, and at subsequent times, he undertook and promised Vanhise that he would indemnify and save him from, and pay all costs and damages to which he had already or should thereafter be put by any suit or suits brought against him by the constable on this account. The constable afterward, December 13th, 1817, obtained judgment against Vanhise for $44.37 dam- ages, and $7.57 costs; in all, $51.87. Levi Nixon refused to pay these costs and damages, and Vanhise brought this suit &c. There was a hearing in the absence of the defendant, and judg- ment for $52.37, with costs. At the trial two witnesses swore that they had heard " the parties, in the presence of each other, repeat the contract substantially as set forth in the state of de- mand," and that Nixon had paid Vanhise " one dollar for that purpose, promising to pay him such further sums from time to *time as should be wanting, or he should be obliged to pay in consequence of said agreement." But no evidence of any kind was given of any written contract between the parties. The counsel for the plaintiff in certiorari objects to this state of demand that it is vague and uncertain, and is founded on a parol contract to answer for the debt, default or miscarriage of another, and, therefore, illegal. Let us look at it. Vanhise, without any promise or consideration passing from Nixon to him, or moving him thereto, had entered into a written contract lo the constable, which he was unable to perform. His failure subjected him to suit and judgment. After this had been done, after the contract had been made, broken and the breach pun- ished, a third person comes forward and promises to pay the damages. Is this promise legal and binding ? Why was it made? Did any consideration justify it? (a) I see none. Was there any obligation on the party promising to bear these dam- ages ? None is shown. The act was the act of Vanhise ; the contract was his ; the damages were laid on him. Why should (a) See Shepherd v. Lay ton, Perm. *6 18; Morford v. Vunck, Perm. *10SS ; jBigdow v. Pine, Penn. *52S ; Youngs v. Shough, 3 Or. 27 ; Laing v. Lee, Spen. S37. *492 2 SOUTH.] FEBRUARY TERM, 1819. 579 Nixon . Van Hise. Nixon voluntarily pay them? The conaideration vraspast; the default was that of another; the contract should have been in writing to have made it binding. This view of the case is certainly correct unless its aspect is changed by the considerations so ingeniously pressed in argument by the counsel for the defendant. 1. The contract made by Vanhise was to protect and relieve the defendant's father, and furnishes a moral obligation on the son to save him harmless, which is sufficient consideration to support the contract, (a) But is this true ? Is there such an obligation on the son ? I think not. It is not every benefit rendered in this way to a father which furnishes a consideration to support a legal promise in the son. But if it were so, the promise, to be binding, ought to pre- cede the benefit and move to its performance. This is not so in the case before us. 2. This contract made by Vanhise, which subjected him to damage, was violated through the act of Nixon, which prevented its performance, and therefore Nixon could legally promise to pay the damages resulting from his own act. But the answer is still true that the consideration of Nixon's promise was already past, and that it was the default of another. Besides, whatever interest Nixon had in the violation of Van- Jiise's engagement, he had none in the engagement itself. *On the contrary, it was an undertaking to deliver up to the officer, to be sold, goods which Nixon claimed as his own property a promise to deprive Nixon of his own goods. I think the judgment on such a state of demand cannot be supported. - Judgment reversed. (a) Whether a moral obligation is sufficient consideration, see Wood v. Ooxe 449 ; Updike v. Titut, Beat. 151 ; Force v. Hainet, Hear. 394 ; Kear- ney v. Kearney, C. E. Or, 59; Layton v. Cooper, Pen*. *65 ; Youngs v. Shougk, JQr.7; Morgan v. Walton, 1 Harr. 417. *493 580 NEW JERSEY SUPREME COURT. [5 LAW Roll v. Maxwell. BALTUS ROLL and BROOKES ROLL v. CALEB MAXWELL and. JON. WOODRUFF, overseers of the poor of the township of Westfield. 1. Bond to indemnify township in penalty of $500. 2. Judgment must be entered for penalty, and justice no jurisdiction, (a) 3. State of demand. 4. Unlawful evidence. On certiorari. The case is stated by Justice Southard. Halsey, for plaintiff. Chetwood, for defendant. SOUTHARD, J. The action below was brought upon a bond given by the de- fendants to indemnify the township of Westfield from all costs, charges &c. arising from the birth and maintenance of Henry, a bastard child of Mary January. The state of demand sets out the bond, the penalty of which was in the sum of $500, and charges that the township had been obliged to lay out and expend for the birth and maintenance of the child the sum of $39.25, which is claimed by the defendants. At the trial the bond was presented and the subscribing witnesses, who were inhabitants of the township of Westfield, were objected to by the defendant and overruled by the court. An offer was then made to prove their handwriting, which was also overruled. The justice then admitted proof of the handwriting of the obligors, which being proved, the bond was read to the jury. Testimony was then (a) Webb v. Fish, 1 South. 871; Tunison v. Cramer, post 498; Graecen v. Allen, 2 Or. 74 ; Schuyler v. Sylvester, 4 Dutch, 488 ; Beatty v. Ivins, Penn. *6S8 ; Ordinary v. Hart, 5 Hal. 65; Simmons ads. Kelly, 10 Vr. 441. SOUTH.] FEBRUARY TERM, 1819. 581 Roll r. Maxwell. given that the child was chargeable, after which an order of John Wilson, Esq., for the relief of the child, a paper purport- ing to be a demand on Roll for the money expended, signed by the overseers, and three receipts given by different persons for money which they had paid, were severally admitted in evidence after the handwritings of the persons subscribing them were proved, and that a copy of the demand on Roll had been served on him. No other evidence of the expenditure of the money was given *except .that one person who had signed one of the receipts had the care of the child. The jury rendered a verdict for $34.50. Several reasons have been filed and relied on in argument for the reversal of this judgment. I will consider them in order. 1. The suit was brought upon a bond to indemnify the town- ship, in the penal sum of $500, for which, if for anything, the judgment must be entered ; and of this sum the justice had not jurisdiction. This reason turns upon the question whether upon a bond l^ke this the judgment must be necessarily entered for the penalty. Our statute (Pat. 255 5, 6, 7), and the construction put upon the statute 8 and 9 Wm. III., of which ours is a copy, leave no . Cramer. tiiin Tunison was upon the limits and so continued until dis- charged under the insolvent laws on the 23d of the same month, a few days before the trial. After this testimony a motion was made for a nonsuit on the ground 1. That it had not been proved that Tunison was off the limits before the assignment of the bond. And 2. That 'tin- suit was not sustainable, because he had returned within the limits before the suit was brought. The motion being overruled, a verdict and judgment were ren- dered for $98.05 of debt, with the costs, being $3.05 more than the penalty of the bond. And now here, the plaintiffs in certiorari rely, for the reversal of the judgment, as well on the overruling the motion for a nonsuit as on the fact that the ver- dict and judgment are illegal because for too large a sum. Let us look at each of them. 1. The reason and nature of the thing, as well as the construction of the law (Pat. 365 100\ require that the prisoner should have broken the condition of his bond before the sheriff has any right or authority to assign it ; and an assign- ment made before such breach would be irregular. But this court has not sufficient evidence before it to show that this reason is founded in fact. The bond was assigned on the 13th of December ; the prisoner was seen off the limits about eight weeks before the 30th of January following not quite seven weeks after the assignment. The terms used, "about eight weeks," are very indefinite, and I am not willing to say that in construing them the court below erred. 2. The prisoner had voluntarily returned before action brought, and, therefore, according to the decision in Howard and Fiick v. Blachford et a/., Penn. 777, the suit is not sustainable. The correctness of that decision will not here be questioned ; but there is certainly a manifest distinction between the cases. In the case cited, the prisoner " walking within the limits next and adjoining to the bounds of the gaol or prison, which was terminated by an imaginary line, casually, accidentally, and by mistake, walked over and beyond the bounds of the said prison a little way, to wit, the distance of five feet and no more ; and thereupon and immediately thereafter, and without any pursuit *499 588 NEW JERSEY SUPREME COURT. [5 LAW Tunison v. Cramer. or retaking &c., and before the commencement of the action, voluntarily and of his own accord, instantly returned within the bounds of the said prison and the custody of the sheriff" &c. And the court adjudge that this was not such a walking out of the limits as to forfeit the bond and authorize a recovery. But is this the case under consideration ? I think not. The walking out of Tunison was not casual, but deliberate ; not accidental, but by design ; not by mistake, but with knowledge and pre- meditation ; not the short *distance of five feet, but more than two miles. If this be not such an act as violates the intention of the law and the condition of the bond, I know of none that would. If a man may deliberately go two miles, why not five? why not twenty? why not to the extreme end of the state ? nay, beyond it ? If he may go to a store, why not trans- act any other business ? and where is the confinement to which he is subjected ? The law is a dead letter and the marking out of the prison limits a farce. I can view this act of Tunison in no other light than as a clear and intentional infraction of the law and breach of the condition of his bond ; and I think the justice decided correctly in overruling the motion for a nonsuit on this ground. 3. The plaintiff claims $100, and in his demand sets out the execution of the bond, its penalty, condition and assignment as the ground of his claim, and demands "the said sum of $100, the principal and interest on said bond " &c. If by this he in- tended to consider the penalty as a sum due, to which he was entitled, and on which interest could arise, he is, I apprehend, in an error; nor if it were so'would the difficulty be removed. If it be a sum certain, which can bear interest, at what period must the interest commence? Certainly not from the execution of the bond. The obligee can have no rights under it until a breach of the condition ; and if we calculate interest from the time proved when the breach was made, it will not amount to the sum recovered. The amount of the execution on which the prisoner is confined is the real object to be secured ; and the law no doubt designed that when the bond was forfeited the principal, interest and costs on that execution should be recovered by the *500 2 SOUTH.] FEBRUARY TERM, 1819. 589 Wills r. M'Dole.' creditor ; hence it directed the penalty of the bond to be double the sum for which he was committed (Pat. 368), and this bond is faulty in not having been taken in that sum. If it had been, no difficulty would have arisen on this point. The plaintiff might safely have had his verdict as it now is, for the amount and interest. But as it was not taken in double the sum for which Tunison was committed, but only in the sum itself, can more be recovered? Can we go beyond what Briggs, the security, has agreed to pay and compel him to pay what he has not agreed to ? I think not. His case is not that of a bond for money, or the performance of a collateral act, where, in some instances, a recovery of interest has been allowed, even beyond *the penalty (1 Eq. Cos. Ab. 92; 2 Term Rep. 388); but it is a specific agreement that an act shall be done under a specific penalty. Who, then, has a right to enlarge the penalty, and say you agreed that an act should be performed or you would pay $95, but you shall pay $98 ? We might as well make him pay $900, or any other sum. He may well tell us " it is not within my bond." I think the verdict and judgment are for too much and should be set aside. Judgment reversed. SAMUEL WILLS t;. ROBERT M'DoLE. Venire may not issue before appearance of defendant ; but if defendant do not appear, jury may be dismissed and justice try the cause, (a) Original .mist be accounted for, and copy strictly proved before it can be read. (6) On certiorari. Watt, for plaintiff. Vroom, for defendant. (a) Sutton v. Oolcman, Perm. *1S4 ; Lummis v. Stratlo*, Penn. **46 / Keen T. ScuU, Penn. *544. (6) Sterling v. Polls, post 77S. *501 590 NEW JERSEY SUPREME COURT. [5 LAW Wills v. M'Dole. Opinion of the court. SOUTHARD, J. Two reasons have been relied on for the reversal of this judg- ment. 1. Because, after a venire had been issued and the jury summoned, the justice dismissed the jurors and tried the cause himself. 2. Because a paper purporting to be the copy of the agreement on which the suit was founded was illegally received in evidence. 1. The defendant did not at any time appear before the jus- tice, but the plaintiff requested and the justice issued a venire, which was regularly served and the jury appeared on the day set for the trial. The issuing of this venire was certainly irregular, and had the cause been tried by it would have been proper ground for reversal. But the justice seems to have been aware that he had committed a blunder, and as the defendant did not appear on the day of trial he conducted the cause as if no venire had been granted. In what, then, did the error consist? Not in the trial, nor in the judgment ; they were both legal, but in a previous proceeding which was altogether inoperative and de- prived the party of none of his rights. With the exception of issuing this writ the whole proceedings were precisely as they should have been, and this writ was rendered a nullity ; it had no operation. Ought we, then, to reverse for this cause ? I think not. *2. This action was founded on an article of agreement under seal, and a paper said to be a copy was received in evidence. By the transcript and an amended return it seems that there was proof at the trial that this article was believed to be in the hands of a certain George Forsyth, who was an agent of the defendant, or acted as such ; that a subpoena was served on Forsyth, " di- recting him to attend the trial, and bring with him a certain article of agreement, then in his hands, between the parties in the suit ; " (a) that Forsyth did not attend, nor send the article, and (a) Murray v. Elston, 8 C. E. Gr. 212 ; see, also, The Board of Justices v. Fen- nimore, Coxe 242 ; Watkins v. Pinkard, Ooxe 378 ; Clark v. Imlay, 7 Hal. 119 ; Moran v. Green, 1 Zub. 572, note. *502 2 SOUTH.] FEBRUARY TERM, 1819. 591 Wills t>. M'Dole. one witness swore that he believed the copy of the article offered was the handwriting of Forsyth. This article was an important paper ; it was the foundation of the plaintiff's claim and the defendant's liability. It was necessary that it should have been before the court on the hearing, or that a copy should be fur- nished about the correctness of which no doubt could exist. No rule of law should be disregarded in order to insure its admis- sion. Now, the law as to the admission of copies of writings is clear, and has been violated in this instance in two respects. 1. It was not satisfactorily shown that the original could not be produced. No proof was given that it was not in the plain- tiff's possession, or that it had been lost. It was only " believed to be in Forsyth's possession." And why believed to be there ? No one had seen it there ; it had not been entrusted to him by the parties ; he was " the defendant's agent, or acted as such." This is not sufficient. The law is very explicit ; the original must be accounted for. 2. The copy was not sufficiently proved. No one had examined it, as a copy, nor did any one swear to the contents of the original. All the proof was that it was believed to be in Forsyth's handwriting. More than this was necessary to justify the admission of a copy. It must be clearly shown to be a copy. The justice, therefore, erred. The court cannot help regretting this conclusion, for the whole aspect of the cause, the neglect of the defendant to attend at all to so impor- tant a matter ; the refusal of a man who had at least acted as agent and was supposed to have the writing, to attend as a wit- ness, creates a pretty strong suspicion that the principal and agent understood each other, and intended, by keeping back, to prevent the plaintiff from having a recovery. But be this as it may, the law has been violated and the judgment ought to be reversed. 592 NEW JERSEY SUPREME COURT. [5 LAW Stevens v. Scudder. *JOHN STEVENS v. JOHN SCUDDER. Justice may not grant nor common pleas receive appeal unless bond be legally executed before first term after judgment, (a) On certiorari. . This writ was directed to the common pleas of Essex. The case is stated in the opinion .of the court by Southard, J. Scuddei*, for plaintiif. Chetwood, for defendant. SOUTHARD, J. This action was originally brought before John Mann, Esq., of Essex, who gave judgment in favor of the defendant on the 15th of August, 1816. The plaintiff demanded an appeal, which was granted, and made returnable to, and the appeal entered and the papers filed in September term, 1816. The appeal was not moved for trial until September term, 1817, when, as the hearing progressed, the appellee moved to nonsuit the appellant because the paper purporting to be the appeal-bond was not such, having no seals to it. The court overruled the motion and gave the appellant time to perfect the bond ; and at the term of April, 1818, the bond was again presented (with seals affixed), filed, and the cause heard, the judgment of the justice reversed, and judgment entered in favor of the plaintiff for $11, with costs. (a) The State v. Judges of Bergen Common Pleas, Penn. *738 ; Miller v. Martin, 3 Hal. 201; Tichenor v. Hewson, 2 Or. 26; see Lacy v. Ooxe, 3 Or. 469 ; Dyer v. Ijudlum, 1 Harr. 531 ; Rodenbough v. Rosebury, 4 Zab. 491 ; Nix. Dig. 467 I 47; Pemne v. Cheeseman, 6 Hal. 195; Qarrabrant v. McCloud, 3 Or. 462; Egbert v. Thatcher, 2 Or. 78 ; Kennedy v. Congle, 2 Or. 82; Watson v. Marple, 3 Harr. 8 ; Thorpe v. Keder, 3 Harr. 251 ; Parke v. Hunt, 7 Hal. 82; Thompson v. Sutlon, 1 Hal 220. *503 2 SOUTH.] . FEBRUARY TERM, 1819. 593 Stevens r. Scudder. Upon these facts the court is now moved to reverse the judgment of the common pleas. By the 33d section of the act coasti- tuting courts for the trial of small causes (Bloom. 63\ it is pro- vided that, except in certain specified cases, either party may appeal from any judgment " to the court of common pleas of the county, to be holden next after the rendering of such judg- ment ;" which appeal is to be granted by the justice " on the following and no other terms, that is to say, the party demand- ing such appeal shall enter into bond to the other party with at least one sufficient surety, being a freeholder in the county, in double the sum for which judgment was given, conditioned that the appellant shall appear and prosecute the said appeal in the said court &c. &c. The section next succeeding declares that the common pleas shall have cognizance of these appeals so taken, and directs the mode of trial. These sections are the only foundation on which appeals rest. They authorize the justice to grant, and the common pleas to receive and entertain the appeal. The one has no power to grant nor the other to receive, unless they are strictly complied with. The appeal must be taken to the next court of common pleas ; it can be taken to *no future term. A bond in double the judgment, with a sufficient surety, must first be given. Neither court has power to do anything until that bond is executed and tendered. What, then, is the present case? A paper, not a bond, was presented to the justice ; he received it and allowed the appeal. He erred. The common pleas ordered the appeal to be entered and the papers filed. It erred not less than the justice. Both acted without power or authority, and their errors must be remedied. But the common pleas endeavored to remedy their own error by ordering the bond to be perfected, or rather, by ordering the bond to be filed, a whole year after the appeal was entered. It has only added one error to another. It had no such power. The order was made in a case which was really not before it at all, which had no existence in that court. Its power commences only when the bond has been filed and the appeal regularly made to it. It has nothing to do with directing the bond to be *504 .38 594 NEW JERSEY SUPREME COURT. [5 LAW Sutton v. Petty. .taken, it has no power to direct its proper execution. The bond must be properly executed, the appeal must be applied for, granted and tendered to the pleas at the first term after the judgment or it cannot proceed at all. All it has to do is to re- fuse to enter the appeal and file the papers, and its duties are at an end. It has no saving powers to cure the inattention and in- dolence and ignorance of suitors, who have neglected to perform those acts necessary to give it jurisdiction. The whole proceedings on the appeal are irregular and must be set aside. JOSEPH SUTTON v. AARON PETTY. 1. Written evidence does not necessarily appear on the transcript, (a) 2. Juror, though above sixty-five, sworn by consent. (6) On eertiorari. SOUTHARD, J. This action was founded on an agreement in writing by which Sutton undertook, in consideration that Petty would surrender to him the possession of a certain farm, that he would pay to Petty " whatever sum " certain " arbitrators " therein named, " might award for Benajah Gustin to pay to him, provided the said Gustin should fail to pay " the same. The state of demand alleges that Petty did surrender the possession ; that *the referees reported that Gustin should pay $63.83 as damages; that a judgment had been entered on the report for the damages and $21 32 costs, exe- cution issued thereon and the writ returned ; that Gustin denied having any property, and the plaintiff claims the amount of damages and costs. The cause was tried by a jury and verdict rendered for $85.15. (o) Manning v. Randolph, 1 South. 146 ; Cosher v. Peterson, 1 South. 318 ; Ramsey V. Dumars, 4 Han-. 66. (b) See Den v. Lardner, Coxe 220. *5Q5 2 SOUTH.] FEBRUARY TERM, 1819. 595 Button v. Petty. The counsel for the plaintiff in ctrtiorori has relied on four reasons for reversal. 1. That the award made by the arbitrators was not in evidence on the trial, nor any legal evidence of it. To this I think it is satisfactorily answered that it does not appear that the award was not before the jury. The justice is not bound to enter the writ- ten evidence on his docket, and because it is not noted we do not, therefore, infer that it was not received. Besides being the best evidence of the amount of the plaintiff's claim, the presump- tion is that it was given, a presumption only to be rebutted by a positive certificate of the justice to the contrary. 2. The undertaking was collateral ; the defendant was only to pay in case Gustin failed. The evidence of his failure was not full and sufficient. Answer Whether evidence was sufficient was for the jury to determine, and I think they determined rightly. The execution and return of it were good proof. 3. The contract is to be construed strictly ; he was bound only for the damages which should be awarded ; but the judgment goes further, and comprehends also the costs. I answer, we have not the award before us and cannot, therefore, tell whether it re- quires Gustin to pay the costs. If it did, Sutton must also pay them, for he is, by his agreement, to pay whatever sum should be awarded. The entry of judgment against Gustin for the damages and costs affords a fair inference that the award included costs. 4. Nicholas Cox, one of the jurors, was above the age of sixty-five years, but the parties agreed that he should sit upon the jury. This agreement and the swearing of this juror, I consider altogether erroneous. Parties have a perfect right to have their causes tried by men of their own choosing, but then it must be as arbitrators or referees. If tried by a jury, the members of that jury must have the legal qualifications. No consent or agreement *of parties can give these qualifications. The law has very plainly pointed them out, and neither courts nor parties have a right to disregard them. If they may be waived or dis- regarded in one instance, they may in every other. If, byagree- *506 596 NEW JEESEY SUPKEME COURT. [5 LAW Sutton v. Petty. merit, a man above sixty-five years may serve, one who is under twenty-one, of kin to the parties, or not a freeholder, may in like manner. The law ought not, in this way, to be rendered nugatory. Had this man been sworn on the jury without a knowledge of his disqualification by the court and parties, the judgment ought to stand. The law, for obvious and wise rea- sons, would leave the verdict untouched. But this is not the case where it is knowingly violated. I am therefore in favor of reversing the judgment. KlRKPATRICK, C. J. With respect to the juror who was said to be above the age of sixty-five, the justice, in his return, merely says, "Mr. Nicholas Cox was agreed to as a juror by the parties, though above the age of sixty-five." The act of 1797, relative to juries and verdicts, enacts : " That every juror who shall be returned upon trial of issues in the supreme court, or in any of the circuit courts, or before any jus- tice or justices of assize, or in any of the inferior courts of com- mon pleas, shall be above the age of twenty-one and under the age of sixty-five years &c. And if any juror who is not so qualified shall be summoned upon an issue in any of the courts in this section specified, it shall be a good cause of challenge to such juror, who shall be discharged upon such challenge being verified and substantiated according to law, or on his own alle- gation, and oath or affirmation in support thereof; provided such challenge be taken before he is sworn or affirmed." It has been doubted, and not without reason, whether this act at all prescribes the qualifications of jurors to be summoned in the justices courts, and whether it does not rather leave them upon the principles of the ancient law. But suppose it to apply equally to those as to the courts mentioned in the act itself, yet does it apply in this case? The age of this juror seems to have been known to the parties, and perhaps also to the justice, or at least to have been suspected by them ; but there is no challenge by either of the said parties in the suit ; no verification of the fact ; no allegation by the juror ; and much less any oath or 2 SOUTH.] FEBRUARY TERM, 1819. 597 Vantyl t>. Marsh. affirmation of his being above the lawful age. What, then, \va.s to be done? * Was the justice to discharge him upon his own private knowledge, or was he to seek for witnesses to disqualify him? Surely not. Concurring, therefore, with my brother Southard in the other reasons, but differing in this, I think the judgment must be affirmed. ROSSELL, J., concurring with the chief-justice, judgment was affirmed. JOHN Y. VANTYL v. ISAAC MABSH. Justice has not jurisdiction in an action on the case for overflowing land, to the permanent injury of the freehold, (a) On certiorari. This cause was argued by Hornblower, for plaintiff, and Scud- der, for defendant. The case is stated by the court. SOUTHARD, J. This was an action on the case brought by Marsh against Vantyl for erecting and keeping up a mill-dam on the river Rahway, by means whereof the waters of the river were flowed back upon the lands whereof said Marsh " had a tenancy in fee-simple," so that " the grass, wood, timber, bushes and shrubs standing on the aforesaid tenancy of land were corrupted, spoiled and de- stroyed," so that the said Marsh " lost the use, profit and advan- tage of said tenancy of land " &c. (a) Blackwll v. Lctlie, 1 South. 119 ; Blackwell v. Hagerman, Pmn *103S; Gregory v. Kanouse, 6 Hal. 62; Hill v. Carter, 1 Harr. 87 ; Dixon v. Scott, S Harr. 4SO ; Cnmpfield v. Johnson, 1 Zab. 83 : Dickerson v. Wadsvorth, 4 Vr. 357; see Satterthwaite v. Morgan, Pcnn. *96 ; Hankinton v. Baird, 1 Hal ISO; Hunt v. Afoirw, 7 Hal. 175 ; Pickle v CWnAown, 1 South. 319. *507 598 NEW JERSEY SUPREME COURT. [5 LAW Vantyl v. Marsh. The only reason assigned for the reversal of the judgment is,, that the court for the trial of small causes had not jurisdiction of the cause. And I think the objection well taken. Thia action is distinguishable from the ordinary action of trespass- upon land by the tenant in actual possession. It may be main- tained by the tenant in fee, who is out of the possession, on his- right to the estate and for the permanent injury to the freehold., In it the plaintiff sets out his title as tenant in fee, and he must prove it as set out. He must show what his title is. 2 Saun. 206, 207. Even if the plaintiff here had not set out his title iu> his state of demand or declaration, yet would he have been com- pelled to exhibit it on the trial. The injury he complains of is not to the possession merely ; it is to the freehold ; to the estate ; and is altogether unlike the taking away or destroying fence,, grass &c. *The title here must come in question, and, there- fore, the justice had not jurisdiction. KlRKPATKICK, C. J. I think this, judgment must be reversed upon the ground that the justice had not jurisdiction of the subject-matter. He had not jurisdiction 1. Because the title to land necessarily came in question, and, therefore, he is restrained by the express pro- vision of the statute. And 2. Because exercising a special jurisdiction, created by statute, his mode of proceeding must bo- according to the rules prescribed by statute ; he can neither vary from them nor go beyond them ; and having no power given to him to order a view of the land, which in cases of this kind may be, and frequently is necessary, he is restrained by construc- tion of law ; for it never can be intended that a citizen is to be- deprived of his lawful rights or means of defence without ex- press words to take them away. ROSSELL, J., concurred. Judgment reversed. *508 2 SOUTH.] FEBRUARY TERM, 1819. 599 Miller v. Miller. ELIPHALET MILLER v. LUKE MILLER and J. B. MILLER. 1. In action on judgment, costs of execution may be joined to the judg- ment. 2. Transcript of justice admissible in evidence without proof of his hand- writing, (a) 3. Imprisonment of the body on ca. a. prtma facie satisfaction of the judg- ment (6) , , On certiorari. This was an action of debt upon a judgment obtained by Luke and John Miller against Eliphalet Miller, before Abraham Reynolds, Esq., of Essex. Halsey argued for plaintiff. Homblower, for defendant. SOUTHARD, J. Two reasons are relied on for the reversal of this judgment. 1. That the state of demand is unlawful, uniting matters which cannot be joined together. The state of demand sets out the judgment and the amount of it, and then adds: "The defend- ant is further indebted to the plaintiff in $2.18, it being the costs which the defendant subjected the plaintiff to in obtaining pro- cess on said judgment, which the defendant fraudulently evaded." It is the joining of this item to the judgment of which the plaintiff in certiorari complains ; but I do not perceive for what good reason. I understand the item to be the *costs of the exe- cution issued upon the judgment by Justice Reynolds, and on which the money was not made. And if this be so, it is both a proper claim and well joined in this action. (o) Den v. Dovmam, 1 Or. 1S6; Alien ads. Craig, 2 Or. lit; Bracer v. Porch, S Harr. S77 ; Idle v. Idle, 6 Hal. 9S ; Russell v. Work, 6 Vr.SIS; Henry v Campbell, 4 Zab. HI. (6) Strong v. Linn, pott 799; Allen ads. Craig, * Or. 10 ; David T. Blun- dell, 11 Vr. S7G. *509 600 NEW JERSEY SUPREME COURT. [5 LAW Vanauken v. Wickham. 2d reason. That the transcript of the justice (under his hand and seal) was admitted without proof of his handwriting. I do not think proof necessary. I think the character of the court, the nature of the transcript and the words of the statute establishing the court render it competent evidence without such proof. Neither of the reasons, therefore, is sufficient for reversal ; but there is, on the face of the transcript, that which ought to have prevented a judgment upon it unless in some way satisfactorily explained, and I find no such explanation. It has these words : " Issued execution directed to S. Morehouse, constable, who did, on the 14th December, 1816, return the sheriff's receipt for the body of the defendant." This, then, is a suit brought upon a judgment, on which a ca. sa. had been issued, and the body of the defendant taken and imprisoned. The execution of this ca. sa. is prima fade evidence of the payment and satisfaction of the judgment. And the legal conclusion arising from the fact is not rebutted, for no witness was sworn or other evidence given. It does not even appear that the defendant had in any way been liberated from confinement. I am therefore in favor of reversal. KIRKPATRICK, C. J. The imprisonment of the body upon a ca. sa. is, prima facie, Satisfaction of the judgment. BY THE COURT. Let judgment be reversed. DANIEL VANAUKEN v. GEORGE D. WICKHAM. State of demand in trover, (a) (a) Besherer v.Swisher, Penn. *74$ ; Green v. Lawrence, Penn. *849 ; Earle v. Vanburen, 2 Hal. 344; Debow v. Titus, 5 Hal. 128; Glenn v. Garrison, 2 Harr. 1 ; Mount v. Cubberly, 4 Harr. 124 ; West Jersey Railroad do. v. Trenton Oar Works Co., 3 Vr. 517; Van Dyk v. Dodd, 1 Hal. 129; Gould v. Brown, 4 Hal. 165. 2 SOUTH.] FEBRUARY TERM, 1819. 601 Conine . Scoby. On certiorari. Opinion of the court. ROSSELL, J. This was an action of trover and conversion. The trial was by jury, who found a verdict in favor of Wickham for $60, with costs, for which judgment was given by the justice. Two rea- sons are assigned for the reversal of this judgment. 1. Because the declaration does not sufficiently de*scribe the goods &c. 2. That it appeared in evidence that the defendant below purchased the oxen in question at a constable's vendue. The state of de- mand sets forth that the plaintiff, being the owner and in pos- j^ession of a pair of oxen of the value of $100, lost the same, and that the said oxen were found by the defendant, who converted them to his owu use, although he well knew them to be the property of the plaintiff, who had often requested said defendant to deliver them to him, which he had refused to do . Gibbons. AARON OGDEN v. THOMAS GIBBONS, (a) In trespass quare dausum fregit. This was a rule to show cause why the verdict should not be set aside and a new trial granted. The verdict was received by the chief-justice at the Essex circuit in September, 1818. The declaration complained that the defendant, on the 20th of De- cember, 1816, with force &c., entered the home-lot of plaintiff, situate &c., and trod down &c., the grass &c., to the value of $1, and did then and there enter into the dwelling-house of the said Aaron, on the said close there then being, and did then and *there unlawfully fix and post up on the door of the said house a wicked, malicious and insulting printed hand-bill, the tenor of which is as follows, to wit : " To Colonel Aaron Ogden : Sir As you refused to receive a letter which I sent you by General Dayton yesterday, I will give it publicity through another channel. For, like Nicanor upon Judas, you made war upon me on the Sabbath-day. But first, of the letter you had received by the hands of General Dayton, which is as follows : ' To Colonel Ogden, Eliz., 30th May, 1816: Sir I was this day arrested in a suit at law in your name, in the city of New York, after I was on board of the steamboat returning to Elizabethtown. As we reside within half a mile of each other, and you never intimated to me or any of my friends any claims or cause of action against me, I pronounce your conduct rascally. I don't regard your suit in terrorem, but I must teach you to proceed with decency.' Copy of the letter you declined receiving by the hands of General Dayton : ' To Colonel Aaron Ogden, Elizabeth- town, 25th July, 1816 : Sir I understand that you have inter- fered in a dispute between Mrs. Gibbons and myself, which has been brought on by John Trumbull and wife. My friend, General Dayton, will arrange with you the time and place of our meet- (a) Reversed in error, post 853. Cited in Mann v. Glover, 2 Or. 200. *519 2 SOUTH.] FEBRUARY TERM, 1819. 613 Ogden v. Gibbons. ing. Elizabethtown, 26th July, 1816. Thomas Gibbons.'" To which printed hand-bill was added a written postscript in the handwriting of the said Thomas Gibbons, the tenor of which is AS follows : " P. 8. As you have been furnished with such an hand-bill as the above, on the first ulto., I hope you are prepared to explain yourself for your wanton interference in a case so -delicate. If you stand mute I shall adjudge you as pleading guilty and treat you as a convict." And other wrongs &c., to Jlis damage &c., $5,000. The plea was not guilty. When the cause was called at the circuit the defendant moved the postponement of the trial for two reasons. 1. Because the attorney of the plaintiff, when re- quested to furnish a copy of the declaration, gave to the defend- ant's attorney one which was variant from that in the circuit record, in this, that in the copy, the name signed to the writing set forth in the declaration was Thomas Gibbons, and in the record, Th. Gibbons, which latter was according to the fact, the copy being incorrect. 2. Because Samuel Burt, a material \\ it- ness, was absent. Defendant swore that Burt was a material witness, and by his own and J. Periam's affidavits he proved that on the 2d of September a subpoena was shown to Burt's wife and a copy left at his house in Elizabethtowu ; that his wife said, at the time, that he had gone to the westward and was not expected back before the trial ; she was requested, when he re- turned, to give him the copy of the subpoana and reques this at- tendance, but no fee was left for him. It also appeared that the trial had twice before been postponed by the defendant, once on account of the sudden illness of General Dayton, one of his wit- nesses, who was taken sick while attending the court ; the second time for the absence of J. M. Trumbull, one of his witnesses, who was subpoenaed but not present when the cause was called. On this occasion the plaintiff offered, at his own expense, to pro- cure Trumbull's attendance in an hour or two, but the defend- ant declined accepting the offer, and the trial was postponed. Upon these facts being shown the chief-justice ordered the cause to proceed. The plaintiff then proved that some day in September, 1816, *520 614 NEW JERSEY SUPREME COURT. [5 LAW Ogden v. Gibbons. about noon, the defendant went with a horse-whip, cane and paper in his hands, to the plaintiff's office, which is a building; standing back from the street and adjoining the house, having two rooms below, with bedrooms above ; that he fastened with wafers to the door, which was half-way open, a hand-bill, and then went away. It remained on the door a short time and was- read by one or two, when the plaintiff's daughter took it down. The plaintiff was from home at the time but returned in a few minutes after ; his wife and daughter were there and the family seemed alarmed and disturbed. The pathway to the office is- graveled and usually left open. The passage through the office- communicates with the house but is not often used by the family. G. C. Barber, a son-in-law of the plaintiff, is a practicing law- yer, clerk of the borough court of Elizabeth, notary public and master and examiner in chancery, and uses the office in common with the plaintiff for all the purposes of his business, but does- it by the permission of the plaintiff, and claims no right of property or possession in it, although in speaking of it he usually calls it his office. Defendant was formerly on good terms with the plaintiff and visited at his house. The hand-bill set out in the declaration was then proved and read to the jury, after which the plaintiff rested. The defendant then gave in evidence a letter from the plain- tiff to defendant in the following words : " Elizabethtown,. June 1st, 1816. Thomas Gibbons, Esq. : Sir I subjoin a copy of a letter which I have written and sent this morning. I have- further to add that I am extremely sorry for the mistake and am ready, if required, to reimburse such expenses as it may have occasioned you. I am &c." Copy. " David B. Ogden, Esq. r Dear Sir I parted with the endorsed note of Mr. Gibbons,, after the instructions I had left with you, to put it in suit, but somehow, in the hurry of business, having immediately after made two journeys, the one to Princeton, the other to Sussex court, I inadvertently omitted to give you timely notice, as I under- stood on my return yesterday from Sussex the suit has been commenced. You will, therefore, please to discontinue it im- mediately ; charge me with the costs and take such measures as. *521 2 SOUTH.] FEBRUARY TERM, 1819. 615 Ogden v. Gibbons. may be necessary to discharge the bail, and give the due m-ti . . both to him and Mr. Gibbons. I am &c." The defendant al.-o gave in evidence a note in these words : " On or before the- 1 -t day of April next I promise to pay to Peter Coryell, or order, two thousand one hundred and eighty-three dollars and thirty- four cents, without defalcation or discount for value received. New York, 20th November, 1815, and signed Th. Gibbons, and endorsed ' Peter Coryell/ Aaron Ogden," which note was the one on which the suit was brought in New York. General Dayton testified that on the 25th of July, 1816, he received a letter addressed to the plaintiff enclosed in a note to himself, with a request to deliver it to the plaintiff. On the morning of the 26th he went to the door of the plaintiff's office and in- formed him that he had called on some matters of business. Plaintiff replied that he was then too unwell to attend to business, and as soon as he was well enough he must go to New York. He then informed plaintiff that he would waive two matters of busi- ness and proceed to the most important ; informed him he had a letter, and presented it. When plaintiff saw the handwriting he declined receiving it, saying, " I can receive no letter from that quarter, for I have already received one couched in such terms as forbid all further communication." He then went into an ex- planation of what he supposed to be its object, viz., that Mr. Gibbons had understood that the plaintiff had been interfering in a dispute between him and Mrs. Gibbons, and he wished to know if plaintiff had done so, and to explain the motives of his conduct. Plain*tiff replied that " he had no explanation to make." Upon being urged, he added, " Mr. Gibbons would not like to hear the explanation." " Nay," said General Dayton, " that is the very thing he wishes." Plaintiff then replied, " tell Mr. Gibbons I have no explanation to make, and if he thinks 1 have done him wrong he must pursue such measures to obtain redress as he thinks proper." The witness then said he would acquaint Mr. Gibbons with the answer, and left him. Some time after this, defendant being at General Dayton's house at dinner, said, " that as Colonel Ogden would not receive the letter he had sent him by witness, he would carry it himself, and if ho *522 616 NEW JERSEY SUPREME COURT. [5 LAW Ogden v. Gibbons. was not at home he would put it up where he could see it." That he then went to plaintiff's office with a whip and cane in his hands, being the same he almost always carried with him when out from home ; that he came back to General Dayton's house and was standing with him in the door, in full view, when plaintiff returned home, a few minutes after. Being cross-ex- amined, he said that on the 30th of May, 1816, he received from defendant a letter in his handwriting to be delivered to the plain- tiff, the contents of which he knew, for defendant felt himself injured; that he called at Rivers's tavern, where plaintiff was engaged in business, and requested the landlord to call him, who did so, and he delivered it, but plaintiff put it in his pocket without opening or reading it. Witness, at the time he delivered these letters, was not on terms of social intercourse with the plain- tiff, but only spoke to him on matters of business. Plaintiff, when he refused to receive the letter at his office door, did not say that he had received a letter through witness couched in of- fensive terms, nor deny generally that he had interfered between Mr. and Mrs. Gibbons. Plaintiff then read to the jury his note of the 23d of June, 1816, which defendant produced upon notice, in these words: "Colonel Ogden informs Mr. Gibbons that Colonel Ogden's note to Mr. Gibbons on the 1st instant was written and sent be- fore the receipt of his note to Colonel Ogden of the 30th May preceding." The defendant called Peter Coryell, who testified that he re- ceived the promissory note before mentioned from defendant in part payment for some land ; that defendant twice offered to pay it before it was due if he would deduct the interest, which he refused, as he did not want the money. Defendant then said if he would not make the discount and take the money he would carry *it from court to court throughout the United States ; that, intimidated by his threat, he consulted Colonel E. Dayton, who advised him, as the note was payable in New York, it might be collected there; he therefore endorsed the note and gave it to Colonel Dayton, who, as his agent, passed it to plaintiff and took a writing for the money. Plaintiff placed it in the Union Bank. *523 2 SOUTH.] FEBRUARY TERM, 1819. 617 Ogden . Gibbons. The plaintiff called John Low, who testified that the note was left in the Union Bank for collection, and that defendant saw it there before its maturity ; that it was protested for non-payment, and notice given ; that banks discount notes where drawer lives in a different state, if they have good endorsers in the city, and would discount this from respect to the parties, they being often in the city. Ephraim Clark testified that he lived in defend- ant's house and keeps tavern in it, and a few days after putting up the hand-bill he went to the defendant's and inquired of him about it, telling him he understood he had challenged Colonel Ogden. Defendant said he did not know, for he had not said challenge nor a word about challenge, but Colonel Ogden might make what he pleased of it, but he would read the hand-bill to him ; which he did. Defendant added that he went From General Dayton's to Colonel Ogden's with a horse-whip in his hand, and if he had found him at home he meant to have whipped him within -an inch of his life in his own house, for he knew he was a coward ; that Colonel Ogden saw him coming and sneaked through the back way, over the fence and came round the corner by Colonel Mayo's ; the reason he gave for saying this was, that when ho inquired of Colonel Ogden's servant if he was at home he said he was, and he (defendant) first saw him near the corner opposite Mi]>l:iiinil <>f, arc the daiiKip's riionimu-. mitnip-mi-. excessive ? I am not satisfied that they are. In the first place, the plaintiff is a man who has long filled a resjxx'table rank in the estimation of the public and the honors of his country, and whose connections and influence extend far and operate largely upon society. The defendant, too, claims the possession of learning, of talents and of influence ; was once very extensively engaged in the study and the practice of the law ; understands well the rights of others, and his obligations to respect them, and h *538 634 NEW JERSEY SUPREME COURT. [5 LAW Ogden v. Gibbons. ample ought, therefore, to have influence. When, then, the jury believe that an outrage has been committed by such a man as the defendant upon such a one as the plaintiff, it is their duty to both, and for example's sake, sternly to frown upon and liberally to punish it. In the second place, the defendant was admitted upon the argument, and is well known to possess great wealth. By him, therefore, a light verdict would not be regarded. That which would oppress a poor man he would not feel. In the third place, the trespass is one of peculiar aggravation. The publication of such a hand-bill can only be esteemed an effort to use the corrupted sentiment of the public on the subject of duel- ing, to drag the plaintiff to reproach, contempt and infamy ; nay, more, in this instance it was approaching the residence of the plaintiff to disgrace him in the eyes of his own family ; to stab him where no medicine could cure the wound. This circum- *stance I consider most highly aggravating, and most completely justifying the exemplary damages which are given. There is a dignity, a sacredness about a man's home which enmity, however irreconcilable, a thirst for revenge, however keen and however ex- cusable, ought never to be permitted to approach. Assail an enemy where we will, reprobate, expose and publish him as we may, still that place where his sensibilities, his pride and his joys, meet, ought to be secure ; the inmates of his residence should never be made to feel our hate or his wounds. Sitting, then, where I do, and called to pass a judgment upon the damages which ought to be given in a case like this, I do not hesi- tate to say that the verdict ought to stand. It is not only cor- rect in itself, but deeply important for the example which it has set. The disposition which prevails among us to stanch our wrongs, real and imaginary, with the blood of our adversaries^ has called long but in vain for something sufficiently powerful to repress and control it. It has spurned ridicule, disregarded reproof, and mocked at religion. Something, however, is to be hoped from verdicts like this, if they carry with them the public approbation. But, if when a man who is challenged has the firmness Jo appeal to a jury, his appeal is rendered ineffectual by the court, who ought so to administer justice as to repress crimes *539 2 SOUTH.] FEBRUARY TERM, 1819. 635 Nicholls a>l*. State. and control the passions, that hope, too, is gone ; and who can measure the result? It is not such as I am willing to promote. On all the questions, therefore, I think the defendant wrong, and that the rule for a new trial should be discharged* KIRKPATRICK, C. J., declared his entire concurrence on all the points. ROSSELL, J., concurred, but thought the damages larger than ought to have been given. Rule discharged. WILLIAM NICHOLLS at suit of THE STATE, (a) An indictment found by a grand jury summoned by a sheriff without pro- cess, will be quashed on motion. Defendant may withdraw the plea of not guilty in order to make the motion to quash. At the term of May, 1818, Scott, on behalf of the defendant, moved for two writs of certiorari, to be directed to the justices of the oyer and terminer and general gaol delivery of Somerset, to send up two indictments against the defendant ; one for the alleged forgery of a deed ; the other for the alleged forgery of a *reoeipt for the consideration-money mentioned in the deed. The writs were granted, and were returned to November term following. By the returns it appears that the indictments were found at a court of general quarter sessions of the peace holden at Somerville, in and for the county of Somerset, on the 7th of January, 1817, and .were presented by certain persons therein named, ." good and lawful* men of said county sworn and charged to inquire for the state and for the body of said county " &c. (a) Cited in Slate v. Rickey, 4 Hal.S99; Stale v. Hageman, IQr.SSS; Ber- rian v. The State, 2 Zab. 89 ; Stale v. Norton, S Zab. 47; Chme ads. The State, Spen. .W ; Slate v. Blaiieelt, 9 Vr. S06. *540 636 NEW JERSEY SUPREME COURT. [5 LAW Nicholls ads. State. At a court of oyer and terminer and general gaol delivery li olden at Somerville, in and for the county of Somerset, in October, 1817, the defendant was brought in, and being charged upon the indictments, pleaded thereto not guilty. He was from time to time bound in recognizance with sureties to appear and traverse &c., and at the term of October, 1818, for want of bail, was committed to close confinement in the county gaol. In the term of November, 1818, at bar, the counsel of the defendant prayed for and obtained another writ of certiorari, directed to the justices and clerk of the general quarter sessions of Somerset, commanding them " that having searched and in- spected the files and records of said court, they certify and send under their seals &c., whether any writ, precept, or other process was issued or given to the sheriff of said county, or was returned by him, commanding or authorizing him to summon and impanel any grand jury of or in the said term of January ; and if any such writ, precept, or other process there be, to send the same or a true copy thereof" &c. To this writ the justices and clerk answered that they had searched and inspected the files and records and that no writ, precept, or other process was issued or given to the said sheriff commanding or authorizing him to summon or impanel any grand jury at said term ; that no such writ or process was returned by the sheriff in that term, nor is any now on file there. Upon this return being made it was moved to quash the in- dictments 1. Because they were not presented by a grand jury, summoned by the sheriff, by lawful authority. And 2. Because the court where they were presented appeared to have been h olden at Somerville, and not at Bridge water, in the county of Somerset ; which was contrary to the statute. Attorney- General moved to postpone the argument of the motion 1. Because he had received no notice of it. 2. Because *it was of the nature of a demurrer to the indictment, which ought not to be filed or argued after the plea of not guilty. Scott. Notice of more than a month has been given to the *541 2 SOUTH.] FEBRUARY TERM, 1819. 637 NicholU ails. State. deputy, who prosecutes in Somerset ; and this is a case where the defendant is in close confinement, and, therefore, the court will not delay, but hear the motion even if notice of the argument were deficient. By THE COURT. Demurrers for the insufficiency of indict- ments are now seldom filed. The court will never compel the defendant to file one. Motion to quash is a more easy and equally effectual mode of getting at the whole matter. Every- thing may be heard upon it. And in order to hear a motion to quash, the court will always permit the plea of not guilty to be withdrawn. SOUTHARD, J. I do not think the motion ought to be postponed, as the de- fendant is in prison. Nor do I perceive, either, how we can hear while the plea of not guilty is on the record ; nor how that plea can be withdrawn unless the defendant is brought .up and appear personally in court. Scott proposed, on behalf of the defendant, to withdraw the plea. BY THE COURT. If we permit this to be done, and the motion is decided against him, he is not here to plead again. But he may be brought up for that purpose. Under the circum- stances, however, if it is desired, we will hear the argument, and take such course afterwards as the case may require. Wood, for defendant, read the writs of certiorari and the returns, and then argued 1. That no precept for a grand jury had been directed and delivered to the sheriff, which was neces- sary to authorize him to act. Pat. 130 ; Burn Just. 665. That this process was no more to be dispensed with than any other writ ; that writs for the tales de dr. were formerly necessary, and that the legislature were obliged to interfere and alter it before they could be taken without the writs. 2. That the court at 638 NEW JERSEY SUPREME COURT. [5 LAW Nicholls ads. State. which the indictments were found did not appear to be held at the proper place, which, by the statute, was Bridgewater; that this court could look only to the record, and could not officially and judicially take notice that they were the same place; that this fact, *upon the face of the record, was fatal. 2 Burn Just. 665; 2 Ld. Raym. 1379. Scott, on the same point, read Pat. 31$ ; 2 Dyer 125, 126 ; 8 Hawk. 362. Attorney- General. The return is incorrect. The original in- dictment ought to be sent up. The return ought to answer the command of the writ (2 Hawk. 460)> an( i n the original indict- ment the difference as to the place of holding the court would not appear. It has merely crept in in preparing the caption and making out the rules taken at the several terms. KlEKPATEICK, C. J. The record is never sent with the writ, but the tenor only. We send a transcript, and that is regarded as the record. The rules taken at the different terms, and which form a part of this return, are only the materials for making up the record, (a) Attorney- General. Will not the court permit the record to be sent back to correct the error in the word Somerville, the place of holding the court ? Scott. For defect of return there may be amendment, but not to correct the original entry or record. KlRKPATRICK, C. J. The inferior courts have for many years been negligent ha (a) Cited in Morris Canal ads. Slate, 2 Or. 430 ; Browning v. Cooper, S Harr. 196 ; see, also, Slate v. Hunt, 1 Hal. SOS; North Brunswick v. Franklin, 1 Harr. 5S5; Mann v. Drost, 3 Harr. 336; Morrel v. Fearing, Spen. 670 ; State v. Mor- ton, 3 Zab. 47; Overseers of Mendham v. Morris, post 810 ; Alden v. Newark, 11 Vr. 94. *542 2 SOUTH.] FEBRUARY TERM, 1819. 639 Nicholls ads. State. making up their records. There have been no captions made, and there is probably none upon the files by which this amend- ment could be made. Yet the error seems of such a kind that the clerk ought to be permitted to correct it, agreeably to the fact. Scott. No suggestion is made that there is anything to amend by. There are no materials out of which the record could be made right, if it is erroneous. BY THE COURT. Let the argument proceed upon the other point. Attorney- General. 1. It is not now a proper inquiry whether the writ issued to the sheriff. It is too late, after the pleadings and proceedings which have been had, to except to the authority of the grand jury. 2. If true, the exception has nothing to do with the authority of the court to try the indictment. Its authority comes not from the formal proceedings, but from the statute. Pat. 130. After presentment the authority cannot be inquired *into in this way. The court had the authority to inquire ; it has certified that the proceedings were correct ; its decision is not now to be investigated. The writ itself is only issued for the convenience of the court and expedition of justice ; it is of no importance to the prisoner. 3. The want of process is not fatal. There is nothing imperative in the act ; it is only permissive. And our practice for twenty years has been, not to issue these writs in the sessions. The juries have been returned without them. This has become our common law, and the court will not lightly disturb it. Soott. The consent of defendant to plead gives no jurisdiction. 2 Hale 224-. Pleas of the general issue conclude nothing ; and nothing will be intended to favor conviction. A voluntary grand jury cannot present. The court cannot select the grand jury. Proclamation is always made to return the writ ; this precept is returned, and the court then proceeds. The jury must be returned, and return ex vi termini is an answer to the writ. *543 640 NEW JERSEY SUPREME COURT. [5 LAW Nicholls ads. State. BY THE COURT. A defendant can only be put to answer an indictment legally found and presented. A grand jury has no- authority to inquire and present, unless legally impaneled. The sheriif is merely an executive officer ; he executes the writs that are directed to him. They are his authority to act, and his guide and direction how to act. Without them he has no power. His authority to summon a grand jury arises only from the command of the precept. A jury summoned without it, is sum- moned altogether without legal right. Such a body is not a grand jury. It has no right to present, nor are its presentments sufficient to put the defendant on trial. These indictments, therefore, being presented without proper authority, must be quashed. It was subsequently moved by R. Stockton, for the attorney- general, that the defendant be continued in custody until regular indictments could be found against him. Scott. It is more than two years since these indictments were found ; he cannot, therefore, be punished, and ought not to be held. Stockton. That question is not here to be settled. He may not be permitted to take advantage of the limitation. SOUTHARD, J. This court here, and on this argument, ought not to order him to be either discharged or held. He is now in *confinement on a criminal charge ; when he applies for his discharge, to the proper tribunal, it will determine this matter. THE COURT then directed a rule that he be held to bail for his appearance before the next court of oyer and terminer and general gaol delivery of the county of Somerset, in such sum as the chief-justice should order and direct, on the return of a habeas corpus before him, at his house in New Brunswick. *544 2 SOUTH.] FEBRUARY TERM, 1819. 641 Abraras v. Flatt. ABRAMS at the suit of FLATT and others, (a) An action of trespass had been prosecuted by the plaintiff* against Abraras and Rolfe. The cause was tried at the Septem- ber circuit in 1818, in Essex county. A verdict was rendered and damages given against Rolfe, but verdict in favor of Abrams, and no certificate made by the court that there was reasonable cause for making him a defendant in the action. Pat. 150. Whereupon it was moved by Scott, and ordered that a rule be entered in his favor for his costs ot suit. SYLVESTER JUDSON v. SAMUEL STORER, son and heir-at-law of David Storer, deceased. (6) In case. It appearing that the writ had been duly served on defendant, and it further appearing, by affidavit, that he.is an infant under the age of twenty-one years, it was ordered on motion for Deare that the said infant do appear by the first day of the next term, or that the plaintiff may have liberty to assign a guardian and enter an appearance for him and proceed in the action. And it was further ordered that a copy of the rule be delivered to the infant and also to the person in whose house and under whose care he was living. (a) Cited in Gibbons v. Ogden, 1 Hal. S98. (6) See Smilk v. Minor, 'Ooxt 416; Sleelman v. Got, Penn. *644 ; Fmdlces v. Young, 1 Zab. 4S8 ; Dacotta v. Daw, 4 Zab. 319. 41 642 NEW JERSEY SUPREME COURT. [5 LAW State v. Raborg. *THE STATE v. WILLIAM RABORG. (a) A writ of habeas corpus was issued, directed to the defendant, to bring -up the bodies of Walter Wilson and others, persons of color. The sheriff of Somerset sent up a copy of the writ with a certificate of service endorsed upon it. The defendant did not appear nor return the writ, and it was suggested that he intended to depart the state, taking with him the persons named in said writ. It was therefore moved that an attachment issue, but it was refused because the return and evidence were not sufficient. At a subsequent day, the affidavit of William Hoagland was read, proving the service of the habeas corpus ; and it appear- ing that the said writ had not been returned by said Raborg, it was on motion ordered that an attachment do forthwith issue against him for contempt of the court in disobeying the said writ of habeas corpus. (a) See State v. TrumbuU, 1 South. 139. *545 "CASES DETERMINED IN THE SUPREME COURT OF JUDICATURE OF THE STATE OF NEW JERSEY MAY TERM, 1819. HENRY MILLER, Jr. v. ELIZABETH BARNET. Under the statute (Pal. 336), the township committee have no authority where there is a partition fence ; they cannot direct its position to be changed, (a) On demurrer. In November, 1816, Miller commenced an action of trespass against the defendant. The declaration is in the usual form. The first count complains that the defendant, on the 15th of November, 1815, and on divers days &c., with force and arms, broke and entered a certain close of the said Henry, situate in the township of Tewksbury, in the county of Hunterdon, and then and there trampled down nsent, therefore, where there is a master who claims the service, is the only one which can avoid the enlistment. He is the only person who can claim the discharge. By whom, then, can the release of Isha Davidson be demanded? Not by himself. So far as he can he has more than once consented, and, as far a- I *563 662 NEW JERSEY SUPREME COURT. [5 LAW State v. Brearly. perceive, even now consents ; and in no respect does he suffer wrong. By his parents ? He is the child of the public. I do- not know that he has parents living. If he have they long since gave up all control over him. By the guardians? They have discharged their duty in disposing of and binding him, and they lose nothing by his change of situation. By the master ? He was entitled to the service; his consent ought to have been> obtained; and not having been, the enlistment was voidable if he demanded his servant. But he alone can make the demand he alone can avoid the enlistment. Can he now do it ? He has in the most solemn and voluntary manner given and subscribed his consent. He thus ratified and rendered valid an act which he might have avoided, and to the validity of which his consent only was wanting. He brought back his apprentice, and, with the approbation of both, delivered him to the officer and took up the security he had given for the bounty and clothing. Shall he now be permitted to reclaim him, and thus hold both the service and the bounty ? It would be as much against justice as against law. He has barred himself from complaint. He cannot now destroy the enlistment which he before legalized. The opinion of the court, therefore, is that none but the master had a right to claim the discharge of the minor ; that the master has prevented himself from making this claim ; that no illegal imprisonment is perceived ; that no cause has been shown why Isha Davidson should be discharged ; and it is therefore ordered that he be left in the custody of the defendants. 2 SOUTH.] MAY TERM, 1819. 663 Sayre r. Reynolds. *DANIEL SAYRE v. ABRAHAM REYNOLDS and another, administrators of Abraham Brookfield, deceased. Rule to stay ezecation. (a) In error. At the January term, 1819, of the common pleas of Essex, there was trial, verdict and judgment against Sayre. Upon the judgment execution was issued, tested the second Tuesday of January, 1819, returnable to the April term following. At the April term a writ of error from the supreme court was presented, good and sufficient bail filed, and the cause removed. And now Scudder, for plaintiff in error, moved for a writ of supersedeas to the sheriff, or a rule upon him, to stay proceed- ings upon the execution. Cro. Jac. 634; @ Vln. 93. THE COURT, observing that the party might have either the writ or the rule, as he preferred, directed the rule to be entered " that the sheriff and all acting under him do cease from all further proceedings whatever on the said execution." (a) See Ludlow v. Ludlow, 1 South. S89 ; Allen v. Joiee, 3 Hoist. ISfy Bilder- bock v. Moore, 2 Haarr. 510 ; Chadwick v. Reader, 4 Harr. 156; Allen v. Hopper, 4 Zab. 514; Suydani v. Hoyt, 1 Ihiteh. 2S2 ; Me Williams v. King, S Vr. SI; Allen y. Shwrto, 1 Hear. ttl. *564 "CASES DETERMINED IN THE SUPREME COURT OF JUDICATURE OF THE STATE OF NEW JERSEY SEPTEMBER TERM, 1819. DAVID MILLS v. ROBERT SLEGHT. On certiorari. This case was argued by Drake, for plaintiff in certiorari, and Attorney- General, for defendant. Opinion of the court. KlRKPATRICK, C. J. From the return made to this writ it appears that on the 13th of January, 1817, a judgment was entered by this justice, in an action wherein the said Robert Sleght was plaintiff, and Moses Meeker and Den man Meeker defendants, for the sum of $42.63 debt, and fifty-three cents costs, upon the confession of Moses Meeker, one of the defendants, only, and in the absence of Den- man Meeker, the other defendant, and that without any state of demand filed, or witness sworn, though, from the very careless *565 665 866 NEW JERSEY SUPREME COURT. [5 LAW Mills v. Sleght. and imperfect manner in which that judgment is entered, it i& doubtful whether it was intended to be against both the defend- ants, or against Moses only, (a) That on the 14th of May, 1817, the said Denman Meeker, one of the said defendants, being actually imprisoned for debt in the common gaol of the county of Essex, was discharged from *his said imprisonment under the insolvent laws of this state, by the judges of the inferior court of common pleas of the said county. That on the 12th of January, 1818, an execution was issued upon the judgment above stated, and put into the hands of a constable, who, thereupon, took the body of the said Denman Meeker, and delivered him to the keeper of the common gaol of the said county of Morris, of which said county the said David Mills was then the sheriff ; that the said David Mills, who is the defendant here, upon the production of the said discharge by the said Denman Meeker, supposing, probably, that his person could not lawfully be imprisoned for any debt due before the date of the said discharge, did not detain him in prison, but suffered him to go at large ; and, for this cause, this action is brought. Upon the trial, the defendant called upon the justice to de- clare the law to the jury, and to charge them that Denman Meeker, upon the case made out as above stated, could not law- fully be imprisoned upon the said execution ; and that, therefore, the said sheriff was justifiable in letting him go at large, and was not liable to an action therefor. But the justice refused so to charge, and left the whole matter to the jury. That it is the office of the justice to declare the law, is very certain, but if he should be moved to declare that to be the law which is not so, and he should refuse, the party has no ad- vantage. (6) The motion in this case, then, and the refusal of (a) See Schuyler v. McOrea, 1 Harr. 248 ; Sordine v. Service, 1 Harr. 47 ; McMurtrie ads. Doughten, 4 Zab. 252. (b) PuUen v. Boney, 1 South. 181 ; Broadwell v. Nixon, 1 South. S62 ; West- cott v. Danzenbaker, 1 Hal. 132; Bellis v. Phillips, 4 Dutch. 125 ; Ayres v. Fan Lieu, post 767; Bodenbough v. Bosebury, 4 Zab. 49 S ; Graham v. Whitely,2 Dutch. 255 ; Cross v. Kemp, 16 Vr. 51. *566 2 SOUTH.] SEITKMBER TERM, 1819. 667 Mills r. Sleght the justice, raise the question here, whether the said Denn.an Meeker could lawfully be so imprisoned, and whether the sheriff was justifiable in letting him go at large. And upon this, it may be said, generally, that an executive officer to whom process is directed by a court having jurisdic- tion of the subject-matter, is to execute that process without inquiring into the regularity or irregularity, either of the process itself or the judgment upon which it is founded, (a) Many cases may happen, and many cases do actually happen, in which a discharge of this kind, how perfect soever in form, could not be pleaded, or, if pleaded, could not avail the party pleading it. To say, therefore, that the sheriff or other executive officer, upon the mere inspection of it, should at all times give it operation in this way, would be laying down a rule quite too broad. Such discharge is, indeed, in most cases, a good defence against the im- prisonment *of the body, but then, like all other defences, it must be regularly pleaded before a judicial tribunal having cog- nizance of the case. We cannot say, therefore, upon general principles, that Denman Meeker could not lawfully be impris- oned upon this execution, or that the sheriff was, strictly speak- ing, justifiable in letting him go at large. In order to obtain the benefit of his discharge, the defendant should have summoned the plaintiff to appear before the justice to show cause &c. (6) But notwithstanding this proceeding of the sheriff, singly con- sidered, may not have been lawful, yet as this court, in the exer- cise of its high superintending powers over these inferior juris- dictions, is not merely to correct errors, technically speaking, but to inspect the whole proceeding and to see that justice is rendered according to law ; and as there was certainly, in this case, no valid judgment, if a judgment at all, against Denman Meeker to justify this execution, that judgment having been entered upon the confession of Moses Meeker only ; (c) and as, moreover, the (a) Woodi-uff v. Barret, S Or. 40 ; Chadinck v. Reeder, 4 Harr. 156 ; Man- gold v. Thorpe, 4 Vr. 1S4; Elmer v. Bttrgin, Penn. *191; Brown v. Batett, 1 Zab.46. (6) State v. Ward, S Hal. ISO; Kirby v. Garrison, 1 Zab. 179; Acktrman v. Tan Houlen, 5 Hal. SSS ; Jay v. Slack, 1 South. 77. (c) Liitle v. Mtiore, 1 South. 75. *567 668 NEW JERSEY SUPREME COURT. [5 LAW Hendricks v. Craig. said Denman Meeker had no opportunity of pleading his dis- charge against the issuing of the said execution, so that the jus- tice of the thing is plainly with him ; and as, therefore, it would be unjust to suffer the plaintiff to extort money from the said sheriff upon so rotten a foundation, therefore, without yielding to the suspicion of fraud and imposition, so manifest upon the whole transaction, for these causes Let the judgment be reversed. LUTHER B. HENDRICKS v. WILLIAM CRAIG. 1. Commission to take depositions, issued without affidavits, motion in court, and notice of the motion, illegal. 2. Mode of entering judgments on appeals. On certiorari. The facts in this case are stated by the chief-justice. It was argued by Scudder, for plaintiff in eertiorari, and Attorney- General, for the defendant. KlRKPATRICK, C. J. This cause was originally instituted before John Wilson, Esq., of the county of Essex. Upon the return of the process, Craig, the plaintiff in that court, appeared and filed his state of demand. Hendricks, the defendant, did not ap*pear, but sent a written request for a commission to take the testimony of David Turvey, a resident of the city of New York, accompanied by an affidavit taken before Jeremiah Ballard, Esq., that -the said David Tur- vey was a material witness for him in this cause, but not that he resided out of this state. The justice, thereupon, without other affidavit or proof, and without other or further motion in open court or notice to the plaintiff, issued a commission to one David S. Lyon, of the said city of New York, to take the testimony of the said David Turvey, upon his corporal oath or affirmation *568 2 SOUTH.] SEPTEMBER TERM, 1819. 669 Heudricks v. Crnig. , to be taken before him, the said commissioner. Upon the trial of the case, the testimony of the said David Turvey, taken under the said commission, was offered in evidence by the said defend- ant, and though objected to by the plaintiff, was admitted and read ; but a judgment was, notwithstanding, rendered for the plaintiff for the sum of $69.50 damages, and $2.30 costs. From this judgment the defendant appealed, and, upon the appeal, he again offered to read in evidence the testimony taken under the said commission as aforesaid ; but the same being again opposed by the plaintiff, it was overruled by the court, and, upon other evidence, the judgment of the justice was affirmed, with costs. This judgment upon the appeal is now brought up here by cer- tiorari, and the question is upon the rejecting of this testimony. The act authorizing the issuing of commissions says, " that if a material witness reside out of the state, it shall be lawful, on affidavit, or proof thereof to the satisfaction of the court, and upon motion made by, or on behalf of, either party, in open court, to issue a commission, authorizing the commissioner to examine the witness, on oath or affirmation, upon interrogatories to be annexed to the said commission ; and that each party shall have libeity to insert in the interrogatories such questions as he may think neces- sary" Now, as the power of granting commissions to take the testi- mony of absent witnesses is a new power created by statute, the rule is, that it must be pursued strictly and in such way, cer- tainly, as that both parties may have all the advantages under it which the legislature intended to give, (a) Here there was no affidavit or other proof that the witness resided out of the state ; there was no motion in open court for the commission, or notice given to the opposite party, nor oppor- tu*nity afforded him to insert in the interrogatories the questions which he might thinlc necessary ; in all which respects the com- mission was irregularly issued, and, in the last, highly injurious to the plaintiff. (6) (a) Ogden v. Robertson, S Or. If 6 ; Lawrence v. Finch, t C. E. Or. t+1; Moran v. Green, 1 Zab. 56. (6) Wilson v. Cornell, 1 South. 117; Den v. Farley, 1 South. 1X4. *569 670 NEW JERSEY SUPREME COURT. [5 LAW Hendricks v. Craig. In all these views of the subject, therefore, I think the court below did right in rejecting this testimony. I have only to observe further in this case, that there is an inaccuracy in the manner in which the judgment is entered, though I believe that inaccuracy is not sufficient ground of reversal here. The act giving the appeal speaks of the affirming or reversing of the judgment of the justice ; and it is not unusual for the oourts of common pleas, as is done in this case, merely to enter a judgment of affirmance or reversal. But as this is not a court of error, but a court of appeal to try the cause anew, upon the merits, and to pronounce a final judgment thereupon between the parties, such entry is not correct, (a) It ought to go farther, and to say, the court affirm the judgment of the justice, and give judgment for the plaintiff" for the said sum of (in this case) $69.50 damages and $2.30 costs, and also for the farther sum of , being the costs of this appeal; or, in case they would give a judg- ment different from that rendered by the justice, then to say, the court reverse the judgment of the justice, and give judgment for the plaintiff' for the sum of , and also for the further sum of , being costs of this appeal. And so in all other cases, according to the nature of the judgment. But in all courts of appeal upon the merits, the judgment must be final. Here, though the entry be not formal, it may be considered as final, and, therefore, upon the whole case Let the judgment be affirmed. NOTE. In this case, it was urged as a reason for reversal that the judgment of the justice was not rendered at the time of the trial, but time taken for advisement, and the judgment then rendered in the absence of the defendant, without notice. (6) But (a) Hann v. Gogling, 4 Hal. 248 ; Jones v. Pitman, 7 Hal. 93 ; Woodruff v. Badgley, 7 Hal. 367 ; Saxton v. Landis, 1 Harr. 304; Qarr v. Stokes, 1 Harr. 404; Glover v. Collins, 3 Harr. 236; Ivins v. Schooley, S Harr. 269 ; Cook v. Srister, 4 Harr. 73; Hurff v. Camden, 9 Vr. 289 ; Housel v. Higgins, IS Vr. 74. But it may be remitted for correction. Blair v. Snover, 5 Hal. 154; Doremus v. Howard, 3 Zab. 390 ; Ckeeseman v. Cade, 4 Zab. 632. (6) Van Riper v. Van Riper, 1 South. 156 ; Clark v. Reed, ante 486. 2 SOUTH.] SEFTEMBER TERM, 1819. 671 Buckley t. Beardslee. the court did not consider the reason valid. The defendant below did not bring his certiorari to reverse the judgment of the justice for error, but took an appeal to the common pleas, and had a trial upon the merits. It was the judgment of the com- mon pleas which was removed, and the court would not look beyond it to the proceedings of the justice in order to find in them an objection which had done the defendant no injury, (a) *In this case also the chief-justice suggested, as worthy ot consideration, whether the oath of the witness, as administered by the commissioner, was not altogether voluntary and illegal. He was directed to examine the witness upon his corporal oath or affirmation, to be taken before him, that is, before the com- missioner himself; and it was to be presumed it was so done, though it was not particularly so stated. Could the state of New Jersey or any of her justices authorize a private citizen of the state of New York to administer oaths there for any judicial pur- poses ? Does the act pretend to give any such authority ? Is not an oath so administered, to say the best of it, a mere volun- tary oath, and how false soever, would not subject the deponent to the pains of perjury? And if so, could such an oath, upon principle, be received to establish the truth of the fact between contending parties in a court of justice? GEORGE BUCKLEY v. GEORGE BEARDSLEE. 1. " I do promise to pay the amount Ac., if C. S. should not pay it in six months," a sufficient promise, under the statute of frauds, if it is in writing. 2. Consideration of promise. (6) (o) Nicholson v. Wood, S Qr. 464; Rodenbough v. Ronebury, 4 Zab. 4B1 ; State, Dunn v. Overseers *> not contain such a consideration. The paper offered in evidence is not the paper set out in the state of demand. It was not, therefore, evidence to support the demand. The plaintiff ought to have proved his contract as he laid it. The agreement, I think, amounts to this, that if Smith dui not pay the judgment which is recited within six months he, Buckley, would. But why would he pay it ? What reason in- duced him ? What consideration supported the promise ? None *572 43 674 NEW JERSEY SUPREME COURT. [5 LAW Buckley v. Beardslee. is stated, and, therefore, the question is fairly presented, Must the written memorandum, under the statute of frauds, to pay the debt of another, contain as well the consideration as the promise ; or is the promise alone sufficient ? Upon this question I entertain the following opinions : 1. A promise without a consideration is void, and the mere circumstance that it is reduced to writing, if there be no consider- ation, does not make it valid. 2. The design of the statute was not to prevent contracts, void for want of consideration, from being sustained in courts of jus- tice. Such contracts were not sustained before the statute was made, and it was more than useless to say that they should not be enforced. 3. The design of the statute was to prevent the enforcing of contracts, not void, but legal in their nature, for the payment of another's debt, unless the whole contract was in writing. The attempt to enforce such contracts gave rise to perjury, as was sup- posed. Now, the proof of the consideration was quite as likely to induce perjury as the proof of the terms of the contract. It is reasonable to suppose the one would be guarded against as much as the other. 4. If the design was to prevent the enforcing of a legal con- tract to pay another's debt I mean a contract with sufficient consideration and if the statute require that contract to be in writing, it surely means that the whole contract should be in writing, and not such part only as is, in its very nature, illegal and void, without the rest. I therefore believe that the consider- ation of the promise, as well as the promise itself, ought to be in writing. * 5. I think the terms of the statute support this conclusion. " Unless the agreement, or some note or memorandum thereof, be in writing." Now, what is an agreement ? A consideration is always contained in the legal idea of an agreement, and writers as well as courts, always so consider it. 3 Burr. 1670 ; Plow. 308 b ; Dyer 336 b ; 2 Bl. Com. 446. If, then, this agreement had stated the forbearance or delay to prosecute, which is stated in the demand, it would have set forth a valid consideration, and *573 SOUTH.] SEPTEMBER TERM, 1819. 675 Carhart v. Miller. Jbeen sufficient under the statute of frauds. As it has not set forth that or any other consideration, I think it is insufficient, .and that the judgment ought to be reversed. Judgment affirmed. ROBERT CARHART v. HUGH MILLER, ADAM WANDLINQ, real plaintiff. 1. If sealed bill " to A or his heirs" be assigned, suit most be in name of the assignee, (a) 2. Plea of former judgment. (6) On certiorari. For the case, see the opinions. Vroom, for plaintiff. Ewing, for defendant. KlRKPATRICK, C. J. If I understand this case, which, indeed, it is not very easy to do, the judgment cannot be maintained. On the 23d of March, 1809, Robert Carhart gave a sealed bill to Hugh Miller for $31.33, payable in three months, and on the 3d of February, 1811, he paid $12, which is endorsed. On the 19th of March, 1811, Miller assigned this bill to Samuel Carhart for value received. On the 5th of March, 1814, Miller instituted a suit against Carhart for $2.67, before John Apgar, Esq., and obtained a judg- ment for that sum, with costs, and on the 20th of February, (a) See Reed v. Bainbridge, 1 South. 356; Halsey v. Dehart, Gn.e OS; Btllon v. Gibbon, 7 Hal. 77; Matiack v. Hendrickson, 1 Or. MS; Alien v. Pancoatt, Spcn. 71 ; Winfield v. City of Hudson, 4 Dutch. 64. (b) Conine v. Scoby, ante 510 ; Demund v. French, pott SS9 ; Cheesman v. Leonard, Penn. *549 ; Smith v. Finley, Penn. *1005 ; Smock v. T hrockmorton, S Hal. S16; Davisson v Gardner, 5 Hal. S89 ; Ward v. Ward, 2 Zab. 699; Matthews v. Roberts, 1 Gr. Ch. 33S ; Damson v. Johnson, 1 C. E. Or. 119. 676 NEW JERSEY SUPREME COURT. [5 LAW Carhart v. Miller. 1818, this action was instituted, in the form in which it appears,, to recover the sum due in the said bill of the 23d of March,. 1809. The defendant pleaded the former judgment had and entered before Justice Apgar, in his defence, and offered the transcript of his docket in evidence. And though it would appear that this *was a good plea if the bill had not been assigned, yet that having been assigned, and become the property of another, it was impossible that it could lawfully have been included in that judgment, and, therefore, the plea was unavailable. But then this presents another difficulty which is fatal to the judgment in this action. The bill having been assigned, and the legal property therein having been transferred to Samuel Carhart, neither Miller nor Walling, nor any other person, with- out an assignment, could maintain an action upon it. Bonds and sealed bills assigned do not now stand upon the same footing as formerly. Then the equitable interest only passed by the assignment and the legal interest remained in the assignor, and, therefore, the action at law must necessarily be brought in his name ; but now, when, by the statute, both the legal and the equitable interest passes to the assignee, the action, can be maintained only in his name. Let this judgment, therefore, be reversed. SOUTHAKD, J. This action, which was commenced on the 20th of February, 1818, is founded upon a sealed bill, signed by Carhart, promis- ing, three months after date, to pay "to Hugh Miller or his heirs," $31.33, with interest, and bearing date 23d of May, 1809. On the bill there is a credit of $12, on the 3d of February, 1811, and an endorsement in the following words: "March 19th, 1811. I assign all my right, claim and demand of the within note to Samuel Carhart, for full value received by me, Hugh Miller," and the name of Samuel Carhart is also endorsed on it. Carhart, the defendant, pleaded that the action ought to abate, because, before the commencement of it, viz., on the 19th of *574 SOUTH.] SEPTEMBER TERM, 1819. 677 Carhart *. Miller. March, 1814, Miller had sued him before John Apgar, Esq., for $2.87, and on the 2d of April, 1814, recovered judgment for the same, and that this bill was, or ought to have been, included in that judgment. The facts stated in the plea as to the suit and judgment were supported by a transcript from Justice Apgar, and it is supposed that this being so, the plaintiff below ought not to have prevailed in his action ; but I am at a loss to per- ceive how that action can be considered as having any influence upon this. Miller had parted with the bill before he commenced that action; but even if he had not, if both had been in *his hands, he might well have sustained a separate action on each at the same time. The account and the sealed bill were separate <"diises of action, which might, it is true, have been united ; but there is no reason to be found either in common law or any of our statutory provisions which would render a suit and judg- ment upon the one, a bar to a suit upon the other. The plaintiff has it in his power to unite or keep them separate. But if this doctrine be true, it is supposed that there can be no recovery on this bill in the name of Miller, because he had sold his right in the bill, and therefore the action must be in the name of his assignee. I believe the case of Reed and Bainbridge, ante 351, establishes the principle that under our statute the assignee of a bond or bill must bring the suit in his own name, and must not bring it in the name of the assignor. But this can apply only to bonds and bills which are in their words and nature as- signable. It cannot apply to bills which, like the present, cannot be assigned. The statute does not alter the nature of the instru- ment, nor does it regulate any but such as are assignable, (a) If it do, then no suit can be brought upon this bill, or any other of a like character, where the obligee has parted with his right to it. This, I think, is not so. The suit may always be brought in the name of the person to whom the bill is payable, but for the use and benefit of the person holding the interest in it. Penn. 14, 463, 844, 965 ; Ooxe 177. In the present case I consider the (a) Shcppard v. Stite, 9 Hal. 90 ; Sennington Iron Co. v. Rutherford, S Harr. 158. *575 678 NEW JERSEY SUPREME COURT. [5 LAW Hillman v. Hayden. action rightly brought in the name of Miller, Wandling being stated as the real plaintiff merely for the purpose of showing to- whom the money was coming. I see no reason why the judgment should be reversed, and am for affirmance. JAMES HILLMAN v. BENJAMIN HAYDEN, JR. Appearance and trial cure adjournment beyond fifteen days, (a) On certiorari. Several reasons were urged for reversal by Wall, for plaintiff! The most important are noticed by the court. KIRKPATRICK, C. J. Upon the return-day of the summons, which was on the llth of August, 1818, the parties appeared and agreed to adjourn the cause till the 14th of September then next. On *the 12th of Sep- tember, two days before the day of adjournment, and, for aught that appears, in the absence of the defendant, the plaintiff came and demanded a jury, and it was granted to him ; whereupon, says the justice, to suit my own convenience, I adjourned the trial until the 16th of September, being more than fifteen days from the re- turn of the summons. It is now offered as a reason for the reversal of this judgment (a) Ayres v. Swayze, post 813 ; Steward v. Sears, 7 Vr. 175, and cases ther& cited ; for other irregularities cured by appearance and trial, see Dare v. Og- den, Coxe 91; v. Campbell, Coxe 92; Aulen v. Bryan, Penn.*lS4; McCollister v. Richmond, Penn. *208 ; Johnson v. Cole, Penn. *266 ; White v. Lippincott, Penn. *266 ; Walker v. Kearney, *621 ; Stediford v. Ferris, 1 South. 109 ; Bwld v. Marvin, 1 South. 248 ; Howett v. Robertson, 1 Hal. 142 ; Snedc- ker v. Quick, 6 Hal. 181 ; Mural v. Hutchinson, 1 Harr. 46; Neighbor v. Trim- mer, 1 Harr. 58 ; Hunt v. Allen, 2 Zab. 533 ; Houghton v. Potter, 3 Zab. 338 ,- Ayres v. Swayze, post 812 ; Allen v. Summit Board of Health, 17 Vr. 102. *576 2 SOUTH.] SEPTEMBER TERM, 1819. 679 Hill man t>. Hay den. that this adjournment being made out of court, for a day more than fifteen days from the return of the summons, and without the consent of the parties, was unlawful. And simply consid- ered, it was unlawful for all these causes. But it is to be ob- served that in this case both parties appeared on the day of ad- journment and voluntarily went into the trial of their cause. This, in the reason of the thing, as well as in the spirit of the decisions heretofore made upon the subject, is a waiver of this objection ; it is evidence of a consent to the adjournment, though expressed to be made for the convenience of the justice. Could it be tolerated that the plaintiff should appear, call his jury, ex- hibit his demand, go to trial, examine his witnesses, and after all, because the jury did not gratify him in their verdict, set the whole aside upon a pretence like this ? I think not. The other reasons assigned, so far as they depend upon matter of feet, are not verified by the record, and so far as they depend upon matter of law, are not supported by principle. Therefore, let the judgment be affirmed. SOUTHARD, J. The summons was made returnable on the llth of August, 1818, on which day the parties appeared before the justice, and agreed to adjourn the trial of the cause until the 14th of Septem- ber then next. On the 12th day of September, the plaintiff appeared and demanded a venire, which was granted ; and the justice, on that day, " to suit his own convenience," adjourned the cause to the 16th of that .month, without the consent of -the j)arties. On the 16th the parties appeared, and the trial took place. This adjournment of the justice, I think, was erroneous. After an adjournment, with or without the consent of parties, which reaches beyond fifteen days, the justice has no power to adjourn of his own motion, or on the application of one only of the parties. Penn. $68, 266, 953. Judgment affirmed. 680 NEW JERSEY SUPREME COURT. [5 LAW Miller v. Colwell. *ELIPHALET MILLER v. JOHN COLWELL. Statute of limitations, (a) On certiorari. KlRKPATEICK, C. J. The foundation of this action was an account for firewood, hay &c., the product of the plaintiff's farm, and not an account between merchants. Most of the items of it were of more than six years' standing, and no assumption having been proved within that time, the defendant set up, in his defence, the statute of limitations, and requested the justice to charge the jury that these items were barred by the said statute. The justice, how- ever, it seems, thought the law to be different, and informed the jury that if any one item of the account was within six years, it took the whjole out of the statute. In this opinion he erred, and Therefore let the judgment be reversed. GIBSON ASHCROFT, ESQ., v. ADRIEL CLARK. 1'. Style of action. (6) 2. Statute of frauds. 3. Consideration of promise, (c) 4. Demand $50, and trial by six men. (d) (a) Franklin v. Camp, Coxe 196; Burnet v. Bryan, 1 Hal, 377 ; Smith v. Ruecastle, 2 Hal. 357 ; Dancer v. Patterson, 5 Hal. 255; Belles v. Belles, 7 Hal, 339; Gulick ads. Turnpike Co., 2 Or. 545; Hibler v. Johnston, 3 Harr. 266; Conk v. Smith, 1 Vr. 394; Thorpe v. Corwin, Spen. Sll. (b) Stokes v. Coonis, 1 South. 159; Pierson v. Pieman, 1 Hal. 163, (c) Buckley v. Beardslee, ante 570. (d) See Parker v. Munday, Coxe 70 ; Falkenburgh v. Cramer, Coxe 31 ; Me- Cormick v. Brookfidd, 1 South. 72; Jones v. Oliver, 2 Hal. 123. *577 2 SOI:TH.] SEPTEMBER TERM, 1819. 681 Aahcroft ?. Clark. On certioran. Chapnan, attorney. Opinion of the court. KlRKPATRICK, C. J. Upon looking into the transcript and proceedings in this case, it appears that the justice has not entered in his docket the style of action, as, by the statute, he is required to do. He calls it an action on agreement to pay money, which is no style of action known in the law. It appears, further, that the copy of account filed is not .against Gibson Ashcroft, the defendant, but against Robert Ashcroft; that the principal item in this account is in these words : " To 1 execution granted by esqf. R. S. Risley, Deer. 10, 1813, for the sum of $28.43; costs, $1.05; interest, $7.04." Then, at the bottom of the account, is this note : " The above account assumed to be paid by Gibson Asheroft, Esq." This is altogether irregular ; the entry in the docket is wrong ; the state of demand is insufficient ; it ought to have shown against *whom the execution was, and how Robert Ashcroft l>ecame liable to pay it ; and, even if it had done all this, it does not set forth how, when or for what consideration Gibson Ash- croft, the defendant, assumed, nor any other circumstance to .show that that assumption was good in the law, or in any way obligatory upon him. Besides all this the demand is for $50, and the trial is by a jury of six men. For all these causes let the judgment be reversed. *578 682 NEW JERSEY SUPREME COURT. [5 LAW Price v. Summers. ROBERT PRICE, ESQ., v. JACOB SUMMERS, assignee &c., of DAVID VAN DOREN. Bond given to person injured by assault and battery, to make satisfaction and prevent prosecution, legal and valid, (o) On certiorari. KIRKPATRICK, C. J. It appears from the papers sent up with this return that David Van Doren, the assignor, was about to go before the grand jury to make complaint against Robert Price, the plaintiff here, for an assault and battery which he alleged he had made upon him ; that Price, in order to satisfy Van Doren and to prevent him from making his complaint, gave him his obligation for $50 ; that Van Doren assigned this obligation to Summers, the defend- ant here, and that this action is brought upon that obligation. It is now objected that this obligation is for an unlawful con- sideration, and, therefore, void ; that it is made to stifle a prose- cution for an offence against the public peace, and to let the guilty escape punishment. This would be carrying the doctrine too far. It is always lawful to make satisfaction for a direct private injury of this kind, and by that means to prevent a public prosecution. In- deed, even after the prosecution has been commenced, if satisfac- tion be made to the injured, the punishment, generally, will be but nominal. To prevent a prosecution by making satisfaction to the injured, and to suppress a prosecution already commenced by bribing the witnesses, are wholly different things. Let the judgment be affirmed. SOUTHARD, J., expressed a doubt whether the bond was not void, being given to prevent a criminal prosecution. Judgment affirmed. (a Den v. Moore, ante 4?4; Orover v. Bruere, 4 Hal. 819 ; Whitenack v. Ten Eyek, 2 Or. Oh. 2 49 ; Owens v. Owens, 8 C. E. Or. 60 ; Brittin v. Che- gary, Spen. 625. 2 SOUTH.] SEPTEMBER TERM, 1819. 683 Decker v. Hardin. *SAMUEL DECKER, JR., v. JOSHUA HARDIN. Deceit in the transfer of a note, (a) On certiorari. The case and reasons appear in the opinion of tne court. Wall argued for plaintiff. KlRKPATRICK, C. J. This was an action on the case for a deceit. The deceit complained of is, that the defendant, Decker, had become pos- sessed of a certain note of hand given by one Jacob I. Decker to Joseph Sharp, or order, for $75, payable in six months, with interest; that this note had been assigned by Sharp to one Inglis, to be recovered at his own risk, but had not been assigned by Inglis either to the said defendant or to any other person ; that the said defendant, Decker, purchased a yoke of oxen of the said plaintiff, Hardin, and gave him this note in payment by merely handing it over to him without endorsement, averring at the same time that it was a good and valuable note, and that Sharp was an endorser thereupon and was answerable for the payment of the money ; that the plaintiff being altogether unable to read writing, and giving full faith and credit to the averments of the defendant, accepted the said note in payment for the said oxen as a good and valuable note, secured by the endorsement of said Sharp, whereas the same was not good and valuable, nor secured by such endorsement ; and so that the said defendant will- fully and designedly deceived him &c., to his damage &c. Upon this state of. demand the jury found a verdict for the plaintiff for $79.84, and judgment was entered accordingly. The reasons assigned for the reversal of this judgment are 1. Because there is a variance between the summons and the (o) See Snydtr v. Findley, Ooze 48, 78; Lummis v. Stratton, Penn.*SjS; Meeker v. Potter, pott 5S6 ; Byard v. Holmes, 5 Vr. 996. *579 684 NEW JERSEY SUPREME COURT. [5 LAW Thomson v. Cook. state of demand filed ; and, 2. Because the state of demand itself is insufficient to support an action. The first of these reasons is not true in fact ; and the second, I think, is not true in law. One cannot, by falsehood and lies, deceive an illiterate man, impose upon him a writing for one thing, when it really is another, and then come into a court of justice and expect to receive the benefit of his fraud. Therefore, in my opinion, this judgment must be affirmed. *THOMAS THOMSON v. HENRY COOK. Trover by tenant in common, (a) On certiorari. Opinion of the court. KlRKPATRICK, C. J. This is an action of trover and conversion for a stage-wagon and harness, and the case upon the trial appears to be this : Thomson, the defendant, had sold the wagon and harness to one Isaac Kay on the 9th of August, 1817, and for the price thereof had received certain promissory notes, payable at stated periods, with approved endorsers. Kay, two or three weeks after this, sold one-half of the same to Cook, the plaintiff, for $100, to be paid in four equal payments of $25 each, under a special agreement, moreover, entered into between them at the time of the sale that Cook should have the sole and exclusive possession and control of the same, together with the horses (of (a) See Chambers v. Hunt, 3 Harr. 339; Hunt v. Chambers, 1 Zab. 620; Chambers v. Hunt, 2 Zab. 552 ; Boston v. Morris, 1 Dutch. 173; Halsted v. Tyng, 3 C. E. Or. 375; Suydam v. Combs, 3 Gr. 133 ; Field v. Rank, 2 Zab. 525. *580 2 SOUTH.] SEPTEMBER TERM, 1819. 685 Thomson r. Cook. which Kay was to find one and Cook the other), to be used as a public stage, and that the net profits thereof should be equally divided between them ; and the possession of the said stage and harness was thereupon by the said Kay immediately de- livered over to the said Cook, who paid the first payment of the purchase-money, and afterwards regularly paid over the one-half of the net proceeds of the said establishment until the 9th of December, 1817, when Kay, in the night-time, and without his knowledge or consent, took the said wagon and harness out of his enclosure, where it was usually kept, and sold it to Thomson, the defendant, he at the same time being well apprised of the sale of the one-half thereof to the said Cook as aforesaid, and of the bargain as to the mode in which it was to be possessed and used. And the question is whether, upon this case, an action of trover will lie. The objection is that one joint-tenant or tenant in common cannot maintain trover against his co-tenant. And it is in the general true that if two persons be owners of a personal chattel one of them cannot maintain trover therefor, singly, even against a stranger, and much less against his part- ner, for the possession is joint. But in this case, though the ultimate right after the last sale may have belonged to Thomson *and Cook jointly, yet Cook, by the previous contract with Kay, had a special property subject to that ultimate right which neither Kay nor Thomson could at pleasure defeat, and he had also an exclusive possession under that special property which could lawfully be invaded by neither. If it should be said there was no time fixed by the contract for the continuance of this special property and this exclusive possession which Cook was to have and exercise in these chattels, the answer is that the contract in this respect was for the benefit of Cook, and it could be, there- fore, terminated against him only upon his failure of perform- ance on his part. Let the judgment, therefore, be affirmed. *581 686 NEW JERSEY SUPREME COURT. [5 LAW Oliver v. Howell. JON. OLIVER and JNO. TILLMAN v. JOSIAH HOWELL. Suit against surety in recognizance for defendant's appearance. On certiorari. SOUTHARD, J. Oliver was taken upon a warrant issued by Justice Vanhorn, and with Tillman, entered into a recognizance for his appearance at a future day, according to the directions of the statute. Oliver did not appear at the day, and the plaintiff, Howell, refused to proceed to try his cause, but suffered a nonsuit, and commenced this action against Oliver and Tillman on the recognizance. The summons was returned served " by leaving a copy with the wife of John Tillman, one of the defendants." The judgment is against both, for $35 debt, and $5.19 costs. Two errors appear in this record. 1. The summons was served on one only of the defendants; the judgment is against both, (a) 2. Howell ought to have tried his action against Oliver, and obtained judgment against him before he brought suit on the recognizance. (6) By suffering a nonsuit, he precluded himself from his action against the defendant and his bail. See Bloom. 64 13. Judgment reversed. (a) Ford v. Munson, 1 South. 93. (b) Graecen v. Allen, 2 Or. 74 ; Oondit v. Baldwin, 4 Harr. 143 ; Smalley v. Vanarden, post 811 ; Cook v. Evans, 1 Harr. 177 ; see Camman v. Randolph, 2 Hal 136. 2 SOUTH.] SEPTEMBER TERM, 1819. 687 M'Eowen v Rose. *HENRY M'EOWEN v. ANDREW ROBE, JR. In covenant by vendee, against vendor, for lands where payment was to be in lawful currency of New Jersey, plaintiff may prove that after the agree- ment and before the day of payment, defendant agreed to receive bank bills, which, when tendered, he refused, (a) On certiorari. The only reason for reversal was the admission of improper evidence. The case is stated by the court. Vroom, for plaintiff in certiorari. Wall, for defendant. KlRKPATRICK, C. J. This was an action of covenant upon articles of agreement for the sale of lands. By these articles, Rose, the plaintiff, was to pay a certain part of the purchase-money upon a day therein mentioned, the money to be lawful currency of New Jersey. A short time before the day of payment, it was agreed by the de- fendant, that bank-bills should be considered as lawful currency of Neio Jersey, and be received as such. The plaintiff prepared the bills accordingly ; but when the day of payment came, the defendant refused to receive them, alleging that they were not lawful currency, and upon that pretence refused, also, to convey the land. The plaintiff then brought this action, and upon the trial offered evidence of these facts, which, though objected to by the defendant, was admitted by the justice, and thereupon a ver- dict was rendered, and a judgment entered for the plaintiff for (o) See Perrine v. Cheeacman, 6 Hoi. 174; Ford v. Campfield, 6 Hal. 3*7; Cox T. Bennett, 1 Or. 165; JLavo v. Plume, * Harr. 467 ; Vanhouten v. McOurly, 3 Or. Ck. 141 ; Shinn v. Roberto, Spen. 436; Moore v. Moore, COM 363; Stotesbury v. Vail, 2 Beat. 390; Perry v. Oreen, 4 Harr. 61 ; Long V. Hartvxll, 5 Vr. 116 ; but see Hogcncamp v. Ackerman, 4 Zab. 134 ; Stryker v. Vander- bUi, 3 Dutch. 68; AfcKifistry v. Hunk, 1 Beat. 60; Orover v. Hwppock,* Dutch. 191. *582 688 NEW JERSEY SUPREME COURT. [5 LAW M'Eowen v. Rose. $80. And the admission of this evidence is the ground of com- plaint against this judgment. It is true that in an action of covenant upon a sealed instru- ment, we cannot admit evidence of a subsequent parol agreement, substantially changing the terms of the covenant, either as to its nature or as to the time of its performance. The principal reason given for this is, that if the party were not bound to rest upon the covenant as laid in the declaration, but permitted to prove an after and different agreement, the defendant would have no notice of that which he was called upon to answer. But it would be going very far to apply this doctrine in a case where the after-agreement, if it can be called an after-agreement at all, is merely a designation of the kind of money to be paid in the fulfillment of the covenant. It would be especially hard in this case, where the words of the covenant are, in themselves, rather ambiguous upon that point, and might, therefore, well be the subject of explanation between the parties. Bank bills, at the time of this contract, were called money, were received as *money > were convertible into gold and silver coin, nay, indeed, were pre- ferred to coin, as every day's experience at the counters of the banks abundantly testifies ; they were the universal and almost the only currency in New Jersey. The defendant, some few days before the time of payment, explained to the plaintiff what he intended by lawful currency of New Jersey, and expressly told him he would receive these bank bills as such. This was not so much a new agreement, altering the terms and nature of the cove- nant, as an explanation, rendering the mode of performing it more easy and certain, and quite as beneficial to the defendant himself. The plaintiff was to pay precisely the same amount, of the same value, at the same day, and in fulfillment of the same covenant. Shall the defendant, then, after having made this ex- planation, and after the plaintiff had prepared these bills, be at liberty to reject them, and insist upon other money ? Shall he be permitted by a fetch like this, totally to defeat the plaintiff of the benefit of his covenant ? In my view of the case the justice was right in letting in the proof of this explanation as to the money, and in submitting to the jury whether, under all *583 2 SOUTH.] SEPTEMBER TERM, 1819. 689 M'Eowen v. Rose. the circumstances of the case, there was not a complete perform- ance according to the true intent of the covenant. And enter- taining this view of it, I think the judgment must be affirmed. SOUTHARD, J. Tliis was an action brought by the vendee against the vendor for not performing an agreement in writing, under seal, for the .sale of certain lands. The state of demand, which contains all the legal requisites for such a case, among other things, sets out that the plaintiff was to pay " $20 per acre for the land, the money to be lawful currency of the state of New Jersey," and that it was to be paid on the delivery of the deed, which was to be delivered on a day stated in the agreement. At the trial, in making out his case, the plaintiff offered to prove, and although objected to, was permitted to prove, " a subsequent agree- ment between the parties, that the defendant, about two weeks before the day of payment, agreed to take bank bills in the place of lawful currency of this state." There were verdict and judgment for the plaintiff for $80. The only question raised on this judgment was upon the com- petency of the evidence. I think the evidence incompetent. The * plaintiff was bound to make out, by proof, the case which he had charged in his state of demand. And in order to sus- tain his claim he was also bound to show himself ready, at the day, to perform his part of the covenants. To show this readi- ness it was not right for him to contradict his own case, and prove that defendant had agreed to accept a different considera- tion from the one stated in the covenant and in his state of de- mand. The evidence was, therefore, I apprehend, inadmissible. Judgment affirmed. *584 44 690 NEW JERSEY SUPREME COURT. [5 LAW Manning v. Shotwell. WILLIAM MANNING v. J. SHOTWELL and others, executors of J. SHOTWELL, deceased. If security on a bill give notice to creditor to sue, and after suit brought creditor discontinues and gives principal further time, and after this the prin- cipal fail, the security is still bound, (a) On certiorari. The action below was brought by the executors of Jacob Shot- well against Elkanah Drake and William Manning, upon a sealed bill, dated 6th of July, 1814, for $92, with interest, on which some payments were made and credited. On the return of the summons the plaintiffs filed their de- mand, and one of the defendants, Manning, " verbally denied the demand." At the trial, after the plaintiffs had rested their evidence, the defendant Manning offered to prove that he was only a security on the bill ; that while Drake, the principal, was in good circum- stances, and after the note was due and payable, he (Manning) called on the plaintiffs and told them that he was only security, and that they must prosecute the bill or he would stand security no longer ; that they did then prosecute the bill before Justice Vermule, when Drake applied to them and offered to pay them $20 and give them a new note, with other security, payable in one year ; that they received $15 from Drake, and agreed to give him further time ; that this was done without the knowledge or consent of said Manning ; that since that time, to wit, on the 18th of June, 1819, Drake assigned away his property and stopped payment ; and that from the time of discontinuing the suit before (a) See Pintard v. Davis, Spen. 205, 1 Zab. 633 ; Qrover v. Hoppock, 3 Dutch. 191; Mori-is Caned v. Van Vorst, 1 Zab. 100, 116; Freehold Banking Co. v. Brick, Feb. Term, 1875; but see Bell ads. Martin, 3 Harr. 167; Solomon ads. Gregory, 4 Harr. 112 ; Paulin v. Kaighn, 3 Dutch. 503, 5 Dutch. 501 ; United States v. Howell, 4 Wash. C. C. 620 ; Irick v. Black, 2 C. E. Or. 189 ; Alwaler v. Underhill, 7 C. E. Gr. 599 ; Nightingale ads. Meginnis, 5 Vr. 461; Thomp- son v. Bourne, 10 Vr. 3. OUTIL] SEPTEMBER TERM, 1819. 691 Manning r. Shotwell. Justice Vermule to the time of bringing the present action he had paid debts to a considerable amount. *A11 which evidence was overruled and the jury found a verdict, and judgment was rendered against both defendants for $82.90. The counsel for the plaintiff (Chetwood) relied, for the reversal of the judgment, on the overruling this evidence alone, and re- ferred to 7 Johns. 337 ; 10 Johns. 596. KlRKPATRICK, C. J. The defence in this case, in my opinion, is wholly insufficient in the law, and wholly unsupported by any case or principle of decision in New Jersey ; therefore, let the judgment be affirmed. ROSSELL, J., was of the same opinion. SOUTHARD, J. Upon the admissibility of this evidence it is proper to re- mark 1. That no difficulty arises from the mode in which the defendant Manning pleaded. In the court in which he was there is no necessity for a written plea, in any case, except where it is specially pointed out by the statute. If the defence, there- fore, was. a good one, the evidence was competent under the pleadings. 2. If the facts offered to be proved are sufficient to discharge the security from a liability to pay a sealed bill, he had a right, in that court, to avail himself of the defence. If he can prove the facts, and those facts discharged him from the debt, th.c facts may be proved in an ordinary suit, on the bill, in a court of law. There is nothing in the nature or character of the defence which requires him to seek protection in a court of equity. 3. The facts offered to be proved present this question : Can a security upon a sealed instrument, after the day of payment is passed, require the creditor to prosecute, and if he does prose- cute, and afterwards, without the .knowledge and consent of the security, alters the mode and extends the time of payment, so that the principal fails and security is thereby injured, will he be *585 692 NEW JERSEY SUPREME COURT. [5 LAW Meeker v. Potter. discharged ? And I think the question may very safely be an- swered in the affirmative. The rights of a security are always favored. He is bound to the extent of his undertaking, but no farther. Neither the creditor, the principal, the court, nor any other power, can carry his engagement beyond what he has con- sented to. A new contract cannot be made for him without his consent. It is true, a mere delay in calling on his principal will not, either *at law or equity, discharge him, because such delay is always presumed to be with his approbation, unless it other- wise appears. But if he objects to the delay, if, at his request, the creditor agrees to enforce the payment and commences a suit, he onght not afterward to violate the agreement, select another day and mode of payment, and thus create a new contract against his will. For the overruling of this evidence, therefore, I think the judgment should be reversed. Judgment affirmed. ISAAC MEEKER v. AMOS POTTER, JR. (a) 1. State of demand. 2. Action, case, judgment, debt. 3. Challenge to juror. 4. Interest of juror and witness. On certiorari. Reasons for reversal, argued by Vanarsdale for the plaintiff. 1. The action was case, the judgment for $48 debt. 2. The action should have been debt on the assigned note. 3. The jus- tice refused or neglected to try a challenge to a juror. KlRKPATRICK, C. J. The state of demand filed in this case contains no lawful cause of action. It merely states that in the payment of a debt, the (a) See Decker v. Hardin, ante 579. *586 2 SOUTH.] SEPTEMBER TERM, 1819. 693 Meeker r. Potter. defendant let the plaintiff have two notes of hand, the one made by one Day, for $45, and the other by one Parsons, for 10, recommending them to be good notes and of futt value, and, at the game time, knowing them not to be good. Now, what is meant by good and of futt value, is wholly uncertain. The most natural < -.instruction would be that they were genuine, and that the whole sums therein expressed were due and unpaid ; and the more so, t)ccause there is no pretence of any contract, or assumption, or warranty as to the solvency of the makers. This state of de- mand, therefore, is in itself insufficient. But when we come to inspect the papers sent up, we clearly see that it could not, with truth, have been otherwise, for so far from warranting the notes to be good as to the solvency of the makers, that of Day is as- signed under the express condition that the assignor is not to stand security for any part thereof. And the plaintiff having taken it under this express condition, written upon the note itself, Jie cannot be permitted to aver the contrary. *Besides this, the contrivance of getting Bonnel, who is clearly proved to be a party in interest in his representative capacity as administrator of Day, and that in the face of the defendant's challenge to be both a juror and a witness, is too gross to be maintained in this court. SOUTHARD, J. This certiorari was brought to reverse a judgment in favor of Potter, for $48, with costs. The state of demand charges that Potter sold to Meeker a wagon for $65, and that Meeker paid him by two notes of hand which he fraudulently and knowingly imposed on him as good and of full value, when they were not so, the persons who gave them being insolvent, one of the notes, amounting to $48, having been given to Meeker by Charles Day, since deceased, whose estate had paid only five and three-quarters cents in the dollar, the other note for $10, given by Jacob S. Parsons, whose estate paid only onehalf of the claims against him. Potter, there- fore, demands $55, the deficiency, as he alleges, of the two notes. The note executed by Charles Day accompanies the papers *587 694 NEW JERSEY SUPREME COURT. [5 LAW Meeker v. Potter. sent up by the justice ; and on it is found an endorsement in the following words : " I assign the within note to Amos Potter, Jr., to collect of the heirs of Charles Day, deceased, and not to stand security for any part of the within note. Isaac Meeker." By the transcript, it appears that Jonathan C. Bonnel, the ad- ministrator of Charles Bay, deceased, was a witness and juror ; and by an amended return of the justice, it further appears " that Meeker made objections to Bonnel, when the jurors were called to take their seats, but when called to administer the oath r no objection was made, and, therefore, no triers were sworn." At the same time that the rule on the justice for an amended return was taken, another was granted for affidavits to prove the interest of Bonnel in the event of the cause, and by the affida- vits taken, it sufficiently appears that one-half of the wagon sold by Potter to Meeker belonged to him as the administrator of Charles Day ; that Potter acted by his advice in making the con- tract, and that he had agreed with Potter to take for his part the same pay which Potter should get for his. * Vanarsdale, of counsel with Meeker, the plaintiff in certio- rari, urged several reasons for a reversal of the judgment. 1. The action was in case for a deceit, the judgment for <$4S- debt. A conclusive answer to this reason is found in decisions of this court, as will be seen by referring to Cook v. Hendiickson, Perm. 3 43 ; Carmichael v. Howel, Penn. 375 ; White v. McCall, Coxe 93. In all which cases it is declared that the word debt may, in such circumstances, be rejected as surplusage, and the judgment affirmed. 2. The action should have been founded on the assignment of the note, and not on the deceit in transferring it. It is answered that fraud in assigning or transferring a note may be the founda- tion of an action ; and, in the present instance, if the plaintiff below was injured, this was his only remedy. The character of the assignment precludes any action upon it. 3. The challenge to Bonnel ought to have been received and tried. *588 2 SOUTH.] SEPTEMBER TERM, 1819. 095 Den v. Vancleve. It is apparent that the interest of Bonnel, as administrator of Day, was sufficient to exclude him as a juror. The challenge, too, was abundantly made, and should have been tried. A party is not obliged to tender his challenge twice, but when once pre- sented, the court should try it, unless it is explicitly waivt <1. There is something not a little extraordinary in the appearance of this part of the case. Day owned half the wagon ; it was sold, and Day's note taken in payment. His administrator, who pays one-twentieth of his debts, and of course this note among the rest, becomes a witness and juror, to effect the recovery of the balance of the note from the payee, who had bought Day's property with it. What becomes of this balance, if recovered? There is an appearance of fraud as well as interest in this matter, though it is, perhaps, only in appearance, and arises from the manner in which the case is presented before the court. I am for a reversal. Judgment reversed. *DEN v. JOSEPH VANCLEVE. 1. Ejectment; trial at bar, by special jury; verdict for defendant; and mo- tion for new trial, (a) 2. Testamentary capacity, (b) 3. Examination on roi'r dire of a witness, touching his discretion and knowl- edge, (c) 4. Declarations of testator, of his intentions respecting his will ; evidence on question of capacity and fraud, (d) In ejectment. This action was tried by a struck jury, at bar, in November term, A. D. 1818, before the chief-justice and Justice Southard, Rossell, J., not sitting. There was verdict for the defendant. Rule to show cause why the verdict should not be set aside was (a) See cases cited post 651. (b) See cases cited pott 660. (c) See cases cited post 658. (d) See cases cited po.it .54. *589 696 NEW JERSEY SUPREME COURT. [5 LAW Den v. Vancleve. granted at that term, and argument had at February term, 1819. At September term, 1819, the judgment of the court was pro- nounced. At the trial, R. Stockton was attorney, Wall and R. Stockton, Jr., of counsel with the plaintiff. L. H. Stockton, attorney, Ewing and the Attorney-General, of counsel with the defendant. The declaration in ejectment contains two counts. The first is on the demise of Israel Clarke and wife, for one-third part of two hundred acres of land, in the township of Lawrence ; the other on the demise of John Stevens and wife, for one other third part. R. Stockton, in opening for the plaintiff, stated that he would prove that Benjamin Vancleve died seized of the premises ; that he had had one son, John, now dead, who was advanced in his father's lifetime, so that his children had no claim to this estate ; that the remaining children of said Vancleve were the defendant, oid the two female lessors, who each claimed one-third of said premises. The plaintiff called Major John Phillips, who testified to an intimate acquaintance with Benjamin Vancleve for fifty years, during which time he lived on, claimed and possessed, as owner, the premises in question, containing between two hundred and sixty and three hundred acres. He had five children Cor- nelia, wife of Thomas Stevens, who died without issue ; John, who died, leaving children; Phebe, one of the lessors, who married John Stevens thirty-one or thirty-two years ago, and has no children ; Elizabeth, another lessor, who seven or eight years since married Dr. Israel Clarke ; and the defendant, Joseph. He left no personal property, though he once owned a pretty large one. The defendant lived with him about twenty years, and managed and worked the farm and improved it with fences. The defendant married and brought his wife there fifteen or sixteen years ago, and had no visible property except what he got off the place. At Benjamin Vancleve's death, and *before that time, defendant owned the personal property on the farm. Plaintiff here rested. *590 2 SOUTH.] SEPTEMBEB TKli.M, 1819. 697 Den t. Vancleve. L. H. Stockton, for defendant, stated that he claimed the prem- ises under a will of Benjamin Vancleve, bearing date August l>lth, 1817. This will was, in this respect, the same as two others which he had made one in 1809, the other in 1814, and \\ liirh were improperly taken from his desk a short time before the execution of the last, and the circumstances strongly showed that one of the lessors took them. The testator's reasons for giving his lands to the defendant were, that he had advanced as much to his other son ; that his daughters had received a consid- erable sum, were well married, and from their situation did not need more ; and that defendant had long lived with and assisted him, and worked on and improved the farm. Evidence of the defendant. Deposition of John Phares, one of the subscribing witnesses, taken by Justice Southard, under the statute, on May 22d, 1818, was read, Phares being dead. He had known the testator, by sight, for twenty years, and very familiarly for seven or eight last past. The will was executed about ten o'clock on Sunday morning, the day that it bears date. It was read to the testator by the defendant audibly and distinctly, and being asked if it was his will, and a true copy of a former will which he had made, and which was missing, he answered to both questions, " Yes, it was." With the pen in his hand, and in the presence of the subscribing witnesses, and with the aid of deponent, who, at his request, steadied his hand, he wrote the name, Benjamin Vancleve, to the will. Deponent asked him if he acknowledged that to be his last will, and he then took hold of the paper, and laying his fingers on the name and seal, he replied, " Yes," in a low tone of voice, and then raising his voice he said, " Yes, I do." Tlie witnesses signed in presence of the testator and of each other, no other person being present except defendant's family. Testator paid very great attention to the reading of the will and to the whole transaction ; and deponent then thought and be- lieved, and still continued to think and believe, that he was in pooocooion of his reasonable faculties and understood everything that was proposed to him very well, as well as a man could in a weak state, and the more deponent thought and reflected on the 698 NEW JERSEY SUPREME COURT. [5 LAW Den v. Vancleve. subject, the *raore he was satisfied that testator understood very well what was proposed to him and what he was doing. On the cross-examination deponent stated that he was sent for by defendant, his wife having been there some time before him. The testator then was, and continued through the greater part of the day, more revived than for three or four weeks before. De- ponent conversed with him that morning only about the will, and that not after it was executed. He could only speak two or three words at a time, and only answered questions. Deponent could not recollect whether he called him by name, though he frequently did, and on that day took him by the hand as usual. Within four or five weeks preceding, deponent saw him fre- quently, but had little conversation with him. He always lay in bed in an easy, sleepy kind of way ; one side of him was helpless. But within that time he asked deponent many ques- tions, principally about deponent's family, and a dispute respect- ing a line which, at that time, existed between deponent and his neighbor, Mr. Andrew Reeder. Deponent replied fully to his questions and the conversation soon ended. At the time of exe- cuting the will he was not in a situation to dispose of his prop- erty by deed, and too weak to dictate and form a whole will at one time, but was capable of remembering what he had done at former times and what disposition he then wished made of his property. When the will was read over to him, section by sec- tion, he assented to it and sanctioned it with as much freedom and fortitude as he could have done at any former time, and more so than at any time within four or five weeks. His mind was equal to what he did. He had strength of mind to direct the disposition of his property if propositions were made to him, but was too weak to converse about it or dictate it wholly him- self at one time. Defendant filled up the date of the will before it was executed. Mehetable Phares, wife of John Phares, also a subscribing witness, saw the testator and subscribing witnesses sign the will in the presence of each other, during church -time, on the day on which it bears date. Defendant mentioned to testator that his wills were missing. He roused up, as from a deep sleep, and *591 2 SOUTH.] SEPTEMBER TERM, 1819. 699 Den t>. Vancleve. asked who took them. Defendant replied, " Some of his children, he expected." Defendant told him there was a copy written by Mr. Kwing, and asked if he wished to execute it. He said " Yes, he did." Phares was sent for ; Johnson was in the house. De- fendant *read the will over distinctly to testator, and as he went along asked him if he understood it ; he paid very particular at- tention to every part of it, and answered " Yes, very well." Do- t'ni'hint asked if it was a copy of the former will he had made in 1814 ; he answered " Yes, it was." He was asked if he should be lifted up in the bed to execute it, but his answer was not re- collected. Mr. Phares asked him if he should steady his hand ; he said, "Yes," and Mr. Phares did so by putting his hand Jtack of testator's. He put his finger on the seal without being directed to do so, or where he should put it ; and when he acknowledged it, witness, from her situation and being a little deaf, did not hear all he said, but moving round a little nearer to him she heard him say " last will and testament." He appeared to be of sound and disposing mind and memory, and capable of making a will or deed disposing of his land, and understanding what he was doing and knowing whether he was satisfied with it, though not capable, from his speech faltering and from the weakness of his body, of expressing or dictating it all at one time. He knew what his property was, and if the will had described it wrong or given it to an improper person he would at once have detected it and refused to sign it. On that day witness was going to church, and called at the door, and was requested by Mrs. Vancleve to come in, as her father was not quite so well ; his hands and feet were cold, and she was alone. Defendant said if she called after church it would be sufficient. Witness went into testator's room but did not speak to him, as he lay as if asleep; but she told Mrs. Vancleve that she need not be alarmed the coldness of his hands and feet arose from the change of weather. He had been struck with the palsy in April or May preceding, and from that time his right side had been helpless, so that he lay all the time in bed. He wrote his name with his left hand. Witness ince which time he has resided in Philadelphia. While at work at General Wilson's he asked witness about the execution of the will, but witness gave him slighty answers and said little about it, and has had no conversation with defendant about it, except to tell him what he remembered. Witness was poor and about twenty-three years old, and lodged at defendant's since he came up to give evidence, about a week before. Here the will was read to the jury. It devised all testator's *594 702 NEW JERSEY SUPREME COURT. [5 LAW Den v. Vancleve. real estate to the defendant and left the two female lessors each $200, upon condition that they would release their right to cer- tain lands in Monmouth which had belonged to their mother, and which testator had sold. Defendant rested his evidence. R. StocJcton, for the plaintiff, staled that he did not consider the will sufficiently proved. It has been executed upon a repre- sentation of the defendant that the testator's wills had been stolen, and was done merely by question and answer, indicating no volition or intelligence. But the plaintiff would show still further that the testator had long lived with the defendant, at his table and under his control, and had been so treated and gov- erned by him as to be in fear of him ; that in the April pre- ceding he *had been struck with the palsy and from that moment had been incapable of making a will, or doing any act which re- quired mind ; that he could not speak nor move, and lay insen- sible, the mere instrument of any person who chose to direct him what to do ; and that, under these circumstances, the defendant improperly and fraudulently imposed upon him a will, not his own, which he would not have made, to which he was incapable of assenting, and which was the defendant's own contrivance. Evidence for the plaintiff. Andrew Reeder's deposition had been taken de bene esse, and he being still very sick, it was read, and stated, in substance, that he knew testator, intimately, for many years, while in full vigor of his bodily and mental powers, and until his death. In 1814, deponent witnessed a will executed by him, and although he had then failed somewhat as to his memory more than his under- standing, he might be considered of a disposing mind. At that period the news from Europe was interesting, and he was anxious always to get his papers, and would talk of the news, quote passages pretty correctly, and knew market prices tolerably well. He was tolerably conversable and pleasant in conversa- tion ; but some doubt existed on deponent's mind as to the pro- priety of his making a will, arising from the situation in which he lived with his son on his own place, coming to his son's table *595 2 SOUTH.] SEPTEMBER TERM, 1819. 703 Den v. Vancleve. for his meals, and drawing nothing from his farm, and the advantages his son enjoyed, but his living ; and he seemed entirely under the sovereignty and control of his son. His body, too, had failed considerably ; and the doubts which deponent felt were perhaps increased by his having an attack soon after, which very much weakened his body, and made one side lame ; and his mind very evidently failed along with his body very rapidly. But deponent, on reflecting on the whole circumstances, made up his mind to say that at the time of making that will, in 1814, he was of a disposing mind. A few days after the will was signed, the defendant called at deponent's, and they had a conversation on the subject, which increased deponent's doubts. Defendant asked deponent if his father had not been to sign a will before deponent as a witness. Deponent told him he had. Defendant then asked if he did not think his father had a mind fit to make a will. Deponent replied that he had made up his mind that that was the case when he signed as a witness. Defendant then said he ex*pected that his brother-in-law and sisters would con- test the will ; that he had, a few days before the will was made, been talking to Major Stevens about some old man whose will was contested ; and the major remarked to him that his father was not fit to make a will, and his would be disputed, if he should make one. Defendant added that he knew that his father's head was fuddled, and his memory had failed a good deal, but he attributed it to the immoderate use of tobacco, and he had taken him to town to get a lawyer to draw the will, and had kept him from tobacco for two or three days, that his head might be clear, and he might be able to copy the will ; that its being in his own handwriting would be very much in his favor ; that he intended to do all he could to support it ; and if he could not, and they should succeed in destroying it, he would set up the former one that he had made, which would be better than not having any ; that if he set up the former will, he should lose the benefit of a provision which he thought a good deal of, respecting the land sold by his father in Monmouth ; that his father owned land there in right of his wife, and not knowing the law on the subject, had sold it, and became uneasy lest his daughters should *596 704 NEW JERSEY SUPREME COURT. [5 LAW Den v. Vancleve. claim it. He intended that the legacies to his daughters should be held back, and not paid, until they released their right to that land. After the signing of this will, Benjamin Vaneleve's mind failed rapidly, until, in a year, or perhaps less time, it was very feeble. He was very talkative, and his son seemed to pay no attention to him, and sometimes would tell deponent not to mind him, and that he did not know what he was talking about. His conversation was very foolish, and had no sense in it. About a year or fifteen months before his death, Benjamin Vancleve was speaking of his age to deponent, and said that " he was sixty- seven or seventy-seven/' in an indifferent kind of way, as if it was a matter of little importance, like a day or a week. Deponent recollects no other incident of importance, until, about four or five weeks before his death, he heard that Benja- min Vancleve was taken down to his bed by a stroke of the palsy, and meeting defendant at a burial, he asked him how his father was. He replied that he was very much as he had been, but was failing more, and growing weaker. Deponent asked if he had recovered his mind and reason. Joseph replied that he did not know that he had lost his mind and reason in fact ; that * he did not talk any, but when he wanted anything, he seemed to know about it, and to make them understand his wants by signs and motions. Deponent said, "Then he can't talk any yet ? " Joseph replied that he did not know whether he could not, or whether it was because he had no disposition to talk. Deponent did not exactly understand what Joseph meant whether it was that he was so feeble that he felt no inclination to speak, or whether he was a little obstinate. About three weeks before his death, deponent went to the house to see him, and being shown to his room, went up to his bedside, spoke to him and asked him how he did. He rolled his eyes up to deponent with a wild, ex- pressive kind of look, and his lips moved very fast and seemed agitated, as if he wanted to speak and say something to depo- nent, but no words or sound of any kind came out of his mouth. Deponent stood about a minute by him ; he said nothing, and then deponent left him and sat down in the room. About half an hour after, deponent got up to go away and bid him farewell. *597 2 SOUTH.] SEPTEMBER TERM, 1819. 705 Den t. Vancleve. His eyes and lips looked and moved as they did when deponent came in and spoke to him, but he did not say anything, and de- ponent then left him. Deponent saw him no more after this. A few days after his burial, defendant came by deponent's house, and seeing deponent at a little distance, called him to the road and said to him, " Have you heard what has taken place in our family ? father's will was lost somebody took it away ; " and added that his sister, Mrs. Stevens, must have stolen it ; that he discovered it the Sunday before his death, and went up to his father's bedside, and in a loud tone of voice said to him, " Father, somebody has robbed the house." It seemed to startle him very much, and with a considerable struggle, he said, " Who, who, who?" though he had not spoken for some time before, and raised himself up, stretched out his well hand and pulled him towards him. He seemed a good deal agitated, but after a few moments sunk down again into his former weak, feeble state ; that he, Joseph, then went and looked for the copy of the will which he had made, and found it, and determined to get his father to sign it and set it up as the will. That about eleven o'clock he got Mr. Phares and his wife and a man whom he had on his farm as witnesses, and then filled up the blanks, read the will over aloud to him and asked him if that was his will. He nodded his head to express his assent, and signed it. *Deponent inquired how he signed it, as he understood that it was his right hand which was lame. Joseph replied that Mr. Phares put the pen between his fingers and directed his hand and wrote his name out at full length ; that his father gave a great manifesta- tion that he knew what he was about by extending his hand of his own accord, willingly, when he told him to put his finger on the seal after the will was signed. Joseph then asked deponent if he did not think the will would stand, executed as it had been. Deponent replied that he did not know ; that it was very hard to tell whether a man was in his senses when he did not speak. Joseph said he did not think that it was so difficult ; that all his actions and motions, especially extending his hand to put his finger on the seal, showed that he understood what he was about as well as if he spoke. Deponent then said that if he inU-iuUtl *598 45 706 NEW JERSEY SUPREME COURT. [5 LAW Den v. Vancleve. to make a will of it, it was a pity that he had not got more respectable witnesses. Joseph replied that he could not do it ; that the neighbors were all at church at the time, but he had been sorry since that he did not go up to the church and bring them down. In 1814, when deponent signed the will as a witness, he then thought, and still thinks, that Benjamin Vancleve was of a dis- posing mind, fit to make a will if no improper influence was made use of towards him ; that will was signed in the presence of deponent, deponent's nephew, Charles Reeder, and his wife, whose names were put to it as witnesses. Deponent is perfectly satisfied that for at least one whole year before the death of Ben- jamin Vancleve, the said Benjamin had not a mind and memory sufficiently sound to make a will to dispose of his property with reason and discretion, or to manage it in a proper manner. Jonathan Doan. On the 25th or 26th of August, 1817, Johnson applied to witness, who employed him as a journeyman carpenter, and he worked with him until the 22d of September at General Wilson's house. The day he came, or the day after, he introduced a conversation and told witness and Maturin Red- way that he came from sea through New York, and was going to his parents below Philadelphia ; that he was called in, on the road, to witness the will of an old man by the name of Vancleve, and that there would be a lawsuit after his death, as he was not capable of making a will ; he could not speak so as to be heard unless you put your ear close to his mouth, and he'd be d d *if he could hear what he said when he acknowledged his will. He thought the son made it to suit himself. Johnson spoke of it frequently, but no one was present except Redway, and once General Wilson was present, whom witness had informed what Johnson said. Witness met Johnson after he had been sworn in the cause, and being told by him what he had sworn to, wit- ness told Redway that he had told two stories, and meeting Doc- tor James Clarke informed him, and that occasioned witness being subpoenaed. Maturin Redway. Worked with Johnson and Doan at Wil- son's. Johnson said he was called in on Sunday to witness Mr. *599 SOUTH.] SEPTEMBER TERM, 1819. 707 Den v. Vancleve. Vancleve's will, and he thought there would be a lawsuit about it and he should be called this way as a witness, as he thought testator nearly dead, and it was more his son's will than his ; that he was not capable of making it or speaking so he could be heard, unless you put your ear very close to his mouth, then you . Vancleve. and that the son did not make it. Witness did not recollect that he ever said anything to anyone about it until General Wilson came into the house one day, and asked him about it. He had then been at work there some days. He did not recollect men- tioning it, particularly, to Redway and Doan. Witness some- times works at farming, when he cannot get work to do at his trade. Henry Vancleve. About two weeks ago, Mrs. Stevens told *witness that her father had, eighteen months before, informed her that he had no will. Witness sat up with testator about two weeks before his death. The person who sat with him adminis- tered to him, and, witness believed, without consulting him. He lay still, and did not speak, nor did others speak to him, as witness heard. Witness saw him about a year before his last sickness ; his memory had then failed very much, and he did not know witness ; but, when his name was mentioned, he recollected witness well his name, father and former acquaintance and made many inquiries about witness' father and family. Captain Amos Hutchinson. Knew John Phares well. He was a man of excellent character for morality and truth. Jasper Smith, again. Was a near neighbor of John Phares for seven or eight years, and never heard the purity of his char- acter, as a man of morality and truth, questioned. Joseph Scudder, Esq. At Forman's tavern, in the township of Trenton, a little before May court last, there was a trial, in which witness was concerned, as overseer of the poor, and Major Stevens was called as a witness. At that time, witness and Major Stevens had a conversation about the charge which had been made of. stealing the wills. It commenced by Stevens asking witness what kind of a girl Abigail Coulter was, who- had formerly been bound to witness, and afterwards to defend- ant. He said that one of those girls was not smart; that something had been laid to his charge about taking the will; that there was nobody who had any chance of seeing anything but the bound girl, Abigail Coulter, and Joseph Vancleve's daughter and sisters, but that he had not seen the will, more *615 2 SOUTH.] SEPTEMBER TERM, 1819. 725 Den v. Vancleve. than he then saw it, in his hand holding his hand out and looking at it. Mary Vancleve, daughter of the defendant, between fourteen And fifteen years old. Heard Mrs. Clarke repeatedly say that defendant and his wife must have a great deal of trouble with testator, and never heard any intimation of neglect or ill-treat- ment from anyone, until after the wills were missing. Duiing testator's sickness, Mrs. Stevens frequently came to the house, and sometimes staid three or four days. The first part of the time she brought her clothes in a band-box, the latter part, in a small trunk, which she always took with her when she went away. When she brought the trunk, she had with her, in her work-bag, a bunch of four or five keys, on a ring about the size of a *dollar, with a spring catch to it, which witness believed belonged to Doctor Clarke, because, in the month of March pre- oeding, during one of the visits, of about a week, which she made to her Aunt Clarke, she had seen precisely such a one in the doctor's book-case; took it down and examined it, and gave it to his little girl to play with ; and, though she had visited often at .her Aunt Stevens's and seen her keys, she had never seen such a ring there, nor anywhere else. This ring she saw in Mrs. .Stevens's work-bag, in the latter part of the month of June, when she had been sent by her to get something for her out of the oag. Doctor Clarke was testator's physician, and, in the first part of iis illness, came there frequently, as often as twice a week, but in the latter part not so often. Witness heard him say he had not been there in five weeks before the will was missed. He gave no reason for not coming, nor did witness know any. Doctor Clarke ^H9B generally, but not always, there when Mrs. Stevens was, but when they did meet there, they almost always went into the parlor and had a private conversation. Witness saw them leave testator's room and go into the parlor together as many as three or four times. Defendant's wife wished Mrs. Stevens to stay with her father on the 3d of August, being the third Sunday before the will was executed, so that defendant and wife might attend church. Mrs. Stevens agreed to stay with him on that day, and came there on Saturday evening. The morning being *616 726 NEW JERSEY SUPREME COURT. [5 Den v. Vancleve. bad, defendant declined going to church, but Mrs. Stevens urged him, and he and his wife went at the usual hour, which was- about half-past ten o'clock. Witness and her sister, who is about twelve years old, a bound girl, a black woman and Mrs. Stevens- were left at home. A little black boy was also there, but not in the house. Soon after defendant was gone, Mrs. Stevens* gave testator two teaspoonfuls of paregoric, which was double- the dose which the family frequently gave him to make him- easy. She then shut the door of his room and went up stairs,, into the room over him, where there was a bed, and a desk in. which defendant usually kept his papers locked up. As Mrs.. Stevens came into that room, witness came out of it and left the door open, nor did witness know whether Mrs. Stevens shut it. It had no lock and was directly opposite to the landing at the head of the stairs. Mrs. Stevens, when she lodged in the house,, slept in several rooms, but never in that one. She staid in that room until Major Stevens came to the house, * which was about an hour before defendant and wife returned home. It was rain- ing when he came, and he drove his chair into the chair-house.. He usually had his horse taken out, but he declined it on that day, both before and after defendant returned. When he came up, the black boy was standing at the door, and he asked where- his "master was. The boy told him he was at church. He then asked where the children were, and was informed. Mrs. Stevens came down stairs to meet him, and told witness to go with her sisters into the kitchen and help the black woman shell peas,, which witness did, and remained there until her father and mother returned from church. The black woman had the charge of getting dinner, and Mrs. Stevens never before gave witness such a direction. Major Stevens and his wife staid to dinner, and immediately after, as soon as the rain cleared up, went away. Major Stevens said he had been at Doctor Clarke's the night before, and came from there. The conduct of Mrs. Stevens on this day did not, at the time, strike witness as singular, or induce her to suspect anything, nor did defendant inquire about it, nor did witness mention it, until about a fortnight after defendant com- plained that the wills were lost. When defendant did inquire,. *617 2 SOUTH.] SEPTEMBER TERM, 1819. 727 Den v. Vancleve. she told him about it, but did not then, or at any time tell him, nor any one else, that she saw Major Stevens or Mrs. Stevens at the desk. Late in the fall, previous to testator's death, defendant and witness were in the room over where testator lay in his last illness, and where the desk was in which defendant kept his papers. Defendant had the desk open, and Abigail Coulter came up and informed him that some person wanted to see him. He went down, and then Abigail Coulter asked witness to look in the desk for her indentures, and see how old she was, and when she would be out of her time. Witness did look, and upon opening one of the drawers, saw two papers folded up and sealed, and endorsed, as she believed, in testator's handwriting. The upper one was marked, "Benjamin Vancleve's will of 1814." The under one, "Benjamin Vancleve's will of 1809." Abigail Coulter could not read writing, and asked witness what they were. Witness informed her they were grandpa's wills, and hearing defendant coming up the stairs, they left the desk. Mrs. Stevens came to defendant's the day before the will \va.s executed and staid all night. In the morning defendant discov- ered that the wills were missing out of his desk, and sent wit*ness' sister down stairs to call Mrs. Stevens up to him. He also directed witness to go down ; and, as she was going down the stairs, she heard her sister ask Mrs. Stevens to go up to de- fendant, and Mrs. Stevens replied that she would, presently; that she was reading to her fattier, the testator, in the Bible. When she went up, defendant charged'her with taking the wills. Soon after this, Mrs. Stevens asked witness if she had ever seen her at defendant's desk, and witness told her no; for witness never had seen either her or Major Stevens at it. Soon after this conversation Major Stevens drove up, and Mrs. Stevens went out into the yard to him, and when they came in, Major Stevens said to defendant, " It was a will of your own making and it is foolish to charge us with it, for you can't prove it." They were angry at being charged with taking the wills, and left the house about eight or nine o'clock, which was one or two hours before Mrs. Phares came, and the will was executed. Stephen Johnson had come to the house before breakfast, and was there at *618 728 NEW JERSEY SUPREME COURT. [5 LAW Den v. Vancleve. that time. Mrs. Phares called on her way to church, and was asked in by defendant's wife. Mr. Phares was sent for by defendant. Defendant read the will over to testator, and asked him if he could understand it. He said, "Yes." Defendant asked if it was not a true copy of his last will. He said, u Yes." Defendant told him to speak loud so the witness could hear him ; he raised his voice and said, " Yes, yes, I say so." Defendant asked him if he wished it executed ; he said, " I do." Mr. Phares asked him if he should guide his hand when he wrote his name ; he said " Yes." Mr. Phares or defendant, witness did not recollect which, said it would be necessary for him to acknowledge it. He then put his finger on the seal and said, " I acknowledge this to be my last will and testament." He tfyen took Mr. Phares by the hand and shook it, and seemed to be very much exhausted. Witness could not say whether it was hard for strangers to understand him when he spoke, but, being well acquainted with him, she under- stood him perfectly, and did so at the time the will was exe- cuted. During all his last sickness, until the Friday before his death, he was capable of speaking, of asking and answering questions, and often talked to Mrs. Clarke, and asked her why the doctor did not come to see him. He had the possession of his understanding after the attack, and when the will was exe- cuted, as he had before. On Monday, the day after the execu- tion, Mrs. Clarke *came, and, in conversation with defendant, said, " Let who would have taken the wills, she would take her oath her sister Phebe never took them." She also asked witness what the testator said the day before, and witness replied, " He said enough." The next day Major Stevens and wife came to the house and went in to see testator. Mrs. Stevens took hold of his hand three several times, and he drew it away each time and laid it on his breast, and groaned very hard. Witness never heard such groans. The next day but one, Mrs. Clarke came again. Mrs. Charity Smith was there and high words passed between her, Mrs. Clarke, and defendant's wife. Defendant told Mrs. Clarke that she took the will ; she replied, " I don't care if I did ; it was no more than you would have done if you had had the same chance." Defendant told her she knew that *619 2 SOUTH.] SEPTEMBER TERM, 1819. 729 Den r. Vancleve. testator had given him his land in all the wills. She replied, " I know it, and we want none of your land." He asked ; " Then, Betsey, what do you want ?" To this she made no answer. In 1814 witness saw testator write a will, and, after it was done, her little sister asked him what he would give her. He told her he would give her something ; that he had given her pa the farm, and he expected, after her pa's death, that her little brother, Benjamin, would have it. Witness told Mrs. Clarke and Mrs. Stevens that testator had made a will, soon after it was done, in 1814. After Mr. Potts had been to see testator, witness heard defend- ant tell Mrs. Stevens that Potts had been there about the Mon- mouth property, and that testator had expressed a wish, in his will, that none of his children should call on the Potts' about it. She said that testator had always told Mr. Stevens that he intended that property for his children. Abigail Coulter, between sixteen and seventeen years of age, was offered as a witness, whereupon the counsel for the plaintiff" requested that she be first interrogated whether she had ever been sworn in court and understood the nature and obligations of an oath. The court declined interrogating her, and she was sworn. In the fall before testator died, she asked Mary Vancleve to read her indentures to her. In looking for them, Mary opened a drawer and took up two large papers, which witness supposed to be letters, and asked what they were. Mary said they were her grandpa's wills. A few Sundays before testator died, and *when Mrs. Stevens was at defendant's, Major Stevens came ; it was raining and he drove his chair into the chair-house. Wit- ness was standing at the end of the house, where he did not see her, and as he came near the door he asked a little black boy, belonging to defendant, where his master and mistress were. The boy aaid, " Gone to meeting." He asked, " Where are the chil- dren?" The boy said, "They are at home." He then went into the house and was there until after dinner. Mary was, part of the time, before her father and mother returned, in the kitchen, shelling peas. On a Sunday, some time after this, witness heard defendant and Major Stevens talking about the wills, and Major *620 730 NEW JERSEY SUPREME COURT. [5 LAW Den v. Vancleve. Stevens said : " It is foolish to accuse us of taking the wills r for you cannot prove it." Witness never saw Major Stevens in the room where the wills were, nor ever told anybody that she did see him there. She never saw anybody take the wills. Mrs. Rachel Coulter, the mother of Abigail, met Mrs. Stevens in the street, the latter part of last August, and she asked wit- ness home with her. In the conversation at Mrs. Stevens's house,, she told witness she wanted her to bring Abigail to see her, and if she could not come, then witness should talk to her, and see if she knew anything about the wills; that they had taken her to Flemington, as a witness ; and Mrs. Stevens asked witness if Kne thought a person, at the lower end of the garden, could see anyone take a will out of the desk in an upper room. Nobody was present at this conversation but a black woman, whom Mrs. Stevens called in to tell witness how Joseph Vancleve treated her children. After this, Mrs. Stevens left a message with Mrs. Brown for witness to call on her ; witness did call, but she was not at home. Witness had a little girl at Mr. Jones's, which she had, some time before, wished to put somewhere else, and on the Friday preceding the trial, about eight o'clock at night, Major Stevens called on her at Mr. Moore's, who lives seven or eight miles from Trenton, and told her he would buy the child's time. Witness did not know what they intended to prove by Abigail, until Mrs. Stevens told her; nor did she leave word at Mrs. Brown's that she wanted to see Mrs. Stevens to get her to take her little girl ; nor had she any conversation at Mrs. Brown's with Mrs. Stevens, respecting Abigail's testimony. Here the defendant rested, and the plaintiif called *William Hamilton, who testified that he had known tes- tator since 1788, but not much of late years. Witness lived at this end of Middlesex, until last April a year ago, when he moved to Lawrenceville. Before testator was taken down he came over to Middlesex to get some work done, and seemed very smart. The May before he died witness called at the house, on Sunday morning, between eight and nine o'clock, and being in the room with defendant, they heard a shuffling in the entry, and defendant said that testator had been quite unwell, but had *621 2 SOUTH.] SEPTEMBER TERM, 1819. 731 Den c. Vancleve. got better ; that his recollection was feeble, and his memory had, seemingly, left him. Testator came in with a small cane, and defendant asked him if he knew witness. He looked round, and up to the ceiling, and said he did not. Defendant then told him that witness was John Hamilton's son. He recollected witness* father, and asked where witness lived. Witness told him on the lot next the church, and his recollection then seemed to come to him, and he mentioned who had lived on that lot for a number of years past. On the Sunday after testator's burial witness was sitting with defendant and his wife in their entry, and defendant said that his father's wills of 1809 and 1814 had been stolen; that they were together in a drawer or pigeon-hole in his desk, and that a will of 1775 lay on one side of them, and a copy of the will of 1814, drawn by Charles Ewing, on the other; but these were left. When he missed the wills he sent his eldest daughter to call his sister, Mrs. Stevens, up to him, and when she came he was standing by the desk, and her countenance seemed as if she knew what she was sent for ; she looked guilty and condemned, and took her seat on the bed. He then said to her, " What devilish thing, Phebe, is this you have been doing ; you have been taking my father's wills out of the desk." She denied it. He continued to charge her with it, and she burst out crying and went down stairs, and meeting Mary asked her if she saw her at Jier father's desk when he went to meeting, and Mary an- swered, " No, aunt, I did not see you at the desk." Witness then said, " If you are so sure she took it, if Mary had answered her yw, you would have brought her to confession, and found it all out." Defendant replied that would have been a lie, and he did not wish her to tell a lie about it. That there was nobody about but the children, and they were playing about, and knew nothing of it, and had no mistrust. His wife had told him that Mrs. Ste*vens had a bunch of keys, and she suspected something wrong, and was afraid she meant to take her father's wills. He replied, " My God, you do not suppose people would steal ;" but he now thought if he had taken his wife's advice, he would still have had the wills. Mrs. Hannah Davison. In the fall after testator's death, John *622 732 NEW JERSEY SUPREME COURT. [5 LAW Den v. Vancleve. Phares was at her house and had a conversation with John Davi- son, her husband, which she heard, but to which she was not particularly attentive. Davison asked him if testator was sen- sible what he was doing when he made the will. He replied, " I hardly know." Davison asked, " Could he speak ?" Phares re- plied, " Not distinctly." " Could he write his name ?" " I guided his hand." " Are you not sorry for what you have done ?" " No ; it amounts to nothing, and I did it to pacify the family." John Davison. At witness' house in the fall after testator died, had a conversation with John Phares. Witness asked him if testator was capable of making a will. He answered, "By no means whatever." Witness asked, " Could he speak ?" He re- plied that he appeared to revive and make a noise so that they thought they could understand him. " Could he sign his name ?" " He could not ; " he (Phares) took his hand, guided the pen, and wrote his name. Witness asked him if he thought he did right. He answered that he thought it of no effect one way or the other, and he did it to oblige the family. Witness was, at that time, in business with Major Stevens, and felt considerable interest in this matter, and talked a good deal and expressed his opinion about it. Phares was then at work at his trade for the firm of Davison & Stevens, and knew witness' opinion. Gideon Smith. Lived for fifteen years within a mile and a quarter ; had been acquainted with testator as long as he could remember, and worked for defendant more or less every summer for two or three years before testator's death. Helped defendant mow and cut his oats in the July before testator died, and at that time ate with the family but slept at home. Witness very often, almost every time he was in the house, saw testator, and once spoke to him, but never heard him speak or attempt to do it, nor take any notice of witness. He lay like a child, alto- gether incapable of business. Witness helped defendant and his wife twice to move him out of his bed and change the bed and clothes ; and once defendant asked him if he knew witness, *but he neither looked up nor made any answer ; he groaned, and lay as if there was just life in him. Witness was frequently there the two years preceding his death, and he often asked witness' *623 2 SOUTH.] SEPTEMBER TERM, 1819. 733 Den v. Vancleve. name, and who his father was, sometimes more than once in an hour, but when told he knew witness. Defendant had the whole care and management of the farm, and hired and paid for the work, and when testator would sometimes come out to the field and give directions about the work defendant would tell us not to mind him, he was childish. Sometimes defendant would snap him up and speak short to him, and then he would turn away and say no more for some time. Thomas Ivins. Between November and January last saw defendant at Burke's tavern, where many persons were in and out, and heard him talk to Mr. Burke and others about the loss of the wills. He told a long story about it which witness could not well recollect, but he remembered that he said he was certain in his own mind that his sister, Mrs. Stevens, took it ; that she had a large bunch of keys there which he thought ought to have been at home where her husband was. He did not then accuse any other person. Mrs. Catharine Ivins, formerly Catharine M'Galliard, had, at different times, lived six or seven years with Mrs. Stevens, and lived there when married, two years and a half ago ; had known testator eleven or twelve years. The first part of that time he came every week, and sometimes two or three times a week, to see his daughter, and seemed fond of her and her husband. He was treated by them with affection, and always invited to stay, and eat and sleep. Within four or five years of his death his faculties failed, he was very weak, and Mrs. Stevens often went within sight of his house with him lest he should fall down and not be able to get up. At this time he forgot witness, and always asked his daughter what young woman she had there. Witness lived two years with Mrs. Clarke after her marriage, which was ten or eleven years ago, and testator often came there, and they appeared fond of each other. He said Phebe married early, but Betsey staid so long with him that he felt quite lost without her ; it was not now at his house as it used to be ; he missed her, but she was well married, had a kind husband, and he was satisfied ; that he was pleased with the husbands of both his daughters. He wis often pressed to stay all night, but *as he had a home he *624 734 NEW JERSEY SUPREME. COURT. [5 LAW Den v. Yancleve. would stick to it, he liked his own bed best. Witness considered him an affectionate father and them affectionate daughters ; he was never treated by them but with affection and respect. Miss Ann Brearley. Doctor Clarke was testator's physician, but in July and August, 1817, before testator's death, he was confined from four to six weeks to his house, and principally to his room, by the kick of a horse. Witness had resided in Doctor Clarke's family since April, 1817, and had access to the book- case, and to every part of the house, and never saw there a ring for keys with a spring catch. There are two small keys and one large one, fastened together by a string, for the book-case.- Daniel Cook, Esq. Was brought up within one and two miles of testator, and knew him well twenty-five or thirty years. In April, 1815, witness was assessor of the direct tax, and called at testator's. He asked witness who he was, and his father, and where he lived, and seemed to forget witness 7 father. He asked witness what his business was, and when witness told him, he said Joseph must be sent for, as he did not or could not do any business. Joseph was sent for, and the property given in, but whether testator or Joseph signed it, witness could not recollect. In the November following, witness called to invite to Daniel Lanning's funeral. Testator came to the door, and inquired who Lanning was, and who his father was, and where he lived. Lanning was brought up within two and three miles of testator, and testator was intimately acquainted with his family. Witness observed, on his return home, that his memory was gone, and he had become childish. At this time, testator walked to the gate with witness, and informed witness that Charles Moore, who lived about a half or three-quarters of a mile off had offered his farm for sale for $50 per acre, which testator said was very cheap, and advised witness to buy it. Witness did soon after buy it, for another person, at public vendue, at $50.25 per acre. Laban Dickinson. About two years before the trial, taught school in the neighborhood, and boarded with his employers ; saw defendant once at the house of John Phares, and was asked to visit him. Defendant said that his father was once very capable of business, but had now become a child, and forgetful, 2 SOUTH.] SEPTEMBER TERM, 1819. 735 Den t. Vancleve. and did not know, but often asked, the names of his children and *grandchildren, who lived in the house with him. In the June before testator died, witness went with Phares to see de- fendant. They saw testator at the door for a couple of minutes, and defendant told him who they were; after which, testator went into one room and they into another, and they saw no more of him. Mrs. Phares, again. When testator signed the will, he had his spectacles on, but witness did not recollect who put them on. Mrs. Sarah Reeder, wife of Andrew Reeder. Had long been acquainted with Charity Smith, and very intimate with her for five or six years past. She is upwards of eighty years old, and rather remarkable for her superiority of intellect for her time of life. She always stood high as a woman of sense and truth, and witness never heard her truth called in question. Within a year past her health had declined a little, and her mind was not quite so active, but she was still smart for her age. Within four days after the death of testator, she told witness that the two former wills were stolen, and they had made a third will, within a few days before his death, but she did not think it would avail them anything. She also said that somewhere about a week before his death, an old Dutchman, by the name of Carson, who had lived with him eight years, and been absent about one year, returned, and went into his room, but could not, in any way, make testator sensible who he was, and was much grieved at it. She also said that testator, before his death, wished to be raised up, but Mrs. Vancleve told him that he could not, and that he could not be sensible of his situation, or he would not wish to be raised up. Stephen Johnson. Did not recollect whether he had his spec- tacles on, but thought he was raised up, when he came in the room, and had pillows behind him. Waters Smith. Was eighty years old something older than testator ; married his sister, and was a near friend and neigh- bor; and testator visited witness often in his well days, but witness did not recollect when he ceased to visit. Testator told witness that he furnished half the money to pay for the lands *625 736 NEW JERSEY SUPREME COURT. [5 LAW Den v. Vancleve. that Joseph bought of the heirs of John. Testator formerly used tobacco immoderately, and chewed considerable the latter part of his time. Testator walked very weak and shuffled along before he was taken down. After he was taken down, witness visited him three or four times, and spoke to him ; but whether *he spoke to witness, witness could not tell, though he did not think he did ; but he seemed, by the motion of his eyes, as if he knew witness. Witness was hard of hearing, but thought his own memory tolerably good. John Stevens is the son of wit- ness' only sister. Charles Brown. Mrs. Stevens told witness' wife to let her know when Mrs. Coulter came to his house. She did so about the beginning of June, and Mrs. Stevens came over and said to Mrs. Coulter she understood Mrs. Coulter had a daughter wha was coming to prove that she had stolen some will, and she wished her to advise her daughter, as a mother ought, of the nature of an oath, and to speak nothing but the truth. She said nothing about taking the little girl. Jones had brought the girl to witness' house, and wished witness to buy her time of him. Mrs. Elizabeth Brown. Mrs Coulter's little girl was anxious that witness should take her, as both she and her mother wished her to leave Mr. Jones. By this means, witness became ac- quainted with Mrs. Coulter, who had since been at her house four times. Mrs. Stevens requested witness to let her know when she came there. She did so, and Mrs. Stevens came over and told Mrs. Coulter she had heard her daughter Abby was com- ing to swear against her or Mr. Stevens about taking the will ; that it was her duty to advise her daughter to speak the truth, and nothing but the truth ; that she wanted no favors all she asked was the truth. Mrs. Coulter said she would see Abby, as she was sure she did not know anything about it. About three weeks before the trial, Mrs. Coulter called at witness' and asked if Mrs. Stevens was at home. Witness said she did not know. She then went over and soon came back, and said Mrs. Stevens was not at home, and Mr. Stevens answered her very short ; she supposed he did not know who she was. She left no message for Mrs. Stevens. *626 2 Souru.] SEPTEMBER TERM, 1819. 737 Den t. Vancleve. Garret D. Wall, Esq. The observation related by Mr. Potts in his testimony, as made by Major Stevens in witness' office, was made by him in answer to a jocular remark made by some person present, that Joseph Vancleve charged his wife with taking the will, and would prove it by his daughter and bound irirl. Major Stevens answered, seriously, that it was impossible their story could be true ; that it was impossible for them to have seen him, through the window in the chamber, at the desk. *Major John Phillips, again. The land conveyed by testator to John was about eighty acres east of the road, and twenty acres of wood west of it. The whole farm was said to lay for two hundred and fifty-four acres, and was so given in to assessors, but witness supposed there were between two hundred and sev- enty and three hundred, and that it was worth between $60 and $65 per acre. The house, barn and principal improvements were put on by testator more than twenty years ago. Joseph had brushed it up some, and put on a crib and some small improve- ments. He had no property independent of his father. Tes- tator, for two or three years before his death, altered materi- ally, both in body and mind, and lost his memory and recollec- tion very much. Rebecca Reed. Lives with Major Stevens. On Friday last he returned home before tea, and as he sat down to the table the town-clock struck seven. Benjamin Moore lives seven miles from Trenton. Doctor Joseph Phillips. Was intimately acquainted with testa- tor, and was once in his room, about five minutes, six or eight days after the paralytic stroke. When witness went in his name was mentioned, and testator looked up and put out his hand to shake hands with witness, but did not speak. After the wills were missing, and before testator's death, defendant told witness once, and perhaps ofteher, that he believed his sister, Mrs. Stevens, had taken them. In a subsequent conversation, perhaps three or four weeks after, he told witness that he had changed his opinion, and he now believed that Major Stevens took the wills ; but he did not, on either occasion, tell the reason for his belief. Wit- ness is on very intimate terms with the defendant. Testator's *627 47 738 NEW JERSEY SUPREME COURT. [5 LAW Den v. Vancleve. faculties, particularly his memory, were much impaired. Doctor Clarke was his family physician, but was not able to attend him in his last illness, and Doctor Vancleve called to see him as a relation. Charles Reeder. Was a witness to a will made by testator in 1814. About ten o'clock, on the Sabbath before testator's death, as witness was going to church in a chair with Mrs. Reeder, he saw defendant come on foot out from Mr. Phares's, and asked him how his father was ; he replied, " Very poorly ; " he did not think he could live more than two or three days. Witness and defendant had a difference about a line since 1814, and witness' Uncle Andrew and defendant had some very harsh words about it. *Charles Ewing, Esq. In 1814 defendant brought to witness a will of some years' precedent date, and informed him that tes- tator wanted some alterations made so as to guard against the claims of his daughters to the Monmouth property. Witness made a draft according to the instructions and directed defend- ant to get his father to copy it. Witness never saw testator about this will nor received any written instructions from him concerning it. Could not speak with any great certainty about the provisions of the former will, but his impression was that the land was given in it to defendant. The will now in dispute is the draft witness made. Doctor Nicholas Bellville. Had not seen testator while he was sick, and could speak of his situation and disease only from the representations of the witnesses. He understood that one side was inanimate and that he lay several weeks incapable of speaking. If this were so, his mind must have been destroyed, so that he could not dispose of his property ; his disease was in his head and brain. An affection of the palsy may be partial, but where the head is affected it generally affects and deranges the mind. There may be exceptions to all general rules, but it would be a strange exception if Benjamin Vancleve had any considerable share of mind left. His living a considerable time is no evidence that his mind was not affected. Joseph Bullock attended the court as a witness for defendant. About five or six weeks after testator's death witness called to see *628 2 SOUTH.] SEPTEMBER TERM, 1819. 739 Den v. Vancleve. defendant, and defendant said that his sister Phebe had taken the wills. Witness said he did not want to hear anything about it, it was a serious piece of business, and asked him if there were any keys lying about that she could use. He replied there was a closet key which would open the desk, and which she knew as well as he ; that he had called her up stairs and accused her, and her countenance betrayed her and he was sure it was her. About a month or six weeks after this, witness called there again. De- fendant then said that he was certain Phebe was clear, but that the major had taken it, and that he had told Mr. Stockton so ; that he could not actually prove that he took it, but could prove by the girls, his daughters, and Abigail Coulter that he had been seen at the desk, and since he had found this out they did not make such a racket about it. Witness said he wondered he had not found that out before he charged it on Phebe. He re*plied that the girls were children and said nothing about it and he did not think to ask them ; that they were in the garden and saw him at the desk. Since that time defendant has always said it was the major, and he did not think that he would appear in court. Since testator's death, defendant told witness that by the first will Betsey, who was then single, had a legacy of $600 and certain privileges in the house. After the first conversation witness saw Mrs. Stevens and told it to her ; and after the second he saw Major Stevens in Trenton and told it to him, and the major replied, " He's a fool ; I've not been there this three years." Witness was in the habit of visiting at testator's and was well known to him, but witness had not seen him for the space of a year, when he called there, about a year before his death, when witness was much struck with his alteration and the failure of his memory. He did not know witness, but being told who he was recollected witness and inquired for his father. Witness told him he had been dead a year. After staying a little time witness was about to go away, when testator told him to tell his " daddy " to come and see him. Witness had a curiosity to see how testator's judgment was and asked him what he thought of his horse, and if he would trade. He said no, he left all those things to his son. Witness then asked testator the age of his *629 740 NEW JERSEY SUPREME COURT. [5 LAW Den v. Vancleve. horse ; he examined his mouth and told his age very exactly. Witness supposed if testator had paid him $100 he would have forgot it in a few minutes and paid it over again. His memory had altogether failed. Richard Stockton, Esq. The first week in March last defend- ant came up with witness in the road and said, " Mr. Stockton I told you that my sister had taken the wills ; I have altered ray opinion, and I believe now it was Major Stevens who did it." Here the plaintiff rested and the defendant called again Frazee Ayers, who was at Doctor Clarke's in July, 1809 ; and then Doctor Clarke was married to his present wife, one of the lessors. The testimony on both sides being closed, the cause was very ably and eloquently summed up to the jury. Watt opened for the plaintiff; Attorney-General and Ewing answered for the de- fendant, and R. Stockton replied for the plaintiff. Before the argument was finished, Justice Southard left the court to attend a distant circuit. *As the argument progressed, the plaintiff offered Sally Howey as a witness, she having just been brought from Philadelphia. She testified that she had worked in Doctor Clarke's family eight years and left it last March. There was in the house no bunch of keys with a ring and catch. There were some loose keys- about the house ; but there was only one bunch which belonged to the book-case, and that had one large and two small keys, on it. The chief-justice directed the constable to be sworn to attend the jury without charge ; but the counsel of the plaintiff ex- pressing a strong desire for a charge, he did, in a few words, state the law applicable to the case. The jury found a verdict of not guilty ; whereupon, R. Stock- ton, for the plaintiff, moved a rule to show cause why the verdict should not be set aside, and stated, as reasons 1. .That the court had erred in the admission of illegal evidence. 2. That the verdict was contrary to law and evidence. *630 SOUTH.] SEPTEMBER TERM, 1819. 741 Den r. Vancleve. This rule was granted and the following reasons subsequently filed: 1. The court permitted unlawful evidence to be given to the jury, to wit: 1. Divers conversations and communications of Benjamin Vancleve, the ancestor, with different persons, from 1802 to 1814, for the purpose of proving his original intention to leave the premises in question to the defendant ; which parol commu- nications were irrelevant and calculated to lead the jury from the single point upon which the title of the defendant depended, that is to say, the testamentary capacity of the said Benjamin Vancleve on the 26th of August, 1817. 2. Parol evidence of the contents of divers alleged wills of Benjamin Vancleve, without the production of those wills and "without the defendant's having first sufficiently accounted for the non-production of such wills. 2. On the trial of the cause the court refused to examine or permit to be examined, previously to her being sworn as a wit- ness, one Abigail Coulter, a witness produced on the part of the defendant, in relation to her knowledge of the nature and obli- gation of an oath, although it appeared that she was only of the age of sixteen years ; was a servant bound to the defendant by the overseers of the poor of the township of Lawrence, and *then living with him as such servant, and, as the plaintiff .alleged, had never been before sworn or examined as a witness. 3. The verdict was against the charge of the court to the jury. 4. The verdict was against the evidence given in the cause. 5. The lessors of the plaintiff, heirs-at-law of Benjamin Van- cleve, under whom both parties claim, were entitled to recovi-r, and ought not to be disinherited without the production of a will fully and satisfactorily proved, both in regard to the fact of execution and the capacity of the alleged testator to make a will of lands at the time. Whereas, the jury have found a verdict for the defendant against the said heirs-at-law, under the pre- tence of a will, which was never' really executed by the said J3enjamin Vancleve, and although he was not of a sound and *631 742 NEW JERSEY SUPREME COURT. [5 LAW Den v. Vancleve. disposing mind and memory when the said pretended will is- said to have been made. The argument of the rule for a new trial was had at Feb- ruary term by R. Stockton and Wall, for plaintiff; L. H. Stock- ton and Eunng, for defendant. The reporter regrets that the length of the report is such as to forbid inserting the whole ar- guments. The following is a sketch of the points and authorities relied on : Wall, in support of the rule. The doctrine respecting new trials is so well understood, and the necessity of resorting to them, at times, to attain the sub- stantial ends of justice is so generally admitted by every jurist of the present day, that it is necessary only to refer to 3 BL Com. 390, for the principles on which they are awarded. The plaintiffs here claim, as heirs-at-law, and their case was fully . proved. This right must be overcome by the defendant, and, ia order to do this, he must not only show the formal execution of the will, but that the testator was of sound and disposing mind and memory. 3 Coke part 6 p. %3 ; Pow. on Dev. 70 ; 2 Atk. 151 ; Cowp. 70. The burden of proving sanity, and the ability to dispose of his lands with reason and understanding, lies on. the party who alleges its existence, especially where probate has- not been granted. 1 Mass. 71 ; Pow. 14.6 ; 2 Vern. 56, 293 ? 1 Vern. 293. In the language of the statute (Pat. 19Q\ and in, the language of the will also, it must be shown that the mind and memory were sound and disposing ; were whole, unbroken, unimpaired, unshat*tered by disease or otherwise capable of rec- ollecting, discerning and feeling the relations, connections and obligations of family and blood. 6 Jac. L. D. 436 ; Esp. 56 ; 2 Oro. 1(97 ; South. 454) D en v. Johnson. These authorities furnish a much safer guide than Swinburne and Godolphin, which exhibit a mass of uncertainty and confusion. The testa- mentary capacity was not proved by the defendant. His wit- nesses exhibit him as torpid, unable to write or speak more than two or three words at a time ; making the will by question and answer ; and two of them agree that he had not capacity to> *632 2 SOUTH.] SEPTEMBER TERM, 1819. 743 Den v. Vancleve. make a deed. Besides, they were inconsistent and contradicted each other, and related the transaction differently while it was fresh in their memory. An attestation to a will so made and proved will not be sustained by the court. Subscribing witnesses are more to be attended to than others, because they are supposed to have better opportunities of judg- ing than others, but they, like others, must render the reason of their opinions, and, when they do, the court must determine upon their correctness. The capacity of the testator must be estimated by his words and actions, both of which are, in this instance, insufficient. It is manifest that the witnesses run away with an ideal and unfounded distinction, and concluded that he was capable of making the will in question, though not in general capable of making a will. It was said to be a copy of a former will which he had made and remembered ; but of this there is no satisfactory proof. Besides, this is a mere begging of the question assuming the point in debate. On the other side, the situation of testator's mind and memory before the paralytic affection ; his forgetfulness of his neighbors, and even his own family ; his state during his last illness, but especially the night before and night after this execution of the will ; his torpor and unconsciousness of all physical wants, and the requirements of nature ; his neighbors never hearing him speak ; the more respectable of them not being called in as wit- nesses in so doubtful a case; the manner of executing the will, as detailed by the defendant himself to Reeder all exhibit ample evidence that he did not and could not make the will. It would have been a miracle had his mind been restored and tongue loosed for this occasion. The idea of sustaining the will upon the ground that it was a copy of a former one is untenable. It must stand or fall by itself. There is no proof of the eon- tents *of the former will except defendant's declarations; even his daughter does not prove them. Nor is there proof of its loss. The defendant had the custody of it himself and might have destroyed it. The chief-justice expressly charged the jury that there was no proof than any of the plaintiffs ever took it. Again. The evidence of testator's declarations was unlaw- *633 744 NEW JERSEY SUPREME COURT. [5 LAW Den v. Vancleve. fully admitted. It was, in effect, showing an intention to do an act in the place of the act itself; a substitution of a parol for a written will against the very words of the statute. A will is a complete and consummate act of itself and no collateral proof is admissible to sustain or explain it. No matter how long he en- tertained the intention, how fondly he cherished the idea, if he did not consummate the act itself while capable of doing it, you cannot dovetail and splice the mind to it and gather the mind from the previous declarations. Paw. 68, 481, 652 ; 1 Salk. 232 ; 2 Vern. S33. Those declarations are not within the issue of sanity at the time. 1 Mass. 72 ; 9 Mass. 227. Nor were they competent as rebutting the charge of fraud. If any were charged it was by implication only, as resulting from defendant's procuring the will at the time and in the man- ner he did. And if this justifies the evidence, the consequence is that fraud is charged, and declarations are admissible wherever sanity is questioned. Again. The chief-justice stated the capacity necessary to make a will. Such capacity was not proved, and therefore the verdict . was against the charge of the court. There was also an error in the court in its refusal to interro- gate Abigail Coulter. The plaintiff had a clear right to this in- terrogation. A person is incompetent as a witness who does not believe in the being of God, and does not comprehend the na- ture and obligations of an oath. 2 Sac. 576 " Evidence " A ; Sw. EM. 47; 1 Atk. 45; Phil 14. L. H. Stockton, in answer. Among the various points of difference between him and the opposing counsel there was one in which they agreed that this motion was addressed to the dis- cretion of the court ; but this discretion was not an arbitrary power to act by caprice without law and against right, but a judicial discretion, regulated by an attention to the principles of justice, truth and reason guided by the common law and limited by *the authority of precedents. Morg. 257, 284; 5 Co. 100 A; 2 Wil. 807. This application is by a plaintiff in ejectment after a trial at bar, *634 2 SOUTH.] SEPTEMBER TERM, 1819. 745 Den v. Vancleve. and verdict for the defendant without fraud or surprise, and is therefore extraordinary, novel and unprecedented, and the argu- ment against it is naturally divided into objections arising, first, from these circumstances, independent of the acts of the court and jury ; and, secondly, an inquiry into the legality of what was done by the court and jury. 1. It was a trial at bar, which, of itself, is considered, in many ancient cases, conclusive against a new trial. 2 Salk. 648 ; 1 Ld. Ray. 514; Garth. 507 ; Sir T. Jones 134,225 ; And. 324; Cox 69. It is not like a verdict in a personal action, where it is a conclusive bar, -for plaintiff may bring a second ejectment. 2. The verdict is for defendant, and there is no case of trial at bar and verdict for defendant where the verdict has been set aside upon objections to error in court or jury or upon the merits, abstracted from fraud, surprise or malfeasance of the party rela- tive to the trial. And. 324 > 1 Black. R. 348 ; 6 Com. Dig. 404 ; 4 Burr. 2224, 2225. It is true there are some obiter and sweeping sayings of Lord Mansfield respecting the power of courts on this point, yet even what he says is against the propriety of set- ting aside a verdict for defendant in ejectment. And besides, with all our respect for his learning and talent, nam nihil tetigit quod non ornavit, yet we cannot fail to remark that he felt too strong an attachment to the Justinian code of the civil law where thejubentia prastorum or decree of the court was everything and the jury nothing. Loffl 477. 3. Ejectments savor of the nature of a criminal action both in form and in the questions often tried in them, as where frauds or forgery of deeds is alleged. See Chew v. Tatem, Driver v. Sparks and other cases. This case is strongly of that descrip- tion. The plaintiff alleged and attempted to prove against the defendant conspiracy, fraud, intimidation and hard usage to- wards the testator, his father, who is alleged to have been an almost inanimate being, and subornation of perjury in relation to Johnson, one of his witnesses ; charges which, if true, rendered er before we enter upon the investigation of the case to observe that, from the course of the circuits, it became necessary for Justice Rosseli to leave the court before the <-nu~v was called on, and for Justice Southard before it was closed and committed to the jury, so that, in point of advisement, it was little more than a trial before a single judge at the circuit. The case was this : Benjamin Vancleve, late of Lawrence, in the county of Hunterdon, was, in his lifetime, and at the time of his death seized and possessed of a certain plantation and tract of land, containing nearly two hundred acres, and estima- ted to be worth $12,000 or upwards. He left three children, that is to say, two daughters, Phebe Stevens, the wife of John Stevens, and Elizabeth Clarke, the wife of Israel Clarke, who, together with their hqsbauds, are the lessors of the plaintiff', and one son, that is to say, Joseph Vancleve, who is the defendant in this cause. The daughters claim, each, one-third part of th- said plantation as heirs of their deceased father, under tin- >tat- ute; the son, who is in possession, opposes this claim by SHI ing up a will by which the whole is devised to him in fee ; and the *649 762 NEW JERSEY SUPREME COURT. [5 LAW Den v. Vancleve. daughters, thereupon, to support their claim, aver that their said father, at the time of making the said pretended will, was, by reason of a severe paralytic aifection, of which he soon after died, of non-sane mind and memory, and that, therefore, the said will is not good and effectual, in the law, to bar them of their inheritance. And whether this be so is the single question. The trial lasted many days ; a great number of witnesses were examined on each side ; the testimony was summed up by the counsel with much ability; the jury retired from the bar, in a measure, without the advice of the bench, and after a delibera- tion of four or five hours, returned with a verdict for the defendant. The plaintiffs now come into court and move for a new trial, *and assign their reasons, which, though six in number, may be reduced to these three : 1. Because Abigail Coulter, a witness produced by the defend- ant and objected to by the plaintiffs for want of competent in- formation, was admitted by the court to be sworn without being interrogated as to her knowledge of the nature and obligation of an oath. 2. Because the court permitted the declarations of the deceased from the year 1802 until the year 1814, as to his intentions with respect to the disposition of his estate, and also his declarations as to the contents of certain former wills, to be given in evidence to the jury. And 3. Because the verdict was contrary to evidence. Before we enter upon the consideration of any one of these rea- sons, however, it may be proper to take a little notice of some of the objection sraised by the defendant, which meet us at the very threshold, and which, if well founded, put an end to our inquiries. He says there can be no new trial after a trial at bar in eject- ment, by a special jury, and a verdict for the defendant where there is evidence on both sides. It is true that before the doctrine of new trials was well settled we find sayings in the books which seem to countenance every one of these objections. But since the case of Bright, executor of Crips, v. Eynon, Burr. 395, that doctrine is placed upon a more *650 2 SOUTH.] ' SEPTEMBER TERM, 1819. 763 Den t. Vaucleve. certain basis, and is governed by more clear and rational prin- ciples. Lord Mansfield, in that case, traces the doctrine to its origin, shows that it necessarily became the substitute of the ancient writ of attaint, and that without it the trial by jury, at tin- day, could not exist, or, existing, could not subserve the great purposes of distributive justice. He shows, too, that a new trial is quite as reasonable after a trial at bar as at nisi prius, and, indeed, more so, and that it is just as necessary in actions of eject- niriit as in other actions. In the case of Goodtitle v. Clayton, Burr. 2224, he tells us the old objection against granting new trials in ejectment, because another action may be brought, had been overruled again and again. And, indeed, what is there in it ? Would the defendant gain by putting the plaintiff to a new ejectment, or would he be placed in a better situation ? Would his expenses be less, or his possession sooner quieted ? Certainly *not. If the justice of the case, therefore, requires a reconsider- ation, the court will never prevent it by loading it with unneces- sary costs or protracting it by unnecessary delays. The true rule upon this subject as it is now settled is this : that when jus- tice has not been done, in the opinion of the court, in one trial, the party is ENTITLED to another, and under special circumstances the court will grant a third, (a) This is so well settled that it has been laid down by Sir William Blackstone himself as a maxim in the law. It has not been unusual, indeed, for popular declaimers, and, sometimes, as if to overawe the judges, to deny this exercise of power in the courts as an assumed power, encroaching upon the prerogative of jurors and striking at the very root of the trial by jury itself. But when it shall be considered that it is a principle interwoven with the very texture of our juridical system that the verdict of a jury shall not be absolutely conclu- sive, but shall be liable to be inquired of in some form or other ; (a) Hutchiwon v. Oolcman, 5 Hal. 74; Lioyd v. Newell, S Hod. X96 ; Power* v. Butler, S Or. Ch. 465; Oorlies v. Little, S Or. S7S ; Bell ads. Shield*, 4 Harr. 9S; Bnylan ads. Meeker, 4 Dutch. SSO, 476 ; Chamberlain v. Letson, ante 459 f Fan Blarcom v. Kip, 2 Dutch. 351 ; Byerson v. Morris Canal, 4 Dutch. 97 ; Knickerbocker Ice Co. v. Andenon, S Vr. S3S ; Fuller r. Carr, 4 Vr. 157 ; Den v. Ayre*, 1 Oi . 15S. *651 764 NEW JERSEY SUPREME COURT. [5 LAW Den v. Vancleve. when it shall be considered that in the early periods of its his- tory this was done by an attaint against the jurors themselves for their false verdict, in which they were personally responsible, and that, too, as it often happened where the error was of mis- take only, and not of design ; and when it shall be considered further that the doctrine of new trial as now established has, in modern times, been substituted in the place of this more severe remedy merely for the easement of the jurors and the attainment of justice, such declamation will be wholly lost not only upon the court, but also upon the populace whose passions it is in- tended to excite. Pursuing his objections, however, the defendant, with some degree of triumph, has said that no judge on earth has ever granted a new trial under all the circumstances above stated. Let us see. The case of Wood v. Ounstow, Styles 4-62, 4.66, the first case of a new trial which we have on record, was after a trial at bar. The case of Musgrove v. The Mayor of Applebly, Ld. Raym. 1358, was a trial at bar, and a new trial was granted, though there was evidence on both sides, because the verdict was contrary to the opinion of the court. The case of Tilley v. Roberts, cited in the above case, was a trial at bar upon the issue compos vel non, the very question here, and a new trial was granted upon the fact, though there was evidence on both sides. In the case of Smith *v. Parkhurst, Strange 1105, it is said where the verdict is against evidence, the trial at bar makes no difference. The case of Goodtitle v. Clayton, cited above, was a case in ejectment, tried at bar by a special jury, and yet a new trial was granted because the verdict was contrary to evidence. The case of Den, ex dem. Chew, v. Driver, Coxe 166, in this court, was an ejectment by a special jury and a verdict for the defendant, and yet a new trial was ordered ; and the case of Den, ex dem. Snedecker, v. Allen, Penn. 35, in this court also, was in the same circumstances. We find cases, then, in which new trials have been granted in .all the circumstances stated, individually, and some of them comprising many of them together, and though we should not find one which comprises them all, yet that, of itself, affords no *652 2 SOUTH.] SKITKMI5KK TERM, 1819. 765- Den r. Vancleve. conclusion iii favor of the defendant. We dispose of these ob- jections, then, as having no foundation in the law, and proceed to consider the reasons assigned by the plaintiffs for setting aside tin- verdict. 1. And first. Because the court admitted the witness Abigail ( 'in liter to be sworn without interrogating her as to her knowledge of the nature and obligation of an oath. To be a witness is a personal privilege, or shall I not rather say it is one of the distinguishing rights of a free citizen ? Not only parties litigant, but the witness himself also has a deep in- terest in preserving it entire. This right, therefore, cannot be impugned, interrupted or taken away unless for lawful causes and by lawful means. These causes, so far as they are personal or go to the capacity of the witness, are principally these three the want of discretion, as in the case of infants ; the want of intellectual powers, as in the case of idiots, lunatics and mad- men ; and the want of religious principle and belief, as in the case of those who do not believe in the being, perfections and providence of God, nor in a future state of rewards and punish- ments, where he that beareth false witness, and so taketh the name of his God in vain, shall not be held guiltless, (a) Upon the allegation of any one of these causes, when the wit- ness comes to the book, the truth of the fact must first be tried, and then the judgment of the law be pronounced upon it. As to the mode of this trial I have not been able to find anything; very satisfactory upon it by way of direct decision. So far as I can collect, however, and so far as I can reduce the thing to principle, the trial, which must always be by the judges, is, in the first two cases, by inspection only, upon the general principle that infancy and idiocy are triable by inspection, and, in the last, always by witnesses. In the first two, the judges inspect by putting interrogatories in order to discover not only the fact, but also the degree of indiscretion or of intellectual de- fa) Donnelly v. State, 2 Dutch. 506, 60S; Miller v. Miller, 1 Or. Ch. 141 ; Smith v. Drake, 8 C. E. Or. SOS; see Stale v. Bailly, Perm. *416 ; Vaughn v. Perrint, Penn. *728 ; Fries v. Bruyler, 7 Hal. 79; State v. Fox, 1 Dutch. 566; Van Houten v. Van Houten (in chancery), Hal. Dig. 924 \ 61. *653 766 NEW JERSEY SUPREME COURT. [5 LAW Den v. Vancleve. jficiency, and admit or reject the witness according as that is found, for infancy and lunacy are not absolute bars ; but in the last case, that is, the case of infidelity, if the fact be found, the bar is absolute. But the case before us comes within no one of these. The witness is of the age of sixteen years, brought up in a Christian country and in a Christian family. She has, therefore, in her favor, not only the common presumption but also a special pre- sumption arising from her manner of education ; and, therefore, there could be no more reason for interrogating her than any other witness. The question then presents itself, Is the court under obligation to interrogate every witness whom the party may think fit thus to 'challenge, of whatever age, and under what- ever circumstances ? I have been able to find nothing in the books to countenance such a position, unless it be some cases of late years (and of no authority here) at the Old Bailey, in Eng- land, where the very offscourings of so'ciety are frequently brought up as witnesses, and the judges, therefore, seem to take consider- able latitude ; and even these cases are so loosely reported that nothing certain can be collected from them. The position, there- fore, that the court is obliged to interrogate every witness to whom objection may be made is thought to be too broad, and altogether inadmissible as a rule of practice. It is nevertheless true that if one, even without any positive disbelief, and though he should be of full age and possess the rational powers common to man, should, notwithstanding, be so ignorant as to have no just conceptions of the nature of an oath, and of the obliga- tions and penalties which it imposes, he would be inadmissible as a witness. But then the fact must be proved aliunde, for it is not matter triable by inspection, nor can he be examined to impeach his own absolute rights, and still less can he be exam- ined on oath, for the very objection is that he has not such knowl- edge of the nature of an oath as to render it in any way obliga- tory upon him. No such proof aliunde was offered here, and therefore, upon the whole view of the case, it is thought that this witness was properly admitted to the book. *But even if it were otherwise it would be no ground for a *654 2 SOUTH.] SEPTEMBER TERM, 1819. 767 Den v. Vancleve. new trial under existing circumstances, for, in the course of the examination, she disclosed the fact that she had been taught to read the Bible, and usually attended the public worship in a Christian church ; after which the court would never grant a new trial upon the presumption of her ignorance. 2. Secondly. As to the admissions of the declarations of the deceased, with respect to his intentions in the disposition of his property and his declarations with respect to the contents of his former vnlls. (a) It had come out, in the course of the trial that the defendant lived with his father, in his house ; that he had him, in some degree, under his care and subject to his control ; and it had also oome out that there had subsisted a friendly intercourse between the deceased and his daughters, so that no reason could be as- signed why he should disinherit them in favor of their brother, and to rebut or do away the force of these circumstances this tes- timony was admitted. And though I was then satisfied with it, in the light in which it was placed, yet upon a careful review of the whole matter, I now think the admission of it was inconsist- ent with principle. If we consider the thing carefully we shall find that these circumstances are not peculiar to this case, but precisely such as must necessarily attend most cases turning upon the capacity of the testator. A man enfeebled by age or disease must always be under the care, protection and government of somebody ; this somebody must generally be one of his children who lives with him in his house, who administers to his wants and his wishes, who has the direction of his affairs, who aids him (a) Declarations of testator inadmissible, Yard v. Carman, Penn. *9S6 ; Adam- ton v. Ayres, 1 Hal. Ch. 349 ; Account of Exrs. of Samuel Haines, 4 Hul. Ch. 606; Vernon v. Marsh, S Or. Ch. SOS; Smock v. Smock, S Stock. 157; AIuf*a- kar v. Mcuaaker, Bens. S64 ; Leigh v. Saridg*, 1 McCart. 125; Sayre v. Sayrt, i Or. 495; Boytan ads. Meeker, 4 Dutch. 274, 91; Lynch v. Clements, 9 C. E. Gr. 437 ; but see Day v. Day, S Or. Ch. 549; Speer v. Speer, 1 McCart. 40; Boylan v. Meeker, 2 McCart. S10. Aliler where a latent ambiguity exists, Den v. Cubberly, 7 Hal. 309; Evans v. Hooper, Or. Ch. 04; Holton ads. }\'hit?, 3 Zab. 330; Leigh v. Savidge, 1 McCart. 15 ; Nevius v. Martin, I Vr. 465; Hal- *ted v. Meeker, S C. E. Or. 136; Jackson v. Perrine, 6 Vr. 144; Oraydon v. Giaydon, S C. E. Or. 30. 768 NEW JERSEY SUPREME COURT. [5 LAW Den v. Vancleve. in this last solemn duty, and who will, almost necessarily, be one of the objects of his bounty ; and though there may exist the purest parental affection and filial duty between him and his other children, this one will generally be preferred in the distri- bution of his estate, and that, too, upon the soundest principles of equity and justice. But as circumstances like these can never be made the ground of impeaching the will for the incapacity of the testator, so neither can they, when so impeached, be made the ground of admitting testimony to support it which would other- wise be unlawful. For why break down settled principles and let in testimony to obviate circumstances in themselves lawful and necessary, and which prove neither his capacity nor incapacity ? *Besides, the plaintiffs did not put themselves upon these circumstances. They did not take the ground that the defendant had deceived his father ; that he had imposed upon him one will when he thought he was signing another, or that he had over- awed him by fear or circumvented him by cunning in this mat- ter, and much less that the injustice of the will was a proof of the incapacity of the testator. They placed themselves upon the position and adduced testimony to prove that the deceased, by the immediate visitation of God, had been rendered, in a very great degree, incapable of physical and wholly incapable of moral action. They did not rest upon the ground that he had become weak through the infirmity of old age, that his memory had thereby become treacherous and his judgment impaired, but that by this afflictive dispensation from heaven he had become at once totally and absolutely disabled and prostrated, both in body and mind ; that he merely breathed, but that, as to almost every- thing else, he was like a dead man. This was the position taken, and to establish this was all their principal testimony directed. The plaintiffs, then, having taken this ground and placed them- selves upon this single point, they were at liberty to give evi- dence of no fact inconsistent with it ; this point they were obliged to maintain, and the defendant must meet them there and stand or fall in the conflict. As rebutting testimony, then, in which light alone this was admitted, it appears to me now to have been improper because there was nothing to rebut ; the plaintiffs had *655 2 SOUTH.] SEPTEMBER TERM, 1819. 769 Den . Vancleve. given no testimony, they could lawfully give no testimony to which it could apply as a rebutter. And the loose sayings of witnesses, unsought for by the plaintiffs, or relating only to the testimony offered by the defendant, which may seem to go beyond this point, even if such could be found, could make no difference. This, too, seems to have been the understanding of the de- fendant himself. He did not offer this testimony as admissible, under the particular circumstances of this case only or with a vic\\ to obviate the inferences which might be drawn from them. He insisted before the court and maintained before the jury, also, that the testimony was lawful, not as rebutting testimony, but upon the most broad and general principles ; that the settled de- sign of the testator, which it was intended to prove, ought, upon the rules of right reason, to be received as confirmatory of the *will, and as superseding the necessity of proving, that clear dis- cretion and that full exercise of the mental powers at the time of the execution of it which might otherwise be required ; in short, that the previous declarations of the testator respecting his testamentary dispositions, at any period, how remote so- ever, may always be given in evidence to support his will. The court not being able, at that time, to accede to this doc- trine in the full extent in which it was laid down, themselves raised this distinction in favor of this particular case, founded upon its peculiar circumstances, and, upon that distinction, admitted the testimony. But if there be no' ground for such distinction, if the circumstances upon which it was raised be precisely the same as must accompany all cases where 'this question is made, if the plaintiffs did not rest upon these circum- stances to invalidate the will, but placed themselves wholly upon another point, and if even the defendant himself raised no such distinction, then we may safely lay it out of the case and consider the question upon the broad ground upon which the defendant has placed it. In this view it was not new to me on the trial. It had been raised more than once at the circuits, and therefore had become the object of my attention not only there but after- wards in my chambers, upon the review of what had been done. I had always negatived it in court, and upon the review had *656 " 49 770 NEW JERSEY SUPREME COURT. [5 LAW Den v. Vancleve. been more than satisfied that I had done so. If a question could be raised upon the intention in the will, this sort of testimony might, with more plausibility, be offered to explain and fix that intention. And yet, even there, little regard is paid, either by courts of law or courts of equity, to the declarations of the testa- tator, either before or after the making of his wills, because pos- sibly they might be made by him on purpose to disguise what he was doing, to keep the family quiet, to procure good treat- ment from those who lived with him in his house, or for other secret motives which after his death cannot be discovered. This doctrine is settled in Lord Falkland's Case, 2 Vernon 337, 6*25. But if such declarations cannot be received to explain a doubt arising upon a will which is admitted to be authentic, how mucli less can they be received to set up and establish a will the au- thenticity of which is the very matter in dispute. If because the deceased, in his better days, declared he intended to give this plantation to his son, the jury could lawfully draw the conclu- sion that he was of sound and disposing mind and memory *when he executed the will, then the evidence was lawful, but if not, it could only tend to lead them astray. Now, how a declaration of such intention made ten years ago can afford ground for such a conclusion, how it can prove or at all strengthen the belief that on<3 is of sound and disposing mind and memory now, is incom- prehensible to me. And without such sound and disposing mind and memory now; reason teaches and the statute declares, the tes- tament is void. To supply the want of mental capacity, or to make up its imperfection by substituting in its place previous intention, would put it in the power of those about the bed of the dying to dispose of his property in almost every instance. Most men, towards the close of life, speak upon this subject ; they express to their confidential friends their views and inten- tions ; they speak of particular advancements and bequests, some- times seriously and sometimes not, sometimes with intent to make them, and sometimes not, and always liable to change ; and yet it would be but to get up a will embracing the objects thus declared, or some of them, merely to give color to the fraud, and the whole estate is gone. It would be but to prove declara- *657 2 SOUTH.] SEPTEMBER TERM, 1819. 771 Den v. Vancleve. tions of previous intention, of settled design, and a will, in some respects, corresponding with such design, and it is no great mat- ter whether the deceased had his senses or not. But this will not do. Let us, for a moment, reverse the position. Let us say that declarations of this kind may be given in evidence to impugn or destroy a will, and where will it lead us? A man's views and circumstances change ; the situation and condition of his family change. What he intended to do and what it would have been most proper for him to do twenty years ago may be just the reverse now. Shall we, then, be at liberty to rake up, and pre- sent to a jury all the declarations he ever made, in order to over- turn a will executed in the decline of life, when, perhaps the feeble- ness of old age, may give color to the pretence that he was inca- pable of such a transaction? It will not, I think, be pretended. If the doctrine contended for by the defendant were really the doctrine of the law, the principle itself is so important, and the t! notions, upon this evidence having been admitted as lawful, to place their verdict upon the will, concerning the execution of which there was no doubt. Upon each of these views of the subject, now that we see the whole bearing of it, I think the admission of this testimony, touching the declarations of the deceased as to his intentions in out counting ten, telling the day of the week, naming a friend &c. (not to mention another instance of still more doubtful import) as being sufficient evidence of testamentary capacity, are wholly out of the question at this day ; they cannot have the smallest effect, they ought not to have the smallest effect upon rational minds. Who ever saw a man, how insane soever, who ever saw even a bedlamite, who had once possessed the power of reason, and still possessed the power of speech, who could not do all this and ten times more ? And yet, even these old books, extravagant as they are in this respect, tell us that mere monosyllabic answers, such *661 776 NEW JERSEY SUPREME COURT. [5 LAW Den v. Vancleve. as yes and no, to questions proposed by those about a dying bed, shall not be received as evidence of sound mind. Let us see, then, what is the case here, and what the testi- mony. And in making this inquiry let us admit, and I do most unequivocally admit, that every witness has declared the truth, *according to his impressions, and according to the best of his remembrance at the time he declared it. Indeed, in the investi- gation which we are now making, it is necessary to do this. It will not do, when we are inquiring as to the weight of the evi- dence, to say the jury might have believed this witness and disbelieved that one, and sanctify the verdict upon that ground. That would at all times totally preclude such inquiry, for there is no case so bald as to have no witness in its favor. This, there- fore, is not the principle. We are to take the whole testimony together, and, if we can, to discover its true import. Indeed, the disregarding of a whole range of witnesses on one side, whose credibility stands wholly unimpeached, and whose testimony can be reconciled with that of the other witnesses, is, in itself, a good cause for setting aside a verdict and reconsidering the cause. The facts attested, therefore, must be taken as established ; the deduction from the facts was the business of the jury ; and upon this motion, it is the duty of the court to see whether that de- duction has been lawful and just. The deceased being a man far advanced in life, and already greatly debilitated, both in body and mind, was, sometime about the month of May, 1817, visited by a severe paralytic affection, which benumbed, or rather entirely destroyed the powers of his right side ; and he was, thereupon, put to his bed, from which he never arose. He continued to lie in that situation, gradually declining with the progress of time, till towards the close of the month of August, when he departed this life. During this long confinement he was visited by relations and friends and neigh- bors, of whom he had very many, and very respectable ; they visited him in the morning, in the afternoon, in the evening ; they, together with those of his household, watched with him at night, administered to his wants and his comforts, fed him, turned him, raised him, shifted him like a perfect infant. He *662 SEPTEMBER TERM, 1819. 777 Den t>. Vancleve. never asked for food either by words or signs ; he never refused it ; he never said he had enough ; he never rejected it ; he took no concern about, nor had any regard to even the necessities and functions of nature. During all this time (except so far as I shall hereafter mention) he never spoke, he gave no intelligible signs of understanding or volition, only that with his left hand he would sometimes take the hand of a visitor and seem to draw it towards himself; but whether he could distinguish persons or recognize the countenance of friends and neighbors could not be known, for he could discover it neither by words nor actions. Some of them, indeed, one or two, I believe, imagined that he recognized and distinguished them, but even they admit it was imagination only. He could hear, in some degree, for he seemed to notice the sound of the voice ; he had the power of raising his eyes, but he raised them in a wild, unfixed stare which gave but little sign of intelligence nay, rather, as some of the wit- nesses say, of a total want of it. When the minister of religion, in whose cure he was, called to visit him, he spoke to him, but he did not answer ; he prayed with him, but he did not under- stand ; he opened to him his duties and his hopes, but he gave no assent, except that at one time he thought he perceived an inclination of the head ; and though this holy man seemed to think that this pastoral visit, this devotional exercise and this consolatory advice might have been soothing and refreshing to his soul, yet this inclination of the head was the only sign from which it could be collected, and even of that he was in some degree doubtful. The testimony of all the witnesses (except what shall hereafter be mentioned) concurs in establishing these facts, in proving this to have been the situation of the deceased from the time he was taken till the day of the making of this will, a period of ten weeks and more. And building their judg- ment upon these facts, and drawing their conclusions from this situation, they all concur, the clergyman excepted, in saying that he did not possess testamentary discretion and powers of mind. I have said, that to the concurrence of the testimony of the witnesses, as to the facts above stated, there were some excep- tions. John Phares, one of the subscribing witnesses, deposes *663 778 NEW JERSEY SUPREME COURT. [5 LAW Den v. Vancleve. that the deceased did frequently call him by name ; he does not say during his illness, but it is to be presumed he so intended - f he further deposes that within four or five weeks before the making of the will, when he called to see him, the deceased asked him many questions, principally about his family, and about a dispute which existed between him and his neighbor concerning a division line of their lands, which last, by the by, was a strange proof of sanity in a man in his situation. Mrs. Phares, also another subscribing witness, says that during this malady the deceased could speak, that he knew her, even in the night-time, and spoke to her, but she does not relate to what *extent he spoke, about what, or what he said. Charity Smith, I think a very aged and very respectable lady, a near relation of the defendant's wife, and also Mary Vancleve, the defendant's- daughter, say that during this period the deceased did speak so that he could be understood by them, but to what amount or to what eifect, particularly, they do not say. Now, however difficult it may be to reconcile what these witnesses say on this matter, with the rest of the testimony and with the condition of the deceased, as it appeared to others, yet, as they are persons of irreproach- able character, and have sworn it, it must be admitted that he had some knowledge of those continually with him, and could distinguish one from another ; that he had some sort of articu- lation and could utter some words, at least, so as to be understood by those around him. And this, I believe, is all they have sworn. Let us take the condition of the deceased, then, up till the morning of the making of the will, to be varied so far from that given by the other witnesses, as this testimony necessarily varies it ; that is to say, let us take it that he could and did dis- tinguish one from another of his family, that he could and did speak and articulate some words and ask some questions, such as are stated, so that those around him could understand him ; and in what situation still do we contemplate him ? The powers of vision and articulation are mere organic powers ; they are wholly distinct from the mind, and unless it could be shown that the images presented by the one were justly received and com- *664 :>S<,rni.] SEPTEMBER TKKM, 1819. 779 Den r. Vane I eve. pared by the intellectual faculty, and that the words uttered by the other were expressive of the result of such comparison, they are no proof of sanity. Does the mere power of distinguishing persons, does the mere power of uttering indistinct and inarticu- late sounds constitute or at all prove a testamentary capacity ? Is every man capable of making a will ? Can every man be presumed to be of sound mind and memory who can do this ? Certainly idiots, lunatics and madmen can do it ; persons in the raging of a fever, in the last stages of lingering disease, can do- all this, when the mind can neither recollect, compare nor judge; nay, may we not say, with truth, that until death, by his. near approach, has closed the eyes and sealed the lips, every one can do this ; and yet, every one is not of sound and disposing? mind and memory. The possession of these powers, then, af *ford no argument against the conclusion which so irresistibly forces itself upon us from the whole course of the testimony. But the situation of the deceased at the time of the signing; of this paper is not so favorable as even this would make it, for on that morning he has become worse, his daughter-in-law is alarmed, she thinks him greatly altered and near his end, she calls in neighbors, he is in a clammy sweat, his hands and feet are cold, he utters not a word in the opinion of the family, the hand of death is upon him. In this situation and at this time, and not till this time, the grand discovery is made ; the will is lost ; the rough draft is- produced ; the execution of it as a will proceeds. What part does the deceased bear in the transaction ? Does he inquire for the old will to know whether it is safe ; does he call for this draft to be executed in its place, or, when produced, does he de- sire it to be read to him to know its contents ? Does he send for witnesses to attest the execution of it, or intimate to them, when they come, what is to be done? Does he do any one act or thing, or utter a single word which indicates that he has any knowledge, himself, of what is to be done ? Not one. And yet it is said he can speak. Well, let us hear him. It is announced to him that the will is lost ; he says " Who, who." The rough draft is read ; he is asked if he understands it well ; he says. *665 780 XEW JERSEY SUPREME COURT. [5 LAW Den v. Vancleve. " Yes, well." He is asked whether it is a copy of his old will he says " Yes ;" whether he will sign it ; he says " Yes." He is raised in the bed, the pen is put into his left hand, he is asked whether Mr. Phares shall steady it ; he says " Yes." Mr. Phares takes his hand, the name is written, manifestly, by Mr. Phares himself as the agent, for no man in that weak condition, with his left hand, could write as that is written ; he is told he must put his hand upon it and acknowledge it to be his last will and testament ; with some help he extends his left hand, which is laid upon the paper, and being asked whether it is his last will and testament, he says "Yes." According to Mr. Phares he says " Last will and testament." According to Mrs. Phares and ac- cording to Johnson, who seems to be a more thorough-going wit- ness, and none of your monosyllabic fellows, he says " I acknowl- edge this to be my last will and testament." He then takes the hand of Mr. Phares and silently presses it ; he utters not a word ; he is laid upon his pillow ; he never speaks again, but in a few days expires. *This is the substance of the testimony as to the fact upon this point, comprising every material part of it, and presenting it in its simplest form, so far as I am capable of that office. The subscribing witnesses, it is true, on the trial, testify in the most full and unequivocal terms that they believe the deceased, at the time of the transaction, to have been in the possession of his reasonable faculties, and to have understood very well every- thing that was proposed to him touching the will. Two of them, however Mr. Phares and Johnson did not so express themselves immediately, that is to say, a day or two after the transaction, but they expressed directly the contrary ; they de- clared within a few days after, at sundry times and places and to .sundry persons, that they did not think him capable of making a will, and that the will could not stand, or words to that effect. This contradiction, however, does not necessarily imply the smallest degree of turpitude or dereliction of the truth on their part. Facts and circumstances and impressions in which we are not interested soon become obliterated from the memory. In the situation of Mr. Phares, who was himself a dying man, who *666 2 SOUTH.] ~ SEPTEMBER TERM, 1819. 781 Den r. Vancleve. had concerns of infinite moment to occupy every power of the soul, this was especially to be expected. And as to Johnson, he was a wayfaring man, a total stranger to all the parties and all their concerns, called in as a witness merely to fulfill the requi- sitions of the law ; there can, therefore, be no great claim upon his memory further than merely to attest his signature, and cer- tainly there can be no great reliance upon his opinion as to the mental capacity of the deceased, whom he had before never seen, of whom he had never heard, and in whose chamber he then was but during the few minutes occupied by this transaction. This belief, then, which these men express, being an after-belief, wrought up long since, and not the immediate impression, not the deduction from facts at the time, however honestly declared now, can have but little weight in the scales by which truth and justice are weighed. The whole, then, as matter of opinion, seems to rest pretty much upon the testimony of Mrs. Phares, the other subscribing witness. She is an old lady of very respectable character ; her integrity and truth are not to be doubted. She was, on the morning of the transaction, called in by the defendant's wife, who told *her she thought the deceased was greatly altered, and near his end, and that she did not like to be alone with him. She went in and found him lying as if asleep, and his extremi- ties cold ; he took no notice of her entrance, nor did he speak to her nor she to him. Soon after this (about half an hour, as nearly a.s I could recollect), in the presence of herself, her husband, and Johnson, the defendant announces to him that the will is lost, upon which he seemed to rouse up as from sleep, and then the execution of this paper proceeds as before stated ; and from these facts and circumstances she formed the opinion which she now expresses. Now, although it is certainly not impossible that the deceased may, by omnipotent power, have been raised for a mo- ment, as it were, for this very purpose, yet that the opinion of this old lady, founded upon these facts, at the same time so dif- ferently construed by the other witnesses, however satisfactory to her own mind that opinion may be, I say that this opinion thus *667 782 NEW JERSEY SUPREME COURT. [5 LAW Den v. Vancleve. formed, should be received as conclusive evidence of so wonder- ful an interposition, can hardly be admitted. I shall proceed no further ; I shall make no further comment. If I have rightly comprehended the evidence, if I have rightly stated the case, they speak for themselves. If the jury have placed their verdict upon the sanity of the testator, which is the only real question in the case, they have, in my opinion, found a verdict contrary to the great weight of the evidence ; if they have placed it either upon the will of 1814, or upon the previous intentions of the testator, they have found a verdict contrary to law. After a trial so laborious so expensive before a jury so up- right, so intelligent, so discerning, selected for the very purpose, it is with great reluctance as well as with great diffidence that I have brought myself to this conclusion. But yet, upon the most care- ful review of the whole case, I am constrained to say that I think the court was mistaken in the admission of evidence ; that I my- self was both mistaken and deficient in not giving the whole properly in charge to the jury, and that the jury was mistaken, either as to the construction of the testimony or the point upon which they placed their verdict. And for these causes, in my judgment The rule for setting aside the verdict must be made absolute. *ROSSELL,, J. The plaintiff in this case applies for a new trial 1. Because the court admitted unlawful testimony, viz., the repeated decla- rations of Benjamin Vancleve, the testator, from 1809 to 1814, respecting his original intention to leave the premises in question to his son, the present defendant, and that by two wills of the above dates, thereby giving parol testimony of their contents without accounting for the non-production of the said wills. 2. The court refused to permit a witness on the part of the defendant to be examined touching her knowledge of the nature and obligation of an oath, although she was only sixteen years of age, bound by indenture to the defendant, by the overseers of *668 2 SOUTH.] SEPTEMBER TERM, 1819. 783 Den v. V and eve. the poor, and had never, as the plaintiff alleges, been sworn as a witness. 3. The verdict was against the charge of the court. 4. The verdict was against the evidence given in the cause. The first two reasons given by the plaintiff I have, from their intimate connection, included in one, and shall observe that as the defendant did not claim the premises in question under either of the wills of 1809 or 1814, but under the one given in evidence of 1817, and as the testimony relating the different conversations of old Mr. Vancleve neither went to establish or cancel either of the first-mentioned wills, I cannot perceive any legal objections to the evidence. The will of 1817, if proved in due form of law, was, after his decease, a complete revocation of all the clauses and provisions of any previous will or wills, and there could not, then, be any obligation on the defendant to account for their non- production at the trial in any other mode than by producing the last will of the testator, by which, in legal contemplation, they were canceled or destroyed. It was urged, on the argument of the present question, that this testimony was irrelevant to th point in issue. I cannot view it in this light. The true ques- tion before the court was the sanity or insanity of the testator. After the subscribing witnesses to the will had fully proved its execution in the manner established by law, the plaintiffs, to prove the incompetency of the testator, gave in evidence the words, behavior, sickness, and almost infant imbecility of mind and body of the testator, not only immediately before and after the execution of the will, before the court, but for years previous to that time, together with many circumstances and observations *calculated to induce the court and jury to believe that the testa- tor was treated unkindly by the defendant, was afraid of him, and under his control, by reason of which the present will was fraudulently imposed on him for the purpose of getting the real estate of his father for his own benefit, to the exclusion of the other heirs-at-law. To rebut and overcome the force of these strong charges was not only the legal right of the defendant, if in his power so to do, but a necessary and important duty. One of the great distinguishing marks of insanity is the total change *669 784 NEW JERSEY SUPREME COURT. [5 LAW Den v. Vancleve. of mind, feelings, affections and inclinations of the afflicted object. Was it not competent, then, to show that this strong trait of in- sanity could not be fastened on the testator ? and could that be done more effectually than by showing that the will before the court was not an imposition on the testator, causing him to alter the disposition of his estate ? But, on the contrary, that for many years, when no charge of any imbecility of mind or body could at- tach to him, he had determined to dispose of his estate in the manner set forth in this will ; that he had previously declared this intention from time to time to his friends ; nor did this long- cherished determination leave him at the close of life. But if it is said the mind of the testator was not, correctly speaking, so much deranged as lost, by the almost total extinc- tion of the animal functions of the body, and could not act in the disposition of his estate, agreeably to that part of the charge of the chief-justice respecting the terms sound of mind, I would observe that I could by no means concur with the chief-justice in his exposition of the term sound, as applied to the mind of the testator whole, unbroken, unchanged, by disease, age or infirm- ity. Few, indeed, would be the wills confirmed if this is correct. Mind and body make the man ; the union of these is so closely linked that one cannot suffer materially without affecting the other. Pain, sickness, debility of body, from age or infirmity, would, according to its violence or duration, in a greater or less degree, break in upon, weaken or derange the mind, and render it incapable of exercising its full powers, as in time of perfect health. Yet, I believe, none have ventured to pronounce that extreme illness incapacitates a testator, or that old age, when memory was impaired and judgment weakened, rendered him in- capable of disposing of his property. Of sound and disposing mind and memory is the language used. The sentence must be *taken together, not disjointed, and sound explained in its literal, distinct and separate meaning, unconnected with the subject-mat- ter to which it necessarily and evidently refers. That this is the universal rule is manifest from almost all the authorities con- tained in our books. Thus taken in connection it means that the testator, at the time of executing his will, had that soundness *670 2 SOUTH.] SEPTKMIJKIi TERM, 1819. 785 Den e. Vancleve. of mind and memory enabling him to understand the nature of the instrument he signed and sealed, the relative situation of his family and connections, the general extent of the property dis- posed of, and that it was so disposed of as was agreeable to his desire. In the present case, however debilitated and reduced in mind and body old Mr. Vancleve might have been when he executed the will in question, three witnesses have solemnly sworn that he was in possession of this necessary soundness of mind and memory two of them his near neighbors, in the habits of intimate acquaintance and frequent communication with him in sickness and in health, and beyond even an expressed doubt capable of fully understanding the nature of the oath administered to them, and without a whispered suspicion of the integrity of their hearts or characters. This testimony was also corroborated by that of several others, and the verdict of the jury has demon- strated that they believed them. 3. The court refused to suffer certain questions to be put to u witness respecting her knowledge of the nature and obligation of an oath. As to this reason, suppose the court in an error, I see but little in it. The testimony of this witness had but little, if any, bear- ing on the point in issue. It was confined to some collateral matter and declaredly of no importance, and it would be as novel as it would be a hard case, on the part of the defendant in eject- ment, to deprive him of the benefit of the verdict of a struck jury, so laboriously obtained at bar, for a reason as slight as this. 4 and 5. The verdict against the charge of the court and against evidence. The first of these does not appear to be founded in fact. The chief-justice, in charging the jury, gave an explanation of the necessary soundness of mind of a testator,, to enable him legally to dispose of his estate, and left it to tho- jury, on the whole evidence, to say whether this will was exe- cuted by Benjamin Vancleve when in possession of that im- portant qualification of mind, or not. In the exercise of their constitutional pow*ers they have passed their verdict on this question. And, in a case like the present, I am unwilling to *671 50 786 NEW JERSEY SUPREME COURT. [5 LAW Den v. Vancleve. disturb that verdict and change the situation of the parties. As evidence was given by both parties of the state of the testator's mind, at and about the time of executing the will, it cannot be correctly called a verdict against evidence, as in the fourth reason. I am, therefore, on the whole case, of opinion that the plaintiff should take nothing by his motion. SOUTHARD, J. In the investigation which I have given to this motion, and the result at which I have arrived, I have not been governed by the objections arising from the nature of the cause and the place of trial, which were so strongly urged by the counsel for the defendant. That it was a trial at bar, in an ejectment, where the questions before the jury savored much of a criminal charge, and where the verdict was for the defendant, are circumstances of weight, and have received the countenance of other courts, but do not, with me, afford conclusive reasons why a new trial should be refused. In a case where these circumstances were united it should be a clear violation of law and justice which should in- sure the interference of the court. Yet, if such violation appear, we have the power and are bound to repair the wrong. Before I attempt an examination of the reasons filed in sup- port of this motion, I think it proper to admit, with the counsel for the plaintiff, the high importance of the power of granting new trials. It is a power necessary to the very existence of the trial by jury. But we must also remember that it is only valu- able when cautiously exercised. I also concede that the title of an heir-at-law is not to be defeated by conjecture or doubt, but by express and intelligible devise alone ; (a) that a will executed with the statutory formalities must be produced ; that the testa- mentary capacity must be well established, especially where pro- bate has not been granted ; and that intentions not executed, however frequently declared, will not avail. These are prin- ciples about which there ought to have been no discussion; (a) Den, Brown v. Little, Coxe 152. *672 SOUTH.] SEPTEMBER TERM, 1819. 787 Den v. Vancleve. principles which will not be violated in the decision of this motion. The first reason rests upon the refusal of the court to interro- gate Abigail Coulter, before she was sworn, upon her know* ledge respecting God, a future state, the nature and consequence of *n oath, and her having before been sworn in court. When she was offered as a witness it appeared that she was between sixteen and seventeen years old ; that she had lived a considerable time as a bound servant in a religious neighborhood and family ; and that she had the appearance of ordinary intelli- gence. The court, therefore, declined to interrogate her, and I think rightly. Persons, after the age of fourteen, are, prima Jade, competent witnesses. An inquiry into the extent of their capacity and knowledge is matter of discretion in the court, and ought not to be made upon the mere suggestion of a party who may seek the gratification of unfounded suspicion, or desire to throw contempt and imputation on a witness who is feared. Some good reason which renders the capacity or knowledge questionable should always be required. In the present case the plaintiff doubtless sought what he considered a proper protec- tion to himself, but he offered no fact from which a well-founded doubt of the capacity could arise. This being so, I think now, as I thought then, that no principle of fairness or law required the court to interrogate her. Besides, if the court were decidedly wrong, the verdict should not be disturbed. It afterwards appeared satisfactorily that she possessed all the information requisite to justify her admission. And, moreover, her testimony was such as could not have gov- erned the verdict. It must have been the same without it as it was with it. 2. The verdict was contrary to the charge of the court. I was not in court when the charge was delivered, and have had no such report of it as to enable me to decide correctly upon this reason. The charge has been represented as being hypo- thetical, so far as related to the facts supposing the jury to find certain facts and stating the law as applicable to such finding. If this be so, we must determine the existence of the facts be- *672 788 NEW JERSEY SUPREME COURT. [5 LAW Den v. Vancleve. fore we can say that the verdict was contrary to the charge. We- rnust determine where the weight of evidence lies ; and this we- shall be called on to consider under another reason. 3. The court admitted unlawful evidence, viz., the declara- tions of the testator and proof of the contents of certain wills without producing them. A correct understanding of this reason can only be obtained' *by reviewing the cause, so far as it had progressed when the question respecting the admissibility of this evidence arose. The plaintiffs claimed title as the children and heirs of B. Van- cleve, and having proved that they were so, rested. The de- fendant, who was also a son and heir of B. Vancleve, then produced a paper purporting to be a will of said Vancleve,, which, among other things, devised the premises in question to* the defendant. The testamentary witnesses were all called and unequivocally swore to the execution of the will and the sanity of the testator at the time of executing it. It was then read to the jury as a will proved with legal formality. After this the plaintiffs opened to the court and jury that they would prove- that the testator had long lived with the defendant at his table,, under his control, ill treated by and in fear of him ; that he had long been, and at the execution of the pretended will was in a state of second childhood, totally incapable of managing his property, and destitute altogether of the legal testamentary ca- pacity ; and that, under these circumstances, the defendant had fraudulently imposed upon him and induced him to make the will, which was the mere contrivance of the defendant, and not the dictate of the testator's sound mind. In support of this opening they called many witnesses who detailed a vast variety of facts and opinions tending to substantiate it, and, as the plaintiffs did then and do still insist, completely substantiating every part of it. After the plaintiffs had closed the evidence in support of this- view of the case, the defendant proceeded to countervail it by evidence of a like character ; and also offered to prove that for many years before his death the testator had declared his inten- tion of giving this land to the defendant, and that he had exe- *673 "2 SOUTH.] SEPTEMBER TERM, 1819. 789 Den r. Vancleve. cuted two previous wills to carry this intention into effect. Tina evidence was objected to. but admitted ; and this admission gives rise to the present reason. And, before a more particular exami- nation of it, it will be proper to remove out of our way certain ideas and difficulties which do not properly apply to it, but which were interposed in the course of the argument. 1. This evidence was not offered as proof of a will of Benja- min Vancleve in order to carry the lands, nor to supply the ^absence of a written will. The law is satisfied with nothing short of a written will, executed with all the formalities pre- -scribed in *the statute. No parol evidence can possibly supply its place. Nor did the court understand the defendant aq offer- ing it with that view. He had presented a written will in legal and competent form, and executed with due solemnities, provided the testator possessed a disposing mind. It was in reference to that mind alone, and as rebutting the plaintiffs' allegations and .proofs, that this evidence was offered and considered competent. 2. It was not to explain a written will. The will itself re- quired no explanation ; the evidence was calculated to afford none. 3. It was not designed to show that less than the strict testa- mentary capacity was sufficient to sustain this will, but to prove that he really did possess that capacity, and the question is, Was it competent for this purpose under the circumstances in which it was offered ? The technical issue was guilty or not guilty. The substantial issue was will or no will. The point on which this issue rested was the existence of the testamentary capacity. To this point lx>th parties necessarily devoted their attention. Is it, then, oompetent for a party who has exhibited a written will and proved its formal execution, in support of the sanity of the tes- tator, which is disputed, not only at the time of execution hut for years before, and in denial of the allegation of fraud in pro- curing it, to prove the designs of the testator while his intellect was unquestionable to show how he reasoned and what he said on the subject of the devise? I think it is, and that it is one of the best modes by which a jury can acquire a proper *674 790 NEW JERSEY SUPREME COURT. [5 LAW Den v. Vancleve. knowledge of his capacity and correctly estimate the charge of imposition. It is here to be recollected that this question arose after the- testamentary witnesses had all sworn to the mechanical execution of the will and the testator's assent to it. Did a sound mind accompany that assent ? Did he speak what he meant ? Did he express the resolution which, in his soundest hour, he would have pronounced ? How shall we discover this ? I answer, let us ask his soundest hour and most deliberate judgment, if we- can find them. When the competency of a man, when his- sanity, at a particular moment, is questioned, what more conclu- sive mode is there of ascertaining it than by comparing what he- then said and did with what he said and did at other periods of his life ? If we find that he thought and reasoned and acted at that time as he had for years before thought and reasoned *and acted, shall we not either admit his sanity at the moment or deny his sanity for years preceding ? If he executes a purpose which he had resolved for a considerable portion of his life to execute,, shall we not thence infer that his intellect remained ? The execution of a will, the distribution of an estate among a family, is an act of a peculiar character. It is not the prompt and unpremeditated effort of the moment but the tardy effect of long observation on his family and property, on the claims of duty and the calls of affection. It is frequently the result of thtr combined reasoning and feelings of years, often meditated on, often resolved and not unfrequently divulged. When, then, it is said that a testator did not know what he did, is it not at least one fair answer to say that he did what he had always de- signed to do that his mind operated on this subject as it had always before operated ? I say that it would be one fair answer. I do not say that it would be a conclusive answer, nor do I say that it is a kind of answer altogether free from suspicion, and not subject to be misrepresented. We are not here discussing the weight and conclusiveness but the competency of the evidence. Let us, as was done by one of the counsel for the defendant, reverse this view. Suppose the capacity of a testator in ques- tion, and it is alleged that he had been fraudulently imposed on, *675 2 SOUTH.] SEPTEMBER TERM, 1819. 791 Den t. Vancleve. in a state so weak and feeble that he could not distinguish be- tween right and wrong or distribute his property discreetly, and it could be shown that the devi.se was in direct contradiction to the dictates of justice, to the deliberate resolves of his judgment, to his warmest affections and the bitterest animosities of his heart, nurtured for years and repeatedly and feelingly proclaimed. What would we say ? Would we not infer that the devise was not his ; that he had been imposed on ; that he had not been him- self; that he had not possessed sufficient mind at the time to rec- ollect his family and estate, to reason, to dispose of his property with discretion ? And when the jury was called on to say whether he did possess such a mind, would we be justified in concealing this light from them ? Would we not conceal that which, in the language of Blackstone, "demonstrates, makes clear and ascertains the truth of the very fact or point in issue ?" And in forming our opinion we are not to forget that the legality of evidence depends always on the circumstances in which it is offered, and *the nature of the question or fact to which it is to be applied. When thi.s is forgotten, technical rules serve only to bewilder and confound. It seems to me that the reasoning which has been opposed to the competency of this evidence requires too large an admission upon two points. It seems to take for granted that the testa- mentary witnesses did not swear to the truth, and that the testa- tor did not assent to the execution of the will, nor, as they de- clare, perform the act of signing and acknowledging. Now, this fact having been sworn to, the court cannot reject it, and the jury may believe it, and we are now merely to say whether the declarations in question are calculated and are proper to show that in performing the act he knew what he did. And 1 cannot hesitate to say that if the jury did believe the fact of execution these declarations were proper guides in forming their estimate of the portion of intellect which accompanied it, and were not, in the language of the counsel, an ignis faiuus calcu- lated to lead them into error. But it seems to me, also, that this reasoning not only presumes that he did not execute the will, but also the very fact to be proved that he was in a state of mental imbecility. The argu- *676 792 NEW JERSEY SUPREME COURT. [5 LAW Den v. Vancleve. ment seems to be, You must not prove what he would have done in his sound mind, in order to make that valid which he did with an unsound mind. But is it shown that he had an unsound mind ? Who shall determine this ? Is it not the essence of the dispute ? And is it not proper to compare the efforts of his strength with this act to know whether they partake of the same character ? Again. This evidence was competent as designed to rebut the charge of fraud and imposition, and this whether the charge was a separate and distinct allegation, or, as was argued, an incident to and depending upon the want of capacity in the testator. It was said, in opening the evidence, that the will was obtained by a fraudulent imposition upon the testator's weakness ; that he was under defendant's control, and in fear of him, and some evi- dence was given designed to prove it. The allegation and proof then were that testator was imposed on and did not speak his own will. Was it not a proper answer that he did what for twenty years he had intended to do, and therefore there could be no im- position ? And if this be a proper answer shall not the defendant *be permitted to prove it ? and can it be proved in a better way than by the testators's acts and declarations ? I am aware of none. Without, therefore, calling in aid the argument which was so fairly and forcibly pressed by one of the defendant's counsel, that these declarations were competent, because they were the decla- rations of the ancestor respecting the heirs and the inheritance, I feel prepared to say that they were clearly admissible for the rea- sons which I have endeavored to assign. But, under this reason, it is further urged that the court erred in admitting proof of the contents of certain wills without their being produced. This objection was not pressed nor noticed at the trial, and therefore deserves less countenance, if it should be at all heard. 10 Johns. 7 ; 3 Burr. 1253. But it does seem to me to have weight, for two reasons 1. The contents of these wills were not shown in order to make a title under them as valid and existing wills. The defendant's claim showed that they were destroyed in law if not in fact. The making of the last will, *677 2 SOUTH.] SEPTEMBER TERM, 1819. 793 Den v. Vancleve. under which he claimed, put an end to them. The legitimate object of speaking of them was to indicate the temper and inten- tions of the testator as to his children and property, to strengthen the inference that, in his last days, he recollected and executed the purposes of his past life. 2. The evidence of these contents was not by any person who had seen them and could prove their contents as lost papers. They were proved by the testator's own declarations, and thus stand precisely in the same situation as the evidence which is considered under the first part of this reason. Besides, if additional causes were wanting to justify this evidence it is found in the testimony of Castner ; the proof of affection between the testator and his daughters ; and the deposition of Andrew Reeder, offered by the plaintiff. This deposition con- tains proof of the existence of the will of 1814, and an account of its contents, and seems to me, therefore, to legalize the subse- quent evidence of the defendant respecting them. 4. The last reason, upon which much argument was expended, is that the verdict is against the weight of the evidence. In looking into this reason I find no difficulty arising from any difference of opinion respecting the nature of the testamen- tary capacity. The character of that capacity has, on former occasions been laid down by this court (South. 454}> an d I feel no disposition, in this case, to weaken the strength of the terms in *which it was done. He who claims lands under a will must show that the testator executed it with due form, and that he possessed a sound and disposing mind and memory, a mind and memory having a capacity to remember and discreetly to dispose of his property, and to recollect, discern and feel the relations, connections and obligations of family and blood. The question here is, Did that capacity exist ? The verdict answers in the af- firmative. Is that verdict against the weight of the evidence ? I shall not here stop to give a detail of the evidence. It is, perhaps, to be regretted that my apprehension of it is, in many respects, variant from that expressed by the chief-justice. I cer- tainly did not understand the witnesses as he has done. But the view which I take of the point now under consideration renders *678 794 NEW JERSEY SUPREME COURT. [5 LAW Den v. Vancleve. a full statement of the evidence unnecessary to an explanation of my opinion. This question always presents difficulties to my mind. The first and highest duty of the jury is to weigh the evidence. This is its peculiar province, and one which will never be hastily invaded by the judge who regards the trial by jury as one of the proudest features in our juridicial system. It has been else- where well said " the credibility of witnesses is the peculium of the jury. Take that away and what is there left?" South. 46. Yet, still, if it be perfectly clear to a dispassionate court that the jury, through partiality or prejudice, have grossly disregarded the evidence, reason and the authorities require that the verdict should be set aside, both to preserve the system pure and to ad- minister justice to the parties. The difficulty is to find the point to which the court ought to go in questioning the correctness of the jury in this matter, within what bounds the decision of the jury shall be irreversible, to establish that line quam ultra, citraque nequit eonsistere rectum, so as not, on the one hand, to trespass on the rights of the jury, and, on the other, not to permit injustice to be done. The judges have no authority nicely to weigh the evi- dence in their own scales, and resolve that the one side by so much overbalances the other ; that this witness was, in some degree, more worthy of credit than that ; that this shall be accepted as convincing and satisfactory, and that rejected. As little right have the jury lightly to sport with the evidence which the law affords and the credibility of the witnesses. Where opposing and contradictory evidence has been given *I am aware of no safer rule than to take that exhibited by the party in whose favor the verdict is rendered, examine it by itself, and if it be of such character and amount as, uncontradicted, fully, fairly and completely to justify the conclusions of the jury, then to let the verdict stand. The jury may have disbelieved the opposing testimony, and they are to determine whether they will disbelieve it. But if the evidence in favor of the verdict leaves it all questionable, and the opposing evidence is strong and clear, the court ought to interfere and relieve the injured party. In the case before us the defendant, who is in possession of *679 2 SOUTH.] SEPTEMBER TERM, 1819. 795 Den v. Vaneleve. the verdict, produced a will purporting to be executed with all the legal formalities. In support of this will the three sub- scribing witnesses all swore that the testator heard it read, as- sented to its correctness and executed it as and for his last will and testament ; and that, when he so executed it, he was of sound and disposing mind and memory, competent to perform the act, and then gave their reasons for their belief. Now, two of these witnesses were well known, of unblemished character and unim- peachable veracity, and the third, though poor and wandering and a stranger, I saw no conclusive reason to disbelieve. Other witnesses united with these as to his capacity, and detailedfacts to corroborate their opinion. If this evidence had remained uncontradicted, neither the court, the jury, the parties, nor the public would 'have hesitated as to the result. If the jury believed it I think their verdict was right. And this without admitting that they overlooked or evaded the law which determines the capacity necessary to make a will. The law on that point, as the law always is, was the first and highest evidence before them, which they were bound to regard, and to which their character ensured attention. It is certainly very true that the plaintiff produced much evidence calling in question the testamentary capacity, but it was in hostility with that of the de- fendant, and the jury, not the court, held the balance. Intending in this, as in every case, to avoid encroaching upon the rights of the jury, I carefully abstain from expressing any opinion of the merits of this cause, but governed by the rule which I have mentioned, and which I esteem correct, I do not hesitate in the judgment which I think it my duty to pronounce. *I discover no error in the opinions expressed by the court. The jury possessed much more than ordinary intelligence. The cause was fairly and fully before them. The evidence was strongly contradictory. There was enough, if believed, to support the verdict ; and I perceive, therefore, no requirement of legal prin- ciples, nor of justice, demanding a new trial. I have only to add that I have seldom investigated a cause with greater anxiety to arrive at the truth ; and if in the result which I have reached I have fallen into error, it has not been *680 796 NEW JERSEY SUPREME COURT. [5 LAW Den v. Wilson. for the want of ample aid to assist my inquiries. The rights of the parties upon the argument received an elucidation which would not have been surpassed at any bar. I think the rule to show cause ought to be discharged. Rule discharged, and judgment for defendant. DEN v. WILSON. Kule for security for costs in ejectment may be granted after issue joined, (a) There were two ejectments against the same defendant. In one the lessor of the plaintiff resided out of the state of New Jersey, and in the other was an infant. The issues were joined some terms preceding, and the causes were taken down to the circuit but not tried. After which Ewing, for the defendant, had moved and obtained a rule that the lessors give security for costs, or proceedings be stayed. Saxton now moved to discharge the rule, because not applied for before issue joined. Pat. 364 &4" KlRKPATRICK, C. J. This act is cumulative and does not restrain the power before possessed by the court. The settled law in actions of ejectment was to order costs at any time, but not for delay or oppression. In practice, the issue is always joined when the consent rule is entered into ; (6) and it would be unreasonable in this action to refuse this rule to a party. COURT. Let the rule remain. (a) See Nix. Dig. 7S1 \ 98; also, State Sank v. Evans, Or. 298; Mechanics Bank v. Godwin, 2 Gr. 439 ; Cotheal ads. Morehouse, 1 Zab. SS5 ; Roumage v. Insurance Co., 7 Hal. 95; Scull v. Carhart, 3 Gr. 430; Den v. Inslee, 1 Hal. 475. (b) Den, Bray v. Drake, 3 Hal. 305. 2 SOUTH.] SEPTEMBER TERM, 1819. 797 Wade v. Scudder. * JONAS WADE v. SMITH SCUDDEB. 1. Writ of error. 2. Reversal. 3. Venire de now. In case. This action was originally brought in the common pleas of Essex county, where judgment was rendered for the plaintiff*. At September term, 1818, the judgment of the pleas was affirmed in this court. See ante 249. A writ of error was brought, the judgment reversed in the court of appeals, and at this term the following rule was entered : It appearing to this court that the record in this cause was re- moved by writ of error into the court of appeals, and that in the term of May, 1819, "it appeared to the said court of appeals, after hearing the argument of counsel on the errors assigned, that there was manifest error in the courts below, in that there was not sufficient contained in a certain letter written by the said Smith Scudder to the said Jonas Wade, and mentioned in the record and proceedings aforesaid, to charge the said Smith Scudder with any more paper than what was delivered in obedience to the specific order contained in the first part of said letter : therefore, it was ordered, adjudged and determined by that court that as well the judgment of the said court of common pleas as that of the supreme court be reversed, and the record and proceedings be remitted to the supreme court, and that a venire de novo issue therefrom in said cause." And it being suggested to this court that the said Jonas Wade has died since the said judgment in the said court of appeals ; and that Oliver Wade is executor of the last will and testament of the said Jonas Wade, deceased. It is ordered that the said record be filed, and that the said cause pro- ceed in the name of Oliver Wade, executor of the last will and testament of Jonas Wade, deceased, against the said Smith Scud- *681 798 NEW JERSEY SUPREME COURT. [5 LAW Wintermute v. Swisher. der, Esq., one &c. ; and that a venire de novo do issue out of this court for the trial of said cause, on motion of Vanarsdale, attor- ney for the plaintiff. *E. SNEED and S. W. STEVENS, administrators of G. SNEED, deceased, ads. JAMES W ALLEN. Bail by administrators on habeas corpus, (a) This cause was removed by habeas corpus from the common pleas of Gloucester. Woodruff, for the plaintiff, moved that the defendant file bail, or that a procedendo be awarded. Pat. 364 86* Pearson. The defendants are administrators, and therefore not bound to give bail upon this habeas corpus. The statute does not apply to them. COURT. Let common bail be filed. PETER WINTERMUTE v. JACOB SWISHER. On certiorari. The state of demand, with a great affectation of form and pre- cision, sets out the following case : That the plaintiff had ob- tained judgment against Peter Wintermute, Jr., for $44, on which an execution was issued and delivered on the llth of September, 1817, to Aaron Hankinson, a constable; that he then had suf- ficient goods and chattels of which to make the money, but this (a) Anonymous, Penn. *641 ; Craig v. Berry, post 852. *682 2 SOUTH.] SEPTEMBER TERM, 1819. 799 Searing r. Lum. defendant did collusively and fraudulently conceal and keep them out of the power of the constable, and forcibly prevent the opera- tion of law by taking the property out of the power of the con- stable; that about the 1st of November, 1817, the constable ar- rested said Peter Wintermute, Jr., and was about to convey him to gaol, when the defendant promised the constable if he would forbear to do so one day, and he run away, he, the defendant, would pay debt and costs ; that defendant well knew he intended to run away, and made the promise to cheat the plaintiff; that he did run away and thus put it out of the plaintiff's power to get his money, and that said plaintiff is injured by this tram 1 of the defendant $50. There was judgment for $49.53. BY THE COURT. It is manifest, from the state of demand, that the plaintiff has no cause of action against the defendant. Judgment must be reversed. *SEARING t>. LUM. 1. Alteration of transcript (a) 2. Action for deceit. 3. Scienter. (b) On certiorari. It was alleged that the plaintiff in certiorari had received from the justice a transcript upon which the certiorari was brought, but that the transcript now sent to the court differed materially from it, whereupon a rule was granted upon the justice; and in return to that rule he certified that the transcript first given was a true copy of the proceedings in said action at (a) Ridgvxty v. Fairholm, Penn. *905 ; AUen v. Joice, S HaL 1S5 ; Camp v. Martin, 7 Hal. 181; Backer v. Van Fleit,! Or. 195. (b) Angus v. Rodin, post 815 ; Alien v. Wanamaker, S Vr. S70 ; see Mason v. Evans, Coxe 182. *683 800 NEW JERSEY SUPREME COURT. [5 LAW Vanness v. Nafie. the time when delivered to the plaintiff in certiorari. By the last-mentioned transcript and the other papers it appeared that the action was brought for a deceit in the sale of a horse or, rather, in the exchange of a yoke of oxen and $30 for a horse and that the oxen and $30 were a sound price for a sound horse ; and that the defendant alleged the horse to be sound and kind, whereas he was unkind in harness. In the progress of the trial the justice refused a nonsuit, and informed the jury that it was not necessary for the plaintiff to prove that the defendant had any knowledge of the unkindness of the horse ; and that if he proved the honesty of his intentions it would be considered as some reason for mitigating damages, but as no justification. W. Halstead, for plaintiff. BY THE COUET. The justice has acted very incorrectly in altering his record after it was made up and a copy given to the party. Such conduct deserves reprehension and punishment. He also erred in his exposition of the law, and his judgment must, therefore, be reversed. CORNELIUS H. VANNESS v. ELIZABETH NAFIE. Plea of title to land in trover, (a) On certiorari. The state of demand filed by Nafie, in the court below, is in technical form for the trover and conversion on the 21st of Jan- uary, 1819, of two hundred and fifty chestnut and butternut rails and one load of firewood, to her damage $100. *At the proper time the defendant pleaded title to the land from which (a) Van Mater v. Real, Penn.*4?% ; Wilson v. Clark, 1 South. 379. *684 2 SOUTH.] SEPTEMBER TERM, 1819. 801 Corse v. Colfax. the rails and wood were taken and tendered to the justice a bond executed according to the statute ; but the justice refased to receive it, " as he could not conceive that the title of land could in any way come in question, as the controversy respected a quantity of rails, which, in his opinion, were movable prop- erty, and not attached to the freehold." The verdict and judg- ment were for $9.75. Hakey, for plaintiff in certiorari, relied upon several reasons, but it is necessary to notice only the rejection of the plea and bond by the justice. Dad, for defendant. BY THE COURT. The justice ought to have received the plea and bond. The title to land may come in question in an action of trover for rails and wood as well as in trespass. The form of the action is nothing. The statute constituting courts for the trial of small causes, section 33, says, " that when, in any action to be brought by virtue of this act, the defendant shall, as a justification, plead title to any real estate, in himself or another under whom he acted or entered, such defendant shall commit the said plea to writing, and, having signed the same, shall deliver such plea to said justice, who shall countersign and deliver it to the plaintiff" . BENJAMIN ROBINSON and WILLIAM CARPENTER. Devise in 1755 to A for life ; then to 8 and his heirs male ; then to C and her heirs male ; B and C die in A's life. C has son D, who entered into pos- session in 1773 and sold to E in fee. In virtue of the statute (Pat. 54), E holds the fee against the heirs of D. (a) In ejectment. This action was brought for the recovery of a farm in the county of Salem, mentioned in the will of James Mason as the Thompson farm. The case came before the court upon a special verdict found at the Salem circuit in December, 1817, which stated the following facts : (a) See Den, Hugg v. Hugg, ante 4*7; Wright v. Scott, 4 Weak. C. C. 16; Den, Johnson v. Morris, 2 Hal. 12 ; Den, Doremu* v. Zabriskie, S Or. 409; De^ Spachius v. Spachius, 1 Harr. 17 ; Den, James v. Dubois, 1 Harr. 985 ; Den, Richman v. Baldwin, 1 Zab. 400 ; Moore v. Rake, Dutch. 574 / Gardner v. Sharp, 4 Wash. C. C. 610. *689 807 808 NEW JERSEY SUPREME COURT. [5 LAW Den v. Robinson. 1. That in the year 1755 James Mason died seized in fee of the premises in question, having, by his last will and testament, bearing date the 1st day of September, 1755, devised the said premises in the words following : " Imprimis. I give and de- mise unto my well-beloved wife her choice of my riding horses, my negro man and one-half of my movable estate, to the only proper use and behoof of her, her heirs and assigns forever ; and also that plantation whereon John Thompson now dwells ; and, likewise, the house and lot situate in the town of Salem, where Ralph Walker now dwells, to the only proper use and behoof of her and her assigns during her natural life. Item. I *give and demise unto my cousin, Joseph Wood, all that plan- tation whereon said John Thompson lives, after my said wife's decease, to him and the heirs of his body, lawfully begotten, for- ever ; and for want of such heirs, the same to go to my cousin, Sarah Young, to her and, the heirs of her body, lawfully begotten, forever." 2. That the said will of James Mason was duly proved, ac- cordiug to law, on the 1st day of September, 1755. 3. That Joseph Wood, the devisee in the will of the said James Mason mentioned, died in the lifetime of the said Mary Mason, widow of the said James Mason, the testator, without issue. 4. The said Mary Mason, after the death of the said James Mason, intermarried with John Roberts. 5. That Sarah Young, the devisee mentioned in the will of the said James Mason, also died in the lifetime of the said Mary Mason, afterwards Mary Roberts. 6. That the said Sarah Young left issue : William Young, her eldest child ; James Young, her second child ; Joseph Young, her third child, and Mary Young, her fourth child. 7. That before and at the time of the births of the said Wil- liam, James, Joseph and Mary, the said Sarah Young was the wife of James Young. * 8. That the said James Young, the husband of the said Sarah Young, died in the year 1771. *690 2 SOUTH.] NOVEMBER TERM, 1819. 809 Den v. Robinson. 9. That William Young, the eldest son of the said Sarah Young, survived Mary Mason. 10. That Mary Mason died possessed of the premises ; and, at In r decease, William Young took possession of the premises in question and occupied the same in the year 1772 ; and on the of February, 1775, conveyed the same to Jonathan Bilder- 11. The said William Young died on the 12th day of March, 1798, leaving lawful issue, to wit: James Young, his eldest son and lessor of the plaintiff, and William Young ; and that James Young was about twenty or twenty-one years old at the death of his father. 12. That at the time of the death of James Mason the prem- ises in question were in the possession of John Thompson, the 'person mentioned in his will, who continued for some time a tenant to Mary Mason. 13. That the said premises in question are one hundred and five acres of land in the township of Mannington, which, at the time of the service of the declaration in ejectment in this case were occupied by Benjamin Robinson, as tenant under William Carpenter, the other defendant in this cause. And the jurors further found that the said William Young, the eldest son of said Sarah, by deed bearing date 20th of Feb- ruary, 1773, conveyed the premises to one Jonathan Bilderback ; that the said Jonathan Bilderback died seized of the premises, on the day of , A.. D. , leaving issue Kidd Bilder- back, Peter Bilderback, Edward Bilderback, Jonathan Bilderback, his sons and heirs-at-law ; and further, that John Tuft, &*q., late high sheriff of Salem, by deed bearing date 28th of June, 1802, conveyed the right of the said Kidd Bilderback and Edward Bil- derback to Jonathan Bilderback ; and that Peter Bilderbark, by deed dated 20th of March, 1804, conveyed his share of the prem- ises to said Jonathan Bilderback ; and that the said Jonathan, by deed the 19th of February, 1805, conveyed the said premises to William Griscome, Jr., and that the said William Griscome, Jr., and wife, by deed on the 4th of March, 1808, conveyed to John Tuft, and John Tuft, 19th of March, 1808, conveyed to William *691 810 NEW JERSEY SUPREME COURT. [5 LAW Den v. Robinson. Carpenter, one of the defendants ; that the said William Young, father of the lessor of the plaintiff, died on his own farm in the township of Downs, at a place called Nantuxet Neck, in the county of Cumberland, which contained the quantity of one hundred and thirty or one hundred and forty acres, and which was con- veyed to the said William Young in fee simple, by William Paulin, for the consideration of 1,000. . , Jeffers, for the plaintiff. The premises were devised to Mary Mason for life ; remainder to Joseph Wood, in tail, with remain- der to Sarah Young, in tail. Joseph Wood died without issue during the continuance of the particular estate. On his death the remainder became vested in Sarah Young, who died also during the continuance of the life estate of Mary Mason, neither of them having been in possession. On the death of Mary Mason, William Young, eldest son of Sarah Young, took possession of the premises and continued in possession until the 20th of February, 1773, when he conveyed to Jonathan Bilderback, under whom the defendants claim. The lessor is William Young's eldest son. Two points are raised for the consideration of the court 1. Whether the title of the lessor is affected by our act limiting estates tail, passed August 26th, 1784. And 2. Whether William Young was the second devisee in tail under that act. 1. The title of the plaintiff is not affected by the act. There is no question but William Young entered into possession as tenant in tail. He conveyed on the 20th of February, 1773, more than eleven years before the passing of the act. He could have conveyed only his interest during life, for he had no greater estate to convey. The act which came after could not, in any way, affect the estate, nor can it now affect the case. The words of the act are, " hath, agreeably to such devise or entail, passed through one descent since the death of the testator, and is now in the second or more remote descent from the testator, all such land or other real estate shall be deemed, taken and adjudged to be the proper estate in fee simple of the present possessor ; provi- ded, the testator had a fee &c., and also provided the person in *692 2 SOUTH.] NOVEMBER TERM, 1819. 811 Den . Robinaon. possession holdeth the same in tiie line of descent, mentioned and directed in and by such devise in tail. The act could only operate on tenants in tail then in posses- sion, and not upon such tenants as had conveyed their estates. If a purchaser of the estate of tenant in tail was in possession of the entailed premises at the time the act passed, he could not be benefited, inasmuch as he could not " hold in the line of descent mentioned and directed in and by such devise in tail." The act of 1784, limiting estates tail, was made in favor of the heirs generally of tenants in tail, and to unfetter such estates ; but to apply it to an estate which the tenant had aliened ten or twelve years before its passage would be to make it operate for the benefit of the purchaser to the manifest injury of the heirs in tail. It would also be contrary to the understanding of the par- ties at the time the conveyance took place, for it must have been then understood that an estate, during his life, was all William Young could convey. 2. If it is considered that the act affects the case, then Wil- liam Young was the first possessor of the entailed estate secondly mentioned in the line of entailment. Joseph Wood and *Sarah Young, who had vested remainders, died during the existence of the particular estate; and, on the death of Mary Mason, William Young, the father of the lessor, entered into possession of the entailed estate as the first possessor under the devise in tail. The words of the explanatory act, " been possessed by the first devisee in tail " one of her greatest monarchs, and the law owes more, perhaps, to him than to any other. It seems, also, to be doubted whether such estates really exist here. But the proper answer is this and other laws recognize them. As to the construction of the law. Two questions will resolve our difficulties 1. On what real estate does this act operate? 2. In whose favor? 1. On what estate? The words of the explanatory act are plain. On real estate which has been pos- sessed by the first devisee in tail, and is now the property of the next devisee in tail. It must, at the time of passing the act, have been possessed by one devisee and be then the property of another. If this land do not come within this description the act cannot operate upon it. It does not come within the description. Prior to passing this act it had not been possessed by one devisee and become the property of another. William Young was the first person actually in possession as devisee in tail. Sarah Young was the first devisee in-that line but had not an estate in possession, but in remainder, which is diametrically opposed to it. It is, however, contended that she had a legal possession. The possession of the particular tenant is, for some purposes, the possession of the re- mainderman, but the legislature, here, obviously contemplate an actual possession. The words " been possessed " &c., are legal *702 822 NEW JERSEY SUPREME COURT. [5 Den v. Robinson. and appropriate to it, and are used in opposition to mere owner- ship or property in this very clause. The court, in Den v. Hamilton, Penn. 885, adopt this idea. First devisee is not ab- solutely first owner, but he who unites ownership and possession ;. one alone will not do ; he must have both. But it is further said that if " possessor " means what is now contended for, it will ope- rate in favor of a wrong-doer. Not so ; he must hold in tail. But the land must also be the property of the next devisee in tail,, at the passing of the act or it does not operate upon it. This land was not so. In 1773 William conveyed it away. In 1786 it did not belong to him. 2d question. In whose favor will this act operate ? Here, too, the language is plain. It was passed for the benefit of the tenant in tail, not the alienee. 1. The proviso is that the person holds in the line of descent ; the enlargement, then, was not merely an*nexed to the land, and to follow it, but to the person. 2. The land must be the property of the next devisee in tail.. 3. The latter clause of the second section prescribes that it shall ^est in the person to whom the same may descend. But it is ar- gued that the alienee is within the equity of the statute. We do not construe statutes by equity, and, if we did, he is not within it. The legislature never intended to turn to a fee the- estate of one who had acquired the interest of the tenant in tail. Such has been the construction of the court. Again it is said, and cases are cited to prove, that the tenant in tail, having con- veyed, by bargain and sale, granted a base fee, and anything which afterwards may pass the fee will establish the estate of the grantee. This is begging the question, taking for granted what the defendant is bound to prove, viz., that the act does operate to create an estate in fee, which it never does except where the land is the property of the tenant in tail. The last clause of the third section does not impugn this doctrine. It relates to subse- quent, not prior, cases, and the person to whom first given is tx> be understood, in a qualified sense, as devisee in actual possession- Den v. Hamilton. The result is that the statute does not apply to the premises. It did not change the nature of the estate- But if it did, the lessor is unaffected by it ; he must recover. *703 2 SOUTH.] NOVEMBER TERM, 1819. 823 Den . Robinson. But it is said there ought to have been an actual entry. It is so in no case in England except to avoid a fine. It is never necessary for heir in tail to enter if ancestor has granted. In New Jersey no such doctrine ever existed. Bringing the eject- ment is sufficient wherever the plaintiff has a right of entry. But again, the statute de donis is said to be repealed. This idea was almost scouted in Den v. Fogg. But what if it were repealed? It was the law when the plaintiff's estate was created. It was in force in 1786, and until our general repealing statute, and the estates which grew out of it are in force and recognized. Besides, if we go back to the conditional fee at common law, William Young had not an absolute fee in 1773. Such an es- tate would have given him power to alien after issue, but no ab- solute estate until conveyance and reconveyance. And he had no heir when he conveyed. James Young was born in 1778. The question of the effect of a warranty contained in the deed of lessor's ancestor cannot be raised on this special verdict, and, therefore, how far the doctrine of defendant's counsel, in this re- *gard, may be correct need not here be examined, for it is con- ceded that the heir in tail is not bound by the warranty of the ancestor unless assets have descended. This special verdict does not find that assets descended. No inference can be drawn by the court from circumstances stated, however strong they may be. The court can only proceed on facts expressly found. 5 Bac.285; IS Mod. 628. KlRKPATRICK, C. J. This is a special verdict in ejectment taken at the Salem circuit in December, 1817. It finds, in substance, that James Mason, on the 25th of March, 1755, devised the premises in question to his wife, Mary Mason, to the only proper use of her and her assigns during her natural life, and after her decease to his cousin, Joseph Wood, and the heirs of his body, lawfully begotten, forever ; and for want of such heirs, to his cousin, Sarah Young, and the heirs of her body, lawfully begotten, forever. That after the death of the said tes- tator the said Mary Mason entered into the said premises, and *704 824 ' NEW JERSEY SUPREME COURT. [5 LAW Den v. Robinson. was thereof possessed until the time of her death, which was sometime in the year 1772. That the said Joseph Wood, after the death of the said testator, and during the lifetime of the said Mary Mason, died without issue, and that the said Sarah Young, after the death of the said Joseph Wood, but also during the lifetime of the said Mary Mason, died, leaving three sons and one daughter, of whom William was the eldest. That upon the death of the said Mary Mason the said William entered into the premises and was thereof possessed until the 20th of February, 1773, when he sold and conveyed the same in fee to one Jona- than Bilderback, and that he afterwards died, that is to say, on the 12th of March, 1798, seized of a certain real estate in the county of Cumberland, of one hundred and thirty acres of land, and leaving two sons, James and William, of whom James was the elder and is the lessor of the plaintiff. It further finds the deed of the 20th of February, 1773, from William Young to Jonathan Bilderback, in hcec verba, and then traces the title therefrom down to the present defendants. It is admitted, on all hands, that Mary Mason took an estate for life only in the premises, by virtue of this devise, that Joseph Wood took a vested remainder in fee tail general, expectant upon the death of the said Mary Mason, and that Sarah *Young took a like remainder, expectant, both upon the death of the said Mary Mason and upon the failure of heirs of the body of the said Joseph Wood, with reversion to the right heirs of the said testator. It is of course admitted that upon the death of Joseph Wood without issue, in the lifetime of Mary Mason, Sarah Young became the next in remainder, and that, upon her death, the said remainder descended to her son, the said William Young, as heir in tail secundum formam doni. If the plaintiff's right, then, rested here, there could be no doubt, for if tenant in tail alien in fee, though the alienee may lawfully enter and hold during the life of the tenant in tail, yet, if he hold over after his death against the issue in tail, the es- tate of such alienee so holden over may, at any time, be defeated by such issue. The defendants, however, have raised up a defence and have *705 2 SOUTH.] NOVEMBER TERM, 1819. 825 Den r. Robinson. placed it upon four distinct grounds. The first three of these, in the order in which I shall take them, I shall mention in a cursory manner only, making an observation or two upon each, and then proceed to the last, which lies at the foundation of the phiintiff's right. 1. It is said that if tenant in tail alien in fee, the estate of the alienee can be defeated only by the entry of the issue in tail, that therefore an actual entry must be made to complete his title and so proved to have been done at the trial to enable him to sustain an action of ejectment, and that the confession of lease, entry and ouster will not supply the place of such proof, and such entry is not here found by this verdict. When the essence of conveyances consisted in the actual livery of the seizin of the land in the presence of the neighborhood or of special witnesses, and the deed of feoffment was considered but as a mere memorandum to keep that transaction in memory, it was holden in the wisdom of our ancient law that if one would come in upon the feoffee, upon condition broken, or upon the abater on the death of the ancestor, or in other cases where the right arose by operation of law, he must come in by public entry, in the presence of witnesses, also ; that the defeasance of the estate must be by an act of as great notoriety as the creation of it had been. But when, afterwards, for the greater conveni- ence, conveyances to uses crept in and took the place of feoff- ments when the legal estate remained in the bargainer, and *the use only passed to the bargainee, it was impossible either that this public livery should be made, or that it should be defeated by a public entry, for a mere use was insusceptible of either the one or the other. And though, afterwards, the statute of uses annexed the possession to the use, yet still the use M r as the prin- cipal and the possession the accident. The creation of the use was the creation of the estate ; and the statute, by a sort of legal magic, transferred the possession without any public act in jxti*. Hence, public entries to defeat estates ceased with public lm-rk>> to create them. An entry to defeat an estate now would be jn-t as extraordinary as a livery of seizin to create one. Every man who has right of entry makes his lease to try his title without *706 826 NEW JERSEY SUPREME COURT. [5 LAW Den v. Robinson. any such formality, (a) The confession of lease, entry and ouster, therefore, by the defendant in the common rule is, in all cases, sufficient in actions of ejectment, without proof of any actual entry, to defeat a precedent estate. This is so in England except in the case of a fine only, where the actual entry is ex- pressly required by the statute ; but here fines are abolished as a mode of conveyance. So far, therefore, as I can now perceive there is no exception to the rule. I do not now speak of entries to avoid the statutes of limitation. That is another subject. 2. It is said, in the second place, that the statute de donis con- ditionalibus having been declared by legislative act to be no longer in force hi this state, the plaintiff cannot come in and make title under it. William Young, the father of the plaintiff, who is admitted to have been seized in tail, died on the 12th of March, 1798 ; and the act of the legislature declaring the statute de donis to be no longer in force, was passed on the 13th of June, 1799. The estate, therefore, if it passed at all to the plaintiff, passed before the date of that act ; and certainly it cannot be said that the re- pealing of an act, or the rendering it for the future inoperative, will destroy an estate already vested under its authority. (6) 3. It is said, in the third place, that the deed of conveyance from William Young to Jonathan Bilderback contains a cove- nant of warranty, binding himself and his heirs to warrant and defend the said land against himself, the said William Young, and all claiming under him ; that the plaintiff is the heir of the said William Young, and is, therefore, barred by the said cove*- nant ; and especially so, as it is found by the verdict that the said William died seized of certain other lands of an estate de- scendible. Warranties which descend upon the heir, and which may be taken advantage of by writ of warrantia chaiixe, or by voucher (a) Farley v. Craig, 6 Hal. 278. (b) Wright v. Scott, 4 Wash. G. G. 16; Den, Berdan v. Van Riper, 1 Harr. 7 ; Den, Spachius v. Spachius, 1 Harr. 172 ; Den, James v. Dubois, 1 Harr. 286; The Boston Franklinite Co. v. Condit, 4 G. E. Or. 894; Van Note v. Downey, 4 Dutch. 219. *707 2 SOUTH.] NOVEMBER TERM, 1819. 827 Deo v, Robinson. or rebutter, we are told by Littleton may be annexed to estates of freehold or to estates of inheritance, which pass by livery, and also to incorporeal hereditaments which lie in grant ; bid that they cannot be annexed to mere chattels, whether they be real or personal. And ranch less can they be annexed to interests which are alto- gether of an equitable nature. Warranties, therefore, upon the sale of such chattels, or upon the passing of such equitable in- terests, must be taken advantage of by action of covenant and not otherwise. Can a warranty, then, contained in a deed of bargain and sale which conveys the use only (for the statute annexes the possession) be considered as a warranty annexed to and descending with the land in such way as that the assigns of the bargainee can take advantage of it by way of rebvMer ; and particularly in an action of ejectment? Or are they not rather to be considered merely as personal covenants, and to be taken advantage of by action of covenant only ? But without saying anything upon this subject, it is enough to observe, at present (for it was desired by the counsel to speak to it again), that a warranty by tenant in tail, without assets descending, does not bind the heir, (a) And here, though William Young is found to have died seized of certain real estate, yet it is not found that such real estate is of the value of the lands entailed, or that they descended to the plaintiff. Upon a mere presumption, then, and a presumption, too, which has so little to support it, we can- not say the plaintiff is barred. And especially so as the cove- nant will still be open against him in the hands of him who has the lawful right. 4. But, in the fourth place, the principal ground of defence is still to be considered. It is said there are certain statutory pro- visions respecting estates tail which govern this case and take it out of the rules of the ancient law. There was an act. passed on the 26th of August, 1784, which has for its object, among other things, the limitation of estates tail. The material words of this act are these : " Be it enacted, That all lands heretofore devised in tail which have passed (a) See Nix. Dig. 146 16. 828 NEW JERSEY SUPREME COURT. [5 LAW Den v. Kobinson. *through one descent since the death of the testator, and are now in the second or more remote descent from the testator, shall be deemed to be the proper estate in fee simple of the present pos- sessor, provided he holdeth the same in the line of descent men- tioned in such devise." " That all devises of land heretofore made in tail which have not already passed through one descent, and also all devises which shall hereafter be made in tail, shall be deemed to entitle the per- son to whom the same may descend, to all the estate therein, which the testator had or could devise," and " That no eutailment of lands shall continue to entail the same, in any case whatever, longer than the life of the person to whom the same hath been, or shall be, first devised by such entailment." There was another act passed on the 23d of March, 1786, to explain this act, which declares that the words " passed through one descent since the death of the testator, and are now in the second or more remote descent from the testator," in the first act, shall be understood to mean " been possessed by the first devisee in tail, and are now the property of the next devisee in tail, in the line mentioned in the devise under which they claim," and that the words " the line of descent " shall be understood to mean " the line of entailment." This explanation touches the first clause of the act only ; the second and third clauses of it, as above recited, remain as at first, wholly untouched by this explanation. There is certainly no inconsiderable degree of confusion in the phraseology used in this explanatory act. Perhaps, however, by a little consideration, we may be able to give it a construction which will carry into effect the intention of the legislature. The first act is entitled " An act to limit estates tail." The evil complained of in the preamble is that " devises are sometimes made in tail without limitation of time, whereby the heirs are put to great expense in suing out recoveries in order to dock such entails." This is the evil it proposes to remedy. It does not profess to limit the entailment in the hands of the immediate de- visee, but in the hands of the heir only. There might be suffi- cient reasons why the estate should be limited to the hands of the *708 2 SOUTH.] NOVEMBER TERM, 1819. 829 Den v. Robinson. devisee, with whom the testator was acquainted, and whose dis- cretion .and prudence he did not think proper to trust ; but when it had passed into the hands of the heir, whom he could *not cer- tainly know, and whose prudence he could, therefore, have no reason to suspect, it was thought the genius of our government and the public good required that it should be unfettered and subjected to alienation, like other estates. This seems to have been the view of the legislature, and to have been pretty clearly expressed in the first act. The only doubt that arose or could arise upon that act, and the only doubt pretended to be explained, was upon the words " passed through one descent since the death of the testator, and is now in the second or more remote descent from the testator." And the doubt was, whether upon these words, if an estate tail had been devised to A, and upon his death had descended to B, it had then passed through, one descent, and was in the second or more remote descent ; or whether B's life also must have been termi- nated and the estate must have descended to his son C, in order to put it in the second descent. And, indeed, this mode of ex- pression was certainly a very doubtful one, and one that required explanation. In a strict sense, passing through the hands of the immediate devisee could not be called passing through a descent, and descending from the devisee into the hands of the heir could not put it in the second descent, for there had then been but one descent cast. To explain this doubt, and to declare explicitly that when the lands had passed by descent from the devisee to the heir the limitation should cease, was the only de- sign of the explanatory act. It does not profess to change the object of the first act or to introduce a new principle not con- templated by it, but merely to explain the meaning of it ; to declare the intention of the legislature in the words they had used. In order to accomplish this design, and at the same time to preserve the consistency of the act with itself and with that which it is intended to explain, we must take some latitude in the construction of the words of it. We must understand the words first devisee in tail npt absolutely but relatively only ; not as the first devisee in tail named in the will, but as the propoxitus *709 830 NEW JERSEY SUPREME COURT. [5 LAW Den v. Robinson. or stock from which the issue in tail is to proceed ; so that if there be a devise to A in tail, with remainder to B in tail, both A and B are to be considered as first devisees in relation to their respective issues, they being distinct stocks from which distinct issues and distinct lines of entailment are to proceed. So, too, we are to understand the words next devisee not in a strict and technical sense, but in the sense *in which the word devisee is sometimes used in common discourse ; not as one named in the will and taking by devise, strictly speaking, but as one taking as heir, according to the special limitation contained in the will upon the death of such first devisee. This construction is supported by the consideration that if we take the words first and next devisee in their appropriate and technical sense, meaning by first the person to whom the estate is first given by the will, and by next the person to whom the remainder is given in tail, the first clause of the act which ope- rates upon anterior devises would not unfetter the estate in the hands of the heir at all, but only in the hands of the remainder- man, which would be in direct contrariety to the manifest inten- tion of the legislature ; the explanation of the act would nullify the act itself, which can never be admitted. This construction, too, makes the first clause of the act speak the same language respecting anterior devises which the next clause speaks respect- ing subsequent devises. The object of both the one and the other is to say that in the hands of the immediate devisee the entailment shall continue, but in the hands of the heir it shall cease. This, too, was the construction put upon the words first devisee in the case of Den v. Fogg, in September term, 1811. In that case there was a devise made after the passing the act to A in tail general, with remainder to B in tail male, and it was held that B, coming in as a remainderman, should not take the fee as next devisee, but that he should be considered, himself, as a first devisee, as the person to whom the estate had first been devised, in relation to the line of entailment proceeding from himself; and, in that case, B having had no male issue, though he had issue female, seven daughters, yet the estate was adjudged to revert to *710 2 SOUTH.] NOVEMBER TERM, 1819. 831 Den t. Robinson. the right heirs of the donor. And the judgment rendered in that case, as I have ' been informed, was afterwards affirmed in the court of errors. If this be so, then, in the case before us, both Joseph Wood and Sarah Young were first devisees in tail in relation to their respective issues ; and William Young, the son of Sarah, who took as heir in tail upon the death of his mother, was the next devisee in tail. And if William Young had continued to hold the lands until the passing of the act, if they had t)ien been his property, as next devisee, the estate would have been converted into *a fee simple in his hands ; but having, before that time, sold and conveyed them to Bilderback, so that they were not then his property, as next devisee, and of course not within the words of the act, they could not be so converted ; and Bilder- back having no pretence to be a devisee, or to hold in the line of entailment mentioned in the devise, this first clause of the act could have no operation at all upon the estate in his hands. I say it could have no operation at all unless, indeed, it shouid be said that Bilderback, being the alienee, and standing in the place of the next devisee described in the act (that is, of William Young), he should take all the benefit under the act that tfie next devisee himself would have taken. But as this would be a forced construction, so it would put an end to the controversy, for then Bilderback would have the fee under this first clause. The case, therefore, as it then existed, was not, according to my view of it, in any way affected by this first clause of the act. The lands were not in the situation described in that clause ; the case was not one upon which that clause was intended to operate. In opposition to this construction, however, it is said that these lands had never been possessed by Sarah Young, and that there- fore she could not be the first devisee intended by this explana- tory act, but that they had been possessed by William Young, her son, who came in as heir upon her death, under the limita- tions of the will, and that therefore he must be considered as the first devisee in this case ; and that upon his death, which was after the passing of the act, the lands descended to his son, James Young, the lessor of the plaintiff", in fee simple. *711 832 NEW JERSEY SUPREME COURT. [5 LAW Den v. Robinson. In answer to this it may be said in the first place that the pos- session of the tenant of the particular estate is, in one sense, the possession of the remainderman ; that Mary Mason's possession was Sarah Young's possession ; that when this explanatory act speaks of the lands being possessed by the first devisee, it can ra- tionally mean nothing else than such a possession as would be sufficient to pass the estate by descent and save the inheritance, for in any other view, whether the first devisee were possessed or not would be wholly immaterial as to the object of this law, and such a possession Sarah Young unquestionably had. But, in the second place, even if this were not so, the only *consequence would be that this particular case is not within this first clause of the act. For when that clause speaks of lands which have been possessed by the first devisee, shall we say it means lands which have never been so possessed ? or shall we pervert the whole meaning of language and say that the heir who- was not born at the time of the making of the will, and who comes in by descent after the death of the first devisee, is himself the first devisee ? Even that he should be called the second or next devisee is making a very liberal allowance for the colloquial application of words, but to call him the first would be a total abandonment of their meaning, both in colloquial and technical discourse. Surely, then, they cannot be thus distorted to meet a favorite case or support a hasty opinion. Thoy must receive their construction ; their meaning must be fixed, and when fixed, must prevail in all cases. There is a way of arguing, or rather of talking, upon subjects of this kind, which sometimes prevails, but which, notwithstand- ing, is far from being satisfactory. We frequently hear it said that taking the act altogether it means so and so, always what the speaker would have it mean ; and yet, when we come to analyze it and examine its several parts, neither any one clause, nor all of them taken in connection, as they always must be, can, upon any rational construction, be made to mean any such thing. This is a mode of argument, or rather of carrying a point without argument, which it is impossible to refute or to stand against, and yet it is altogether hollow at bottom. We have no right to say *712 2 SOUTH.] NOVEMBER TERM, 1819. 833 Den r. Robinson. the legislature meant what they have not expressed, and much less the very contrary of what they have expressed. Upon the whole, then, I conclude that this first clause of the act does not at all bear upon our case, or give any rule concern- ing it. And, as to the second clause, that, so far as it relates to ante- rior devisees, gives the fee to those only who should come in by descent after the passing of the act, to which neither William Young nor Bilderback can make the smallest pretence. The first and second clauses state particular cases in which the estate shall be converted into a fee simple, and they touch those cases only, but the third is more general ; it comprehends all cases of entailment whatsoever. If the entailment had been created be- fore the passing of the act, and the life of the first devisee, as *above understood, was then extinct, it from that moment ceased ; if it should be created after the passing of the act, or if the life of such first devisee were not then extinct, it should, upon such life becoming extinct, immediately cease. The first two clauses di- rect in whose hands the estate shall become a fee simple, the last cuts off the entailment, destroys the limitations, unfetters the estate in whosoever hands the same may be lawfully found. But taking this for granted, what effect will it have in this case, or, in other words, in whose hands did the act find this estate at the time of the passing of it? The plaintiff has argued this question as if the alienation by the tenant in tail, though purporting to be in fee, passed an es- tate for the life of the tenant in tail, only, putting the remainder, if I may so call it, of such estate tail in abeyance for the benefit of the issue, and that, therefore, this act, if it operates upon this estate at all, must operate upon it as it rests in abeyance, must unfetter it for the benefit of the heir and render it a fee simple in his hands, and not in the hands of such alienee. But I believe this doctrine cannot be maintained. A tenant in tail has an estate of inheritance in himself. He had it before the statute de donis under the name of a conditional fee, and that statute makes no alteration in it in that respect ; it only restrains the alienation of it to the disinherison of the issue in *713 53 834 NEW JERSEY SUPREME COURT. [5 LAW Den v. Robinson. tail. He has the estate in him, and as the power of alienation is an incident inseparable from it he may alien it by any of the usual modes of conveyance and vest it in the alienee as com- pletely as he himself had it. In the hands of the alienee, in- deed, it is not called an estate tail but a base fee, a fee defeasible by the issue in tail. And though such alienation, if it be by feoffrnent with livery of seizin or by fine of record with procla- mations, will toll the entry of the issue and put him to his/or- medon in the descender, yet, even in that case, it has never been considered as a violation of the statute de donis, and much less if it be by bargain and sale or other conveyance which has its operation by the statute of uses and which puts him to entry only. Since, then, the tenant in tail has an estate of inheritance, since the power of alienation is inseparable from such an estate, and since such an alienation, though it put the issue to his formedon or to his entry, is no violation of the statute, it follows that an esfeate created by such alienation does not determine by the *death of the tenant in tail but remains until defeated by the heir. This is the doctrine laid down in the case of Michal v. Clark, in 1702 (SaHc. 619 and passim), and has been recognized as the law in every succeeding case upon that subject. If the estate ot such alienee were for the life of the tenant in tail only, no unfettering of it from its limitations could extend it in his hands beyond that period without a new conveyance ; it would still be an estate for life, and to whomsoever it might afterwards go it could not be retained by him. But being an estate in fee, that is, an estate of inheritance, not terminating upon the death of the tenant in tail but subject to the limitations of the first gift only, if such limitations be moved out of the way it becomes absolute and is no longer defeasible. There is nothing to defeat it. Hence, we find that if tenant in tail sell to one and his heirs and afterwards suffer a fine or common recovery with a declara- tion of uses to another, this fine or recovery, if good in itself, shall operate to the benefit of the bargainee. It unfetters the estate which is already in his hands. Same case Michal v. Clark ; *714 2 SOUTH.] NOVEMBER TERM, 1819. 835 Den v. Robinson. Tyrrd v. Mead et al., 3 Burr. 1703; Stapilton v. Stapilton, 1 Atk. 8. So, if a tenant in tail confess a judgment or statute or make a mortgage and afterwards suffer a recovery, which bars the entail, such recovery lets in the encumbrance. And so, also, if there be tenant in tail special, as to the heirs of his body, by his present wife, with remainder to himself in fee, and he alien, and then the issue fail, the failure of issue unfetters the estate and it shall be indefeasible in the hands of the alienee, and shall not pass in the remainder. We may fairly conclude, then, that if tenant in tail 'alien or encumber the estate, and afterwards remove the limitation or bar the entail, it shall enure to the benefit of the alienee or en- cumbrancer, because he alone has the estate upon which it can operate, (a) The notion, therefore, that this estate tail was in abeyance, and tljat the act operated upon it in that situation, and unfettered it for the benefit of the issue, is without foundation. The act, if I . have taken a correct view of it, operates upon the estate without respect to the person in whose hands it may be found ; it destroys the limitation ; it declares the entailment shall not continue. Well, then, if it does so operate, and if it *operates upon this estate at all, it must operate upon it in the hands of the defendant, for it exists nowhere else ; it must destroy the limitation and bar the heir in tail in their favor. By what right shall the heir come in ? By the entailment ? It shall not continue to en- tail tiie same longer than the life of the person to whom the land was first given, that is, the life of the donee in tail, the propositus, the person from whom the line of entailment was to begin and from whom the issue was to proceed ; and in this case that per- son was Sarah Young, who was dead long before the passing of the act. In considering this question I have taken no notice of the case of Hinchman v. Clark et al., cited from Coxe's reports, because, though the same question was raised by the counsel there it was (a) See Porch v. Fries, S C. E. Or. SOS; Moore v. RoJce, S Dutch. 574; Vree- land v. Slauvelt, S C. E. Or. 483. *715 836 NEW JERSEY SUPREME COURT. [5 LAW Den v. Bobinson. not decided by the court. The chief-justice, Kinsey, in his very able and handsome exposition of the case, places the stress of the argument upon the very circumstance that the defendant ex- pressly and publicly purchased the land for the life of the tenant in tail only, and no longer, so that the decision there has no bear- ing upon this case. Upon the whole matter, then, I am of opinion that the postea should be delivered to the defendant. ROSSELL, J., united in this opinion. SOTTTHAKD, J. In the result of the argument of the chief-justice I entirely concur. I differ somewhat as to the operation of the first clause and the enlargement of the estate. The object of the statute was so to order estates that entails should not last longer than the life of the first taker. It often happened that a testator was willing to benefit an individual, perhaps his child, by the use of his estate during that individual's life, but had not sufficient confidence in him to entrust the who4e estate to him, lest he should squander it and thus it should never reach his heirs, whom the testator designed ultimately and prin- cipally to benefit. This object was laudable, but it was against the public policy to continue lands by legal restraints for ages in the same family. The legislature, therefore, intended to unfetter and release it after the life of him to whom it was first given to free the land but to free it for the benefit of the heir to whom the testator directed it to go. The two objects are always to be united, otherwise it would happen in *rnany cases that the estate would, in effect, be a fee in the hands of the first devisee. He sells ; if it be enlarged in the hands of purchaser, the second de- visee or heir is altogether defeated, and the first has really sold a fee. Whether, therefore, this estate was enlarged for the bene- fit of Bilderback depends on the question who was first devisee or taker. If Sarah Young, then William is the second, and the estate was enlarged for his benefit, and, of course, for the benefit of his alienee. If William, the statute cannot operate until the *716 SOUTH.] 'NjQVEMBEK TERM, 1819. 837 Den r. Robinson. estate comes to his heir ; his purchaser can receive no benefit from the enlargement, and the lessor must recover, for his father could not, by an improper sale, take the estate from the heir in tail. Who, then, is the first devisee ? It is a case of lands devised in tail before the statute ; if, therefore, it had passed through one and was then in the second or more remote descent, and the holder was in the line of descent, it became a fee. Den v. Fogg teaches us that this second in descent is the second in the same line, and if two or more lines are created, and all except the last fail without enjoying the land, it must be the second in that line. Sarah Young is not, then, a second devisee ; she is the first in the line in which she is to take ; it commences with her. If she had been living at Mary Mason's death she would have entered into actual possession, not as second but as first devisee ; not by right derived through another, but by original gift. Such being her right after Joseph Wood's death, she had neces- sarily, until her own death, a possession of the estate in virtue of Mary Mason's possession. The remainder was neither con- tingent nor in abeyance. William Young, then, when he entered into actual possession of the estate, did it not as first but second in the line ; he did not take by original grant, but derived his right by descent through his mother. When he sold, with war- ranty, his deed conveyed such right as he had, and no other. It conveyed his right as tenant in tail. It placed Bilderback in the enjoyment of all his rights. Bilderback's possession was his possession ; Bilderback's rights his rights ; and at his death his heirs had a right to enter as if he had not conveyed. At the passing of the act Bilderback virtually stood in his place. The land was held by virtue of, and to the extent, and no more, of the rights of the second person in the line of entailment. It was land, therefore, on which this clause of the statute fairly ope- rated. William * Young united, in himself, all the requirem< nts of the statute. He was the second devisee, or possessor, in the line of eutailment. And, when to this is added the express pro- vision that no. devise shall entail longer than the life of the person to whom it was first given, I do not perceive how it \va.s *717 838 NEW JERSEY SUPREME COURT. [5 LAW Harker v. Christy. possible to continue until it reached the lessor, the third in the line. The estate must have been unfettered in William's life. If this be not so I am at a loss to see when and how this statute is ever to affect this land at all. It must go quit from all restraint. There is no clause of the act which applies to it. The moment the law passed I consider the estate in this land as be- coming a fee for William's benefit. But he had sold not only his right as tenant in tail, but a right as tenant in fee; which he then had not. Having so sold, he cannot, against his own deed, recover. The lessor cannot recover all, because it is no longer entailed. The heirs general of William cannot recover that which he had sold and from which he was barred. The title of defendant is clear. Postea delivered to defendants and judgment for them. SARAH HARKER v. HUGH CHRISTY. Rule to stay waste in dower, (a) Dower. Woodruff, for plaintiff, read affidavits to prove that the land of which dower was claimed was principally woodland, and that divers persons were cutting down and carrying off the wood ;, and thereupon moved for a rule on defendant, and those claim- ing under him, to stay waste. It was questioned by Armstrong, for defendant, whether it was proper to grant such rule in dower, where heir was unques- tionably owner of the land and entitled to its use ; especially where, as in this case, it is woodland and the widow cannot, her- self, take off the wood, and, therefore, no injury is done to her^ But the court unanimously granted the rule. (a) Den v. Kinney, ante 552 ; Ware v. Ware, 2 Hal. Ch. 117; Brundage v.. Goodfellow, 4 Hal Ch. 513; Scudder v. Trenton Del. Falls Co., Sax. 694; Rogers: v. Potter, 3 Vr. 78 ; Haulenbeck v. Conknght, 8 C. E. Qr. 407 ; Porch v. Fries r 3 C. E. Gr. 205. 2 SOUTH.] NOVEMBER TERM, 1819. 839 Hunter . Budd. *HALL, at suit of CUMBERLAND BANK. Venue, (a) Jeffers, for defendant, read an affidavit that the cause of action arose in Salem, and thereupon moved that the venue be changed from Cumberland to Salem. COURT. It is not matter of course to change the venue when the cause of action arose in another county. Additional facts must be shown. Rule refused. HUNTER t>. BUDD and JONES. Rule to plead. (6) The writ was returned to February term. At May term no proceeding was had. At September a rule was taken for defend- ant to plead in thirty days or judgment. A copy of this rule was not served on defendant and he did not plead, And now there was motion for judgment. But by THE COURT. A copy of the rule must be served or judg- ment cannot be taken. (o) Abrams v. Wood, 1 South. SO; Kerr v. The Bank &c., 1 South. 363; Ward v. Holmes, 2 Hal.- 171; BeU v. Morris Canal Co., 3 Or. 63. (6) v. Dill, 1 Hal. 168; Snediker v. Quick, 1 Or. 245 ; Sauenburgh T. Sharer, 2 Hal. 170; Berry v. Cohanan, 8 HaL 135; Haltey ads. Miller, 1 Hair. 63; Harwood v. Smethunt, 2 Vr. 502. *718 840 NEW JERSEY SUPREME COURT. [5 LAW Dean v. Wade. A. OGDEN ads. J. G. HUGHES. Attorney discharged from arrest on common bail, (a) This was commenced by capias ad respondendum served on defendant, one of the attorneys and counselors of this court. Scudder moved that appearance be effected by filing common bail. Halsey objected that defendant had not acted as attorney within a year except in the United States courts. If he had, it was incumbent on him to prove the fact to free himself. COUET. He is both attorney and counselor, and of long standing, and if he continues to act in either capacity it is suf- ficient to retain the privilege, unless taken away by a rule of court upon proper application therefor. The. privilege having attached to him there must be something to destroy it. Let common bail be filed. *DEAN v. WADE. Party obtaining rule must see that it is returned. (6) On certiorari. Scudder moved to continue a rule on justice to amend taken at the last term. It had been served on the justice but no return made by him. (a) See Rules of Supreme Court 9 ; Anonymous, Spen. 4^4- (b) Voorheis v. Kerns, Penn. *966 ; Sockwell v. Sateman, 1 South. S64. *719 SOUTH.] NOVEMBER TERM, 1819. 841 Miller r. Huffman. Hornblower. The party ought to have taken care to get the return made. COURT. Merely to serve a rule is not enough. The party must show that he has used due diligence to obtain the return, so that there may not be any delay. He must show that the iault is in the justice or the other party. Rule refused. DEN v. VANCLEVE. Retaxation of costs. Fees of witnesses. COURT. A party is entitled to the fees for the time his wit- nesses necessarily attended, but if the time is disputed he must show how long they did attend. The entry on the minutes of the court that they were sworn is prima facie evidence of their attendance on the day the cause was noticed for trial and of their continuing until it closed. It may, however, be shown, if the fact be so, that they were sooner dismissed or went away by nsent of parties. In this case the evidence closed on Friday night and the witnesses were then discharged. The defendant is, therefore, entitled to tax the fees of all his witnesses until that time, that is, for five days each. HENRY MILLER, JR., v. J. HUFFMAN, administrator &c. Rule for affidavits, (a) On certiorari. The suit was brought for the recovery of money paid by (a) Sockwell v. Euteman, 1 South. S64 ; Tovmly v. Rulan, Spen. 605. 842 NEW JERSEY SUPREME COURT. [5 LAW Thorp v. Rosa. Huffman, as administrator, to Miller, more than the dividend which the estate of the intestate was able to pay, and the state of demand alleged a promise to refund the same. * Vroom moved and the court granted the following rule z Ordered, that the plaintiff have leave to take affidavits to prove that on the trial of the appeal before the said court of common pleas the assumption laid in the state of demand was not proved nor attempted to be proved by the appellee. THORP v. Ross. Who must take ; rule on justice to amend &c. (a) W. Hoisted moved the reversal of the judgment. F. Fre- linghuysen objected that the cause was not ready for argument ; that the justice had not returned the summons and other papers necessary to a hearing of the case, and it was incumbent on the plaintiff to have the return completed before he moved the cause. COURT. After the justice had made return of the writ and his transcript, if the plaintiff is satisfied to proceed he may do so, and is not compelled to rule the justice to make a more complete return. If the defendant wish any other papers than those sent, or wish the justice to amend his return, he must take a rule for that purpose. The party which needs any additional return must apply for and see that it is made. A rule on the justice to send up the papers was granted on the motion of defendant. (a) Sockwett v. Bateman, 1 South. 364; Sayre v. Blanchard, ante 551 ; Idle v. Idle, 6 Hal. 92 ; Anonymous, 1 Harr. 855 ; Paterson B. R. v. Ackerman, 4 Zab. 535 ; Roston v. Morris, 1 Dutch. 17S ; Parsell v. State, 1 Vr. 530; doe v. Elmer, Hal. Dig. 143 \ 8 ; Smick v. Opdycke, 7 Hal. 85; State, Wilkinson v. Trenton, 7 Vr. 499. *720 2 SOUTH.] NOVEMBER TERM, 1819. 843 Miller ads. Carhart. HUGH MILLER ads. ROBERT CARHART. Rule to take paper from files, (a) The judgment of the justice having been reversed, Ewing moved for leave to take from the files the sealed bill given by Carhart to Miller, and on which the action was brought. BY THE COURT. The original evidences of the debt, such as bonds, bills and notes on which the suit is brought, ought not to be sent up with the certiorari. The justice ought to send certi- fied copies of them. The originals are very seldom necessary or at all useful in this court, and when necessary may be obtained by special rule for that purpose. When they are sent up they can only be taken from the files by rule for that purpose entered upon the minutes, that it may appear when and why they were taken. Let the rule be entered and the bill taken in the present case. (a) NiehoUs T. State, ante 64*; Morris Canal ads. State, t Or. 411 ; MorreU v. Fearing, Spen. 670; see Browning v. Cooper, S Harr. 196. "CASES DETERMINED IN THE SUPREME COURT OF JUDICATURE OF THE STATE OF NEW JERSEY FEBRUARY TERM, 1820. J. BUCHANNAN, surviving executor of OPDIKE, v. J. ROW- LAND and others. 1. Judgment and execution levied in 1765. Claim barred in 1815, by time, though an injunction to stay execution had issued, (a) 2. Assessment of damages on scire facias to take out execution. This case came before the court at November term, 1819, on a rule to show cause why the verdict taken before Justice Southard, at the Somerset circuit, in April, 1818, should not be set aside. Upon argument and motion in open court a special scire facias under the statute was issued, returnable to February term, 1817. It recited in substance that in October, 1783, in the common pleas of Somerset county, Buchannan and Opdike, executors of John Opdike, recovered against Thomas Peterson, Thomas Peter- fa) See Pears v. Eachc, Ooxe t06 ; GhUick v. Lodcr, 1 Qr. 68 ; Johnson v. Tuttle, 1 Stock. S65 ; Bird v. InsUt, 8 C. E. Or. S6S. When equity will relieve, De Kay v. DarraA, S Or. 889; Doughty v. Doughty, t Stock. Stf; and see Lt Branthwaite v. Halsey, 4 Hal. 3. 721* 845 846 NEW JERSEY SUPREME COURT. [5 LAW Buchannan v. Kowland. son, Jr., and Harpent Peterson, a debt of 277 14s. lid., with their costs ; that this judgment was removed into the supreme court, by writ of error, and in May, 1785, was affirmed; that a fi.fa. returnable to September, 1785, was issued and delivered to Robert Stockton, sheriff of Somerset, and by him levied " on sundry goods and chattels belonging to Thomas Peterson, one of the defendants, viz., four horses, two cattle, one wagon, two beds and bedding, looking-glass, table, chairs &c., *and on two hun- dred and fifty acres of land at Neshanic, bounded by lands of Roeliff Peterson and others, value of said goods and land un- known, which remain," &c. ; that Opdike hath died and Buchan- nan survived ; that Stockton, the sheriff, died, not having ful- filled the duties of his office as he was commanded by the writ; that the fi.fa. had not been further executed, and the judgment remained wholly unpaid ; that Thomas Peterson, Jr., and Har- pent Peterson died without satisfying the judgment, and leaving heirs-at-law ; that some of the defendants are tenants of the free- hold levied on, and others heirs of the defendants, and command- ing said defendants to appear and show cause why the lands levied on, or such part thereof as should be sufficient to satisfy the plaintiffs, should not be sold &c. The defendants pleaded 1. That the sheriff did not make the levy set forth on any lands in their possession &c. 2. That there was no such return by the sheriff. 3. That the sheriff did not make a levy on the goods and lands of Thomas Peterson &c. 4. That Thomas Peterson was not, at the time of the rendition of the judgment and levy made, seized in fee, or in any estate or interest in the lands &c. 5. That the sheriff took sufficient goods to satisfy the execution. 6. That the defendants paid the judg- ment, and it was received by the plaintiffs in full satisfaction. 7. That the defendants paid the money to the plaintiffs. The plaintiffs replied and joined issue. At the trial the plain- tiff produced a record from the supreme court, proving the judg- ments, execution and levy set out in the seire facias, and then gave in evidence that the lands levied on were those in possession of the defendants ; that Thomas Peterson first cleared, built upon and cultivated them to the extent of about two hundred and fifty *722 2 SOUTH.] FEBRUARY TERM, 1820. 847 Buchann&n r. Rowland. .acres ; that he was a large farmer, but by being security for his sons was much reduced about 1784 5, and had then but little personal property around him a horse or two &c. Before the sheriff made any sale under the^ert facias the defendants filed a bill in chancery for relief, and obtained an injunction staying the further proceedings of the sheriff. On the 13th of August, 1787, a rule was taken for answer to the bill, and the 27th of February, 1788, an attachment was issued to compel an answer. The de- fendants paid the costs, demurred and pleaded. On the 2d of De- cember, 1789, the demurrer and plea were argued but the *result did not appear. On the 29th of December, 1789, the bill was amended and no further proceedings had upon it until Septem- ber, 1815, when, after notice to Elias Boudinot, Esq., the solici- tor of the complainants, and upon motion made, the injunction was dissolved by Chancellor Ogden. The defendants then proved that in April, 1789, Henry Gar- retsie obtained judgment in the supreme court against Thomas Peterson ; that a fieri facias was issued and levied upon these lands; and that in April, 1791, they were publicly advertised and sold by William Wallace, then sheriff of Somerset, for 1 15s. per acre, without any objection or claim by anyone; that Roeliff Peterson bought and received from the sheriff a deed dated April 12th, 1791. He conveyed to Henry Garretsie by deed dated April 25th, 1792; and Garretsie conveyed to Row- land, one of the defendants, by deed with warranty, dated April 12th, 1801. The plaintiff then proved that Roeliff Peterson, after he bought the land at sheriff's sale, rented it for one year and de- clined renting it any longer, telling the tenant that when ho bid he did it under a mistake, and did not recollect there was a judgment on it, and he wished Garretsie to take it back ; that it was worth the prjce and he would be glad to have it without the encumbrance, but Opdike's judgment was 600 or 700, and would take all he was worth to pay it. At this time he did not .sjxsak of his own mortgage. Garretsie took the land off his hands. It was worth 6 an acre, in the opinion of the witiu >>, -who also, before and after that time, heard that there was a debt *723 848 NEW JERSEY SUPREME COURT. [5 LAW Buchannan v. Rowland. on the land unpaid. The defendant then proved that at the sale Roeliff Peterson said he would bid up the land so as to save his own mortgage ; and, after he had bid, someone told him of his mistake ; he then informed the sheriff that he Jhad bid under a mistake and recalled his bid, but the sheriff would not permit him to do so, but struck it off to him. The defendant also gave in evidence two mortgages from Thomas Peterson one to Roe- liff Peterson, dated May 8th, 1787, the other to Garret Vanost- rand and Ferdinand Suydaru, dated May 1st, 1784. The jury found a general verdict in favor of the plaintiff on all the issues, but did not assess damages. The defendant main- tained that the verdict was against the law and evidence on the plea of payment, and that the jury ought to have assessed the damages. * Attorney- General, in support of the rule. 1. The verdict is against law. The jury ought to have found the judgment paid because it slept from 1785 until the seire facias issued. The defendant was a purchaser at a public sale by execution and without notice. And although the first execution was stayed by injunction, yet as it issued upon an oath of equity and has re- mained nearly thirty years, payment or satisfaction ought to have been inferred. The plaintiff was a neighbor and lay still, giv- ing no notice and taking no step until Peterson died and a num- ber of conveyances had been made. He was the actor and ought long since to have done what he did lately get the in- junction dissolved. Nor was any step necessary for this purpose on his part ; it was dissolved by the death of Peterson, and he might then have proceeded. He was as much bound to do so as if it never had issued. It could at no time have more effect in stopping the limitation from running against the claim than a plea of payment would have had. Salk. 322. Where a party neglects the claim of any right for twenty years, the presumption of law is that it is satisfied. Pat. 856 ; 7 Johns. 556. Such delay would be a complete bar to a scire facias to revive a judg- ment ; and the fact that execution was issued ought to make no difference. 4- Burr. 1963. This doctrine of limitation is more important in cases of judgment than any other, for, in them, sat- *724 2 SOUTH.] FEBRUARY TERM, 1820. 849 Buchannan r. Rowland. isfaction is seldom entered. And the circumstances of the present case render the presumption peculiarly strong. 2. The verdict is general. The jury assessed no damages and the court cannot assess them. They should have found what the goods taken, under the fieri facias, were worth, and assessed the damages beyond that. R. Stockton. The plaintiff sustained the issues on his part fully. The defendant gave no evidence of the value of the goods levied on, nor of payment. Of actual payment there was no pre- tence. The whole history of the cause proves that none was made. It was resisted and defeated at every step. But the naked fact of the judgment being in 1785 is said to operate as a complete bar. Length of time operates either as a legal bar or as presump- tive evidence of payment. At common law it was no bar, but the legislature interfered and made it a positive bar in some cases ; but no case can be operated upon by the legislative *provisions unless within the very words. This case is not so. The statute applies only to judgments on which no execution has been issued. What, then, is the presumptive evidence arising from time ? It is such that if, from the circumstances, the jury believe that no payment has been made they may reject it. Coivp. 108. It is presumptive only, and may be overcome. And what is the presumption of payment here by the Petersons, which is the only payment within the plea ? None, for they were not in a condi- tion to pay. There is no presumption that the sheriff or pur- chaser paid any money, and if they did it could not be shown under the present pleadings. A party occasioning a delay can- not set it up as a protection, and here it was occasioned by Peter- son. The only charge against the present plaintiffs is that they did not zealously pursue their rights ; but this is not to injure the heirs. The idea that the death of Peterson dissolved the in- junction is incorrect ; he was one of three complainants, and even if there could have been a dissolution of the injunction or abate- ment of the suit, execution could not issue without leave, and this would have at once been prevented by showing that the causes for injunction still existed. 2 Ewr. 1065. Garretsie bought *725 54 850 NEW JERSEY SUPREME COURT. [5 LAW Buchannan v. Rowland. subject to this judgment and got an allowance for it; he gave only thirty-five shillings an acre, and if he is not now to pay he will cheat both parties. The sheriff could sell only under the lien of this judgment, of which there was no necessity to prove a notice, or, if there was, the evidence proves it. Judgment and execution remain a lien and the record is full notice to all the world, like a recorded mortgage. 3 Bin. 361. The case in 2 Burr. 660, overrules Salk. 322, and 7 Johns. 556 is inaccurately reported in point of language. 2. Prima fade this is not a proper case for the assessment of damages, it being a scire facias for execution, and the judgment being therefor, it is considered that the plaintiffs have execution y statute and to compel men to prosecute their rights within a rea- sonable time, or to abandon them forever. Hence we find, from the reign of Henry I., a succession of statutes, narrowing the latitude of the common law in this respect, and limiting the time in which actions might be brought to shorter and shorter periods until they had brought it down, in most cases, to twenty years only, and in many to a still shorter time. The reasons upon which these statutes are founded, Sir Wil- liam Blackstone tells us, are, first, because the law will not dis- turb an actual possession in favor of a claim which has been suffered to lie dormant for a long and unreasonable time, nam vigtiantibus et non dormientibus subserviunt leges ; secondly, be- cause it presumes that he who has for a long time had the undis- turbed possession of either goods or lands, however wrongfully obtained at first, has either procured a lawful title or made satis- faction to the injured, otherwise he would have been sooner sued ; and thirdly, because it judges that such limitations tend to the prevention of innumerable perjuries, the preservation of the public tranquillity, and, what it values perhaps more than nil, the suppression of contention and strife among men, nam prcedpue interest republicce ut finis sit litium. Taking these great fundamental principles, then, thus recog- nized by successive statutes, as the basis of their conduct, the courts of justice built up upon them a system extending beyond the letter of the statutes themselves. They were professedly founded, in part, Sir William Blackstone says, upon the pre- sumption that lawful titles may have been acquired under pos- *sessions tortiously taken, and that satisfactions may have been made upon contracts, in their origin indisputably valid, but that the evidence thereof, after lying so long, may be destroyed by the all-devouring tooth of time. The judges only extended this *729 854 NEW JERSEY SUPREME COURT. [5 LAW Buchannan v. Rowland. principle to cases which, though not within the letter, were yet within the reason and spirit of the law. Lord Hale, I think, is said to be the first who adventured upon this course ; he was followed by Holt, and then came Lord Mansfield with still a bolder step ; the judges in the chancery,, in the meantime, keeping equal pace, if not even going beyond the courts of law. In the case of The King v. Stevens, one of the corporators of St. Ives (Burr. 433\ Lord Mansfield said there was no direct and express limitation when a bond should be supposed to be satisfied ; the general rule was, indeed, about twenty years, but it had been left to a jury upon eighteen. So, though there was no statute nor fixed rule of limitation as to the length of time which should quiet the possessors of these offices, yet they ought not to be disturbed after a great length of time. In the Winchelsea Gases, Burr. 1962, the court said they had unanimously resolved that after twenty years' undisturbed pos- session of a corporate franchise they would grant no rule upon a corporator to show by what right he held. This resolution was. founded, not on any express provision of the law, but in analogy to the rules established in other cases. By the statutes of limi- tation, they said, writs of formedon and entry into lands were confined to twenty years, writs of error were confined to twenty years, courts of equity did not allow the redemption of mort- gages after twenty years, bills of review had been generally disal- lowed after twenty years, bonds which had lain dormant should be presumed to be paid after twenty years, ejectments required proof of possession within twenty years, and so, leaning upon these cases, they extended the doctrine by analogy, without posi- tive statute, to the case of a corporate franchise then depending before them. The same ground has been taken and the same course pursued by succeeding judges down till this day, so that nothing can be better settled than that they do extend the principles of these statutes by analogy only to cases within the reason and spirit, though not within the letter, of them. And, upon this ana*logy,, *730 2 SOUTH.] FEBRUARY TERM, 1820. 855 Buchannan r. Rowland. this presumption of payment, as appears by Lord Mansfield's reasoning, is wholly founded. We have carried the limitation of actions still further than they have done in England. We have carried it so far that I do not now recollect a single case, unless, indeed, it be the one be- fore us, in which an action can be maintained after twenty years. After that time latent titles to land unaccompanied by possession are supposed to be extinct, mortgages to be redeemed, judgments to be satisfied, bonds to be paid. Our act for the limitation of actions extends expressly to all these. Now, if in England the writs of formedon and entry into lands and of writs of error and actions of ejectment created by statute would be extended, by analogy, to corporate franchises and be made the ground of pre- sumptive payment of bonds and mortgages, certainly it cannot be going too far to say that when our act of assembly has de- clared that no scire facias shall issue or action of debt be main- tained upon a judgment, unless within twenty years from its date, and that, too, upon the presumption that it is already paid, I say it will certainly not be going too far to extend this pre- sumption, by analogy, to the case of an execution upon such judgment, which has, indeed, been levied but has lain dormant, now, for thirty years and more. But suppose these points to be gained, that the principle of the statute is to be extended by analogy, and that the presump- tion of payment built upon it is applicable to the case before us, in the same extent and upon the same reason as to a bond, still it is to be inquired how far that presumption is conclusive, and whether the verdict of a jury can be set aside and a new trial granted because they have found against it. It is said by the plaintiff that the presumption at most is but evidence upon the plea of payment ; that it may be strengthened or invalidated by concomitant circumstances, and that the jury, therefore, are to judge of its strength or weakness, and to pass upon it like other evidence. And though this may be a just view of it in a certain sense, yet, upon a careful examination, perhaps we shall find it rather specious than solid, so far as it respects the present case. 856 NEW JERSEY SUPREME COURT. [5 LAW Buchannan v. Rowland. It is true that this presumption may be either strengthened or invalidated ; nay, indeed, it may be wholly overcome by circum- stances ; and when such circumstances are mere matters in *pais to be proved by witnesses, the jury must judge both of the truth of their existence and of their operation and effect upon the pre- sumption. But still, when the length of time is wholly unac- counted for, and the presumption, therefore, stands in its full force, it is conclusive ; and the conclusion to be drawn from it is a conclusion of law to be declared by the court always and uni- versally the same ; and though the jury must pass upon the issue of solvit vel won, yet the law thus to be declared to them is the evidence by which they are to be governed ; they are not by vain conjecture or imaginary reasonings to break down the rules of property established by law and declared by the court. In the case of Humphreys v. Humphreys, 3 P. Wins. 895, Lord Chancellor Talbot says ; that after twenty years, and no interest paid during that time, a bond shall be presumed to be satisfied, unless something appears to answer for that length of time. And, after a verdict at law, he granted an injunction to stay proceedings thereupon. So (same book 286}, on a demurrer to a bill to redeem a mortgage, where it appeared by the bill that the mortgagee had been in possession more than twenty years, the court held that the defendant need not even plead the length of time but might demur, and that no redemption could be allowed ; for that as twenty years would bar an entry or eject- ment, so it should bar the right of redemption also ; making the presumption not only a bar, but a legal bar, conclusive upon a demurrer. In the case of Searle v. Harrington, Str. 813, the defendant had pleaded payment and rested upon the legal presumption arising from length of time, the bond being of more than twenty years' standing. The plaintiff offered as evidence, to encounter this presumption, an endorsement upon the bond of interest paid within the twenty years, but this was overruled by the court and a nonsuit ordered. In the reconsideration of this case at bar, the court indeed held that the endorsement on the bond, of in- terest paid, was lawful evidence, and ought to have been sub- *731 2 SOUTH.] FEBRUARY TERM, 1820. 857 Buchannan v. Rowland. mitted to the jury to determine whether it was made fairly and bona fide, or merely to evade the presumption ; but there was no pretence that the presumption arising from length of time was not in itself a good bar, or that standing alone it was not a good ground of nonsuit, or that it ought to have been left to the jury to determine its effect. So, in an anonymous case (6 Mod. 22) Holt, C. J., says if a *bond be of twenty years' standing and no demand proved thereon, or good cause shown for so long forbearance, upon solvit ad diem I will intend it paid. From these cases, without going into a multitude of others, I think the conclusion irresistible not only that twenty years affords a presumption of payment but that that presumption, standing alone, is conclusive in the law, and is so to be declared by the court, and not to be left to the jury to determine its effect. It is true that Buller, in a later case in the king's bench seems to growl at this doctrine a little, and to express himself as if he thought the jury the sole judges of the effect. Whether he was led into this from having given a hasty opinion at the nisi prius or from what other cause soever, if he meant to maintain that doc- trine he was in an error. It is contrary to the whole course of decision upon that subject as well as to the very nature of the thing itself, for whatever the law presumes it belongs to the court to declare and not to the jury. I have spoken of the nature and effect of this presumption when standing alone. Is there, then, anything in this case to overcome or at all to invalidate it? The plaintiff attempted to show at the trial, and he has in- sisted here also, that Roeliff Peterson, the purchaser, at the time of the purchase, had notice of this judgment and execution under which he claims. The evidence, however, is really the other way. He had made his bid without such notice, and afterwards being informed of them by some bystander, not by the plaintiff, he wished to recall it but was not permitted. His object was to secure his mortgage ; he thought he was doing so, but was in- formed he was mistaken. I do not lay stress upon this want of notice, however, for the judgment and execution l>eing matters *732 858 NEW JERSEY SUPREME COURT. [5 LAW Buchannan v. Kowland. of record in a court of common law, every purchaser was to take notice of them at his peril. But the same thing cannot be said of the proceedings in the court of chancery ; that is not a court of record ; none take notice of the proceedings there while in fieri ; none are bound by them but those who are parties or privies. This purchaser, then, had constructive, not actual, notice of a judgment entered and execution issued six years before; the de- fendant, Thomas Peterson, had departed this life ; the plaintiff, as the executor of Opdike, had administered his estate had set- tled his account ; the judgment had lain dormant ; the execu- tion *had not been executed ; the defendant and his family had continued in possession of the land ; and even now, when pub- licly advertised for sale, no executor appears to give notice, to- make claim, to declare his right, to set up a pretence that the judgment is not satisfied. Nothing is known of the bill in chan- cery, or the injunction ; or if heard of at all they had, like the judgment and execution, been suffered to sleep for six years. Is there anything in all this to encounter the presumption ? Would we not as rational men, without the aid of such presumption, say the debt must have been paid ? Again. It is proved that Thomas Peterson had become secu- rity for his sons ; had met with losses ; had become poor ; had but little personal property about him ; and it is intended to de- duce from this that he was unable to pay the judgment, and that the presumption of law cannot prevail against this evident inabil- ity. But it should be considered in the meantime that the plain- tiff had the land in execution ; that by answering the bill in chancery, if the right was with him, he could have dissolved the injunction at any day and caused that land to be sold : nay, more, it should be considered that by a standing rule of that court no such injunction could be granted after verdict and judgment, without a deposit of the amount thereof, with costs, so that he had the means of satisfaction completely in his own power. Can it be said, then, that his lying still for six years in this situation nay, worse than lying still, for he was attached for contempt for not answering invalidates the presumption ? or rather is it not satisfactory proof either that the suit was wholly abandoned upon *733 2 SOUTH.] FEBRUARY TERM, 1820. 859 Buchannan v. Rowland. facts disclosed in the bill, as indeed well it might, or that the small balance to which the debt was incontestably reduced by those facts, was satisfied and paid ? But further. Let us suppose there had been no such laches on the part of the plaintiff up till the time of the sale ; that he had prosecuted with due diligence ; that he had come forward at the vendue and made known his demand and that the purchaser had had perfect knowledge of all this, yet still to what would it amount upon the question which we are discussing ? If a man make a deed in fee of his lands upon a full consid- eration it is a matter perfectly within his knowledge and imposes upon him the strongest obligation to deliver up the possession to the purchaser, so if he make a mortgage to secure money *bor- rowed or a bond to perform a duty, he knows well the obligation of these instruments and how they are to be discharged, but yet, if they shall be suffered to lie twenty years, the action is gone, his knowledge is no answer, the presumption is conclusive. And if conclusive in a case like this how much more so where the party has stood by and seen the land passing from hand to hand, for full value, and the labor and strength of the purchaser spent upon it without notice, without claim, without pretence of right, for twenty years and more. Will the plaintiff still go back to the injunction and offer that as an excuse for all this delay ? The injunction, properly considered, instead of invalidating, strengthens the presumption of law against him. He had re- covered a judgment upon his bond. The defendant filed a bill in equity praying to be relieved against this judgment upon the allegations of certain facts, which, if true, were, in the opinion of the chancellor, sufficient to- entitle him to relief; he called upon him to answer these facts, and, in the meantime, enjoined him from proceeding at law at his peril, thus denying the equity of his claim, refusing the payment of it, and set ting him at defiance. The plaintiff neither answers the facts nor dissolves the injunction nor proceeds upon his execution, nor even makes claim under it, but submits in silence for thirty y- ai -. Now, what i.s the conclusion ? Is it not irresistible either that *734 860 NEW JERSEY SUPREME COURT. [5 LAW Buchannan v. Rowland. he abandoned the suit or received satisfaction upon just and equitable terms ? And in whichsoever of these ways it may have been quieted it is equally within the presumption of law, for that is a presumption of satisfaction rather than a direct pay- ment in money. And it is a presumption, too, founded, not upon the punctuality and justice and ability of the debtor, but upon the acquiescence of the creditor, for \vho, having the means of payment completely in his power, would let a debt lie, without ither principal or interest, for twenty or thirty years ? And especially, what executor, acting as a trustee for others, could possibly do so ? Upon the whole, then, I am of opinion that the cause was left to the jury upon too broad ground ; that in looking for posi- tive proof of direct payment in money they have overlooked that which the law considers a's equivalent to such positive proof, and that, therefore, they have found a verdict for the plaintiff, *when, by law, it ought to have been for the defendants, and, therefore, let the verdict be set aside. ROSSELL,, J., after stating the facts minutely, added : On this state of facts the defendants apply for a new trial for the follow- ing reasons : 1. The verdict was contrary to evidence. 2. It was contrary to law. 3. The jury did not assess the damages. It is urged by the counsel for the plaintiff below that this case is without the statute, as an execution had been issued and levied on the goods and lands of the defendant, value $1 ; that this was a lien on the lands, against, which time does not operate. A judgment is a lien, and there is no magic in the term execution unexecuted; it creates no new or additional lien on lands; it gives power to the sheriff to seize on and dispose of the goods and lands of the defendant ; but if this seizure is not made for above a year, the execution becomes, I presume, a dead letter in the hands of the officer, and it is necessary to sue out a new exe- cution bottomed on the original judgment, which only can give life and virtue to an execution. Destroy the judgment and the *735 2 SOUTH.] FEBRUARY TERM, 1820. 861 Buchannan v. Rowland. execution falls, of course. By our statute ( Pat. 353 ) no ctre facias is allowed to issue to revive a judgment after twenty years, except under the usual provisos of infancy &c. The principle of time operating as a bar to actions, under the statute of limitations, is not contradicted. For although the jury may, from the evidence, be clearly of opinion that the demand of the plaintiff has never been satisfied, they are bound to con- sider the time limited by the statute as a barrier which they are not permitted to pass. Not so in cases not embraced by the statute. There, however,' courts reasoning from analogy, to quiet lawsuits and to secure possessions long acquiesced in, have directed juries that they may presume payment in cases of bonds &c., or the right of defendants to real estate after the lapse of many years, during which the plaintiff has slept over his rights and suffered the defendant to exclusively enjoy all the benefits arising from the premises. After a lapse of eighteen or twenty years bonds will be presumed to be paid ; after twenty years no judicial proceeding whatever ought to be set aside for irregularity. 7 Johns. 556. In 4 Burr. 1962, 1963, the court reasoned from *analogy, and were, on full consideration, unanimously of opinion that twenty years was the ne plus ultra, beyond which they would not disturb the peaceable possession of a franchise, yet a franchise is a branch of the royal prerogative. In neither of these cases was there any statute of limitations operating as a bar. If, in any case, the court would be justified in limiting the time beyond which actions should not be brought, it would be in one like the present. The bill of the defendant was filed in chancery and an injunc- tion issued in 1789. We are bound to believe that this bill con- tained matter sufficient to justify the issuing the injunction. Even the plaintiff seems to have been well aware of this, as he put in no answer, nor took a single step to get this injunction dissolved until 1813 a lapse of twenty-three years when the original defendant had been long dead, and the lands passed through the hands of several bona fide purchasers, and that, too, with the alleged knowledge of the executor of the obligee living near the premises, yet the whole proceeding continued to sleep in *736 862 NEW JERSEY SUPREME COURT. [5 LAW Sayre v. Reynolds. peace. The court, under such circumstances, ought to have in- structed the jury that they had the power to presume a satisfac- tion of the original judgment against the Petersons ; for want of this they might reasonably suppose that without absolute proof of payment to the plaintiff or his representative they were bound to find for him. The sheriff, by his levy, obtained a special property in the goods of the defendant, which could not be divested but by the total destruction of the judgment on which his execution was founded. The injunction only forbade the sale until the rights of the parties should be finally determined. The sheriff was liable for the amount of the goods levied on, for which he must account with the plaintiff, at least for the value he himself put on them, yet the jury paid no attention to this legal provision of the statute. On the whole of this case I am of opinion that a new trial should be awarded. Verdict set aside. *D. SAYKE v. REYNOLDS and CAMP, administrators of BROOKFIELD. Proof of note appearing to be altered or forged, (o) In error. This cause was tried at January term, 1819, and a bill of ex- ceptions taken by the defendant in proper person. The declara- (a) President &c. of Cumberland Bank v. Hall,' 1 Hal. 215 ; Den v. Wright, 3 Hul. 175 ; Richman, v. Richman, 5 Hal. 117 ; Vanauken v. Hornbeck, 2 Or. 179 ; Den, Farlee v. Farlee, 1 Zab. 280; North River &c. Co. v. Shrewsbury Church, 2 Zab. 425 ; Reformed Dutch Church v. Ten Eyck, 1 Dutch. 40 ; Hunt v. Gray, 6' Vr. 227 ; Crawford v. Bertholf, Sax. 461 ; Oest v. Flock, 1 Gr. Ch. 115 ; White v. Williams, 2 Gr, Ch. 385 ; Goodfellow v. Tnslee, 1 Beats. 355 ; Lewis v. Schenck, 3 C. E. Or. 459. *737 2 SOUTH.] FEBRUARY TERM, 1820. 863 Sajre r. Reynolds. t in was in the usual form, upou a promissory note dated 2d of September, 1811. The defendant pleaded the general issue. The bill of exceptions states that " the plaintiffs offered in evidence a promissory note and proved the execution of the same by the subscribing witnesses thereto. The defendant objected to the said evidence." The court admitted it ; the note was read to the jury, and the bill of exceptions taken and sealed. The note accompanied the return of the writ, and by it it appeared that the word first in the date had been erased, and the word second written over it; and that several payments had, at different times, been made by defendant upon it. Scudder, for plaintiff. The alteration in this note is in a material part, and if made without the consent of the maker, is a forgery ; and as it appears upon the face of it, it ought to have been proved to be done before the signing, otherwise it is fatal to the claim of the plaintiffs ; proving the handwriting of such a note is not sufficient to make it evidence. 5 Jac. L. Die. 384 > 11 Ooke 27; 5 Coke 23; 2 Jac. L. Die. Halsey, in answer. The bill of exceptions states that the plaintiff below proved the execution of the note, and this court, on this writ, must infer that it was the legal execution. The variance between the note and the declaration is not fatal ; the note is sufficiently stated. An alteration, since it was made, is not to be presumed ; it is to be proved by the defendant. Be- sides, payments have been made on it for several years ; and this shows an acquiescence in the alteration. Opinion of the court. SOUTHARD, J. It is insisted that the alteration in the note without the con- sent of the maker was a forgery and made the note void ; and it must be considered as a forgery until the alteration is accounted for. But however true the law, the argu*ment were better addressed to the jury than the court. The proof of the note as *738 864 NEW JERSEY SUPREME COURT. [5 LAW Hendricks ads. Mount. stated in the bill of exceptions was such as to demand its admis- sion ; after which, its corruption was a fit matter for considera- tion. But it appeal's to me that either as matter of law or of fact but little doubt on the subject could be felt by either court or jury. The suit was brought by administrators de bon. non. The alteration could produce no effect on the parties, except to make the note bear interest one day later and save the defendant from the payment 01' a few cents ; and there were several en- dorsements on the back of the note proving that defendant had made several payments upon it long after its date. Under such circumstances to presume a forgery would be a violation of all probabilities. There must be judgment for the defendant in error. LUTHER B. HENDRICKS ads. R. MOUNT and J. C. CRANE. 1. Trover against depositary. 2. Eill of sale fraudulent is void against creditors but binding between the parlies, (a) 3. Depositary cannot take advantage of the fraud. (b) 4. Jury decide the question of fraud, (c) 5. Seller is a competent witness if released by plaintiff, (d) (a) See Den v. Moore, ante 475 / Robinson v. Monjoy, 2 Hal. 173 ; HaU v. Snowhill, 2 Or. 16; Den, Wooden v. Shotwell, 3 Zab. 466, 4 Zab. 789; Den, Obert v. Hammel, 3 Harr. 74 ; Owen v. Arvis, 2 Dutch. 23; Chureh v. Muir, 4 Vr. 818; Baldwin v. Campfield, 4 Hal. Ch. 600, 891; Tantum v. Miller, 3 Stock. 551 ; Danbury v. Robinson, 1 McCart. 213 ; Sayre v. Fredericks, 1 C. E. Or. 205; Lokerson v. Stillwell, 2 Beas. 357 ; Eyre v. Eyre, 4 C. E. Or. 4% ; Gardner v. Short, 4 C. E. Or. S41 ; Marlatt v. Warwick, 4 C. E. Or. 440; Cutler v. Tuttle, 4 C. E. Or. 550 ; Alwood v. Impson, 5 C. E. Or. 150; Metro- politan Bank v. Durant, 7 C. E. Or. 35, 9 C. E. Or. 556 ; Servis v. Nelson, 1 McCart. 94; Jones v. Adams, 8 C. E. Or. 113 ; cases cited post 743. (b) Hampton v. Sunsher, 1 South. 66; Evans v. Herring, 3 Dutch. 243; Miller ads. Pancoast, 5 Dutch. 250. (c) diver v. Applegate, ante 481 ; Parrel v. Colwell, 1 Vr. 129 ; and see Watkins v. Pintard, Coxe 378; Osborne v. Tunis, 1 Dutch. 634. (d) See Sherron v. Humphreys, 2 Or. 217 ; Letson v. Dunham, 2 Or. 307. 2 SOUTH.] FEBRUARY TERM, 1820. 865 Hendricks ads. Mount. In case. This was a writ of error to the court of common pleas of Essex. The cause was tried there in January, 1819. The plain- tiffs produced, proved and read in evidence a bill of sale, dated the 6th of November, 1816, from one Elijah Day to them, with an inventory of certain goods and merchandise thereto annexed, l>eing the goods stated in the declaration. They then offered Day as a witness, to whose competency the defendant objected, and in support of the objection offered and read in evidence a petition of his, as an insolvent debtor, to the court of common pleas of the county of Essex, dated the 18th day of November, 1816 ; also a schedule and inventory thereunto annexed; and a certain order or decree of the court for his discharge, dated the 23d of December, 1816. Also a deed of assignment made by him to one William R. Williamson, in pursuance of the said order or decree dated the 23d of December, 1816. The plaintiffs then, and before the court had given any opinion, tendered and delivered to said Day a deed of release bearing date the day of ,1819, and again offered him as a witness, and the defendant again objected to his admission, which objec*tion the court overruled, and permitted him to be sworn, whereupon he did testify that sometime in July, 1816, he received of W. R. Williamson, Esq., now deceased, the sum of $ 137, in trust, to be delivered to Robert Mount, in the city of New York, for whom W. R. Williamson, who was an attorney-at-law, had col- lected the same. A paper in the handwriting of W. R. William- son, Esq., containing a statement of said money and of the de- livery thereof to Day for Mount, was then produced, and being admitted was read in evidence. Day then further testified that having occasion for the use of said money he had applied it to his own use, then intending shortly to have replaced it and paid it over to Mount, but that, in fact, he never had so paid it That, on the 6th day of November, 1816, he was indebted to John C. Crane, the other plaintiff, upon a promissory note bearing . Mount. because he did not wish to be seen off the limits; that he afterwards made an assignment of all the rest of his goods and property in the store to Jonathan B. Dayton and , for the benefit of his individual creditors, as he thought he was bound to pay them out of his own property in prefer- ence to the creditors of Day & Thomson. Being cross-examined he stated that he could not tell whether the bill of sale to plain- tiffs was executed the day it bears date, but thought it was de- livered to John C. Crane the first time he saw him after the eight spoken of and before he was discharged from confinement. Witness supposed, from what he said to the defendant previous to putting up the goods and from what passed when the goods were invoiced, that the defendant knew and understood that they were to secure and satisfy to the plaintiffs the moneys due them. In the summer of 1817, he went in defendant's cellar, in com- pany with him, to see whether the goods were not injured by lying. The last four or five articles on the invoice, being of a perishable nature, were used by defendant, with his consent, and some of them by himself. Being asked whether he was not in- debted to John C. Crane in the sum of $1 75 at the time he gave him the note, he answered that he could not say that he was ; he supposed the note would charge him for that amount ; he did not think himself he owed Crane so much, but there were con- siderable accounts between them. Crane made up the account and said the balance was $175, but he did not think there was quite so much due, but could not say, certainly, how much. Defendant *then gave in evidence a bond and mortgage of lands, given by Day to him, for $750, bearing date the 1st of May, 1815. Plaintiff proved a demand and refusal of the goods at two or three different times, about the 20th or 25th of May. The writ in this cause was issued on or after the 20th of May, 1818. The testimony being closed, the defendant, by his counsel, called on the court to charge the jury that if they should find that the bill of sale was fraudulently made by Day to the plaintiffs, that then they were not entitled to recover of the defendant ; where- upon the court charged the jury that whether the bill of sale was fraudulent or not was for their determination ; but that if the *741 868 NEW JERSEY SUPREME COURT. [5 Hend ricks ads. Mount. plaintiffs and Day had contrived it fraudulently between them, for covinous purposes, it was, nevertheless, valid as between those- who were the parties to it ; that the statute had indeed declared it void as against the creditors of Day, and if fraudulent, it was absolutely void as against them, whenever they, or any of them, should seize the goods, by legal process, as the property of Day ; but that as to the defendant, they were only stored in his cellar, without a claim of title to them in him ; and that whether the bill of sale was or was not fraudulent as to creditors, the plain- tiffs had a right to recover the value against the defendant. To which opinion of the court the defendant excepted, and also to the admission of Day as a witness. There was a verdict and judgment for the plaintiff. Upon the argument, two grounds of error were principally urged. 1. The admission of Day as a witness; and, 2. The charge of the court. Scudder. Day was not a competent witness. He made a bill of sale and thus gave an implied warranty. This may be re- leased so far as relates to the bill alone, but if the consideration of it be also released, the debt and all claim on the goods are re- leased with it. Again : He could not give these plaintiffs, or any other creditors, a preference by a payment of the debt in this way. Pat. 167 8. Under the bankrupt laws, if an as- signment be made to pay one creditor, in the view of becoming insolvent, it is void. 3 Mass. 325; Bank. Law U. S. 8 ; 3 Wils. 4? > 4 Wheat. 194' Our insolvent law is the same in principle. Its design is to give all creditors an equal share of the debtor's property. *2. The charge was contradictory in itself, and embarrassing to the jury. It declared that the bill, though fraudulent, is binding between the parties to it. This is not so. Pat. 154- This statute has not altered the common law. Conveyances were always void if fraudulent. A party to a fraudulent deed cannot claim any benefit under it. 4- Johns. 598 ; Cowp. 434- If this deed was fraudulent, the jury ought to have been in- structed that the plaintiff could not recover. *742 -2 SOUTH.] FEBRUARY TERM, 1820. 869 Hendricks ads Mount. Attoi'ney- General, in answer. The release takes away all in- terest arising from the bill of sale, and Day was therefore not interested in any view. 2. The charge states that the bill, if fraudulent, is void against creditors ; but Hendricks can claim no benefit from this ; he was not a creditor. It also correctly states that the bill, though fraudulent, is binding between the parties to it. Oo. Jac. W7 ; Fonb. 264 > 1 Johns. 161. Again : Under our insolvent laws, -a debtor may prefer one creditor to another. This Is a principal distinction between them and the bankrupt laws. Woodruff v. Ro/, 1 Fern. 399; Rob. Fr. Gonv. 422, J&3. Opinion of the court. SOUTHARD, J. If I understand this case correctly, Hendricks, who was the defendant below, had no claim of any kind to a property in the goods for which the action was brought. Day, who once owned them, had been indebted to him about $440, but had secured that debt by a mortgage on other property and had eventually paid the debt by transferring that property, and had received a receipt and discharge in full. Hendricks was, therefore, not a creditor ; he could not, in this action, set up the rights of a creditor by way of defence. The goods had merely been left with him for safe- keeping, and for safe-keeping only. He was a mere depositary, ^nd had only a depositary's rights. It is further, entirely manifest, from the state of the case, that -when he received the goods he knew the nature of the transfer which had been made of them. He received them as the prop- erty of Mount and Crane. They were deposited with him for their benefit and to be under their control. Has he a right, then, when they claim them, when they demand the possession of them, to say, " Your title is defective, and though I have no claim you shall not have them ?" I think, clearly not. In the first place, *he received them with the express condition to keep for the benefit of the plaintiff. He must comply with his contract. In the second place, although I think he might, in such case, set up *743 870 NEW JERSEY SUPREME COURT. [5 LAW Hendricks ads. Mount. a title in himself, of which he was ignorant at the time of the de- posit, yet he cannot set up a right in some third person, much less may he defend himself by saying that there are creditors to whom, in justice, these goods ought to go to satisfy their claims. But it is argued that the bill of sale which transferred the goods to Mount and Crane was in fraud of creditors, and, therefore, ought to avail them nothing. Now, although we were to admit the fraud in the execution of the bill, yet I do not see how it can avail this defendant. The parties to that bill are willing to abide by it ; no one has a right to dispute its validity but he who is interested in it. This defendant is not so interested. He is a perfect stranger so far as relates to any rights under it. And although a creditor may dispute the legality of an instrument,, yet, as between the parties to it, a stranger has no right to inter- fere. We recognize the right of no man, iu this way, to turn Quixote and fight against fraud for justice' sake alone, (a) In the mouth, therefore, of this defendant, I do not perceive the right to set up this defence, even if it were true in fact. But, upon the case, it is not very clear that there was any fraud in the creation of this bill. Mount and Crane appear to have been both creditors ; one of them a creditor of a most peculiar kind. Is there anything to prevent the debtor from securing their debt, even if by so doing he should defeat the claims of other creditors? It is every day done under our insolvent system, and every day sustained in our courts of justice. And however improper, in an honest and moral view it may sometimes be, still it is legal. (6) If, then, Mount and Crane were truly and bona fide creditors, Day had a right, before he presented his petition, to secure their claim. Whether they were such creditors and whether the bill of sale were made before the petition was (a) Melville v. Broum, 1 Harr. 366. (b) Tillou v. Britton, 4 Hal. 136; Sharp v. Tease, 4 Hal. 356; Owen v. Arvis, 2 Dutch. 23 ; Gairet8. DAVID GUSTIN. 1. An indictment for forgery must set out the tenor of the instrument forged, (a) 2. Form of return to certiorari. (b) 3. Form of record, (c) An indictment for forgery was found against the defendant in the oyer and terminer of Essex county, at September sessions, 1813. At April, 1814, the defendant pleaded not guilty, and, before trial was had, a certiorari was presented to remove the indictment to this court. When the writ was returned, Halsey, for defendant, prayed leave to withdraw his plea of not guilty, that he might move to quash the indictment. Leave was granted, the plea withdrawn, and motion made and argued November term, *1819. The material part of the indictment was as fol- lows : The jurors &c., present that heretofore &c., one David Gustin and Daniel Harker &c., both of the county of Sussex, drew their joint promissory note, bearing date on the day and year aforesaid, and made payable to John Gustin, esquire, or order, at the New Brunswick Bank, ninety days after date, for the sum of $500, without defalcation or discount, for value re- ceived, which said promissory note was endorsed by the said John Gustin, esquire, and one John Ogden, esquire, and de- livered to the said David Gustin for the purpose of enabling him, the said David Gustin, to get the said note discounted at the said New Brunswick Bank. And the jurors aforesaid, upon their oath aforesaid, do further present that the said David Gustin, late of the township of Elizabeth, in the county of Essex, afterwards, to wit, on the 5th day of October, in the year afore- (o) See State v. Qustin, post 749; State v. Potts, 4 Hoi. 26; State v. Farrand, 3 Hal S3S; Stale v. Robinson, 1 Harr. 507 ; Stone v. State, Spenc. 401, 404; State v. Weller, Spenc. 522 ; Berrian v. State, 2 Zab. 9, 679. (b) See State v. Hunt, Coxe 287 ; State v. Webster, 5 Hal. 295; Mann v. Drost, 3 Harr. 336. (c) State v. Jones, 4 Hal. 371; State v. Price, 6 Hal. 209. *745 2 SOUTH.] FEBRUARY TERM, 1820. 873 State r. Gustin. said, had the said note in his possession, and that he, the said David Gustin, on the same 5th day of October, in the year afore- said, at the township of Elizabeth, in the county of Essex, and within the jurisdiction of this court, did falsely, willfully and knowingly alter, and cause and procure to be altered, and act and assist in altering the said promissory note, before mentioned and described, by altering the sum to be paid by the said note from $500 to $5,000, so that the said promissory note might purport to be for the payment of the false sum of $5,000, instead of the sum of $500, for which sum the same was drawn payable ; which said alteration was made without the knowledge or consent of the said Daniel Barker, John Gustin and John Ogden, or either of them, and with intent to defraud the said Daniel Harker, John Gustin and John Ogden, contrary to the statute Hahey. The tenor is not set out, nor any fact to show that it was impossible to set it out. 8 Mass. 107, 111 ; Davis 304 > 1 Star. 98. Chetwood. There is no case or form to be found in which the loss or destruction of the instrument is set out. It is sufficient, if the indictment show that it is an instrument of which forgery may be committed, as that it is a promissory note. Pal. 216 ; 3 Mass. 85; 1 Star. 66, 67, 227, 228, 229; Cam. Dig. "In- dictment;" G. 1,5 ; 2 Star. 904; Leach 79, 92; 2 Bl. JR. 790. *SOUTHARD, J. This indictment charges that on the 28th of September, 1812, David Gustin and Daniel Harker made a joint promissory note, payable ninety days after date, at the New Brunswick Bank, to John Gustin or order, for $500, which was endorsed by the said John Gustin and by John Ogden, and delivered to David Gustin to be discounted, and on the 5th of October he altered it by making it promise to pay $5,000, instead of $500 &c. The objection to it is that the tenor of the note is not set out, nor any circumstances showing that it was not in the power of the jury *746 874 NEW JERSEY SUPREME COURT. [5 LAW State v. Gustin. to set it out. And the objection is well taken. The instrument must be shown, that the court may see whether it be an instru- ment of which there can be forgery by the statute. There is a distinction between the indictment itself and the proof necessary to sustain it. If the tenor be set out, proof that the instrument is not within the power of the prosecutor is sufficient to authorize other proof as to its contents ; and proof which will justify con- viction. I think the motion must prevail. THE COURT. Let the indictment be quashed. As difficulty has frequently arisen from the manner in which the records of judgments upon indictments are made up, and also from the manner in which returns are made to certiorari to remove indictments, the reporter subjoins the form of a return and judgment in the foregoing case, which were cautiously pre- pared, and have been sanctioned by the court ; and which, with the alterations adapted to the particular cases, may serve to pre- vent error and difficulty hereafter. Form of Record to be Returned with Certiorari. Essex, to wit : Be it remembered that at a court of oyer and terminer and general gaol delivery holden at Newark, in and for the said county of Essex, on the third Tuesday in September, in the year of our Lord one thousand eight hundred and thirteen, before the Honorable William S. Pennington, Esq., third justice of the supreme court of judicature, and John Lindsley and Aaron Munn, Esqs., and others, their fellows, judges of the inferior court of common pleas in and for the said county, ac- cording to the form of the statute in that case made and pro- vided, by the oath of William Steele (name the whole grand jury), good and lawful men of the said county sworn and charged *to inquire for the state, in and for the body of the said county, It is presented in manner and form following, that is to say, New Jersey, Essex county, to wit, the jurors &c., to the end of the indictment. Whereupon the said David Gustin, being publicly *747 2 SOUTH.] FEBRUARY TERM, 1820. 875 State v. Gustin. called, cometh not, and, therefore, it is commanded to the sheriff of the said county that he take the said David Gustin and have him here to answer &c., if &c., and if not, then &c. Afterwards, that is to say, at a court of oyer and terminer and general gaol delivery holden at Newark aforesaid, in the county aforesaid, on the second Tuesday in April, in the year of our Lord one thousand eight hundred and fourteen, before the Hon- orable , Esq., justice of the said supreme court, and , Esqs., and others, their fellows, judges of the said inferior court of common pleas in and for the said county, coineth the said David Gustin, in his proper person, according to the condition of the recognizance by himself, and his pledge in that behalf heretofore made, and now here touching the premises in the said indictment above specified and charged upon him, being asked in what manner he will acquit himself thereof, he says he is not guilty thereof, and of this he puts himself upon the country. And William Chetwood, Esq., who prosecutes for the state in this behalf, does likewise the same. Form of Record in the Supreme Court. Pleas before the justices of the supreme court of judicature of the state of New Jersey, at Trenton, of the term of May, in the year of our Lord one thousand eight hundred and sixteen. Essex, to wit : The state of New Jersey sent to the commis- sioners of the courts of oyer and terminer and general gaol deliv- ery, holden at Newark, in and for the said county of Essex, their writ of certiorari in these words, to wit : " The state of New Jersey," (to the end of the writ, closing with the word sixteen) ; which said writ of certiorari unto the justices aforesaid, at Tren- ton aforesaid, on the said second Tuesday in May, in this same term, the said commissioners of the said courts of oyer and terminer and general gaol delivery, in and for the said county of Essex, that is to say, Samuel L. Southard, David D. Crane and James Hedden, esquires, according to the command of the said writ, under their seals do return in the words following, to wit : " The indictment of David Gustin, whereof men*tion is within *748 876 NEW JERSEY SUPREME COURT. [5 LAW State v. Gustin. made, and all things touching and concerning the same, to the justices of our supreme court, at Trenton, within specified, at the day and place within mentioned, we, the judges of the court of oyer and terminer and general gaol delivery within men- tioned, under our seals, and hereunto annexed, as within we are commanded, do send." Which said indictment, with all things touching and concerning the same, had and done in the said court of oyer and terminer and general gaol delivery in and for the said county of Essex, in the record thereof certified and sent, annexed to the said writ, is contained in these words, to wit : " Essex, to wit : Be it remembered " &c. (as per record, to the nd thereof). And the said David Gustin, before the justices aforesaid, at Trenton aforesaid, on the return of the said writ, coineth in his own proper person, according to the condition of the recogni- sance, by himself and his pledges in that behalf heretofore made, and prayeth liberty to withdraw the plea aforesaid, by him in form aforesaid pleaded, because he says the same was unadvisedly pleaded; and it is granted to him upon condition &c. And thereupon the said David allegeth that the said indictment doth not contain matter to which he ought to be put to the expense and delay of making answer, and therefore prayeth that the said in- dictment may be quashed, vacated, and holden for none, and thereof submitteth himself to the advice of the justices aforesaid. And because the justices aforesaid will further advise themselves of and upon the premises, day is given to the said David Gustin here until the first Tuesday in September next &c. And now at this day, that is to say, on the last Tuesday in February, in the term of February, in the year of our Lord one thousand eight hundred and twenty, until which day the said cause was continued from term to term before the justices afore- said, for further advisement, cometh the said David Gustin, accord- ing to the condition of the recognizance by himself and his pledges in that behalf heretofore made ; and the said indictment by the said justices now here being carefully inspected, and due deliber- ation being thereupon had, it is considered that the said indict- ment, for the cause aforesaid, be quashed, vacated, and for none holden, and that the said David go thereof without day &c. 2 SOUTH.] FEBRUARY TERM, 1820. 877 State v. Gustin. *THE STATE v. DAVID GUSTIX. (a) Purport. Another indictment for forgery against the same defendant was found at the same time, and the same proceedings until judg- ment were had as in the preceding case. The indictment charged " that David Gustin, late &c., on &c., and after the dissolution of the copartnership of the said David Gustin and John Ogden, who had shortly before carried on trade and merchandise under the name and firm of Ogden & Gustin, at &c., did falsely make, forge and counterfeit, and did cause and procure to be falsely made, forged and counterfeited, a certain promissory note for the payment of money, signed by the said David Gustin with the partnership name of Ogden & Gustin, and purporting to have been signed by the said David Gustin with the partnership name and firm of Ogden & Gustin before the said partnership was dissolved, the tenor of which said promissory note is as follows : ' $5,000. Ninety days after date we promise to pay William Shute, or order, five thousand dol- lars, at the State Bank at Elizabeth, without defalcation or dis- count, for merchandise rec'd. E. Town, 30th Deer., 1812. Ogden & Gustin ;' with intent to defraud the said John Ogden, and to render him liable to the payment of the said sum of money in the said note mentioned and made payable, contrary to the form of the statute " &c. Hatsey moved to quash. 1. For uncertainty and inconsistency. 2. Because the purport was incorrectly stated ; it being stated to be signed by defendant, with the partnership name of Ogden & Gustin, whereas it did not purport to be signed by D. Gustin. 2 East 982. 3. Because partner, before or after dissolution of partnership, may sign partnership name for a separate business, and not be liable to the pains of forgery. (a) State v. Gustin, ante 744. *749 878 NEW JERSEY SUPREME COURT. [5 LAW Associates of the Jersey Co. v. Halsey. Chetwood answered, and referred to 2 Hawk. 344> 1 Mod. 78; 1 Str. 234, $41, 66 ; 1 Salk. 384; 1 Leach 239, 410; 2 Str. 486 ; 8 Leach 660. THE COURT (Southard, J., dissenting) overruled the motion, and put the defendant to plead &c. *THE ASSOCIATES OF THE JERSEY COMPANY v. WILLIAM HALSEY, ESQ. 1. Deed for several lots of ground and rent reserved. Count for rent due on particular lots, and general assignment of breach, good, (a) 2. Defect in pleading, which verdict would cure, not a ground of non- suit. (6) In error. This case was presented to the court at November term, 1819. The action was covenant, founded on two deeds for certain lots of ground in the city of Jersey, in which deeds there is a reser- vation of rent to be paid by the defendant to the said associates and their successors, and a covenant, on the part of the defend- ant, to pay the said rent at the days and times therein specified. The bill contains two counts, one on each deed, setting forth that rent was due on certain lots, and specified in the said deeds respectively, with a general assignment of breach in the non-pay- ment of the said rents. To this declaration the defendant pleaded 1. Non cstfactumand issue joined. 2. That after the making of the deeds in the declaration mentioned, the defendant did, at the days and times, pay the rent specified in the said deeds ac- (a) See Condit v. Baldwin, b Harr. 144; Hanness v. Smith, 2 Zab. SS2 ; Ros- cnkrantz v. Durling, 5 Dutch 191 ; Van Voorst v. Morris Canal, Spen. 167, 200. (6) See Baldwin v. O Brian, Coxe 418; Farwdl v. Smith, 1 Harr. 133; Brown- ing v. SkiUman, 4 Zab. 352 ; Harrison v. Newkirk, Spen. 176 ; Rose v. Parker, post 780. Breaches may be assigned after verdict, West v. Caldwell, 3 Zab. 736. *750 2 SOUTH.] FEBRUARY TERM, 1820. 879 Associates of the Jersey Co. v. Halsej. cording to the form and effect of the said deeds, concluding with a verification. 3. That he hath not broken the said several covenants in the first and second counts in the said declaration mentioned, and issue joined. 4. That after the execution of said indenture, and after the breaches alleged, and before the filing of the bill, the defendant paid the sum of $288, in full satisfaction of all the damages sustained ; which sum was accepted by the company in full satisfaction, concluding with a verification. To which pleas there was a special notice subjoined. The plaintiffs replied to the second plea that the said William Halsey did not, on the several days and times therein alleged, pay the rent as therein specified, and issue joined. To the fourth plea ; that the defendant did not pay the said sum in full satisfaction of the damages, and that the plaintiffs did not accept the same in full satisfaction, as therein alleged, and issue joined. On the trial the plaintiffs produced the deeds in evidence, which were read, and offered to prove the rent in arrear, to which the counsel for the defendant objected on the ground that the breach in the bill was improperly assigned, which objection the court below sustained, aud nonsuited the plaintiffs. To which opinion of the court the plaintiffs tendered a bill of exceptions, which was allowed and sealed. *The error assigned and relied on in argument was that the court below ought not to have nonsuited the plaintiff. R. Stockton, for plaintiff in error. The only issue on the plaintiff was non est factum, and, therefore, after he gave the deed in evidence he rested. 1 Chit. 482 ; 14. Johns. 93. The plea non infregit contained two negatives, was senseless, not issu- able and not to be considered. Com. Dig. " Pleading " 622 ; 2 EL 1312. The only matter, therefore, to be tried was, on one side, the existence of the deed, and on the other the payment of all or a sum certain accepted. Yet, where there was plea of pay- ment, the court strangely refused to call on defendant to support it. It is, however, said that the nonsuit was granted because the breach was bad in that it was for entirety and not for particular lots on which the rent was in arrear. But no case can be found *751 880 NEW JERSEY SUPREME COURT. [5 LAW Associates of the Jersey Co. v. Halsey. where, on affirmative pleas by the defendant, the plaintiff has been nonsuited for defect of declaration. There should have been demurrer or motion in arrest of judgment. 3 Com. Dig. "Pleading" 621, 622. Besides, it is conclusively answered 1. The declaration is good, the breaches are well assigned, they are governed by the nature of the contract, and if they are in the sense and not in the words of the covenant, and show a failure in all or part, are good. Com. Dig. "Pleading " 351 c. 4-6' The question is, Has defendant failed in any respect to perform his contract ? The objection to this is said to be that the rent is en- tire and cannot be demanded upon the parts. Not so. The rents are on distinct lots and the entire rent cannot remain as a claim upon each and every of them. If purchaser of some have paid he cannot be sued for the whole. The rent is not indivisible. Annuity was for the whole, but it is now disused and covenant has succeeded to it, and is for the actual damages sustained. Bac. " Rent " M 368 ; 5 Boo. ^7. There is a dictum in Espinasse where the part or fraction was not covered by the covenant ; the words were not at the rate, but here every dollar is covered by the covenant, and it is broken if one remain unpaid. 2. If the words in the first count " for lots 73 &c." are struck out the declaration is good. So, if plaintiff shows less to be due it is not bad on general demurrer. 5 Bac. "Pleading " 414; 2 Com. Dig. "Pleading" 620 tit. 2; 2 Lev. 57. But 3. The defect, if any, is cured by pleading over, and would *have been cured by verdict. Cro. Car. 76 ; Ld. Ray. 596 ; 1 Salk. 141; 3 Burr. 1725; 3 Wil. 275. Attorney-General, in answer. The nonsuit is sustainable 1. Because the breaches assigned are bad and cannot be cured. Every breach must be according to the covenant. Com. Dig. "Pleading " 647. The covenant conveys seven lots, and defendant is to pay $72, and not any particular sum on any particular lot. There was no apportionment, and this is an action .against the original lessee on his covenant. Lit. 217. It is a rent-charge, and right of entry "and distress are reserved. Lit. 222. It cannot, therefore, be apportioned. Esp. 162. There can be no *752 2 SOUTH.] FEBRUARY TERM, 1820. > s l Associates of the Jersey Co. v. Halsey. apportionment where party rests on the deed. Nor is it surplus- age. The plaintiff must prove his claim according to the cove- nant which he has set out. Doug. 667 ; Com. Dig. " Pleading " 38. 2. The nonsuit was right, because there was no evidence of the cause of action. The plaintiff claimed a particular sum $248. He ought to have given some evidence to prove it and guide the jury in their estimate, so that the apportionment, if it was to be made at all, might be correct. KIRKPATRICK, C. J. This is a writ of error to the common pleas of Bergen county in an action of covenant. The plaintiffs, in their declaration, set forth that by certain deeds of indenture they sold and conveyed to the defendant, in fee, fourteen lots of land in the town of Jersey, that is to say, eight by one deed and six by another, described therein by their numbers and the streets upon which they are, he yielding and paying for the said eight lots the sum of $72, and for the said six lots the like sum of $72, on the 1st day of May yearly and every year forever; and that the said defendant, in and by the said deeds of indenture, entered into express covenant with them to pay the said rents accordingly. Then they assign for breach of the covenant in the deed of indenture for the eight lots contained, that on May 1st, 1816, a large sum of money, to wit, the sum of $192, of rent due for lots 74 and 76 in Essex street, and 73 and 75 in Morris street, mentioned in the said indenture, for eight years then elapsed, became and was, and still is in arrear, due and unpaid ; and for breach of the covenant in the deed of indenture for the said six lots contained, that on the same 1st of May, 1816, another large *sum of money, to wit, the sum of $96, of rent due for lot 3 in Essex street, mentioned in the said indenture, for eight years then elapsed, became due, and was and still is du-:, in arrear and unpaid contrary to the tenor and effect, true intent and mean- ing of the said covenant ; and that, therefore, the said defendant hath not kept his said covenants with the said plaintiffs, but hath broken the same. *753 56 882 NEW JERSEY SUPREME COURT. [5 LAW Associates of the Jersey Co. v. Halsey. The defendant made no objection to the declaration, but pleaded three pleas, to which there were replications in due form ; but from the course the cause took, it is unnecessary to speak of them. The plaintiffs on the trial gave in evidence the counterparts of these deeds of indenture, duly executed by the defendant, con- taining the covenants above set forth, and then rested their cause. Upon this there was a motion for a nonsuit, and the court ordered the plaintiffs to be called. To this opinion of the court there was a bill of exception taken, which is the founda- tion of this writ of error. From the argument at bar we are given to understand that this nonsuit was ordered not from any want of due proof of the execution of these indentures, for they were admitted by the defendant himself, nor for any imperfection or deficiency in the covenants, for they were manifestly complete, but for the fault ;and unskil fulness of the declaration in setting forth the breaches of the said covenants, and because it was so badly done that the defendant could not be put to answer. It may readily be admitted that these breaches are not assigned with all the skill and precision of an able pleader. The covenant in the first deed is that the defendant shall pay for the eight lots therein contained the sum of $72 yearly and IK? so, yet *upon a general demurrer it will not be fatal, for suffi- cient appears in the declaration, as it is, to enable the court to give judgment according to the very right of the case. Upon the form of the pleading, therefore, this general de- murrer cannot be maintained. 2. As to the ground of action. The defendant maintained 1. That this is a contract, the subject of which is evidently useless and nugatory, and, therefore, cannot be enforced by an action at law ; and 2. That it is a contract in restraint of mar- riage, and, therefore, inoperative and void. It may be observed in general that in considering a contract *760 890 NEW JERSEY SUPREME COURT. [5 LAW Sterling u. Sinnickson. under seal, upon a general demurrer, we are precluded from looking into the consideration of it further than the same is ap- parent upon the face of the contract itself; that if the considera- tion do appear upon the face of it, and be insufficient to sup- port it, no other or different one can be supplied or brought to its aid ; and that the sufficiency or insufficiency of such consider- ation must be determined by the same rules as in actions upon simple contracts. And it may be observed, too, that if the con- sideration so apparent be in its very nature useless and unprofit- able, or if it be unlawful and against the public policy, it is insufficient to support the contract. For, where the considera- tion, which is the ground of the promise, or the promise, which is the effect of the consideration, is either useless or unlawful, the whole contract is void. 1 Buls. 38. They are mutually dependent upon one another ; the .one cannot stand without the other. Now, a consideration is denned to be a cause or occasion meri- torious that requires a mutual recompense. Dyer 336. All idle and insignificant considerations, therefore, which require no mutual recompense are looked upon as none; so that wherever a person promises without benefit arising to the promiser, or loss to the promisee, the promise is void. % Buls. 269. It is there said to be against reason to undertake to. do an act which can produce no good and may produce evil ; and if so, it is geft- erally against reason to make such undertaking the consideration of a contract for the payment of money. But these principles are so familiar that it would be wasting time to cite authorities to prove them. It was so in the Roman law ; it is so in our law ; and it must be so in all law founded in reason and common sense. Judging, then, from the face of this *instrurnent, we shall probably find reason to say that it is liable to both the objections taken by the defendant. For 1 . The bill is for the payment of money. The consideration for which that money is to be paid is expressed in the bill itself. It is the forbearance of the plaintiff to marry for six months. The parties, so far as appears (and we are to supply nothing by intendment), were mere strangers to one another ; the marrying *761 2 SOUTH.] FEBRUARY TERM, 1820. 891 Sterling t. Sinnickson. or not marrying of the plaintiff was a matter wholly indifferent to the defendant in point of interest or profit. If he married, it could do the defendant no injury; if he remained unmarri.d, it could benefit him nothing. The subject of the contract was evidently useless and nugatory. It was folly in the defendant, and worse than folly in the plaintiff, to enter into it. The law will never execute it. 2. Again. The contract was not only useless and nugatory, but it was contrary to the public policy. Marriage lies at the foundation not only of individual happi- ness, but also of the prosperity, if not the very existence, of the social state ; and the law, therefore, frowns upon and removes out of the way every rash and unreasonable restraint upon it, whether by way of penalty or inducement. If these parties had entered into mutual obligations, the plaintiff not to marry within six months and the defendant to pay him therefor this sum of $1,000, there can be no doubt, I think, but that both the obligations would have been void. In the case of Key v. Bradshaw, 2 Vern. 102, there was a bond in the usual form, but proved to be upon an agreement to marry such a man or to pay the money mentioned in the bond ; but the bond was ordered to be canceled, it being contrary to the nature and design of marriage, which ought to proceed from free choice, and not from any restraint or compulsion. In the case of Baker v. White, 2 Vern. 215, A gave her bond to B for 100 if she should marry again, and B gave her his bond for the same sum, to go towards the advancement of her daugh- ter's portion, in case she should not marry. It was, as Lord Mansfield says, in Lowe v. Peers, Burr. 2281, a mere wager, and nothing unfair in it ; and yet A was relieved against her bond, because it was in restraint of marriage, which ought to be free. A bond, therefore, to marry, if there be no obligation on the other side, no mutual promise, or a bond not to marry, are equally against law. They are *both restraints upon the freedom of choice and of action in a case where the law wills that all shall be free. If the consideration for which this money was to be paid, then, was the undertaking of the plaintiff not to marry, *762 92 NEW JERSEY SUPREME COURT. [5 LAW Sterling v. Sinnickson. that consideration was unlawful ; he would have been relieved against it, either at law or in equity ; and, if so, the correspond- ing obligation to pay, according to the principle before stated, is void. It has been spoken of by the plaintiff as if this were an obli- gation to pay money upon a future contingency, which any man has a right to make, either with or without consideration ; and as if the not marrying of the plaintiff were not the consideration of the obligation, but the contingent event only, upon which it became payable. But I think this is not a correct view of the case. Where the event upon which the obligation becomes payable is in the power of the obligee, and is to be brought about by his doing or not doing a certain thing, it cannot be so properly called a contingency; it is rather the condition meri- torious, upon which the obligation is entered into, the moving consideration for which the money is to be paid. It is not, therefore, to be considered as a mere contingency, but as a con- sideration, and it must be such consideration as the law regards. Nor does it at all vary the case that the restraint was for six months only. It was still a restraint, and the law has made no limitation as to the time. Neither can the plaintiff's perform- ance, on his part, help him. It imposed no obligation upon the defendant ; it was wholly useless to him ; the contract itself was void from the beginning. Therefore, in my opinion, let there be judgment for the defendant. ROSSELL, J. Benjamin Sterling brought an action against the defendant, Sinnickson, on a sealed bill, to which the defendant demurred &c. The counsel for the defendant contends 1. That the obligation itself is void. 2. The subject of it being to restrain marriage, is unlawful. 3. The declaration sets out no consideration, nor is there any in the bill itself; and cites Pow. on Con. 167, 168, 169, J74, 231; 4 Burr. 2225; 2 Atk. 535; 2 Vern. 215; Shep. Touch. 129. The counsel for the plaintiff denies the application of those authorities to this case, and alleges that restraint of 2 SOUTH.] FEBRUARY TERM, 1820. 893 Sterling r. Sinnickson. marriage is lawful when time, place or person is named, and cites 15 Vin. *272 ; Godol. 0. L. 45; Swinb. 281; 6 Vin. 96; 1 Wils. 59; 3 P. Win*. 65; 2 Fern. 308; 1 Atk. 392, 39S. It is a general principle that all obligations given to restrain marriage, or for any other matter operating against the public policy and interests of the nation, are void. This sealed bill, then, being given to restrain the marriage of B. Sterling, is void, unless something shall be found to take it out of this general rule. Viner, Godolphin, Swinburne ndition, if paid (if, indeed, it considers it as a condition at all, of which I very much doubt), is, that they shall use due diligence to obtain payment from Hagar when the note becomes due, and, if not paid, they shall give the defendant notice of such non- payment, and transfer to him the note, that he may have an opportunity of recovering it himself. Here, instead of using due diligence, they withdrew the note from the bank, where it had been placed for collection, at the re- (a) Smith v. RuecatUe, Hal S57 ; Compfidd v. Ely, 1 Or. 15S ; Dm, Steel- man v. Steelman, 1 Harr. 66; Princeton Turnpike Co. v. Gvlick, 1 Harr. 161 ; Van Dyke v. Van Dyke, 2 Harr. 478 ; * Rodenbough v. Rosebury, 4 Zab. 491; Smith ads. Perry, 5 Dutch. 74 ; Lyons v. Davit, 1 Vr. SOS ; Jotlin v. N. J. Car Spring Co., 7 Vr. 142 ; Freeman v. BarUett, 18 Vr. 35. *768 900 NEW JERSEY SUPREME COURT. [5 LAW Ayres v. Van Lieu. quest of Hagar ; they gave the defendant no notice of the non- payment at the day; they retained the note in their hands eighteen months and more, while he, Hagar, was in credit and doing business, thereby giving him a new credit and taking the risk upon themselves. If the money is lost, therefore, it is by their negligence, and the loss must fall upon them and not upon the defendant. From this view of the case I think the judgment must be affirmed. ROSSELL, J., concurred. SOUTHARD, J. This was an action of assumpsit for goods &c., and plea of the general issue. At the trial the plaintiffs proved their book of original entries, and that they were trading under the firm of Ayres & Vandoren. The bill consisted of boards, shingles and scantlings, amounting to about $240, all of which appeared by the books of the firm to be regularly charged against the defend- ant, and about one-third of it was charged to defendant " per David Hagar." After exhibiting the books to the jury the plaintiffs offered David Hagar as a witness to prove that at the date of the accounts he was a carpenter in the em*ploy of the defendant, who ordered him to go to plaintiff's lumber-yard and receive the several articles mentioned in the account as received by witness and have them charged to him, and that he did go and receive them and work them up for defendant upon his house. But this witness was objected to and rejected on the ground that he could not prove his own agency. Upon this re- jection a bill of exception was taken, and this presents the first question raised upon this writ. I think it is perfectly manifest that the court erred in reject- ing this witness. So far as the evidence had proceeded he ap- peared merely as the agent or servant of the defendant in making the purchases ; as such he was clearly competent. BuL 289 ? Peake 105 &c. *769 2 SOUTH.] FEBRUARY TERM, 1820. 901 Ay res r. Van Lieu. After the rejection of Hagar the plaintiff submitted his case upon his books without further evidence. The defendant then called upon the plaintiffs and they pro- duced, according to previous notice, a note in the common form executed by Hagar to the plaintiffs, and also their ledger, in which, on the credit side of the defendant's account, was the fol- lowing item : " 18 '14) Deer. 5. By David Hagar' s note, which, when paid, will be for this account in full, $24&.36." J. Cortel- you also swore that he had a conversation with defendant and Ayres, one of the plaintiffs, in March or April, 1816, in which defendant asked Ayres why he had sued or was going to sue him. Ayres answered " For the account." Defendant said " Why did you take the note of David Hagar for the money ? " Ayres re- plied he was just as willing to take the note of Hagar as of the plaintiff, for then, if he could not get the money from one of them he could from the other. He added that the note had been put in the bank and withdrawn before it was due, at Hagar's re- quest, who was hard run for money, and that it was a very diffi- cult time to get money. The witness added that when the note became due he considered Hagar as solvent, and until the day before he assigned his property to assignees, which took place in January or February, 1816 ; witness trusted him only a few weeks before that time for a set of silver spoons and lost the price of them. Here the defendant rested ; and before we pro- ceed further in the case it will be proper to determine and estab- lish the effect of this evidence. The note of Hagar was for the whole account, as well what *he received for defendant as what defendant received without his agency. It was given by him for the amount of defendant's debt. What was the effect of this ? It did not of itself destroy this account. Without other proof we are not to conclude that it was such a payment, that the original debt could not be re- sorted to. It may have been either a payment or security, and we must judge, from the evidence we have, which it was. The probability is that it was a security, because we can see no reason why Hagar should pay Van Lieu's debt or why the plaintiff should sooner trust Hagar than Van Lieu. The entry on the *770 902 NEW JERSEY SUPREME COURT. [5 LAW Ay res v. Van Lieu. book, in its terms and fair import, confirms the probability " which, when paid, will be for this account in full." It is not now a payment; it will be at some future period. At what period? When paid, and therefore not until paid. If never paid, then never a payment. But a payment of what ? Not of itself, but of the account. If never paid, the account stands undischarged. But undischarged against whom ? Against the person to whom it is charged ; against Van Lieu, not against Hagar. This note, then, was not an absolute payment. It was only a security, and the entry is made in the only way in which the plaintiffs could make it injustice to the defendant and them- selves ; in the way in which all our merchants, I believe, make the entries when they take a note for an account. If the note is lost, or difficulty arises with it, the account is still their protec- tion. The declarations of the plaintiffs are also in accordance with the idea that this note was security : " I was as willing to take Hagar's note as yours, for then if I could not get it of one I could of the other." In other words, I Was willing to have two instead of one bound for the account, and this could not be if the account was discharged and the defendant forever freed. Again, the taking of the note out of the bank was no injury to either if Hagar was security only. Indeed, it could in no light injure Van Lieu. If it was payment, then it could not affect him, let it be used as it might. If it was security, Van Lieu had no right to complain that the creditor would not compel his security to pay his debt before he resorted to him. Nor could Hagar complain of this act. The holder of the note had a right to use it as he pleased. It was not an endorsed note. No notice,, no prosecution of it was necessary to bind either the maker or third per*son. He might use it as he pleased, even discharge it, and the defendant would still be bound. So far, then, as we have proceeded, the defendant is a debtor, unrelieved by any assumpsit of Hagar. Hagar is a security,, and as such liable to pay, if the plaintiff fail to recover of the defendant. And had the cause rested here, I do not see how it was possible for the jury to avoid a verdict for the plaintiff upon the evidence, *771 2 SOUTH.] FEBRUARY TERM, 1820. 903 Avres r. Van Lieu. The plaintiff, by way, I presume, of answer to the evidence of defendant, offered Hagar again to prove that at the date of the note he was insolvent, and had so continued ever since ; that the plaintiff had demanded payment when the note became due and tried every effort to get the money of him, but could not ; he was not able to pay. The defendant again objected to him, and he was again declared incompetent. And if the view which I have taken of the case be correct, he was interested and incom- petent. He was interested to the amount of the claim. He was obliged to pay if defendant did not. It does not alter this view of the matter that he had assigned his property and taken the benefit of the insolvent laws. That only freed his person from imprisonment, but left the claim in force, and his property, if he should obtain any, liable. It does not appear from the case whether there was more evi- dence. If there was not, I think great injustice has been done by the verdict. The evidence was all on plaintiffs' side, and I see nothing to call their claim in question. But there might have been other evidence, and is upon a writ of error, where an inquiry into the propriety of the verdict does not seem to be proper, but where we must judge upon the errors in the record. In review of the case I think that the court was right in the last bill of exception; that they were wrong in the first. And the only serious doubt which I have felt has been whether, upon a writ of error, where the court erred on the first bill, and it appeared by the second that there were facts which, if before them, would have justified their first opinion, it was right still to reverse. But I do not see that this is proper. It would be shutting our eyes upon the law of the whole case taken together, and it would do no good to send back a case because a witness was not sworn when it appears that he is incompetent. I am therefore constrained to unite in affirming the judgment Judgment affirmed. 904 NEW JERSEY SUPREME COURT. [5 LAW State v. Ludlow. *THE STATE v. T>. LUDLOW. 1. Indictment for perjury on insolvent application need not set out the manner in which common pleas obtain jurisdiction, (a) 2. Interrogatories need not necessarily be in writing. Motion to quash indictment for perjury upon an application for the benefit of the insolvent laws, found in the oyer and terminer of Essex at September term, 1816. It was removed here by certiorari, and argued at November term by Scudder and Halsey, for defendant, and Attorney- General, for the state. The objections to the indictment are shortly stated in the opinion of the court by SOUTHAKD, J. This is an indictment for perjury in taking a false oath before the common pleas of Essex when the defendant was examined upon .his application for the benefit of the insolvent laws. The indictment was removed hither by certioran, and several objec- tions are taken to its validity arising upon the face of it ; and one arising from extrinsic matter which the attorney-general and defendant agreed should be considered upon this motion. It is objected 1. That the indictment does not show that such petition as is required by the statute was presented, or when, where and how the petition was presented. 2. It does not show that the court appointed the 7th of September, 1816, for the hearing, that not being within the regular terms. 3. It does not state that the hearing was at any stated term. In answer to all these objections I think it is sufficient to say that the indictment alleges that there was a regular and legal hear- ing before a competent court, upon the application of the de- fendant for the benefit of the insolvent law. How the court came to sit on that day ; what was its authority, and how far the (a) State v. Dayton, 5 Zab. 49; Dodge v. The State, 4 Zab. 456 ; The State v. Beard, 1 Dutch. 384. *772 SOUTH.] FEBRUARY TERM, 1820. 905 State t. Ludlow. proceedings of the insolvent were regular, are matters which must appear at the hearing, but need not appear or be further set out upon the face of the indictment. The manner in which the court obtains jurisdiction never appears on the indictment. It is further agreed that the interrogatories were not admin- istered to this defendant, nor answers given in writing ; and it is argued that this is fatal. The court, when it sits to hear an in- solvent, must strictly pursue the authority and directions of the statute. The statute says that he shall be examined on interrog- atories. What are interrogatories ? The usual technical mean- ing of the word in the court of chancery is a question in writing ; *its ordinary meaning in common discourse is a question. I do not know of any fixed, certain and invariable meaning in com- mon law courts. What the legislature means in our insolvent laws is to be sought, perhaps, most certainly, in those laws them- selves. I am not aware of any other word being used, except this, to express the questions which the applicant must answer ; and it is always used without any addition to explain or add to its meaning except once. In a statute passed in 1811 the in- solvent is directed to be examined upon interrogatories in writ- ing. This law was soon after repealed. I think the inference is that the legislature supposed there was a distinction between interrogatories, and interrogatories in writing; and that when they mean the latter they say so. This objection, then, cannot prevail, although it would certainly be the best and safest course always to interrogate the applicant in writing, that all his answers may be filed among the records of the court. Motion overruled and defendant put to plead. *773 906 NEW JERSEY SUPREME COURT. [ 5 Sterling w. Potts. THOMAS C. STERLING v. STACY POTTS, surviving executor of STACY POTTS, deceased. 1. Evidence necessary to prove loss of paper before contents can be proved, (a) 2. Liability of husband for contracts of wife. (6) In case. This action was brought for goods sold and delivered to the testator, and was tried at the Hunterdon circuit, October, 1819, before Justice Southard. A verdict for $563.08 was given for the plaintiff, which was about the amount of the account in his ledger. On the coming in of the posted, a rule to show cause for setting aside the verdict was granted, and the following reasons filed : 1. That the verdict was contrary to law and evidence. 2. That the judge would not permit the defendant to prove the contents of a certain receipt, alleged to have been given by the plaintiff ta the testator, although the defendant gave sufficient evidence of the loss of the receipt. 3. Because the jury assessed damages for certain goods, of which there was no evidence ; and for certain other goods purchased by the wife of testator, without his order or consent, while in his last moments, and incapable of speaking, and which never came to his use. *The report of the judge shows the following case: The plaintiff, a merchant, proved his day-book and ledger, and gave them in evidence. They contained the same charges. Some of the articles were charged to testator's wife. Sometimes she got (a) Witts v. McDole, ante 501 ; Den v. Pond, Coxe S79; Bozorth v. David- son, Perm. *617 ; Ford v. Munson, 1 South. 93.; Fox v. Lambson, S Hal. 275 ; Kinywood v. Bethlehem, 1 Gr. 221 ; Suydam v. Combs, S Or. 183 ; Insurance Co. v. Woodruff, 2 Dutch. 541 ; Miller v. Wack, Sax. 204; Smith v. Axtell, Sax. 494; Stafford v. Stafford, Sax-. 524; Wyckoff v. Wyckoff, 1 C. E. Or. 401; Clark v. Nornbeck, 2 C. E. Or. 430 ; see, also, Den, Popino v. McAUiiter, 2 Hal. 46? Condict v. Wood, 1 Dutch. 319. (b) Campfield v. Ely, 1 Or. 150; Miller v. Miller, Sax. S86 ; see Cory v. Cory,. S Stock. 400. *774 2 SOUTH.] FEBRUARY TERM, 1820. 907 Sterling r. Potto. goods and paid for them out of her own money ; and many arti- cles charged to him were got by her direction and received and used by him. Once, when he was very sick, she got a consider- able bill, and on his getting better he remarked that, judging from it, she wished and expected he would die ; but being re- proved by the person to whom he spoke, and reminded that it was through her kind and affectionate nursing that he recovered, he admitted it and said, as he often did at other times, that she was one of the best wives in the world ; and, also, that he would pay the bill when he got his interest-money from his sons. He used the articles, and praised part of them very much. One item in plaintiff's account was, " To sundries, as per bill, $273.04." This item he offered to support by proving a bill of particulars, and that they were delivered at the date, which was objected to, but permitted. He also offered to show the defendant's situation as to wealth, family, connections and health, in order to prove that the articles were proper for his situation &c. This, also, was objected to, but permitted. The testator was between eighty-four and eighty-six years old, very respectable, very rich, had a numerous train of family con- nections, was very sickly, and required much care and attention from family and friends, and kept but one servant. This wife was his third wife, thirty years younger than himself; had children by a former husband, but not by him ; was laborious, frugal and affectionate. He died on Sunday, late at night. The bill last mentioned was bought by a female acquaintance of hers, by her direction and without his, on the day before his death, and the articles left until they should be sent for, which was done on Sunday evening. They were received by Mrs. Potts, in the house, about candlelight, an hour after he became speechless, and some hours before he died. Part of them were groceries, part not. Some of the- groceries were used for the visitors and friends before he died and at the funeral, and were necessary, there being none in the house. One or two of the other articles were used by her at the funeral ; some were of a kind not to be soon used ; but the whole bill, in the opinion of the witnesses, *\vas necessary and suitable to the condition and degree of the family. Such as *775 908 NEW JERSEY SUPREME COURT. [5 LAW Sterling v. Potts. were not used were in the house at the appraisement, but it was not shown whether they were appraised or not. The bill of particulars was read to the jury, and the plaintiff rested. Two or three small items were not in the day-book, nor proved to have been delivered. The defendant offered to prove the contents of a paper contain- ing an account which testator had paid to plaintiff, on which was a receipt and engagement by plaintiff not to trust his family except upon a written order from him. The court directed its existence and loss to be proved. It was proved by one witness that about six or eight months before testator died he showed wit- ness an account from plaintiff, which he had paid, on the back of which there was a written direction about trusting his family, signed by plaintiff. Witness was an appraiser of the estate a few days after his death, and was requested to look for that paper ; he did so among all the papers shown to him, but did not find it. The executor, then, had the key of the place where they were kept, but " the lock was shackling." After the appraise- ment they were carried in a trunk to W. Potts's house. Another witness saw the endorsement on the account about the same time ; he was testator's nephew, transacted a good deal of business for him and with him, and did not know of any other place where lie kept his papers except those two examined by the appraisers. Defendant then offered evidence of the contents of the paper, but the judge did not think the proof had been sufficient to justify its admission. WaU, in support of the rule. There are several exceptions to the plaintiff's account. 1. A part of the goods were for the wife, who had a separate property, and charged to her in the day-book, but transferred to his account in the ledger without his order or direction, and there is no sufficient proof that they came to his use. 2. A part of the items was not supported by the day-book, nor proof of delivery. 3. The wife has no abso- lute power to bind her husband by contract, even for necessaries, without his assent, precedent or subsequent. This assent may be implied by cohabitation, unless the contrary appears. Here no 2 SOUTH.] FEBRUARY TERM, 1820. 909 Sterling v. Potts. assent could be implied as to the largest item of $273.04. He was in extremis. The goods were delivered when he could not speak, *and there is no reasonable probability that they were all necessaries. 1 Boo. 488 ; 1 Esp. 238. 2. Proof of the contents of the receipt ought to have been admitted. 4 Cam. Dig. 92; Ambl. 24.7 ; 1 V&s. 344 ; 2 Johns. Gas. 488 ; 1 Atk. 446 ; Sw. Ev. 31; 2 Doll. 116 ; 3 Mass. 236 ; 1 Oaines's Oas. 27 ; 2 Chines' s Cos. 263 ; 1 El R. 662 ; 5 Mass. 101. L. H. Stockton, in answer. 1. The evidence of the alleged contract between the parties was properly rejected. The original should have been produced unless its destruction was clearly shown ; mere allegation that it could not be found was not suffi- cient. It had been in testator's hands he might have destroyed it ; the executor, who had the key, might, to effect his purposes, have taken it away. Evidence of contents is, of all others, most easily made by the party and most readily perverted ; proof of loss ought, therefore, to be strict. Qilb. 4> 5, 15, 16 ; Esp. 144; % Bl. Com. 368; Pat. 44. 2. The verdict. It is not shown that the jury considered the small items, which were not proved ; without them, the ordinary allowance of interest would have made a larger sum. The goods most questioned were delivered at testator's in his lifetime, and, of course, to his use ; they were necessary for the condition and state of his family, and used in his lifetime and at his funeral. That he was sick, and therefore the wife was not to buy neces- saries for his comfort, lest he should die and the merchant lose, is perfectly absurd doctrine. Besides, the merchant was not bound to know his situation. He lived with her, was nursed by her, had paid bills which she had contracted, and was, therefore, bound in law to pay this. 4 V*n. 121. It is enough for plain- tiff that these facts were proper for the consideration of the jury, and that the jury has found for him. Coxe 228 ; 1 Bac. Ab. 418. 3. There has been a full trial, and no injustice is apparent. *776 910 NEW JERSEY SUPREME COURT. [5 LAW Burroughs v. Thome. 1 SI. R. 1, 418 ; 1 Wile. %% ; 2 Wils. 307 ; 6 Bac. Ab. 664 S 2 SaOe. 334 ; 3 Wils. 46. Wall replied. BY THE COURT. We do not perceive that any error has been committed by the court, or that any injustice has been done by the jury. Let the rule be discharged and judgment entered for the plaintiff. *REUBEN BURROUGHS v. SAMUEL THORNE. 1. Award set aside because arbitrators rejected competent evidence, (a) 2. Executors conveying testator's right to land, without warranty, compe- tent in action respecting premises. Burroughs commenced an action for a trespass upon a very narrow strip of land lying between the farms of the parties, which had long been the subject of expensive litigation between them. They then entered into an arbitration-bond, and agreed to make their submission a rule of court. The arbitrators made an award by which, among other things, they ordered that all suits pend- ing should be no further prosecuted, and adjudged the line in favor of Burroughs. Thorne took a rule to show cause why the award should not be set aside, and filed several reasons, among the rest, that the arbitrators rejected as witnesses Joseph Thorne and Isaac Thorne, offered by the defendant to prove the declara- tions and admissions of Joseph Burroughs, the father of plain- tiff, under whom he claims and who was then in the ownership and possession of the land wken the declarations were made. The objection to the witnesses was that they were the executors (a) The declarations of a former owner while in possession are competent, Tmmsend v. Johnson, Perm. *706 ; Ferguson v. Reeve, 1 Harr. 194 ; Tomlin ads. Cox, 4 Harr. 77; Ten Eyck v. Bunk, 2 Dutch. 513; Homer v. Stillwell, 6 Vr. 307; see Homer v. Leeds, 1 Dutch. 106; Cox v. Baird, 6 Hal. 105. *777 2 SOUTH.] FEBRUARY TERM, 1820. 911 Lanning v. Shute. of Thomas Thorne, deceased, and as executors had sold to de- fendant such right to the premises as their testator had, and given a deed without warranty. Ooxe, for Thorne. Armstrong, for Burroughs. THE COURT. It is greatly to be regretted that the spirit of litigation which has existed so strongly in this case should re- vive any opportunity of nourishment from the decision of the court ; but the evidence offered was manifestly competent and the witnesses free from all legal exception. The arbitrators cer- tainly erred in refusing to hear them, and the award must be set aside. Upon the report of the arbitrators being made, Burroughs, by leave of the court, and in obedience to the award, discontinued his action of trespass. Armstrong therefore prayed leave to vacate the rule for discontinuance and permit the suit to remain in force, which was granted. *JOHN LANNINQ v. WILLIAM SHUTE. 1. Pleading amended after joinder in demurrer, (a) 2. Nil debet bad plea to declaration on judgment in New York. (6) In debt. The declaration sets out a judgment in the supreme court of (a) Candit v. Neighbor, 7 Hal. SSO ; see Williamson v. Updike, * Or. 970. But not after judgment, Gulick v. Loder, Or. 57, S Or. 4*6. (b) Vanuxem v. Hazelhursts, 1 South. 19X, note (a) ; Olden v. Hallct, ante 466; Lanning v. Shute, ante 55S ; Field v. Gibbs, 1 Pet. C. C. 155; see Moulin v. Trenton Ins. Co., 4 Zib. 222 ; Maekay ads. Gordon, 5 Vr. S86 ; Robert v. Hodge*, 1 C. E. Or. 300 ; Davis v. Headley, 7 C. E. Or. 116. *778 912 NEW JERSEY SUPREME COURT. [5 LAW Lanning v. Shute. the state of New York, in an action of slander, for $1,986.69 ; that it still remains in force, not satisfied or vacated, whereby an action accrued &c. The defendant pleaded, first, nul tiel record ,- secondly, nil debet, and annexed to it a notice of various par- ticulars, which he should prove under it. Upon the first plea issue was joined. To the second the plain- tiff filed a demurrer. The defendant joined in demurrer, and the case was noticed for argument. Chetwood moved to amend the declaration by altering the day on which the judgment in New York was laid. Scudder ob- jected that it was too late, but the court directed the amendment to be made on payment of proper costs. Chetwood, for plaintiff. The demurrer brings up the question as to the effect of a judgment in another state under the consti- tution of the United States. Argument is not necessary ; the cases need only be cited. # Datt. 302 ; Brown's Rep. (appendix) 30; 7 Ora. 481; 3 Wheat. Scudder, in answer. The courts of other states are foreign, their judgments foreign, and must be pleaded as facts. The constitution and laws of congress were only designed to over- come the necessity of proving them as foreign judgments, by witnesses, and to permit them to be proved by certificate. Gilb. Ev. 19. The law of congress of May 26th, 1790, directe the statutes of the several states to be authenticated by their re- spective seals, and then gives them full faith &c. in the very words respecting judgments; yet, still thus authenticated, the statutes remain foreign and of no validity. The words " full faith and credit " have been misapprehended, and are sometimes misquoted and read, effect (2 Doll. 30%\ a meaning they were never designed to have. Under the doctrine contended for, if a judgment were obtained under the penal laws of New York, which are directly in opposition to our own, this court might be compelled to carry it into effect, and even help to punish a citi- zen of New Jersey for resisting the process of New York, on 2 SOUTH.] FEBRUARY TERM, 1820. 913 Lanning . Shtite. our docks, within our "own jurisdiction. See laws of New York and New Jersey. Pat. 848 ; 1 Caines 460 ; Peters 74. Ewing declined the general argument, it having been hereto- fore sufficiently discussed (1 Mass. 401), but insisted that the following propositions showed that judgment on the demurrer must be for defendant, without touching the general question. 1. Every judgment of another state is not conclusive evidence of a debt. Some are ; some are not. See Holkar case, and Penn. 399. 2. If the judgment be only prima facie evidence of the debt, nil debet is a good plea. If it is conclusive, then nul tiel record is the right plea. 3. Every pleading is to be taken most strongly against him who makes it. 5 Bac. 322. 4. There is nothing in the declaration to show that this is a conclusive judg- ment ; that there was process, service, trial, verdict &c. The court must, therefore, presume that it is prima facie evidence of debt only, and, therefore, nil debet is a good plea. Whether such conclusive judgment will be produced at the trial, won con- stat. In the case in Peters 74, nil debet was pleaded, a conclu- sive judgment was given in evidence, and the court so charged the jury. So, 7 Cra. 484; 1 Mass. 401. Chetwood. The cases where judgments are not considered conclusive are in rem ; this is slander, and, if by default, still conclusive. Besides, defendant does show by his plea and notice that there was process and trial, and the record which is referred to and made part of the declaration, also shows the same. KtRKPATRICK, C. J. This is an action of debt upon a judgment entered in the supreme court of the state of New York. The defendant pleads, first, nul tiel record, upon which issue is joined ; and secondly, nil debet, giving notice of the particulars to be given in evidence upon the trial ; which particulars go to show that the judgment was obtained partly by the fraud of the plaintiff and partly by the oppression and injustice of the court, *779 58 914 NEW JERSEY SUPREME COURT. [5 LAW Rose v. Parker. and not upon the truth and justice of the case. And to this last plea there is a demurrer and a joinder in demurrer. The question presented by these pleadings has been considered and settled in this court some terms ago in the case of Olden v. Hattet; and since that time, in the same way, in the supreme court of the United States, in the case of Hampton v. *M'Connel. This last is conclusive, for, being a constitutional question, it belongs to that court to settle the law, and, having settled it, we are bound by the decision ; we have no further discretion upon it. The plea, therefore, must be overruled, and there must be judgment for the plaintiff. SOUTHARD, J. I concur in the opinion of the court, but I do it under the irresistible weight of authority alone. My judgment is not satisfied. Judgment for plaintiff. JOHN ROSE v. HANNAH PARKER. 1. Suit on contract to dig well for $80. (a) 2. Refusal to nonsuit assigned for error. (6) In case. Writ of error to the common pleas of Cumberland. (a) See Richardson v. Lanning, 2 Dutch. ISO ; Bruen v. Ogden, S Harr. 124; Cook ads. Linn, 4 Harr. 11 ; Perrine v. Hankinson, 6 Hal. 181 ; The Church v. Gordon, 2 Vr. 264. (b) White v. Potter, Cbxe 159 ; The Associates &c. v. Halsey, ante 750 ; Den, Hoover v. Franklin, post 850 ; Haight v. Morris, 2 Hal. 289 ; Bacon v. Sheppard, 6 Hal. 202; Oampfield v. Ely, 1 Or. 150; Cbxe v. Field, 1 Or. 216; Barlow v. Brands, S Or. 248 ; Perth Amboy Manf. Co. v. Condit, I Zab. 659; Den, Ruther- ford v. Fen, 1 Zab. 702, per Carpenter, J. ; Mershon v. Hobensack, 2 Zab. 372, 3 Zab. 580; Den, Elle v. Young, 4 Zab. 775; Catoir v. American Life Ins. Co., 4 Vr. 488; Voorhees v. Woodhull, 4 Vr. 482; see, also, Central R. R. v. Moore, 4 Zab. 836, per Elmer, J. ; Dare v. Ogden, Coxe 91. *780 2 SOUTH.] FEBRUARY TERM, 1820. 915 Rose r. Parker. Crane, attorney of plaintiff. Jeffers, attorney for defendant. The first count in the declaration complains that whereas H. Parker had retained and employed Rose to dig a well for $80, he undertook and promised that he would dig and make it with good and proper materials, and in a sound, substantial and work- manlike manner ; and although he did dig the well, yet he did not dig and make it in a sound, substantial and workmanlike manner, but in a slight, weak, inartificial and unworkmanlike manner, contrary to his promise and undertaking. The second is on a warranty, and it was not pretended to support it at the trial. After the evidence of the plaintiff was closed, the defendant moved for a non-suit, which was not granted, whereupon a bill of exceptions was tendered and sealed. Jeffers, for plaintiff in error, urged that the declaration ought to have given notice of the points in which the defendant had failed ; whereas, it merely states the special agreement, with the general and common breach. 1 Chit. 322 ; Com. Dig. "Pleading" C 73, 74. The plaintiff ought to have given notice of the failure, with a request that defendant should repair it. 1 Sep. 250. Where a request is necessary, it must be a special personal re- quest, at the proper time and place, which is matter of substance, not aided by verdict. 1 Saun. 32 note 2. *The special contract was to make a well for $80. A special agreement must be proved as laid. Here it was not proved at all. There was no evidence of any agreement. Bull. 45, H& ' i Ld. Ray. 735. Ewing, in anewer. The agreement was implied, not express, to do it in a particular way, but the law is the same, whether the contract is express or implied. The complaint is that defendant undertook to dig a well in a workmanlike manner, and that it is not so done. No notice, therefore, necessary ; it need only be *781 916 NEW JERSEY SUPREME COURT. [5 Rose v. Parker. given where the plaintiff is bound to do some act previous to or necessary to the act of the defendant. So are all the cases cited. A refusal of a court to nonsuit is not a ground of reversal on error. This is well settled in Pennsylvania and the supreme- court of the United States. If the defendant intended any ad- vantage from the position he took, he should have required a charge, which he did not do. But it would not have helped him. The declaration is right in form, as upon an implied con- tract; and it was not necessary to support it by proving an, express contract. There is evidence that the defendant undertook to dig the well, and that he received the compensation, which ia sufficient. Jeffers. The distinction is that where the 'declaration lays a specific agreement for a specific sum, it must be so proved. The defendant is not a well-digger by profession, and is not to answer on an implied engagement because the work was inartificial ly done. KIRKPATRICK, C. J. This is an action on the case, and the declaration contains two- counts, not, indeed, very artificially, but, I believe, intelligibly drawn. The first charges that the defendant, in consideration of $80 paid to him, undertook to dig a well for the plaintiff, and to finish it with good and proper materials, and in a sound, sub- stantial and workmanlike manner ; and the second charges that the defendant, in consideration of $80 paid to him, undertook to- warrant, and did warrant, that a certain well which he had dug for the plaintiff should not fail in water for one year ; both of which undertakings he had failed to perform. *The proof is, in substance, that the defendant did receive from the plaintiff $80 for digging a well, and that he did dig one for her accordingly, but that he neither dug it so deep as the wella in the neighborhood nor finished it with good and proper mate- rials, nor in a sound and workmanlike manner, and that it did in consequence thereof fail in water, within one year, and that the plaintiff was obliged to get another dug. *782 SOUTH.]; FEBRUARY TERM, 1820. 917 KM i- 11 v. Vanderveer. The defendant objects to this prqpf because it does not establish what he calls the special contract, either in the first or second count, and because the court would not overrule it he takes his bill of exception, which is brought up here with the record. But this objection, I believe, cannot prevail. The evidence is suffi- cient to enable the jury to draw these conclusions, to wit, that the defendant received a full price for the digging and finishing of a well in the manner set forth in the declaration, and that he did not do so. Now, he who undertakes to do a piece of work for a sound price, paid in lump, undertakes to do it in a complete ^nd workmanlike manner. This the law presumes, and, there- fore, will raise the assumption upon the receipt of the money. Whether, in this case, the well was so dug and finished by the -defendant, was a question for the jury upon the whole evidence. And if I were to say my own opinion upon it, I should say they had decided it very justly. The verdict, therefore, I think, un- doubtedly, is good upon the first count. Let the judgment be affirmed. DANIEL E. ESTELL v. DAVID VANDERVEER. 1. Count, on note dated 6th of December, payable in ten days, and payment demanded 1st of January, is faulty. 2. Demand not made till January, due diligence is not used, (a) 3. Court must instruct jury in the law. (6) In case. This cause came before the court on a writ of error to the corn- to) What is proof of due diligence, Ferru v. Saxlon, 1 South. 1 ; Stout v. ^Stevenson, 1 South. 182 (a) ; Kibble v. Jefferson, 5 Hal. 139; Winant v. Davit, S Harr. 76 ; Perry v. Green, 4 HOST. 61 ; Shipman v. Cook, 1 C. E. Or. 51. In- solvency of maker does not excuse demand and notice, Snyder v. Findlry, Coze 78 ; Oliver v. Afunday, Penn. *98 ; see Sanderton v. Crane, * Or. 506. (6) Broudwell v. Nixon, 1 South. 36S (6). 918 NEW JERSEY SUPREME COURT. [5 Estell v. Vanderveer. mon pleas of Burlington, which brought up three bills of excep- tions. The first, then, because the court did not nonsuit the plaintiff. The second, because the court did not charge as defendant requested. The third, because the court would not charge at all, when requested. The suit was commenced on the 6th of April, 1814. Ewlng, attorney of plaintiff in error. Need, attorney of defendant. *The declaration sets out that S. W. Blackwood, on the 6th of December, 1813, made a note to Estell to pay him, or order, ten days after date, $111.49 ; that Estell endorsed it, on the same day, to Vanderveer, of which endorsement Blackwood had notice on the same day, and avers that after ten days, viz., on the 1st of January, 1814, he presented the note to Blackwood for pay- ment, but he refused, of which Estell the same day had notice. The second count of the declaration is for $111.49, for money had and received ; damages laid at $300. There was verdict and judgment for $136.17. The note was read to the jury, without objection, in the fol- lowing words : " Evesham, 6 Dec., 1813. Ten days after date,. I promise to pay the order of Daniel E. Estell, one hundred and eleven dollars forty-nine cents, without defalcation, value re- ceived. Samuel W. Blackwood." Endorsed, " Pay the within note to David Vanderveer. Daniel E. Estell." After which Blackwood was sworn, and testified that he gave the note for money due to Estell, and had never paid it. He became embar- rassed in 1814, and could not pay his debts, or this note, at the middle of March in that year. He had been a merchant, and sold his store in December, 1813, and paid some debts after that time, and held out to his creditors that he could pay ; and it was not known to them or the public that he could not. He was- not insolvent when the note became due, but was afterwards put in confinement upon a suit on it, and took the benefit of the in- solvent laws in May, 1815. After it became due Estell asked *783 2 SOUTH.] FEBRUARY TERM, 1820. 919 Estell r. Vanderveer. him for the money, and said he had the note, but did not show it ; he expected to collect some outstanding debts, and promised to pay Estell about the 25th of March. Soon after this Vander- veer wrote to him that he had the note, and in the latter part of January, 1814, Vanderveer demanded payment. As much as twenty days after this he called on Estell, told him he was unable to pay, and asked for time to pay, and Estell said he had no doubt but Vanderveer would wait, and made no objection to his waiting. Estell lives in Philadelphia; Vanderveer in Moores- town, nine miles from Philadelphia ; Black wood in Evesham, four miles from Moorestown and twelve from Philadelphia. After the plaintiff rested the defendant demanded a nonsuit, which was refused. He then prayed a charge that the plaintiff *had not proved the exercise of due and legal diligence, and that the evidence was not sufficient to authorize a recovery ; which charge the court refused to give. He then prayed a charge as the court apprehended the law to be, which was refused. These several opinions of the court, and the alleged defects of the dec- laration were the reasons assigned for the reversal of the judg- ment. Ewing, for plaintiff in error. The declaration offers abundant proof of error. Upon that, plaintiff has no right to recover. The action is by endorsee against endorser. The note is dated December 6th, 1813, payable in ten days It became due the 16th and 19th. It was presented for payment on the 1st of January, eleven days after the day of payment. Plaintiff has, therefore, shown, on his declaration, a gross and fatal neglect, and that he had no right to recover. Penn. 916. 2. The decla- ration is radically defective because it does not state a promise by endorser to pay after demand on the maker, and notice to the endorser ; that is, after his liability arose. 3. The bills of ex- ception furnish matter for reversal. Due diligence is not proved. The demand, if it may be called a demand, was not in season ; it was the latter part of January, though the note became due the 19th of December, and they reside near each other. The holder gave time, to which the endorser did not assent, and no *784 920 NEW JERSEY SUPREME COURT. [5 LAW Estell v. Vanderveer. notice was ever given to Estell by Vanderveer, to endorser by the holder. 4. These points are questions of law, on which the court refused to express the opinions requested. 5. They also icfused to express any opinion. M'llvaine, in answer. This case depends on facts and prin- ciples not found in Ferns v. Saxton, or any other case. 1. The drawer was insolvent and unable to pay his debts when he drew the note. 2. The payee did not call on him until some time after it was due. 3. It was endorsed after it was due, and dishonored in defendant's hands by refusal of payment. 4. No precise dates are proved, but it is manifest that the note was not endorsed, the demand made or notice given until January. The want of precision in the dates makes it the province of the jury, not the court, to decide. Under these facts it was not necessary to give notice to Estell. The effect and object of notice is to warn the endorser, but the note was dishonored in his hands, and, therefore, no warning *neeessary. There are cases requiring notice where the endorse- ment was after it was due, but none after it was dishonored by refusal of payment. Esp. 84, 102; 1 Bay 331; 1 Yeates 361, 362, 363. Again : There was some proof of notice from Van- derveer to Estell. What took place between Estell and Black- wood in January shows that Estell had seen and conversed with Vanderveer. Of this evidence the jury are to judge. 2 Johns. Gas. 337 ; South. 19; 2 Amer. Dig. 19. Again: Party entitled to notice may waive it, or accept a different notice, and the con - duct of Estell shows that he did this. On this, too, the jury is to pass. Chit. 252, 253. Upon the declaration it may be remarked 1. That the note was assigned in January, and, therefore, it is in consonance with the fact, and the jury were to determine whether, under that fact, there was a right of recovery. 2. The date is altogether im- material. Chit. 366, 535; Esp. 268; Doug. 514.; 2 Johns. Cos. 52. To the objection that the declaration does not state a demand and promise to pay after the liability arose it is answered 1. *785 2 SOUTH.] FEBRUARY TERM, 1820. 921 Estell v. Vanderveer. It contains a count for money had &c., and the action may be sustained on its Plead. Ass. 23, 2J. ; Chit. 374, 376, 379. 2. This defect is cured by the verdict. 1 Saund. 226, 228. As to the refusal to charge. It is denied that there is any case in England or this country where such refusal is established ground of error. South. 125. Nor in our judiciary establish- ments is it expedient that there should be. Besides, in over- ruling the nonsuit the court had expressed its opinions and was not bound to do it again. Ewing, in reply. This case is supposed to form an exception to the doctrine of diligence, which is admitted by defendant's counsel in its fullest extent. The grounds of the exception claimed are to be examined. 1. As to the insolvency of the drawer. The law is directly the reverse of what is laid down. Demand on an insolvent drawer is necessary. See Perm. 982 ; Chit. 225. Besides, this fact, if relied on, should have been unequivocally proved, whereas it is not proved ; it is left in declaration, warrant of attorney &c. 2. Party cannot prosecute by two or more attorneys in partnership, (a) 3. Auditors take account and receive and refer issues to court. 4. The account returned may be entered on record or referred to only. In error. From the return of the writ of error the following case appears : Joseph Willson, the plaintiif below, brought his action of account rendered in " Gloucester inferior court of common pleas " by writ returnable to March, 1816. The plaintiff, by White and Armstrong, his attorneys, counted that whereas Thomas Willson, from the 1st day of May, 1802, until the 1st of December, 1811, was owner of one moiety, and bailiff of the said Joseph, of the other moiety, of a certain sloop or vessel called the Two Brothers, with her tackle, apparel and furniture, and, during that time, had the management, freighting and letting to hire of said vessel, and receiving of all moneys made or earned by her, by freight or otherwise, for the advantage *and profit of the said Joseph and Thomas, to render a reason- able account thereof when he should be thereunto afterwards requested, yet he has refused to account &c. The defendant pleaded that he never was the bailiff in manner and form &c. June term, 1817. Defendant relinquished his plea, and judg- ment was given to account for the time aforesaid of the moneys earned and made by the said Thomas, and received as bailiff as aforesaid. And, by consent, David S. Basset, Edmund Brewer and Aaron Burrough assigned as auditors to take and declare the account, and the said court, by consent, assign the said auditors to meet at &c., on &c., to take the account aforesaid. (a) Revised Statutes "Practu-e of Law," "Attorneys" \ 1. *792 2 SOUTH.] FEBRUARY TERM, 1820. 929 Willson v. Willuon. At March term, 1818, the following report was made: "We, Edmund Brewer, Aaron Borough and David S. Basset, auditors, appointed at the inferior court of common pleas, in and for the county of Gloucester, of the term of June, 1817, to audit and state, in account at issue, before the said court, between Joseph Willson, the plaintiff, and Thomas Willson, the defendant, and, having been duly sworn and affirmed agreeably to law before James Matlack, Esq., one of the judges of said court, did proceed to hear and investigate the said matter in controversy between the said parties, and, after divers proofs and evidences had before us in presence of the parties, do agree to audit and report the following (stating an account &c.), which balance of $1,154.46 we find due from Thomas Willson to Joseph Willson, together with all legal taxed costs ; and, further, do order each party to pay their equal one-half of the expenses of the auditors. All which is submitted. In testimony whereof we have hereunto set our hands and seals this 24th day of February, in the year of our Lord 1818." Signed r the subject-matter, as it must be confessed, under its present es- tablishment, it frequently would be, it may also be necessary. *The record is before us and it is our duty to look into it. There are a great number of errors assigned, so many that it would be exceedingly tedious as well as wholly useless to discuss them individually ; we may, therefore, rather make a classification of them and say that some of them relate to matters of mere form, many of them to the conduct of the auditors, and their allow- ances and disallowances in taking the account and one or two of them to the record itself. Those which concern mere matters of form, as the warrant of attorney, the venue, the continuances &c., in all cases, after judg- ment, are aided by the act concerning amendments and jeofails, and on writs of error can never prevail. It is, therefore, unneces- sary to speak of any of these unless it be to say that the plain- tiff's prosecuting by White and Armstrong, his attorneys, is not regular, under our statute. That declares no man shall prosecute his suit except by himself or by a licensed attorney-at-law. Now, two joining themselves together in this way, though they both be licensed attorneys, cannot bring themselves within this descrip- tion and make one licensed attomey-at-law. The attorneys are considered as confidential officers of the court ; they receive fees, and are liable to penalties as such ; and may be disbarred for malpractice, (a) Can two, then, so conjoin themselves together as to receive the privileges of one, and be subject to the penalties of one? If there be malpractice in the conducting of a cause, shall they both be disbarred ; and if not, which of them? Our statute does not contemplate such partnerships in official duties, and, therefore, they cannot lawfully exist. But, though this be irregular, and might have been taken advantage of at the proper stage of the suit, yet, after judgment, it is certainly too late. Then, as to the conduct of the auditors, and their allowances and disallowances, in taking the account. The plaintiff counts that the defendant, from the 1st cf May, (a) Anonymous, 2 Hal. 162 ; In re Attorneys License, 1 Zab. 845. *796 934 NEW JERSEY SUPREME COURT. [5 LAW Willson v. Willson. 1802, until the 1st of December, 1811, was proprietor of one- half, and bailiff of the said plaintiff of the other half, of a certain sloop called the Two Brothers, and had the management, care, freighting and letting to hire thereof, and the receiving of the moneys made and earned thereby, and was to render a reasonable account &c. The defendant first pleads that he was not bailiff, but after- * wards retracts his plea and submits to account, thereby acknowl- edging his liability and every other material fact charged in the count. After this, he can only acquit himself by showing the amount of the money actually received and the necessary ex- penses and moneys paid out of the same, and by delivering over to the plaintiff his moiety of the balance. The only plausible objections to the proceedings of the auditors are, that they took into the account the moneys advanced by the parties for the building of the sloop, before the defendant became bailiff as aforesaid ; and, also, that they took into the said account the amount of sales of the said sloop when sold by the defend- ant, which selling was not an act within his bailliage ; and that,, therefore, they exceeded their power and authority the account of the defendant as bailiff, only, being submitted to them to be taken and heard. But even these objections cannot be supported. The defendant had advanced more than his half part of the money for building the sloop by nearly $400, and for this sum, according to the usage in such cases, he had a lien upon the sloop and her earnings and profits in his hands until it was satisfied and paid out of the said earnings and profits ; and having been so satisfied, he exhibited it as an item of credit to discharge him- self, pro tanto, in his account now rendered. It was a proper charge against the earnings of the sloop. It became necessary" for the auditors, therefore, to look into this whole transaction about the building and to settle that account, in order to fix the amount of this item with intelligence and precision. And their having done so, the defendant now assigns for error, although he himself compelled them to go into it for his own benefit. But in this he certainly cannot prevail. The subject was beyond their powers in appearance only, but not in reality ; so, too, as to> *797 2 SOUTH.] FEBRUARY TERM, 1820. 935 Willson r. Willson. the selling of the sloop. She was declared to be no longer sea- worthy ; was not the selling of her and making the best of her a part of his duty? Was it not that very management charged in the count to be committed, and necessarily from the nature of the thing, actually committed to the bailiff? And being, too, within the time during which he is charged as bailiff, shall he not account? Surely. These being proper matters, then, for the auditors to hear, these objections are done away. And as to the particular items allowed or disallowed, the *party, if he were dissatisfied, might have tendered issues, either in law or in fact, and having neglected to do so he could not have come, even into the court below, in a summary way to object to such items, and much less can he come in here now upon this writ of error. The auditors have stated the account ; they have delivered it into the court ; there have been no denials made, nor issues taken upon it ; the balance is declared and judgment entered ; there can, therefore, now be no errors assigned, but such as are ap- parent upon the face of the record itself. And the only one assigned of any moment which is so ap- parent, is that the account itself taken by the auditors, exhibit- ing all the items thereof and the balance due, must necessarily be entered upon the record in order to support the judgment; that this is not done here, and that, therefore, it is a judgment without premises to support it. In looking into the old entries on this subject we find some diversity in this respect. Some of the rolls do contain the a. DAVID VANDERVEER. Jurisdiction of justice. (6) On certiorari. Vanderveer, as assignee of Thomas Bispham, brought an action of covenant upon the warranty in a deed for a lot of land, and assigned as breach that the defendant had not good title when he (a) Clark v. Custard, 1 South. 210 ; Boylan v. Andason, Pmn. *5S9 ; TindaU v. Carton, 1 Harr.94 ; see Revised Statutes "Justices Courts" { ft? ; Acts cf 1875 31. (b) Slaclnocll v. Leslie, 1 South, lit; PicUe v. Covenhoven, 1 South. 319; Vantyl v. Marsh, ante 507; Westbrook v. Eager, 1 Harr. 84; Winter T. Peter- son, 4 Zab. 5S4. *809 948 NEW JERSEY SUPREME COURT. [5 LAW Warne v. Rose. made the deed. At the trial several deeds were given in evi- dence, and motion for a nonsuit made. Judgment for plaintiff for $71.02. A reversal was moved by White, for plaintiff. COURT. The justice had no jurisdiction by the express pro- visions of the statute. The title to the land was the very ques- tion in issue. Judgment reversed. HENRY WARNE v. JOHN ROSE and PETER LEONARD. . Joint action by constables, (a) On certiorari. This was an action of trover and conversion brought by the- two plaintiffs below, as constables, for certain goods, on which they alleged that they had levied by virtue of several executions which had come into their hands. Judgment was given for them. Ewing moved the reversal of the judgment, and BY THE COURT. No joint rights can exist in these plaintiffs in consequence of separate levies made by them on the goods in virtue of separate executions. No joint action can be main- tained by them. Judgment reversed. (a) Biahop v. Harvey, Penn. *645; Maffet ads. Den, Tonkins, 1 Hal. HX8 - Church v. Muir, 4. Vr. S2X. 2 SOUTH.] FEBRUARY TERM, 1820. 949 Overseers of Mendbam v. Overseers of Morris. LlNBERGER V. LATOURETTE and GARTZMAN. Proof of books, (a) On certiorari. The action was founded on a book account, and at the trial the books were offered, but not proved, the justice supposing that it was sufficient that they had been proved before him on a former occasion. Judgment reversed. *OVERSEER8 OF THE POOR OF MJENDHAM V. OVERSEERS OF MORRIS. State of case from sessions. (6) On certiorari. Certiorari to the sessions. On motion of the attorney-gen- eral, ordered that the sessions send up a statement of the case as it appeared before them. (a) See Trimmer v. Larrison, S Hal. 66; Oamdcn and Amboy R. R. v. Stewart, 4 C. E. Or. 843; Jessup v. Cook, 1 Hal. 484. (6) Orange v. Springfield, 1 South. 186; Curtis v. Hall, 1 South. S61 (a); Xichols v. State, ante 548 ; see Sheppard v. Miller, Coze 40* ; Newton v. Gloucet- ter, 1 Hal. 405; Scott v. Ecatty, S Zab. S56 ; Par sell v. StaU, 1 Vr. 530. *810 950 NEW JERSEY SUPREME COURT. [5 LAW Miller v. Tuttle. JOHN P. VANPELT at suit of RICHARD WHITLOCK. Withdrawing plea after cause noticed for trial, (a) This action, for slander, was originally brought in the com- mon pleas of Monmouth, and was removed into the supreme- court by habeas corpus; and here the defendant pleaded not guilty, and justification. The cause was carried down to the- circuit but not tried. After which, upon due notice given, the defendant prayed leave to withdraw the plea of justification, and leave the issue upon the plea of not guilty. The motion was opposed, but leave granted, and the plea withdrawn. MILLER v. TUTTLE. -.,-. Judgment against insolvent debtor. On certiorari. SOUTHARD, J. The defendant pleaded his discharge under the insolvent laws on the 22d of February, 1817. The note on which the suit is founded is dated the 8th of November, 1816, payable in thirty days. The judgment is in these words : " I gave judgment against the goods of the defendant, in favor of the plaintiff, nineteen dollars and twelve cents, debt " &c. This judgment is erroneous. It must be against defendant.. It cannot be against his goods. It should be against defendant, (a) See Little v. Bolles, 7 Hal. 171; Van Dyke v. Van Dyke, 4 Harr. 1 ,- Mayor &c. of Hoboken v. Gear, 3 Dutch. 265; Crawford v. N. J. R. R., 4 Dutch* 480 ; JBruch v. Carter, 5 Vr. 554. 2 SOUTH.] FEBRUARY TERM, 1820. 951 Smalley < . Vanorden. to be made of his goods only. And I think it very questionable whether such an execution as would be required could be issued by the justice, and if not, he had not jurisdiction of the cause. Judgment reversed. *SMALLEY and CORRIELL v. VANORDEN. 1. Sealing bail-bond, (a) 2. Witness. (6) 3. Appearance of defendant under bail-bond, (c) On certiorari. SOUTHARD, J. This was an action upon a bail-bond, and several objections have been urged. 1. It is said that the bond was not obligatory. It appears by the transcript that the constable testified that the parties acknowl- edged their signatures to it, and he told them he would put the seals to it afterwards. It was not, then, a bail-bond when exe- cuted. It was defective, and the fixing the seals afterwards was altogether improper. 2. The constable who took the bond was sworn. He is said to have been interested, but I do not perceive how it can le avoided to swear him, in such cases, whatever may be his inter- est. He is, like an agent, a witness ex necessitate. 3. It is said that the defendant did appear according to the bond, and, therefore, it was not broken. Here we get into an inquiry into the merits in a way not very easy to be reconciled (a) See Su/ern v. Butter, 4 C. E. Or. *09. (b) Day v. Hall, 7 Hal. S04 ; Qraectn v. Allen, g Or. 74; see Bunting ad*. Allen, S Harr. 299. (c) Baird v. Cole, Hal Dig. 1*S \ S ; Oliver v. Howell, ante 581 ; but see Qraeeen v. Allen, 2 Or. 77. *811 952 NEW JERSEY SUPREME COURT. [5 LAW Smalley v. Vanorden. to the course of proceeding on certiorari. But we will look at it. The bond was to appear before Justice Latourette. Justice Latourette's docket says that the defendant appeared at the time stated in the bond ; that the plaintiff gave a note of hand in evidence, and the defendant acknowledged the justness of the demand, and he gave judgment &c. This transcript would, therefore, seem to show that the defendant had not broken his bond ; but this court admitted affidavits to be taken, and by them it appears that while the justice was filling up an execution, and while the constable was not observing Smalley, he left the room and ran off; and, therefore, it is argued that his bond was broken. The first act on this subject (Bloom. 54) required the defend- ant to be taken before the justice &c., and give security to an- swer the action in the form of a common recognizance of bail ; that if he did not appear, or if he was condemned in the action, he should pay the costs and condemnation money, or surrender himself up to the constable, on execution to be thereafter issued against him on the day judgment shall be obtained; and if he fail &c. But the law was afterwards altered and the con- stable permitted to take a bond for the appearance of defendant at a given day. This bond, in its terms, does not follow the recog*nizance formerly taken by the justice. It is merely that the defendant shall appear &c., and answer unto the complaint of said plaintiff; then the bond to be void. Now, it appears to me that this defendant did appear and answer. He did every- thing which he could be required to do. Judgment was ren- dered upon his answer, and the execution was, in part, filled up. If the law intended to compel him to abide longer, and to surrender himself at any time on the judgment, it would not have required the constable to be there to secure and take him in custody. The bond would have been sufficient security. Judgment reversed. *812 2 SOUTH.] FEBRUARY TERM, 1820. 953 Ayres t. Swayze. SELAS C. AYRES and LEWIS THOMPSON v. BENJAMIN SWAYZE. 1. Contract to exchange execution for goods may be enforced. 2. Service of summons on one defendant, (a) 3. Appearance of attorney for defendant cares the defect (6) On certiorari. For case, see opinion. SOUTHARD, J. The case set out in the state of demand is as follows : Ayres and Thompson had obtained an execution against Joseph Hoover for $62.62, and while it was yet in force and unsatisfied they agreed to transfer it to Swayze if he would deliver them one hundred and ten bushels of oats. He delivered the oats accord- ing to the agreement and they refused to transfer the execution. Upon this case there was trial, verdict and judgment for $70, and the plaintiffs in certiorari allege that this judgment ought to be reversed because the state of demand contains no lawful cause of action, inasmuch as the execution could not legally be trans- ferred, and therefore the promise was not binding. But I do not perceive any difficulty in the case. It was lawful for Swayze to sell the oats ; it was lawful for Ayres and Thompson to pay him either in money or what to him would have been equivalent. The right of receiving the money upon this fieri facias, or of directing the officer in executing it, might have been of great value to the plaintiff below, at least equal to his oats. And although there might have been a legal difficulty in their trans- fa) Budd v. Marvin, 1 South. *48 (a) ; Mural y. Hutchinto*, 1 Harr. tf. (6) Stediford v. Ferris, 1 South. 109 (a) ; Cole v. William*, Ptnn. *558 ; Me- Kelwny ads. Jones, Hivrr. S45 ; HiUman v. Harden, ante 575 ; Steward v. Sears, 7 Vr. 175; v. CbmpbeU, Ooze 92; Houghton v. Potter, 3 Zab. 338; Hunt v. Allen, 2 Zab. 533; Snedcker v Quick, 6 Hal. 181. 954 NEW JERSEY SUPREME COURT. [5 LAW Hamilton . Decker. ferring the execution to him, so that he could maintain a suit founded on it, yet there was no legal difficulty in their trans- ferring their right to receive the money made upon it, which is all *that I understand is alleged by the case. I therefore see no- defect in the demand. The plaintiffs in certiorari also rely upon the illegal service of the summons, inasmuch as the constable returns it " served on the defendant by his reading it himself and no copy demanded." But although this service might have been questioned where there were two defendants, yet the defect, if any, is cured by the subsequent appearance of the defendants, by one of the attorneys of this court, his taking no notice of the defect but proceeding to the trial. Judgment affirmed. HAMILTON and EDSALL v. DECKER, (a) On certiorari. State of demand in the usual form in trespass for taking per- sonal property. At the trial the defendants below offered an execution against one Allingham, and which had been delivered to one of them as a constable, as evidence to justify taking the property. This execution was rejected. And Halsey now as- signed its rejection as cause of reversal. Vroom replied that it was incompetent until legalized by the production of a judg- ment. 1 Ld. Ray. 733; 5 Burr. 2631. The court affirmed the judgment. (a) Cosher v. Peterson, 1 South. 318 (a) ; Sordine v. Combs, 3 Or. 412. *813 2 SOUTH.] FEBRUARY TERM, 1820. 955 Hunt v. Young. BENJAMIN V. HUNT v. PETER YOUNG. 1. That defendant rented of plaintiff &c., good in a demand, without setting out the use and occupation, (a) 2. If transcript states that plaintiff was called it will not be cause of rever- sal if it does not add that he appeared. On certiorari. The facts sufficiently appear in the opinions. Ewing, for plaintiff, relied on two reasons. 1. The insufficiency of the state of demand. 2. That the transcript did not state that the plain- tiff appeared when the verdict was rendered ; it merely stated that the plaintiff was called. KIRKPATRICK, C. J. The plaintiff states in his demand that the defendant rented of him a certain house for the term of one year, at the rate of $15 by the year. It is objected *that this state of demand is not sufficient, because the plaintiff does not expressly allege that the defendant occupied and enjoyed the same during the said term, for that the debt arises upon the occupation. But this is not so ; the debt arises upon the contract where the contract is express, and even if that were not so clearly proved, to rent for a year, in common parlance, signifies to hold and occupy for that time under rent, and therefore would be well enough. The form of declarations in the upper courts, it is true, is more particular, but it would be going too far to insist upon it here. Let the judgment be affirmed. SOUTHARD, J. The state of demand claims " $15, for this, that the defendant (a) Birckhead v. Cummin*, 4 Vr. 44. When action for use and occupation will lie, Perrine v. Hanirinson, 6 Hal. 181; Conover v. Cbnover, Sax. 40S ; Chambers v. Rota, 1 Dutch. 29S ; Holmes v. Stockton, * Dutch. 9S ; Stewart v. Fitch, 2 Vr. 17 ; Andrews v. Andrews, f Or. 141 ; Brewer v. Oonover, 3 Harr. 14 ; Van Slnrcom v. Kip, 2 Dutch. S51. *814 956 NEW JERSEY SUPREME COURT. [5 LAW i Hunt v. Young. rented a certain house of him, the plaintiff, for a school-house, for the term of one year, commencing the 1st of April, 1817, for the sum of $15, which the plaintiff oftentimes demanded of the defendant, but he always refused " &c. There was a trial by jury, and the transcript states that when the jury returned into court with their verdict the plaintiff was called, but it does not state that the plaintiff appeared. The verdict was received and recorded and judgment rendered for $9. Two reasons have been filed and relied on for the reversal of the judgment. 1. That the state of demand contains no lawful cause of action ; the renting or letting the house without occu- pation or enjoyment not giving a right of action ; the occupa- tion or enjoyment ought, therefore, to have been expressly averred. 2. It does not appear that the plaintiff was present when the verdict was rendered. Upon the first reason. In a declaration for rent reserved by deed, the plaintiff need not state his deed, but may declare gen- erally and produce the deed in evidence in support of his declara- tion. 1 Saun. 202, 276, 325; Ld. Ray. 1503. If, therefore, this was a case of renting by lease under seal, the objection that the written lease was not set out would not avail. But there is nothing in the recoid to show that it was by written lease; it appears to have been by parol. It is further to be remarked that it is not an action for damages resulting from the breach of a contract or agreement to lease, but debt for the amount of the rent agreed upon. From what, then, does the plaintiff's right to this specific sum arise ? Not alone from the agreement to rent *the premises, but from the use and enjoyment of them. 2 El. Com. 144- This use and enjoyment ought, therefore, to be stated as an essential part of the foundation on which the plaintiff's right of action is built. And so are the approved forms upon parol leases for rent. 1 Chit. 8, 9. So, too, are the forms for rent by deed. The allegation of enjoyment precedes the per quod actio accrevit. 1 Chit. 173. This seems to me, therefore, to be a substantial defect. Upon the second reason. The statute requires the justice to *815 2 SOUTH.] FEBRUARY TERM, 1820. 957 Angus v. Radio. enter in his docket " all the proceedings before him had touching the suit." The appearance of the plaintiff is a necessary pro- ceeding to authorize the justice to receive the verdict. Without it, a nonsuit must be entered. This appearance, therefore, ought to be manifested by the record. Upon the same ground, the court decided in Penn. 632, 74, that it must appear, by the transcript, that the jury was sworn. I cannot, therefore, sustain the judgment. Judgment affirmed. WILLIAM ANGUS v. WILLIAM RADEN. 1. No reversal fur a fact about which there was contradictory evidence, (a) 2. If oxen break plaintiff's close and kill his cow, owner is answerable without proving that he knew they were accustomed to gore. (6) On certiorari. The case is stated in the opinion. The reasons relied on for reversal were 1. That defendant was not liable for the injury, because the oxen which did it, though in his care and manage- ment, were not his property. 2. That the justice refused to give a legal charge to the jury when requested. Halsey, for plaintiff. Scudder, for defendant (a) Romainc v. Norris, S HaL 80; Gibbons v. Wade, S HaL 55 ; Baldwin v. Simmons, 4 Hal. 198; Independence v. Pompton, 4 Hal. 909; Fan Pelt v. Vtghte, Gr, 07; Scott v. Beatty, S Zab. 59; State, Wilson \. Mayor Ac,, of Hudson, S Vr. S65 ; Paterson R. R. v. Ackerman, 4 Zab. 536; Acts of 1871 124, and Craft v. Smith, 6 Vr. S0 ; Nestal v. Schmid, 10 Vr. 688. (6) See Dills v. Kinney, S Or. ISO; Walts v. Ford, S Hal. 67; Ooze v. Robbins, 4 Hal. S84 ; Chambers v. Matthews, S Harr. S6S ; Vandegrifl v. Redi- ker, S Zab. 185 ; Price v. N. J.R.B.,* Vr. 9, S Vr. 19 ; Nix. Dig. 23 { 66. 958 NEW JERSEY SUPREME COURT. [5 LAW Angus v. Badin. SOUTHARD, J. Two questions seem to have been raised in this case. It is, in the first place, alleged that the oxen which did the injury com- plained of belonged to Decatur and Atterbury, were in their employment and under the care of the defendant, as the super- intendent of their powder mills ; and, therefore, the defendant could not, legally, be made answerable for injuries done by them. The evidence which is shown to have been given, proving the property in Decatur and Atterbury, if credited by the jury, seems conclusive of their right; but the justice states *that it was, on the other hand, proved that the defendant had acknowl- edged that they were his. The jury were to judge upon this contradiction ; we have no means of ascertaining the credibility of the evidence. We presume the jury decided correctly ; and, from the verdict, it is probable that they believed the oxen be- longed to the defendant. It is alleged, in the second place, that the court refused to charge the jury when legally required. Upon this point two things are worthy of remark. 1. What was the charge required ? 2. What was the conduct of the court ? As to the nature of the charge required, there seems to be some difference between the amended return of the justice and the affidavit read before the court. I think it proper to be governed, in my view of the case, by the amended return. The facts in dispute would cor- rectly form a part of the record ; and the party having chosen, in the first place, to take his rule upon the justice, ought to be bound by it. The justice states that the defendant below " called on him to charge that the defendant's oxen had gored the plain- tiff's cow, yet if they were not accustomed so to do the owner was not liable in law for the injury; that here the defendant was not liable, as the injury was merely accidental, not inten- tional." The accuracy of this doctrine, as applied to the present case, may, I think, be questioned. The owner of domestic animals, mansuetae naturae, not necessarily inclined to commit mischief, as dogs, horses, oxen, cows, sheep &c. is not liable for an injury committed by them, unless he had notice of a mis- chievous propensity in the animal, or the injury arose from some *816 2 SOUTH.] FEBRUARY TERM, 1820.. 959 Angus v. Radio. neglect on his part; it being generally necessary, in an action for such injury, to allege and prove the acienter ; but it is the duty of the owner to confine them on his own land, and, if they go therefrom and commit a trespass on the land of another, unless through defect of fences which the latter ought to repair, the owner is liable, though he had not knowledge of any evil pro- jK?nsity in them. If they unlawfully break plaintiff's close and commit a trespass, the owner is liable for the whole damage. IS Mod. 833 ; Ld. Ray. 608; Salk. 662 ; Peake's EC. 291; Bac. Ab. "Action on the Case." Here the plaintiff below charges, in his state of demand, that the oxen broke into his enclosure, and there gored his cow so as to kill her. The defendant did not, therefore, confine them on his own land ; they were trespassing on the land of the plaintiff. The owner was, there* fore, liable for the injury done, and it was not necessary either to allege or prove a scienter. And the justice might well have declined giving the charge that was required. But I do not understand him to have declined. After the attorney of the defendant had argued before the jury, and stated the law to them as he under- stood it, he requested the court to charge to the amount before detailed. The justice replied that he had no objection so to do, but did not consider it necessary. This appears to me to be, in substance, though not in form, an assent to the law, as the defendant understood it, and an indication to the jury what the court thought; a charge such as was called for. To reverse, therefore, for this reason, would be too strict an adherence to form to the disregard of substance, even if the charge asked for was correct. Judgment affirmed. *817 960 NEW JERSEY SUPREME COURT. [5 LAW Norris v. Douglass. NOAH NORRIS v. JAMES DOUGLASS. 1. Presumption is, that attorney is authorized to bring suit in the name of plaintiff, the contrary must be shown, (a) 2. Style of action. 3. Copy of account. On certiorari. Scudder, for plaintiff. SOUTHARD, J. This action is stated by the justice, " James Douglass, who sues for the use of John Aldns v. Noah Norris" The state of demand is in the following words : "New York, September 12th, 1817. " Mr. Norris, Dr., to James Douglass, the sum of sixty feet of white marble, at 7s. per foot, $52 50 " One hearth and two pieces, 4 50 $57 00 " I acknowledge this to be a just account. "NOAH NORRIS." On the back of the account is endorsed " Pay to John Akins, or order, the within sum. James Douglass." There was verdict and judgment for $58.66. The first objection taken to the judg- ment is that Douglass lived in New York and never authorized A. Dod, Esq., to prosecute said action in his name for the use of John Akins or any other person. To this it was answered, J>e- fore the justice where the exception was first taken, and is now again answered here, that A. Dod is a regularly licensed *attorney ; (a) Inhabitants v. Booraem, 5 Hal. 57 ; Hendrickson v. Hendrickson, 3 Gr. 102 ; McKdway ads. Jones, 2 Harr. 345; Price ads. Ward, 1 Dutch. 225 ; Dare v. Allen, 1 Or. Oh. 288 ; Qifford v. Thorn, 1 Mock. 70S; see Swayze v. Ooursen, 2 Hal. 63; Potty v. Smith, 7 Hal. 139 ; Bowlsby v. Johnston, 1 Gr. 349. *818 2 SOUTH.] FEBRUARY TERM, 1820. 961 Kerr v. Phillips. that therefore the presumption is in favor of his authority to prosecute in the way he does, and the contrary must be shown. The answer is sufficient. 2. Douglass could not sue to the use of Akins. There is no difficulty in this. The account was of a character not to be as- signed, so that the suit could be brought in the name of the as- signee. It must be brought in Douglass's name, but it was proper, on the record, to show who had the real interest. 3. Because the account before stated was admitted in evidence. That account was the state of demand, and it can be consid- ered in no other light than as an account. It is not a note or due-bill ; a copy of it was all that was necessary to be filed. It was, besides, prima facie evidence to prove the debt. If it had appeared in any way that it was a copy of a book account the book ought to have been shown, but this not being so, it seems to me to l>e all right. Judgment affirmed. WILLIAM F. KERR et al. v. MOSES PHILLIPS. 1. Judgment of restitution necessary in forcible entry and detainer, (a) 2. Suit against persons who hold in severally. (6) Drake, for plaintiff. KIRKPATRICK, C. J. This is a case of forcible detainer, and the principal reason as- signed for the reversal of the judgment is that it is irregular, in- formal and not according to law. (a) State v. Covcnhoven, 1 Hal. S96 ; Crane v. Dod, Pom. *S4O ; AppUgat* v. Applegate, 1 Hear. SSI ; Townly v. Rittan, Spm. 605, 1 Zab. 674 ; ee Dariwit v. Schooley, 5 Hal. 148; Martin v. Hiltyer, 6 Hal. ft. (6) Unedeker v. Quick, 7 Hal. 129; HUderbrand v. Linninger, S Or. 38 ; Boylston v. Valentine, 1 Harr. 347 ; see Den v. Snovkill, 1 Or. tS. 61 962 NEW JERSEY SUPREME COURT. [5 LAW Kerr v. Phillips. After recording the verdict of the jury, whereby they find the defendants guilty of the unlawful detainer complained of by the plaintiff, the justice enters his judgment in these words : " Where- upon I give judgment for the plaintiff" for the said unlawful de- tainer, with costs of suit, being treble, amounting to $80.16." The case of Waller v. Park, Penn. 661, is a stronger case than this. There, after recording the verdict of guilty, the justice gave judgment that " Waller, the defendant, is guilty of forcibly entering and detaining the possession of the premises contained and described in the complaint of the plaintiff," and awards costs. But, because there was no judgment for restitution, this judg- ment was holden as none and reversed. In the case of Cowman *v. Barber, too (Penn. 688), the judgment was that the defend- ant was guilty, but there was no judgment that the plaintiffs be restored &c., and therefore it was reversed. Perhaps the mode of proceeding upon the English statutes in actions of forcible entry and detainer, may have led some of the justices into mistake, though, in this case, even that has not been pursued. There the principal judgment was that the defendant is convicted, and restitution &c. followed as consequences. Upon these precedents, it is presumed, some of the justices here have been led, in these cases, to give judgment that the defendant is guilty. That was so in the two cases just cited, and it may be said to be substantially so in the one now before us. But it is to be observed that those statutes are wholly different from ours upon this subject. They had different objects in view and differ- ent modes of proceeding prescribed. The English statutes made a forcible detainer a criminal offence. The party complained of might be convicted upon the voice of one or more of the justices, or upon an inquisition taken by the people of the county. This conviction was made a mat- ter of record, beginning with a memorandum stating all the facts particularly, and closing with the judgment of the justice there- upon, the imposing of the fine, the commitment of the party and the award of restitution. This judgment of the justices was to this effect and somewhat in this form : " Therefore, it is con- sidered by u, the justices aforesaid, that the said A JB of the de- *819 2 SOUTH.] FEBRUARY TERM, 1820. 063 Kerr c. Phillips. 4ainer aforesaid, with force and strong hand, is convicted according to the form of the statute &c. ; whereupon we " &c., and then they go on to impose the fine, order the arrest and commitment of the defendant and restitution to be made. And the warrant of arrest, commitment and writ of restitution went accordingly. This was the course under the British statutes, and a very easy, sensible and just course it seems to have been. Our legis- lature, however, although they still declare it to be unlawful to make such detainer with force and strong hand, yet have altered the whole course of proceeding upon it, and instead of consider- ing it as a criminal offence have converted it into a mere private injury. There is no conviction upon view, no grand inquest to make inquisition, no fine, no arrest, no commitment. There is nothing in the nature of a criminal proceeding. It is a mere trial *of private right between the parties. If the plaintiff" pre- vails in this trial, the whole object of the law is that he shall have restitution of his land, and for this the judgment must be rendered. If the jury find the defendant guilty, the act says the justice shall record their verdict and give judgment thereon. What judg- ment ? Judgment for the plaintiff for the unlawful detainer f What does the plaintiff get by that ? It awards him nothing ; it determines no right. No, the judgment must be that the plaintiff be restored to the possession of his land thus unlawfully detained from him. It is true that in this case the justice has awarded a writ of restitution, but the objection is that there is no judgment to sup- port such award. The mere verdict of a jury and the receiving and recording of it by the court, do not warrant the issuing of tin execution. The court must first pass upon it and pronounce the judgment of the law upon it. It is certainly matter of great regret that after a litigation so expensive, and a verdict, no doubt, so just, the whole proceeding should be set aside and the party lose his right ; but if we are to be governed either by precedent or principle, this judgment can- not prevail. Let the judgment be reversed. *820 964 NEW JERSEY SUPREME COURT. [5 LAW Clawson v. Gustin. SOUTHAKD, J. I think it is also manifest from the papers that the defendants held the lands in severalty, not as joint tenants or tenants in common. The justice could not therefore unite them all in one- action. The judgment, too, is for the costs of both plaintiff and defendant, which is error and cause of reversal, so far as relates to those costs, which ought not to have been given. Judgment reversed. After the judgment was pronounced the attorney-general moved that a writ of re-restitution issue to restore the defendants below to the possession of the premises ; and as it appeared by the record of the justice that a writ of restitution had been issued in favor of the plaintiff below, the court ordered the writ of restitution. * J. CLAWSON and A. CLAWSON v. D. GUSTIN. A blank endorsement, though after day of payment, can only be filled up in. the usual form, (a) The action was on a promissory note against the endorser. The state of demand alleged the assignment to be made after the day of payment, and that the defendant made a special promise to pay if the money could not be got of the drawer. The case was argued by Vroom, for plaintiff, and Halsey, for defendant. Opinion of the court. x KlBKPATRICK, C. J. The plaintiff below brings this action upon a note of hand made by one James Stewart to Jacob Clawson, alleging that (a) Snyder v. Hummel, Perm. *88 ; Biker v. Corley, Penn. *911 ; Crozer v. Chambers, Spen. 256 ; Crisman v. Suriaher, 4 Dutch. 149 ; Watkins v. Kirkpatrick^ 2 Dutch. 84; Chaddock v. Vanness, 6 Vr. 517. *821 SOUTH.] FEBRUARY TERM, 1820. 965 Clawson v. Uustin. Clawson assigned it to one Robert Thomson in these words, to wit : " For value rec'd I assign this note to Rob't Thomson, and stand security till paid," and that Robert Thomson afterwards assigned it to the said plaintiff in these words, to wit : " I assign the within note to David Gustin, and don't stand security if never paid." It turned out upon the trial, by the confession of Gustin himself, that Clawson had endorsed the note in blank, and that he, Gustin, after it came into his hands, had written over his name the above special assignment, with warranty. It is true that the mere endorsement of the name on negotiable paper is sufficient, and the assignee may fill up the assignment in the usual form, but he can do no more ; he can insert no special covenant or undertaking, because, in the course of business, the endorsement imports none such ; and if he do so, not only is the assignment void but he also is guilty, if not of a direct forgery, yet of a fraudulent attempt, upon which the law frowns, and which conveys to him no interest. The judgment intended to be brought up by this certiorari seems to be that which was entered against the defendant, Jacob Clawson, and his bail ; but as the justice has sent up, also, the original judgment against Clawson himself, and that appears to be founded upon fraud, if not forgery, let it be reversed and the "whole proceeding founded upon it be set aside. SOUTHARD, J. I agree to reverse. It appears by the papers that the special Assignment, written by Gustin over Clawson's *name, was totally unauthorized by Clawson ; that this special assignment was necessary to bind Clawson to pay, the law not having been com- plied with so as to bind an endorser ; and that although there was a special promise to pay, laid both before and after the .assignment, provided he could not get the money of the maker, yet there was no proof of any effort to get the money of the maker nor of the promise as laid. Judgment reversed. *822 966 NEW JERSEY SUPREME COURT. [5 LAW Van Giesen t. Van Houten. JOHN MATHEWS v. THOMAS FERGUSON. Justice has jurisdiction of action for malicious prosecution, (a) On certiorari. L. Q. C. Elmer, attorney. SOUTHARD, J. There is no cause of reversal. It is an action for malicious pi^osecution commenced by warrant ; and the state of demand is technically drawn, containing everything requisite in such a case ; and as there were several witnesses sworn, it is to be pre- sumed that the demand was supported by proof. Of such a cause the justice had jurisdiction, and there seems no error in the proceedings. Judgment affirmed. CORNELIUS VAN GIESEN v. GARRABRANT VAN HOUTEN. No e not paid at the day, interest must be added, and, if it amount to more than $100, justice has not jurisdiction. (b) On certiorari. KlRKPATRICK, C. J. This is an action upon a note of hand, made by the defendant, Van Giesen, to one Marselis Van Giesen for $100, dated May (a) Potts v. Imlay, 1 South. 330 (a). (6) La Rue v. Boughaner, 1 South. 104 (b) ', Williams v. Hamilton, 1 South* 220 (b) ; Griffith v. Clute, 4 Hal. 264 ; Howell v. Burnett, Spen. 265 ; Inhabitant* of Saddle River v. Col/ax, 1 Hal. 115. 2 SOUTH.] FEBRUARY TERM, 1820. 967 Wier v. Luin. 24th, 1816, and payable in sixty days, and by the said Marselis Van Giesen assigned to the plaintiff, Van Houten. The action was instituted March 22d, 1817, and the defendant insisted, before the justice, that the principal and interest of the said note amounted to more than $100, and, there being no credits allowed, plead to the jurisdiction of the court. According to the course of decision here this was a good plea. The justice ought to have given judgment upon it for the de- fendant, and to have dismissed the suit. Reversed. *SAMUEL WIER and WILLIAM WIER, surviving administrators of WILLIAM WIER, deceased, v. DANIEL LUM. 1. Judgment for more than distributive share. 2. Suit before orphans court had ordered distribution, (a) On certiorari. SOUTHARD, J. The state of demand claims $100, and sets out that William Wier, of Washington, Morris county, died in December, 1816, possessed of certain personal estate.; that the defendants, together with the widow, Elizabeth Wier, became the administrators, and took possession of the property ; that the widow died in July, 1818; that in September, 1818, the defendants reported to the orphans court of Morris county that there remained in their hands, to be disposed of according to law, $1,044,59.5; that (a) Ordinary v. Smith, 5 Or. 3 ; Ordinary v. Cbolcy, 1 Vr. f71 ; Ordinary v. Barcalaw, 7 Vr. 15; King v. Berry, * Or. Ch. 261; Dtlanry v. AoWe, t Or. Ck. 441 ; Exion v. ZuLe, 1 McCdrt. 501; Prey v. Dtmarat, 1 C. E. Or. tS6 ; Bockover v. Ayrc*, 7 C. E. Or. 16; Dorsheimer v. Rorback, 8 C. K Or. 47 ; Adminintration Bond of Green, 4 Hal. Ck. 550 ; Woodruff v. Woodruff, 1 Stmlk. S75 (b). *823 968 NEW JERSEY SUPREME COURT. [5 LAW Wier v. Lum. inasmuch as Effie Lum, late Effie Wier, was one of the daughters of the deceased, and married to the plaintiff, " is entitled to a distributive share of the estate, that is, the movable estate of the said William Wier, deceased, and from the balance so reported to be in the hands of the defendant, the plaintiff is entitled to demand of them as his distributive share, $100 ; that the plaintiff had executed to the defendants a bond with sufficient freehold security, in double the sum demanded, to refund and pay back to the defendants the ratable share &c., bearing date the 22d of January, 1819, and produced before the court; that the plaintiff had also executed a release for the said $100, in full of said dis- tributive share, dated the 22d of January, 1819; which bond and release were duly tendered, and the money demanded on the said 22d of January, 1819, but refused, whereby" &c. At the trial the plaintiff gave in evidence a certificate from the surrogate to prove that defendants were administrators of Wil- liam Wier, deceased. He also proved the execution, reading and tender of the bonds and release to one of the defendants. The defendant then moved for a nonsuit, because they were not tendered to both of the defendants, which motion was overruled. Plaintiff then produced a certified copy of the account of defend- ants, as audited and stated by the surrogate, and allowed by the court, showing the balance as stated in the plaintiff's state of demand, and proved that the intestate left eleven children, of whom plaintiff's wife was one. The jury found a verdict for $98.48. The trial and judgment were on the 30th of March, 1819. *From this statement it is manifest that the verdict and judg- ment are for the eleventh part of the balance stated by the de- fendant's account, with interest from the time the account was allowed by the court until the judgment. In this I think there is manifest error. William Wier, the intestate, left a widow and children. By our statute of distribution of intestate's estate, where that is the case, the widow is entitled to one-third. This plaintiff could not, therefore, be entitled to more than the one- eleventh of two-thirds of his estate. The recovery has been for one-third, or $32.82f too much. It is true the widow is dead, *824 2 SOUTH.] FEBRUARY TERM, 1820. 969 Wier v. Lam. and this child may be entitled to a share of her estate. But it is initially true that she may not be entitled to one-eleventh part. She may not be one of eleven children of hers, though she was one of eleven children of William Wier. It may also be equally true that the widow may have had debts which would have diminished her estate so that she did not leave the whole one- third part to be divided. But if neither of these be true, if the whole one-third was left to be divided among the same eleven children, still they claim it as her children, not the children of William Wier. They cannot recover it in an action against Wil- liam Wier's administrators, one of whom was this very widow, while she was living. Judgment reversed. SOUTHARD, J., further remarked : I think there is a radical ; but I think the case has been misapprehended. The words of the rule are not given in the report, but the three referees all acted, were present and heard the cause. Two of them agreed, the third dissented, and telling the others that they could make the report without him, left them. The two did make the report. It is, then, simply the case of all the referees acting and a majority signing the report. The case of Kingston v. Kincaid d al., said (Kyd 107} to have "been decided at April sessions, 1806, in the United States circuit court for Pennsylvania, is of the same character. The reference was to three or any two of them, where, of course, without any artificial construction of words and phrases, the two had full power, the same as the three. The three met often on the sub- ject, but as one could not agree with the others upon the im- portant points of the dispute, he said it was unnecessary for them to call on him again, and withdrew. The two proceeded to conclude their hea'ring and made a report, which was sup- ported, and, I think, correctly. Here all took the burden on themselves ; all met and heard, but two only could agree. In Green v. Miller, 6 Johns. 39, there was a parol submission to five, without any addition that four or a less number might .award. Four did make the award, and it was held bad. There are other cases, scattered through the books, but I believe they are all reducible to those that I have considered, and I see in them nothing to change the view which I have taken of the plain import of the rule of reference and the practice under it. *I, therefore, think that the report is not valid, and that the judgment founded upon it must be reversed ; and in this opinion my brethren agree with me. Judgment reversed. *835 982 NEW JERSEY SUPREME COURT. [5 LAW State v. Kirby. THE STATE v. STEPHEN KIRBY, one of the justices &c. (a) 1. In error a reason not filed cannot be heard, but if defect apparent on the record, time given to file reason. (6) 2. On motion to quash, reasons need not be filed. 3. The title of certiorari to bring up military tax-warrant should be State v. Delinquent, (c) 4. Ought to be prosecuted by one only, not several jointly, (d) 5. Incorrect return not reason to quash. At February term, 1818, on motion and argument by White and L. H. Stockton, for prosecutor, and by Ewing and Woodruff against the allowance of the writ, a certiorari was issued to bring up the tax-warrant against delinquents in military service in 1817, in the battalion commanded by Major Baxter, in Gloucester. By the return of the writ the original warrant and list of delin- quents, upon the same paper, were brought up. The warrant is directed to , one of the constables of the township of Newton &c., and is in the words of the form given in the act establishing a militia system, passed February 18th, 1815. The list contains more than two hundred names for different sums. The warrant is signed by Stephen Kirby, .to whom the certiorari is directed, and in his return he states " that he put his name to the said tax- warrant without seeing or having delivered to him (a) S, C., 1 Hal. 143; see State v. Atkinson, 4 Hal. 271; State v. Davis,! South. 311 ; American Dock Go. v. Trustees of Public Schools, 5 Stew. Eq. 434 ,~ Loder v. Baker, 10 Vr. 50 ; Marlboro v. Atlantic, 18 Vr. 263. (6) Baker v. Moore, Penn.*961; Griffith v. West, 5 Hal. 350; N. J. R. R. v. Suydam, 2 Harr. 69 ; see Ballinger v. Sherron, 2 Or. 144 ,' Decker v. McLorinan, 13 Vr. 414- (c) Upper Freehold v. Hillsborough, 1 Or. 289 ; Morris Canal ads. State, 2 Or. 411 ; State v. Hanford, 6 Hal. 71 ; Readinyton v. Dilley, 4 Zab. 209 ; State v. Justice, 4 Zab. 413 ; Oriscom v. Gilmore, 3 Or. 475 ; see State v. Oiberson, & Or. 391 ; Grove v. Mott, 17 Vr. 333. (d) See Browning v. Cooper, 3 Harr. 196 ; State v. Flavell, 4 Zab. 370 ; Powell v. Hitchwer, 3 Vr. 211 ; Bergen v. Van Home, 3 Vr. 490 ; State, Farmers Bank v. Cook, 3 Vr. 347. 2 SOUTH.] FEBRUARY TERM, 1820. 983 State v. Kirby. any return-list of delinquents, nor did any such list remain with him; nor had he any record or proceeding whereby he could make any more full return." At September term, 1819, the cause was moved and argument in part had thereon, but some difficulty arising upon the deposi- tions which were offered, the parties agreed that it lie over and motion to quash the writ be made. In his remarks M' 1 1 mi in- stated as a reason for reversing the proceedings that the warrant was directed to no constable by name. Ewing objected to the discussion of this reason because it was not in the reasons filed. After some argument, the court stated the rule to be that a party may not argue and rely upon a reason which he has not filed and given notice of to his adversary ; but as this, if a defect at all, was apparent upon the face of the record, which the court must inspect and could not overlook, argument would be heard upon it ; and if the adversary required it, it must be filed and time given to look into it. *At November term, 1819, Ewing moved to quash the writ of certiorctri. White objected that no reasons had been filed. But the court said that it was not necessary to file reasons before such motion was made. Ewing and Wall then urged 1. That the name of the state and the justice had been incorrectly used. 2. That the writ ought not to be against the justice but the per- sons charged with the fine, as in pauper cases. The King v. Over- seers of the Poor &c. 3. That a number of cases were united in the same warrant. That the case of each was separate and depended on distinct facts, and ought to have had a separate writ, as in cases of taxation and poor-rates in England. 4. Th return was irregular. The justice had not the legal custody of the warrant and could not return it the constable had it. 5. That the justice was one of the delinquents named in the war- rant, and could not, therefore, issue writ nor make return to cer- tiorari. White and M'llvaine answered that objections were made when the court ordered the writ, and it was therefore now too late to object to the form ; that the entitling the writ was ac- *836 984 NEW JERSEY SUPREME COURT. [5 LAW State v. Kirby. cording to the invariable form. 2 Bur. 101$ ; 3 Bur. So- in turnpike cases. So, The State v. Orphans Court of Bur- lington County, in this court. So, in the tax on Indian lands. The only interest the state had was not against the writ, but in its favor, to see that the citizen be not oppressed ; that the fine was so small that if each must have a separate writ, they had better submit to the injustice ; that this was the only mode of redress. Heretofore notice was given to train iv- moved; and as each of the persons contained in it may conn m *840 988 NEW JERSEY SUPREME COURT. [5 LAW State v. Kirby. and assign errors for himself, there can be no reason to quash the writ merely because it has been issued upon the application of more than one. To make the most of it, they have only ren- dered themselves liable for costs. And as to the third reason, whatever advantage it may afford in another way, it certainly cannot be a ground to quash the writ. In my opinion, therefore, let the party take nothing by his present motion. ROSSELL, J. In this case the defendant should take nothing by his motion. The state, I conceive, is always interested that its laws should be properly executed by the officers appointed under its authority. When these officially violate or disregard the law, the state has called them, and will continue to call them, to give an account of their proceedings in all acts like the present of a public nature. The magistrate was the proper person, and the only one, to whom the certiorari could be directed. The objection to the number of persons contained in the execution complained of, as the judg- ment must be joint, is equally without foundation. Although a joint execution, the judgment may be joint or several, as war- ranted by the proof. SOUTHAKD, J. At February term, 1818, upon application, in open court, a writ of certiorari was allowed, directed to Stephen Kirby, one of the justices of the peace of the county of Gloucester, directing him to send up a certain tax-warrant and return-list -of delin- quents delivered by the paymaster therein named, if any such there was, on which such warrant was issued ; which warrant had been issued by him to recover militia fines from the persons named in the list who were alleged to have been delinquents. The return of the writ is in these words : " In obedience to the writ of the state to me directed, I do herewith send the tax-war- rant by me issued, as within I am commanded ; and I do fur- ther certify that I put my name to the said tax-warrant without 2 SOUTH.] FEBRUARY TERM, 1820. 989 State r. Kirby. seeing or having delivered to me any return-list of delinquents ; nor do any such list remain with me, nor have I any record or proceeding whereby I can make any more full return." The return-list of delinquents, amounting to about two hun- dred and twenty, is upon the same paper with the warrant, and among these delinquents is the name of the justice himself. Upon these facts, a motion is made to quash the writ for three reasons, which I will mention in their order. 1. The name of the state and the justice are improperly used, and it is incorrectly entitled against the justice ; it ought to be against the individuals. I understand that all the proceedings, the entries in the records of the court and the direction of the writ is The State v. Kirby, If this, therefore, be wrong, it is not to be altered or amended > as I should be disposed to order done if it were only the endorse- ment on the writ. The body of the writ appears to be formal, but the whole proceedings being in the name of those parties, there can be no amendment, and it is necessary to inquire whether, in this respect, they are wrong ; and if wrong, fatally so. When individuals fail to perform the duties prescribed by our militia laws, they commit an offence against the public against the state. It is a violation of a public law, and therefore the public is injured by it. The state, therefore, and not an indi- vidual, bScomes the prosecutor for the purposes of punishment, in the same way as it does for more aggravated offences. To inflict this punishment the law has pointed out certain officers, some of whom determine the amount of the penalty, and others perform the necessary steps for its recovery. Among these is the justice of the peace. He performs a part of the judicial func- tions in relation to this matter, a part having been previously performed by the board of officers. He is directed in certain cases of which he has to judge, to issue a warrant for the collec- tion of the fines. These fines are imposed for the violation of a law of the state ; they are in favor of the state, and to be col- lected for its use and through its agency. From these remarks it will be perceived that I consider the *841 990 NEW JERSEY SUPREME COURT. [5 LAW State v. Kirby. justice as a judicial officer in the act which he performs, and the .state as prosecutor or plaintiff in enforcing these penalties. If an individual considers himself injured by illegal proceed- ings and seeks the process of this court for relief, he does not, in doing so, change the parties in the prosecution. He is still one, the st-ite is still the other. But the state never becomes defendant in prosecutions of this nature, and, therefore, according to my apprehension, the true mode of entitling the writ is A S ads. The State. The court itself never becomes defendant or is called in this way to answer for an error in judgment. I therefore think that, upon this point, the writ is erroneous. It has a wrong defendant. The real actor, the person who com- plains of injury, is unknown to it. The case of The State v. Orphans Court of Burlington County was mentioned at the bar as proving that the writ might be against the court, but that case is well remembered, although a circumstance which, perhaps, ought to have been mentioned, is omitted in the report. When the writ was moved before the court, the chief-justice remarked its irregularity,, but the parties stated that their only object was to bring up the division of the estate and that all exceptions in matters of regularity and form would be waived. The writ, therefore, went in that shape. 2. Many cases are united in the same writ. This, f believe, must be considered as the fact, and one of the \vorst features of it is that we do not know how many. It is " William Jones, Isaac Jones and others." Now, this warrant is to be considered as several as well as joint. Every individual stands upon his own footing, his rights rest upon the facts in his own case. If, then, the idea before urged that these delinquents are parties to the writ and to this action be true, they are parties severally. Their writs ought to be separate. The certiorari ought to have brought up the single case of the applicant. If, in doing this, it was necessary to bring up the warrant and list together, still this does not vary the matter. The warrant is not to be alto- gether destroyed because of irregularity or illegality as to one person. If, in assessing taxes, one person is illegally treated, he *842 2 SOUTH.] FEBRUARY TERM, 1820. 991 State t>. Kirby. brings up his case alone and does not bring up and destroy the whole assessment. 3. Irregularly and improperly returned, because the justice has returned the warrant, which, by his own statement, had been before issued by him and was not then in his hands, being in the possession of the constable. The amount of this objection, *if I comprehend it, is that the writ ought to have been directed to the constable. If the justice, in his return, has done more than he had legally the power to do, the only consequence that I per- <*ive is to disregard the return, so far as it contains too much ; but I do not perceive that it destroys the writ ; that stands though the return be erroneous. The effect, in this case, would probably be, if the return was so far rejected that we should, upon this return alone, be unable, on the hearing on the merits, to adjudge on the rights of the parties. But is it true that the justice ought not to have had this warrant in his hands at the time he received the cerliorari f I think not. The warrant is dated January 13th, 1818. The command to the constable is to make return of it within thirty days. The cwtiorari was applied for the last of February, much more than thirty days after its date. The return of the justice is not dated but is made to May term, and it is therefore manifest that he either had or ought to have had the warrant in his possession when the certiorari was served upon him and the return made. So far, then, as relates to the war- rant, I think the return not irregular. So far as relates to the list of delinquents, the justice never had it, and, therefore, his return, as to that, is right, What advantage the party may de- rive from the fact upon the principal argument is yet to be seen. It can be of no avail, on the motion, to quash this writ for ir- regularity. My opinion, then, is that there is nothing in the third point, but that the delinquents are improperly united and that the writ and all the proceedings are in the name of improper parties and ought to be quashed. Motion overruled. *84S "CASES DETERMINED IN THE SUPREME COURT OF JUDICATURE OF THE STATE OF NEW JERSEY MAY TERM, 1820. JAMES MILLER v. NOBLE DOOLITTLE. Service of summons in forcible detainer, (a) This was a complaint of forcible entry and detainer for a house in Camden. The sheriff deputed Andrew Ware to serve the summons. He returned it with the following endorsement: " This writ was served Saturday, July 24th, A. M., by leaving a copy fastened to the door of the house which is said to be in possession of defendant, as he was not therein. Served " &c. The other proceedings and judgment being regular, but in the absence of the defendant, Woodruff objected to this service as insufficient. Armstrong answered. And the court, for this de- fect, reversed the proceedings. (a) Leonard v. Stout, 7 Vr. S7S ; see Dm v. Fen, 5 Hal. 8S7 ; Derrickson v. White, S Vr. 1S7 ; Polhemua v. Perkins, S Or. 4S5. *845 63 993 994 NEW JERSEY SUPREME COURT. [5 LAW Cory v. Lewis. SHARP and TUTTLE v. YOUNG and YOUNG. Affidavit is required upon confessions of judgment, upon bonds and obliga- tions, but in no other cases, (a) Vanarsdale moved for leave to enter judgment upon a warrant of attorney, unaccompanied by bond, and without affidavit, the statute requiring the affidavit upon all confessions of judgment having been repealed, and the affidavit being now required only in cases of judgments upon bonds and obligations, other cases being left as they were before the passage of the statute requiring the affidavit. See statute February 24th, 1820. COURT. Let the judgment be entered upon the warrant of attorney, without affidavit. *JONATHAN CORY v. LAWRENCE LEWIS. If clerk neglect to advertise the attachment until second term, the writ will not be quashed where the other proceedings have been regular. (6) On attachment. The writ of attachment was returnable to December term, 1819, of the court of common pleas of Morris, at which term the de- fendant in attachment was three times called, and made default, his default recorded, and auditors -were appointed by the said (a) See Acts of 1829, 92 ; Parker v. Origgs, 1 South. 163; diver v. Applegate, ante 479; Woodward ads. Cook, 1 Hal, 160; Burroughs v. Condit, 1 Hal 300; Latham v. Lawrence, 6 Hal. 322 ; Evans v. Adams, 3 Or. 373 ; Melville v. Brown, 1 Harr. 363; Reading v. Reading, 4 Zab. 358; Dean v. Thatcher, 3 Vr. 470. (6) Taylor v. Woodward, 5 Hal. 4; Ayers v. Bartlet, 2 Or. 332 ; Qaddis ads. Howell, 2 Vr. 315. *846 2 SOUTH.] MAY TERM, 1820. 995 Cory v. Lewis. court. At March term application was made in behalf of John Wade, Jeptha Baldwin and others, to be admitted creditors of the said Lewis under the attachment, and they were admitted accordingly. The auditors appointed at the last term did not make their report ; .and, one of them having removed out of the county of Morris to the county of Essex, the court, upon appli- cation made in behalf of the plaintiff in attachment, appointed another auditor in his place, (a) The defendant then filed special bail, and thereupon, by his counsel, moved the court to set aside the said attachment and the proceedings thereon because the clerk of the court had omitted to advertise the said attachment according to the directions of the act of the legislature, and there did not appear to have been any advertisement whatsoever made of the said -writ of attachment. After hearing the arguments of counsel this court ordered and adjudged, for the reasons assigned by the defendant's counsel, that the writ of attachment and all proceedings thereon had, be vacated, set aside and for nothing holden. Upon application in behalf of the plaintiff the court made and allowed a state of the case containing the above facts, and a certiorari was brought. Vanarsdah and Halsey argued that the decision of the com- mon pleas was against law, and read Pat. 296 15, 16, 32; 2 in. 453 and 5 Bin. 389. Attorney- General and Chetwood answered and relied on the fifteenth and sixteenth sections of the statute. Pat. 296. THE COURT reversed the judgment of the pleas and directed the cause to be continued and further proceedings to be had in this court. (o) Anonymous, 1 Harr. S55, 996 NEW JERSEY SUPREME COURT. [5 LAW Winans v. Brookfield. *JOHN C. WINANS and SAMUEL WINANS v. AARON BROOK- FIELD, (a) 1. Evidence. 2. Damages. In case. This was an action on the case for overflowing lands, tried be- fore the chief-justice at the Essex circuit in September, 1819. The declaration was in the common form ; the lands situated on Rahway river ; the pleas not guilty and liberum tenementum with notice &C, The plaintiffs, who were infants, showed title to the lands by descent from their father, and proved that since the dam was built by defendant in 1815 or L816 about three acres of the land had been overflowed, so as to injure and destroy grass, trees &c. to the value of $300, in the opinion of some of the witnesses. That in April, 1809, the administrators of plaintiff's father ob- (a) An administrator may purchase the real estate of his intestate at a ju- dicial sale, but if collusion be proved the deed is voidable, Den, Rickey v. Hillman, 2 Hal. 180 ; Runyan v. Newark Rubber Co., 4 Zab. 475 ; Mulford v. Bowen, 4 Hal. Ch. 751, 1 Stock. 797; Obert v. Obert, 2 Stock. 98, 1 JBeao. 423 - Mulford v. Minch, 3 Stoek. 16; Culver v. Culver, 3 Stock. 215 ; Wortman v. Skin- ner, 1 Beas. 358; Huston v. Cassedy, 2 Beas. 228; S. C., 1 McCart. 320 / How- ell v. Sebring, 1 McCart. 85 ; Johns v. Norris, 7 C. E. Or. 102, March Term, 1875, Court of Errors; Smith v. Drake, 8 (J. E. Or. 302. An executor or trustee cannot sell the trust property to himself, Arrowsmith v. Van Harlingen, Coxe 26 ; Den v. Wright, 2 Hal. 175 ; Den, Obert v. Hammel, 3 Harr. 74 ; Winter v. Geroe, 1 Hal Ch. 319; Williamson v. Johnson, I Hal. Ch. 537 ; Scott v. Gamble, 1 Stock. 218 ; Holcomb v. Holcomb, 3 Stock. 281- ; Trenton Banking Co. v. Woodruff, IQr.Ch. 118 ; Hurter v. Spengeman, 2 C. E. Or. 185; Stoats v. Bergen, 2 C. E. Or. 297 ; Booraem v. Wells, 4 C. E. Gr.87; Blauvelt v. Acker- man, 5 C. E. Or. 141 ; Wright v. Smith, 8 C. E, Or. 106 ; Colgate v. Colgate, 8 C. E. Or. 372 ; Romaine v. Hendricknon, 9 C. E. Or. 2S2 ; see Earl v. Halsey, 1 McCart. 332; Den v. McKnight, 6 Hal. 385 ; Shepherd ads. Hedden, 5 Dutch. 338, per Green, C. J. ; Runyon v. Newark India Rubber Co., 4 Zab. 468. But the title of a subsequent innocent holder is not affected, Scudder v. Stout, 2' Slock. 377 ; Booraem v. Wells, 4 C. E. Or. 87; Johns v. Norris, 7 C. E. Gr. 102 ; see Brown v. Folwell, S Hal. Ch. 593. *847 SOUTH.] MAY TERM, 1820. 997 Winans r. Brookfield. tained an order of the orphans court to sell seven acres to mi-*- $78, a deficiency in the personal estate ; that one of the adminis- trators bid at the sale and the land was struck off to him, and he afterwards sold to defendant for $500, the administrator repre- senting the land to be valuable on account of the mill-seat upon it. The defendant proved the injury to be $60 or $70 or $90 ; that there was one or one and a quarter acres overflowed, and that the dam had been raised about eighteen or twenty inches by the defendant, which occasioned the overflowing. The defend- ant offered to read the deed from the administrators to him for the land, to which the plaintiffs objected, because it appeared upon the face of the deed that the administrators Tiad not pur- sued but exceeded their authority ; that one of them bid off the land and then conveyed to defendant without any public sale. The chief-justice overruled the deed. The jury found a verdict for $269 damages. The rejection of the deed and the amount of damages were the reasons filed for setting aside the verdict. Attorney-General. The deed was not to be rejected because one of the administrators bid ; this is an exception only in a oourt of equity. 14 Johns. 407; 2 Johns. Ch. Cos. 252, 263. The deed was really made to the highest bidder, the purchaser, and there was no pretence of fraud ; the heirs received the money. Besides, the lot was bought for a mill-seat, as appears by the *deed itself, and it follows that the purchaser had a right to use it for that purpose, though he did overflow the adjoining land. Again : the deed was proper evidence in mitigation of damages, and, by its rejection, they were made excessive. That they are .so is manifest from the whole evidence. Scudder, in answer. 1. The seller cannot be the purchaser. w<7. Vend. 393; 3 Br. Ch. 120 ; 8 Br. Part. 63. 2. A man cannot make a deed to himself. 3. The statute requires the highest bidder to be the purchaser; this must be strictly fol- lowed by the administrator. He must pursue his power like an attorney. Pow. on Pow. 78, 83. 4. If the deed was valid it *848 998 NEW JERSEY SUPREME COURT. [5 LA^ Banks v. Murray. was inadmissible, because unconnected with the issue. The administrator could only convey title to the land, not a right to- use it so as to injure and destroy the remainder of the estate. Even if the intestate had sold, the buyer would have no such right. And the deed could not support the plea of liberum tenementum, because the complaint was for injury done to other lands, not those in the deed. The damages were not excessive ; not equal to what was sworn to. But Brookfield, the defendant, is dead ; the action does not survive against his administrators, and the effect of setting aside the verdict would be to deprive the plaintiff altogether of its benefit. This the court cannot do. Pat. 146 1,147 6; 1 Saun. 217 n. 1; 1 Bur. 147. THE COURT discharged the rule, and directed judgment to be entered on the verdict. The deed could have no operation upon the question of damans. If it be considered a valid deed, free from legal exception, it can give the defendant no right to over- flow the adjoining lands lands not contained within it. And although the damages seem high, yet, as some of the witnesses- swore to more than were given, and as the jury were the best judges of their amount, the verdict cannot be set aside on that ground. Rule discharged. *THOMAS BANKS et al. v. CUPID MUKRAY et al. Complaint in forcible entry and detainer must set out the estate of com- plainant, and the place where premises are situate, (a) (a) Van Auken v. Decker, Perm. *108 ; Barnes v. Nicholson, Penn. *326 ,- Wall v. Hunt, 4 Hal. 37 ; Applegate v. Applegate, 1 Harr. 321 ; Corlies v. Cor lies,. 2 Harr. 167; see Allen v. Smith, 7 Hal. 199; Pollen v. Boney, 1 South. 125 r Mairs v. Sparks, ante 513. *849 2 SOUTH.] MAY TERM, 1820. 999 Banks r. Murray. On certiorari. This was an action of forcible entry and detainer. The com- plaint sets out that Murray and others, the plaintiffs below, trustees of the people of color belonging to the Methodist Society at Snowhill, on the 1st of June, 1818, at the township of New- town, in the county of Gloucester, were possessed of a certain meeting-house and lot of ground containing two acres, there situate, and that Banks and the others, on the said 1st of June, at &c., did enter into and upon the said meeting-house and lot of ground, and detain and hold the same with force &c. The defendants pleaded not guilty, and that they had been in the peaceable possession of the premises for three years last past. At the trial it appeared that the meeting-house was situated in the township of Gloucester. Of this fact there was no contra- diction of evidence. The judgment was in favor of the com- plainants. . Two reasons were principally relied on by Armstrong, for plaintiff, for the reversal of the proceedings: 1. That the com- plaint did not set out the estate of the complainants in the prem- ises. Pat. 291; Penn. 108; 8 Johns. 464. 2. That the prem- ises were wrongly described in the complaint in this, that they were charged to lie in Newtown, whereas they lie in Gloucester the place being a substantial part of the offence. Str. 59o. Woodruff replied, for defendant, that the action was not confined to individuals, but was also open to corporations ; that these plaintiffs, not having an estate in fee or for a definite number of years, could set out no other estate than they have done ; that this action was originally criminal in its nature, and still remained partly so ; and, therefore, the place was not material (2 Hawk. 337) ; and that the complaint being made the justice could not nonsuit for a variance between it and the case as proved, but must try the cause and receive the verdict. The court adjudged that both reasons were well founded, and, therefore, that judgment must be reversed. 1000 NEW JERSEY SUPREME COURT. [5 LAW Den v. Franklin. *THB STATE v. LAWRENCE and others. Where the surveyors have not taken oath court ought to grant rule to show cause why return should not be set aside, (a) Certiorari to the common pleas of Salem to bring up the return of a private road and proceedings thereon. Upon the road being laid out and the return filed a caveat was also duly filed. At the next term of the court the caveator applied for a rule to show cause why the return should not be set aside upon the following reasons: 1. That two of the surveyors had not taken the oath required by law. 2. That the surveyors did not pursue the courses and distances in the application. The court refused the rule, and ordered the return to be recorded ; where- upon this writ was prosecuted, and Jeffers moved that the pro- ceedings of the court be reversed and the return set aside for the reasons filed in the pleas, and, also, because the court refused to grant the rule applied for by the caveator. BY THE COURT. The common pleas certainly erred in refus- ing the rule asked for. The first reason assigned has been re- peatedly adjudged sufficient to set aside the return. The survey- ors must take the oath required by the statute before they act. The return of the road must, therefore, be set aside. DEN, ex dem. MARY HOOVER, v. FRANKLIN and SHARP. 1. If plaintiff do not submit to nonsuit ordered by the judge, but receive verdict in his favor, court will amend the postea and set aside the verdict on motion, although defendant proceeded to try the cause. (6) (a) Matter of Public Rood, 1 South. B98 (a). (b) Rose v. Parker, ante 780 (b) ; Den v. Hull, 4 Hal. 283; Meadow Co. v. Christ Church, 3 Or. 54. *850 2 SOUTH.] MAY TERM, 1820. 1001 Den v. Franklin. 2. Time of demise may be amended after nonsuit on the ground that lessor was feme covert at the time of the demise, (a) At the circuit in Salem, November, 1819, this cause was tried before Justice Rossell. After the plaintiff had closed his evidence the defendant moved that he be nonsuited, because at the time when the demise was laid the lessor was a married woman. The court directed the plaintiff to be called, but the plaintiff answer- ed, and claimed the right to receive a verdict. The defendant then proceeded and laid his evidence before the jury; the cause was tried, and verdict was given for the plaintiff. On the coming in of the posted, rule to show cause for a new trial was granted, and notice was given by the plaintiff to de- fendant that the court would be moved for leave to amend the time in the demise. Both motions were set down for hearing at the same time. Coxe, for defendant. The verdict having been taken against the opinion of the court, cannot stand. Wall answered for plaintiff. *KIRKPATRICK, C. J., and ROSSELL, J. The court cannot permit a party to disregard the order for a nonsuit and receive any benefit therefrom. The verdict must be set aside and considered as if not taken. The posted must be amended so as to return the nonsuit, and the case must stand here upon the merits of the nonsuit. SOUTHARD, J., thought the true rule to be that where a non- suit was directed, the plaintiff might or might not answer. A nonsuit was a voluntary thing. If he did answer, and the de- fendant relied upon the opinion of the court and did not give -evidence, the plaintiff proceeded at his peril. If the verdict \\ ;i.s (a) Den, Denny v. Smith, Penn. *711 ; Anonymous, S Hal. S66 ; Helton v. Ayres, 7 Hal. 63 ; Den v. Snowhill, 1 Or. S3 ; Den, Bromon v. Taylor, S Gr. SI , Den, Bray v. McShane, 1 Or. 35 ; Den v. Lanning, 4 Hal. 54 ; Vreeiand v Eyerson, 4 Dutch. 305 ; see Den v. Folger, Spen. 299. *851 1002 NEW JERSEY SUPREME COURT. [5 Den v. Franklin. for him, it should be set aside, on motion, and without argument,, because the defendant had made no defence, under the advice of the court. But if the verdict was against the plaintiff, he should be without remedy. The court would not interfere to relieve- him from a verdict which he had sought against its opinion. But if, when the plaintiff determines to receive the verdict, the defendant does not rely on the opinion of the court but goes be- fore the jury, he puts himself on the strength of his case and must stand or fall by it. He must depend upon the merits of his cause alone. And the court, in this case, ought to consider the rule for a new trial, as if no order for nonsuit had been given. The court directed the propriety of the nonsuit to be argued. Wall then moved to amend the declaration by " striking out the time of the demise and ouster therein contained, and inserting in lieu thereof, as to the demise, the words ' first day of December ; ' and in- lieu, of the time of - commencing said demise, the thirtieth day of November ; and in lieu of the time of ouster, the words ' second day of the same month of December.' And also in re- spect to the term, by striking out the word ten and inserting in place thereof the word twenty" Coxe objected that this motion could not be heard at this stag*, of the controversy until the other question was disposed of. But the court said that a motion for amendment might be heard at any time and at almost any stage in the progress of a cause. Wall and L. H. Stockton. The object of the amendment is to- change the date of the lease, because the lessor was a married woman at that time. Such amendment may be made. 4 Bur. 244^ ; Run. 121, 229 ; 2 Perm. 711 ; 2 Ora. 478 ; 3 Wil. 273,- 3 Bur. 1243; 2 Sir. 807 ; 2 Bur. 1159; 3 Bur. 1256, 1294. *Coxe and R. Stockton. Amendments are the creation of modern times, and always made on the principle of furthering: justice. They are allowed only where the title is defectively set out, not where the title is defective. 2 Bur. 667, 1161 ; 2 Sell, *852 2 SOUTH.] MAY TERM, 1820. 1003 Craig . Berry. 169; WiUett 183, 830 ; 1 Yeates 551 ; 11 Johns. 1&3 ; Chip. Vt. Rep. 69. The application here is to change the whole decla- ration, and, therefore, ought to have been made in reasonable time, not at so late a period as the present. These amendments are confined to matters of form, but time is not always so. It is sometimes, as in the present case, essential to the title of the plaintiff. On it depends the right of making the lease. At the time laid there was no title. Amend it as desired and the title may be good. BY THE COURT. Let the declaration be amended in the par- ticulars mentioned, upon payment of the costs of the said amend- ment. DAVID S. CRAIG v. JOHN A. BERRY. Court cannot entertain suit on habeas corpus unless bail be filed, (a) This case was brought up by habeas corpus from the Bergen, pleas. No bail being filed, Hornblower, for defendant here, the plaintiff below, who desired that the cause might be continued and tried in this court, prayed leave to file a waiver of bail. But BY THE COURT. This cannot be done under the statute. If bail be not filed the cause must be remanded. (a) Anonymous, Perm. *641 ; Marcellis v. The Hamburgh Turnpike Co., Perm. *948 ; Dickinson ads. Stale Bank, 1 Hear. S54; Morris Canal ads. Vanatta, * Harr. 159; see Sneed ads. Wallcn, ante 689. 1004 NEW JERSEY SUPREME COURT. [5 LAW Mead v. Crane. PETER MEAD v. BENJAMIN CRANE. 1. Warranty, (a) 2. Nonsuit. The action was founded on an express warranty in the sale of a horse. A rule was served on the justice to certify certain mat- ters, and in his reply to the rule he says there was no proof that Mead warranted the horse to be sound at the time of the sale or that he knew he was unsound ; that the defendant moved for a nonsuit because there was no evidence to prove the warranty, but he overruled the motion " and let the cause go to the jury, as, in his opinion, it would prevent any further litigation between the parties " &c. The judgment was reversed for the error of the justice. (a) See Beninger v. Corwin, 4 Zab. 257 ; Smalley v. Hendrickson, 5 Dutch. 371; Wolcott v. Mount, 7 Vr. 262; Eenton v. Maryott, 6 C. E. Or. 123. "APPENDIX. The reporter thinks it necessary to add a memorandum of such decisions as have been made in the court of appeals, either af- firming on reversing the judgments of the supreme court in case* reported by him. That court finally and without appeal settles the law, and where the decisions of the supreme court have been reversed the reports would lead into error if these reversals were not stated. It is, however, to be regretted that the court of ap- peals seldom publicly assign any reason for their judgments or enter upon record the names of the members voting either for affirmance or reversal, and this is the more to be lamented be- cause, in almost every case, there are several reasons argued, and the inferior judicatories are left altogether in doubt whether the decision was founded on one or all. They are obliged to take the law from the decision and yet are not informed why it was made or on what it rests. THOMAS GIBBONS v. AARON OGDEN. In error. For the pleadings and decisions of this case in the supreme court, see ante, page 518. The cause was tried before the chief- justire at the September circuit, 1818, and verdict for $5,000. Upon the coming in of the postea, Halsey, attorney for defend- ant, moved a rule to show cause why the verdict should not be set aside and a new trial granted. R. Stockton, for plaintiff, ob- jected that the defendant had taken bills of exception at the circuit, as the foundation of a writ of error, and was, therefore, not entitled to the rule ; he could not have both. Vanarsdale, for *853 1005 1006 APPENDIX. [5 LAW Gibbons v. Ogden. defendant, answered that it was not intended to have the rule and writ of error for the same reasons, but that the objections to the trial were many, and defendant was not ready to say upon which *he would argue the rule and upon which he would rely upon the writ. The court stated that defendant was not entitled to both upon the same reasons, and that the rule to show cause would be granted only upon the condition that the defendant did not assign the same reasons in the two courts, but as he claimed time to advise on the course it was his interest to take, time for thirty days, the period allowed by law for filing reasons, was given him to determine whether he would pursue the bills of ex- ception and on what grounds. The following statement was made by the chief-justice and ac- companied the bills of exception, and it was agreed by the parties that it should be considered as a bill of exception : " When this cause was called for trial and the venire was re- turned, the defendant, by his counsel, objected to the lawfulness of the said venire, alleging that the name of the clerk of the supreme court subscribed thereto was not in the proper hand- writing of the said clerk, and that the seal affixed thereto was not the proper seal of the said court, but that the name of the said clerk was in the proper handwriting of the attorney for the plaintiff, and that the seal affixed was the proper seal of the said attorney. The counsel for the defendant at the same time ad- mitting that it had been the uniform practice for the attorneys of the said court, by the permission of the clerk, to sign and seal writs of every description, issuing out of the said court, on their application, in the manner in which this had been done. "Upon this objection being raised it was doubted by the court whether the facts alleged could lawfully be determined by the inspection of the judge; and still more, whether the same could be lawfully proved by the testimony of witnesses from their knowledge of the writing and of the seal. But without giving any opinion upon either of these points, it was stated by the court that care had been taken, at an early period, to look into this practice ; that it had been found, both from ancient entries and from the information of practitioners, now long since *854 2 SOUTH.] APPENDIX. 1007 Gibbons r. Ogden. dead, that froji the earliest establishment of the supreme court, under the colonial government, it had been customary for the clerk, for the greater convenience of suitors, to give copies of the seal not only to the judges of the said court but also to cer- tain of the attorneys thereof, and sometimes to others of the magistracy of the colony, in convenient places, with authority to seal writs &c., *and to subscribe his name; that this confi- dence had, in process of time, been extended to all the attorneys of the said court in good standing at the bar, and had been con- fined to them alone, so that at last it became a custom for all attorneys, regularly licensed by the governor and duly sworn in, to sign and seal writs and other process in the clerk's name, unless by him expressly prohibited ; that this custom had been established before the revolution and had continued in East Jersey, at least, without interruption, down till the present day ; that when the present rules of the supreme court were prepared there was one specially upon this subject, but that upon being subjected to the inspection of the then clerk and of the leading counsel at the bar, it had been thought best to leave the practice, in this respect, as it then stood, and it was so left accordingly ; and that from this view of the subject, even if the fact \vriv conceded, we could not, at a circuit court, yield to the objection now raised by the defendant ; that however proper it might be for the justices of the supreme court, at bar, or even for the legislature, to look into this practice as a matter touching the general administration of justice, yet that the objection now raised upon it, in the mouth of the defendant, was merely cap- tious. " Upon the transcript of the pleadings being presented and inspected, the same objection was made to that and overruled upon the same reason. " To these opinions of the court no bills of exception were then prayed or taken, nor when the general bill was taken upon the defendant's motion for a nonsuit being overruled, was this matter mentioned or in any way included ; but after the eviK-iuv was given in, and before the summing up by the counsel, the counsel of the defendant applied to the judge and requested that *855 1008 APPENDIX. [5 LAW Gibbons v. Ogden. a bill of exception might be sealed as to those opinions also. But inasmuch as it was doubted whether those afforded proper matter for a bill of exception, being only a proceeding prepara- tory, and not at all touching or in any way affecting the ground of the action itself, it was thought safest merely to certify the fact and the course of proceeding as it took place, so that if it should be thought that a bill of exception lies in such cases, this may be considered as such bill, and if not, that it may be made use of on a motion for a new trial, or otherwise, as may be thought proper." *The plaintiff gave his parol evidence and then offered the hand-bill ; this was objected to but admitted, and a bill of ex- ception sealed. The hand-bill was read, and then plaintiff rested ; whereupon, defendant moved for a nonsuit, which, being refused, another bill was sealed. The defendant then gave his evidence. After which the plaintiff offered to prove the quo animo and malicious intent with which the trespass was com- mitted ; which, being objected to and admitted, a third bill was sealed. The evidence upon the trial of this cause having been closed, and the counsel on both sides having finished their argument thereupon " The court gave it in charge to the jury that this action not only in itself, but also in its consequences, as it affected the public morals and the public sentiment, was one of the most important that had come before a jury of the county of Essex. " That the principal facts upon which it was grounded, and which had been detailed by the witnesses, might be comprised in- a few words. " The defendant's note of hand for $2,000 or upwards, dated in New York and payable in New York money, had come into the hands of the plaintiff by endorsement, and had been placed in one of the banks there for collection. The defendant not only suffered it to lie over and be protested, but actually refused to pay it. The plaintiff then ordered a suit at law, but before the suit was brought he wrote to his attorney, countermanding his orders, and transferred the note to a third person, to whom *856 2 SOUTH.] APPENDIX. 1009 Gibbons v. Ogden. the defendant then paid the money and took up the paper ; the countermand did not reach the attorney in time, so that process actually issued and was served upon the defendant when he had the paper in his pocket. When the mistake was discovered by the plaintiff he immediately wrote a note of apology to the defendant, stating the facts, and offering to pay the costs and expenses ; but the defendant, notwithstanding, making this tin- pretext for his wrath, wrote a note and sent it to the plaintiff', which note the jury had before them, and which, according to the understanding of the court, was a challenge to fight a duel. The plaintiff, seeing from whom it came, refused to receive the note, and, thereupon, the defendant, as is probably the custom a- it It those men of honor, with the threats in his mouth which had been detailed by the witnesses, posted him on his own door, in the *presence of his family, as a rascal and a coward ; and that, for this cause, the action was brought. " That, in form, it was an action of trespass, but, in substance, an action to recover damages for profaning the sanctity of his domicil, insulting the feelings of his family, and impeaching his own conduct as a citizen, and his dignity as a man. This is a legitimate object ; it is founded in the principles of our nature, in the principles of our law, and in the principles of common sense. " That it was true that in order to maintain this action, the plaintiff must prove a trespass in the strict technical sense of that word, and much pains had been taken, both in the examination of the witnesses and in the argument at the bar to show that the freehold on which the defendant had entered, and the door upon which he had posted the testimonials of his personal prowess, though admitted to be the freehold and property of the plaintiff, yet was not in his actual possession, but, by a tenancy at will, at least, in the possession of another. " The import of the testimony upon this subject, of which the jury are the sole judges, seemed to be this, that the dwelling- house of the plaintiff consisted of a principal mansion and t\v<> wings, and stood at a distance from the street, with a court-yard inclosed before the door; that the west wing had two rooms *857 64 1010 APPENDIX. [5 LAW Gibbons v. Ogden. below and two rooms above, with a passage between them and the principal dwelling-house ; that the front room of this wing below had been, for many years, used as the plaintiff's public office, the back room as his private office, and the upper rooms as bed-rooms for his family ; that though he had, in some measure, retired from the practice of the law, yet still the front room was the depository of his library and his papers, and the place in which he transacted all his common business, and the back room his private cabinet only ; that, in the front room, the fire, the candles, the furniture, the stationery, pens, ink and paper were all kept up and maintained at his expense, though, at the same time, he had given to his son-in-law, Mr. Barber (who is now set up as the tenant), the liberty of transacting his business there, not only as an attorney, but also as clerk of the borough of Elizabeth, and as the incumbent of sundry other small offices ; and the fair deduction from this testimony, if fully accredited by the jury, was that the plaintiff himself, and not his son-in-law, was in the actual possession of this wing, and of every part of it ; but even *if it had been proved that this front room had been actually leased to Mr. Barber, and that he had the exclusive possession of it, yet still the passage between that and the principal dwelling not having been leased with it, and, being a common passage for the plaintiff and all his family, the passage to the cabinet, to the garden, to the bed-rooms above, and for the common services of the house ; the possession of this passage, upon legal principles, must be considered as remaining in the lessor, the lessee having the right of ingress and egress only ; but that recourse must not be had to this principle, for it was very clear, from the testimony, that no such lease existed. "That some, had imagined, and perhaps the defendant might have imagined that he might, with his horse-whip in his hand, and with threatenings of the most degrading nature in his mouth, enter upon the dwelling of a free citizen, in his absence, display his vaunted courage in the presence of defenceless females, out- rage all the delicacy and timidity of their nature, and then turn round and say Ha ! ha ! Where is your injury, and where is your redress ? But this is not our law ; ours is a law founded *858 2 SOUTH.] APPENDIX. 1011 Gibbons r. Ogden. on human nature ; it regards the condition of man as he is ; it considers the end of all his anxieties and labors and toil ; it considers what are the treasures nearest to his heart, what the object of his tenderest affection ; it considers the sacredness of the conjugal connection, the obligation of the parental relation, and justly estimates them all; it makes his dwelling-house a castle for their protection, which an enemy shall not enter ; a temple for their secret devotions, which a stranger shall not profane. " That it was obvious that in those cases damages were not fixed and certain, but discretionary only, not to be calculated by the actual loss of money or of injury to the freehold, but by the in- juries done to rights still more dear to every honorable man than all his worldly wealth besides. In estimating these damages, therefore, they had a right to consider not only such actual injury to the freehold, which, perhaps, might not amount to a single dollar, but, also, to give a reasonable compensation for the viola- tion of his rights as a man, as the father of a family, as a fellow- citizen possessing all the high and honorable feelings and all the sacred obligations, both civil and domestic, which they themselves possessed and felt. " They might go further ; they might give exemplary damages *damages which would deter others from becoming the judges of their own imaginary wrongs and from attempting to take vengeance at short-hand, as the defendant was alleged to have done. " Nay, they might go still further ; they might give damages not only for satisfaction, and by way of example, but, also, as a direct punishment upon the defendant for this outrageous act ; they might give damages so heavy as to break down his turbu- lent spirit, to restrain his impetuous passions, to extort from his fears what coukl be expected neither from his favor nor his justice. " That, whether they should make one or the other of these principles the basis of their calculation, or whether they should blend them altogether, was a matter which must be submitted wholly to their own discretion, and that it was accordingly sub- *859 1012 APPENDIX. [5 LAW- Gibbons v. Ogden. mitted with the greatest confidence in the soundness of their heads- and the integrity of their hearts. " That, upon whatever principle they might go, it was a matter clearly settled that they could not find beyond the sum laid in the declaration, which was $5,000, and it was hoped it would not be necessary to say they might find less. " To this charge of the court a bill of exceptions was prayed by the counsel for the defendant, and it was allowed, and is here sealed accordingly." Many errors were assigned in the court of appeals, the princi- pal of which were 1. That the declaration complained not only of the trespass which was set forth, but, also, that the defendant posted up a wicked, malicious and insulting hand-bill ; whereas,, the nature of the hand-bill could not be tried in this action ; and that he joined in one action different causes of action which could not be joined. 2. That the chief-justice overruled compe- tent evidence to prove that the venire and transcript were not signed nor sealed by the clerk of the supreme court. 3. That the cause was tried, although it appeared that the transcript was not signed and sealed by the clerk, but by the attorney of plain- tiff. 4. Because the chief-justice permitted the hand-bill to be read in evidence, the same not being sufficiently proved nor necessary to support the issue. 5. The chief-justice refused to- nonsuit the plaintiff, although it was not proved that the defend- ant had committed any such trespass as the plaintiff had com- plained of against him, nor was the plaintiff in the sole and exclusive possession of that part of the premises on which the trespass, if *any, was committed. 6. The plaintiff was per- mitted to prove the quo animo and malicious intent with which the defendant entered the premises and put up the hand-bill, and particularly the testimony of Ephraim Clark, which was not admissible, because the declaration did not set forth the quo animo, and malicious intent ; nor was the action commenced nor prosecuted for any injury committed or threatened to the person of the plaintiff; nor was the threatening to whip the plaintiff alleged by way of aggravation of the trespass. 7. The chief- justice charged contrary to law. Several errors to particular *860 2 SOUTH.] APPENDIX. 1013 Gibbons r. Ogden. parts of the charge were also assigned. And, also, that the verdict was given for the plaintiff; whereas, by law, in case the said evidence objected to had been rejected, as it ought to have been, or the chief-justice had not charged contrary to law, the verdict upon the issue should have been for the defendant, or less dam- ages should have been given. The cause was argued at May term, 1820, by Halsey and Vanarsdale, for the plaintiff in error, and by the Attorney- Gen- eral and R. Stockton, for the defendant. The governor informed the court that he had been attorney and counsel in the cause for one of the parties in the court be- low, and therefore declined voting as to the affirming or revers- ing the judgment of the supreme court. Mr. Baxter, from Gloucester, requested to be excused from voting, as he had heard only part of the arguments of the counsel concerned for the parties, and was accordingly excused. The judgment was reversed, thirteen members being present. Six voted for reversal, Jive for affirmance and two did not vote. Upon this state of facts being known, the counsel of the defend- ant in error insisted that all the members of the court, especially the governor, were bound to express an opinion, and that no judgment could be given, as the six who voted for reversal were not a majority of the members present. But the court directed judgment of reversal to be entered, and made the following entry on their minutes : " It is adjudged by this court that a majority of members present, and voting, is sufficient to a de- cision of affirmance or reversal where one or more members have been excused, provided a constitutional quorum attend and vote, (a) Ayes Haring, Condit, Dunn, Crane, Thompson, Stevenson, Upson, V. P. Seeley. Nays Frelinghuysen, X< -\\ - bold, * Baxter, Swain." No opinion expressing the reasons for the judgment was given. The defendant in error subsequently moved that the record be remitted to the supreme court, with direction that a venire de novo issue and a new trial be had. It was objected for the (o) Wood v. Fithinn, 4 Zab. 8SS ; Clapp v. Ely, S Dutch, Bit. *861 1014 APPENDIX. [5 LAW Stansbury v. Squier. plaintiff that if the judgment had been reversed for defect in the- declaration or nature of the action, no venire de novo ought to be awarded ; that it was only proper where the cause of reversal was found in the trial itself. It is understood that the venire d& novo was unanimously ordered. STANSBURY v. SQUIER, sheriff of Essex, (a) LAWRENCE v. SAME. MARSH v. SAME. In these cases judgments of amercement against N. Squier,. sheriff of Essex, were rendered in the supreme court at February term, 1819. See ante 433. Writs of error were sued out. The- return of these writs brought up only the record of the judg- ments ; but the state of facts which had been agreed on by the- parties, and upon which the supreme court founded their judg- ment, not being a part of the record, could not properly be re- turned with the writ. The court of appeals was therefore moved that a writ issue to the clerk to bring it up. Scudder objected, but after argument the following rule was ordered :. " Diminution in the record in this cause being alleged by Joseph C. Hornblower, attorney for the plaintiff in error in this cause, in that the justices of the supreme court have not sent and certi- fied to this court the state of the case or facts in this cause agreed upon between the parties and affiled in the clerk's office of the said supreme court, upon which the judgment in this cause was rendered below : It is ordered that the return of the said record (a) A judgment of amercement can be reviewed on writ of error, Evans v^ Adams, 3 Or. 373; Eamen v. Stiles, 2 Vr. 490 ; Kemble v. Harris, 7 Vr. 526, Contra, Kline v. Pemberton, 2 Hal. 438; Wright v. Green, 6 Hal. SS4; see Allen v. Tyler, S Vr. 499; Den, Rutherford v. Fen, 1 Zab. 700; Phillips v. Phillips, S Hal. 122. 2 SOUTH.] APPENDIX. 1015 Arnold > Den. be amended and perfected in all things, and that in order thereto a certiorari do issue to Zachariah Rossell, Esq., clerk of the su- preme court, to obtain a full and complete removal before this court of the said state of the case and of the proceedings in the said supreme court in this cause." (a) *Upon the argument, one of the questions raised by the coun- sel of Stansbury was, whether this judgment, being a judgment of amercement, could be reviewed upon a writ of error. The cause was argued by Attorney- General and R. Stockton, for plaintiff in error, and Scudder, for defendant. At November term, 1819, the court of appeals, " having seen and examined the record and proceedings and judgment of the said supreme court &c., did order and adjudge that the said judgment be set aside and reversed." THE STATE v. POTTS and others. In this case, for which see ante 347, there was a writ of error brought, and at May term, 1818, the judgment was affirmed and the proceedings removed by the said writ of error remitted into the supreme court. CHARLES ARNOLD v. JOHN DEN, ex dem. DANIEL PHCENIX and ANNA L., his wife. A died seized of land acquired by deed of gift from her father. Her brothers and sisters of the half-blood by her mother's side are entitled to in- herit together with her half-sister on her father's side. (6) (a) Coze v. Field, 1 Or. 816; Alien v. Craig, X Or. lit; GUliland v. Rap- pleyea, S Or. 1S8 ; Apgar T. Htler, 4 Zab. 808. (b) See Den, Stretch v. Stretch, 1 South. 182 (a) ; Pennington v. Ogden, COM 192; Den, Pierton v. De Hart, Perm, *481 ; see SehencJc v. Fad, 9 C. E. Gr. 5S8; Den, Rake v. Lawhee, 4 Zab. 6 IS. *862 1016 APPENDIX. [5 LAW Arnold v. Den. In error. On the 25th day of September, 1817, this cause came on to be tried before the circuit court, holden by Justice Rossell, at Mor- ristown, in and for the county of Morris. The plaintiff proved that Jonas Phillips took possession of the premises in the year 1779, and held possession, peaceably and uninterruptedly, by his tenants and himself, until about the 27th day of December, 1813, when he died, in possession ; that for three or four years next before the death of Jonas Phillips the defendant, Charles Arnold, was in possession of part of the house, barn and garden, and was in possession of part of the premises with the said Jonas Phillips as his tenant, and paid him rent by rendering to him a share of the crops during the said three or four years until the death of the said Jonas Phillips ; that after the death of Jonas Phillips the defendant continued in possession and paid rent to the widow of Jonas Phillips. *The plaintiff also gave in evidence a deed of conveyance from Jonas Phillips to Mary Phillips, his daughter, in fee, for the premises in question, dated the 9th day of May, 1809; also, that Jonas Phillips had one child, Anna L. Phillips, the wife of Daniel Phoenix, which said Daniel Phosnix and Anna L. are the lessors of the plaintiff. That after the death of Jonas Phillips's first wife, he inter- married with Phebe Arnold, who was the widow of Samuel Arnold, deceased, by whom she had three children, now living, namely, Jacob Arnold, Phebe Arnold and Nancy Arnold ; that Jonas Phillips, by his said second wife, had two children, namely, George, who died at the age of seventeen, unmarried and with- out issue, in the lifetime of his father, and a daughter named Mary, who died seized of the premises in question, without issue, about the 3d day of July, 1811. And the plaintiff rested his evidence, whereupon the defendant moved to nonsuit the plain- tiff for not having given notice to the defendant to quit the premises in question. The court refused the motion and the de- fendant excepted and prayed his bill of exceptions to the said opinion of the court. *863 2 SOUTH.] APPENDIX. 1017 Arnold r. Den. The plaintiff then offered in evidence the last will and testa- ment of Jonas Phillips, deceased, duly executed, bearing date the 5th day of April, 1809. The defendant then offered to prove that the premises in question were once owned by one William Demayne, who mortgaged them to Colonel Jacob Ford, the father of Jonas Phillips's second wife, formerly Mrs. Arnold, to secure the payment of 439 8*. 6d. ; that Colonel Ford died leaving this bond and mortgage unsatisfied, and it came into the hands of his executors before which William Demayne had absconded and left the country ; that the executors of Colonel Ford gave to Mrs. Phillips, formerly the said Mrs. Arnold, the said bond and mortgage ; and that Jonas Phillips went into pos- session of the premises expressly under and by virtue of the said mortgage ; that the said mortgage was in existence, in the possession of the said Jonas Phillips, after he took possession of the said mortgaged premises ; that the same has been lost or destroyed by time or accident, and cannot now be found so as to be read in evidence. To which evidence the plaintiff objected, and the court overruled the evidence. To which opinion the defendant prayed this his bill of exceptions. The court charged the *jury, "That by an act of our legislature, lands in Xt \v Jersey are almost universally held by the same tenure (common soocage) as the lands of that country from which we originally descended ; and claims set up to lands in this state must be regu- lated by the canons of descent that have been established for ages in England, and have been adopted in this country in con- formity with that tenure, unless altered by some act of the legis- lature. It had been a long-established rule of the common law that no brothers or sisters of the half-blood could possibly in- herit an estate descending from a person dying without children ; whereby the estate of an ancestor sometimes went out of the family of such ancestor. To remedy this hardship our legisla- *ure passed the law. Pat. 44> Some time after the passing of that law a question of half-blood claiming^ under it, came up before the supreme court, who, on advisement, restrained the generality of the words of the act to mean only the brothers ;m To which charge of the court the defendant prayed his bill, and it was sealed accordingly. The cause was argued and decided at May term, 1819. At- torney-General and Ewing were of counsel with the plaintiffs iu error; Chetwood and R. Stockton with the defendant. The fol- lowing entry was made on the record. " This court having examined the record and proceedings had in this cause in the court below, and heard the arguments of counsel thereon, and it appearing to the court that Mary Phil- lips, in the bill of exceptions mentioned, died possessed of and entitled to the premises in question, and that the said premises did not descend to her from her said father, Jonas Phillips, but that the same were conveyed to her by deed of gift from her said father, this court is of opinion that by the fair construction of the third section of the act of the legislature of the 24th of March, 1780, entitled 'An act to alter the law directing the de*scent of ^eal estates,' her brothers and sisters of the half- blood on her mother's side, mentioned in the said bill of excep- tions, are entitled to inherit the said premises, together with the said Anna L. Phoanix, the half-sister of the said Mary Phillips, on the father's side, in the manner and proportions between male and female, directed by the first section of the said act ; and that the judge, at the trial of the cause, misdirected the jury in that particular. This court doth order, adjudge and determine that the judgment of the supreme court be reversed " &c. *865 2 SOUTH.] APPENDIX. 1019 Montgomery v. Bruere. MARY MONTGOMERY t>. PRICE BRUERE. (a) In error. In dower. For the decision of the supreme court in this cause, see ante 260. Jin the court of appeals Wall was attorney, and Ewing of counsel with the plaintiff in error. R. Stockton, attorney, and L. H. Stockton of counsel with the defendant in error. The following entry was made on the minutes of the court of appeals : "And now, at this day, to wit, the 1st day of March, 1820, come here, as well the said Mary Montgomery, as the said Price Bruere, by their attorneys aforesaid, whereupon, the premises being considered, and as well the record and proceedings afore- said, and the judgment aforesaid thereon given, as also the cause by the said Mary Montgomery above for error assigned, being, by the said court of errors and appeals in the last resort in all causes of law, here diligently examined and fully understood, and mature deliberation thereupon being had, it appears to the said court, before the governor and council, now here, that in the record and proceedings aforesaid, and also in the giving the judgment aforesaid, there is manifest error : " Therefore, it is considered that the judgment aforesaid, for the error aforesaid, and other errors in the record and proceedings aforesaid, be reversed, annulled and altogether held for nothing ; (a) A widow is entitled to dower in an equity of redemption, Harrison v. Eldridge, 2 Hal. S92 ; Woodhull v. Reid, 1 Harr. 1X8; Yeo v. Mtrcarcau, S Hear. S87 ; Thompson v. Boyd, 1 Zab. 58, 2 Zab. 54S ; Wade v. Miller, S Vr. 896; Hartshorne-v. Harbhorne, 1 Or. Ch. 349; Hinehman v. Stiles, 1 Stock. S61, 454; Opdyke v. Bartles, S Stock. 1SS ; Brovm v. Richards, 2 C. E. Or. 82; Vreeland v. Jacobus, 4 C. E. Or. Ml, cited in Den v. Stockton, 7 Hal. 828 ; where the mortgagee afterwards purchases the equity of redemption, Harts- home v. Hartshornc, 1 Or. Ch. S49 ; Chisuxll v. Morris, 1 McOurL 101; Eld- ridge v. Eldridge, 1 McCari. 195 ; Thompson v. Boyd, 2 Zab. 54S ; see MvJford v. Peterson, 6 Vr. If7. 1020 APPENDIX. [5 LAW Montgomery v. Bruere. and that the said Mary Montgomery be restored to all things which she hath lost by occasion of the said judgment; and it is further considered that the said Mary Montgomery do *recover against the said Price Bruere, as well her seizin of the third part, above demanded, with the appurtenances, to be held by her, in severalty, by metes and bounds, as the value of the third part of the tenements aforesaid, with the appurtenances, from the said 1st of October, 1815, to the time of the rendition of judg- ment, which said value, from the said 1st day of October lust aforesaid, amounts to $453.64, as also $83.48, by the court here adjudged to the said Mary Montgomery, at her request, for her costs and charges by her about her suit in that behalf expended, which said value and costs and charges, in the whole, amount to $537.12, and that she have execution thereof; and the said Price Bruere, in mercy &c. " And thereupon, as well the record aforesaid as the proceedings of the governor and council in the court of errors and appeals in the last resort in all causes of law, before them had in the premises, were, by the said governor and council, remitted into the supreme court of judicature of the state of New Jersey, be- fore the justices thereof." *866 INDEX. A. Account. See PLEADING, 1 ; AUDITORS, 1 ; RECORD, 2 ; STYLE OF ACTION, 2. Action. 1. For breach of contract in not giving up a judgment, the action must be case, not debt Vanhorn v. Hamilton, 477 2. On writing not assignable, must be in the name of the original creditor to whom it was given. Lacey and Earle v. Collins, 489 3. If A sell and deliver oats to B for an unsatisfied execution in constable's hand, and B refuse to let A control the execution, or receive the money upon it, A may maintain action for breach of the contract. Ayers and Thompson v. Swayze, 812 Joint, tee CONSTABLE, 1, 2; STYLE OP ACTION. Adjournment. Though justice adjourns beyond fifteen days, yet if parties appear and try the cause the error is cured. Hillman v. Hayden, 575 Administrator. 1. Not bound to give bail on removing cause from pleas into supreme court by habeas* corpus. Sneed v. Wullen, 682 2. General judgment against administrator, not good. Montfort v. Vanarsdalen, 686 3. Where agreement is to refer all matters in difference between the parties, the report and judgment must be against defendant as administrator. Id., 686 Sec JUROR, 1. Advertising. See ATTACHMENT, 1. Affidavit. See VERDICT, 4; RULE; CONFESSION OF JUDGMENT. Agent. Who signs, as agent, a note which purports to be for principal, not answerable in his individual capacity. Shotvdl v. M'Kotn, 828 See WITNESS, 5. 1021 1022 INDEX. [5 LAW Amendment. 1. Declaration may be amended after plea and demurrer. Lanning v. Shute, 778 2. In ejectment the time of the demise may be amended, after trial and nonsuit, on the ground that lessor was /erne covert at the time of the demise. Den v. Franklin and Sharp, 851 Amercement. See STATUTE, 1. Animals. See TRESPASS, 2. Appeal. Form of entering judgment on appeal. Hendricks v. Oraig, 567 Appeals, Court of. If any judges decline voting, and are excused, a majority of those voting, though not a majority of those present, determine the judgment. Gibbons v. Ogden, 853 Appeal-Bond. 1. Must be legally executed before the justice can grant, or pleas receive the appeal. Stevens v. Scvdder, 503 2. Must be perfected and filed at the first term after judgment; and if pleas grant further time for that purpose, it is error. Id., 503 Appearance. When defendant acknowledges the service of writ by writing on its back, and requests appearance to be entered for him, it is authority for plaintiff to file common bail. Corse v. Colfax, 584 See VENIRE, 1 ; BAIL-BOND, 2 ; SUMMONS, 1 ; TRANSCRIPT, 3. Apprentice. See SOLDIER, 1 j GUARDIAN, 1. Arbitrators. See AWARD. Arrest. See ATTORNEY, 1. Assessment. Ought to be made by jury, on scire facias, to take out execution where previous execution had been levied. Buchannan v. Rowland, 721 2 SOUTH.] INDEX. 1023 Assignment. 1. A writing, acknowledging a settlement and balance due, not assign- able so that action may be in name of assignee. Lacey and EarU v. Collins, 489 2. Endorsement of name on such paper no authority to holder to write assignment over the name. Id., 489 See BOND FOB PRISON LIMITS, 1, 3 ; SEALED BILL, 1 ; PROMIS- SORY NOTE; STYLE OF ACTION, 2. Assignee. See BOND FOB PRISON LIMITS, 1, 3. Assumpsit. See CONTBACT, 2. Attachment. 1. If clerk neglect to advertise until second term, and the other pro- ceedings are regular, writ will not be quashed. Cory v. Lewis, 846 2. When removed by certiorari into supreme court, and judgment of pleas reversed, the .action is continued, and subsequent proceed- ings had in this court. Id., 846 See COSTS, 1. Attorney. 1. Privileged from arrest, unless privilege taken away by rule; though he do not show that he has acted as attorney in a year. Ogden ads. Hughe*, 718 2. Not lawful for two or more to create partnership, and prosecute and defend suits in the name of the firm. Wilson v. Wilton, 791 3. Is presumed to have authority to bring suit in the manner in which he prosecutes ; his want of authority must be shown. Sorrit v. Douglass, 817 See SUMMONS, 1. Auditors. In action of account, take account and refer objections and issues to the court ; and if party neglect to tender issues, in fact and law, to them, he cannot afterwards come into court in a summary way and object to the items. Wilson v. Wilson, 791 Award. Set aside, if arbitrators reject competent evidence. Burroughs v. Thome, 777 See DISCONTINUANCE. 1024 INDEX. [5 LAW B. Bastard. 1. Judgment on bond to indemnify township must be for the penalty, and if that exceed $100 justice has not jurisdiction. Boll v. Weslfield, 493 2. The state of demand on such bond must set out how, when, and for what the expenditures were made. Id., 493 Bail. j$ee PRISONER, 1 ; ADMINISTRATORS, 1 ; HABEAS CORPUS, 5. Bail-Bond. 1. If not sealed before delivered to constable, void, and defect not cured by leave to constable to put seals to it. Smcdley and Cornell T. Vanorden, 811 2. To constable, requires defendant to appear and answer, but not to wait and deliver himself to constable after judgment and execu- tion. Id., 811 See WITNESS, 7. Bank Bills. See EVIDENCE, 7. Bill of Sale. 1. Whether fraudulent, is question for jury. Mount and Crane v. Hen- dricks, 738 2. If fraudulent, binding between parties, void as to creditors. Id., 738 3. Where goods are deposited with A for safe keeping, and he knows the nature of the sale when holder of the bill sues for them, A cannot set up as defence that the sale was fraudulent. Id., 738 4. Not fraudulent, because made by debtor before taking benefit of insolvent laws, and with a view to prefer one creditor to others. Id., 738 See WITNESS, 4. Bill of Exceptions. See FORGERY, 1 ; ERROR, 2. Bond. To satisfy person injured by battery, and prevent complaint to grand jury, valid. Price v. Summers, 578 See APPEAL-BOND, 1, 2 ; CONSTABLE, 1, 2 ; CONFESSION OF JUDG- MENT. 2 SOUTH.] INDEX. 1025 Bond for Prison Limits. 1. Must not be assigned before breach. 2 an won v. Cramer, 498 2. Is broken by prisoner being two miles out, though he return before pursuit or action brought. Id., 498 3. Assignee can only recover penalty, though less than debt and interest. Id., 498 Books. Not sufficient that plaintiff's books had been proved before justice on a former occasion. Linnberyer v. Laluurette and Gartzman, 809 Book Debt. See PLEADING, 1, 3. Breach. See BOND FOR PRISON LIMITS, 2; COVENANT, 1. c. Capacity. See TESTAMENTARY CAPACITY, 1, 2. Cap. Ad Satisfaciendum. 1. Imprisonment on ca. sa. prima facie evidence of satisfaction of the judgment. Mitter v. Miller, 508 2. Where sheriff has received two writs of fi. fa. and levies on and sells the goods of defendant and receives the money and pays it on the lastyi./a., if plaintiff in the first fi.fa. then take defendant with a ca. z. and direct him to be discharged before he is imprisoned, he releases the sheriff from liability to pay the money to him. The ca. sa. is a satisfaction of the debt and a discharge of the sheriff. Strong and Havens v. L\nn, 799 See CONSTABLE, 3. Case. See ACTION, 1 ; ERROR, 1 ; EVIDENCE, 11. Oertiorari. 1. Is a superseded* to stay proceedings. Mairs v. Sparks, 513 2. To remove, judgment in forcible entry and detainer, may be allowed before judgment. Id., 513 3. The record is not returned, but transcript only. Niehola ads. <> 3. He who comes in and holds under husband as heir or alienee, can- not question his title in order to defeat the dower. 1011 4. Tenant cannot set up latent title, unaccompanied by possession, to defeat widow's claim. Id., 1011 5. Wife is entitled to dower in a defeasible estate of the husband until estate be defeated. Id., 1011 Due Diligence. See PROMISSORY NOTE, 1, 2. Duel. See NEW TRIAL, 2. E. Eijectment. Where plaintiff claims title under mortgage, defendant may show that he was insane at the time of its execution, and that it and the bond were fraudulently obtained and given to suppress a prosecution for forgery. Den v. Moore, 470> See NEW TRIAL, 3; COSTS, 5; AMENDMENT. 2 SOUTH.] INDEX. 1031 E ndorse me nt . See PROMISSORY NOTE. Enlistment. See GUARDIAN, 1 ; SOLDIER, 1. Equity of Redemption. See DOWER, 2, 3, 4, 5. Error. 1. Action, case; judgment, debt, not error. Meeker v. Potter, 586 2. Where oue bill of exception shows error in rejecting witness, and a second bill shows that he was interested, court will not reverse. Ayers and Vundorn v. Vanlieu, 765 3. Reasons not filed cannot be argued, but if defect apparent, time given to file reason. State v. Kirby, 835 See ADJOURNMENT, 1 ; PLEADINGS, 5. Escape. See JUDGMENT, 5. Exceptions. See BILL OF EXCEPTIONS. Execution. Judgment and execution on constable's bond and execution satisfied. Subsequent executions on same bond will not be preferred to another execution received by the sheriff" before them. Execu- tions have priority according to delivery to sheriff. Northampton v. Woodward, 788 See EVIDENCE, 3, 9; WRIT OF ERROR, 1; SHERIFF; JUDGMENT, 5, 7 ; ASSESSMENT ; CA. SA., 1, 2 ; CONSTABLE, 2, 3 ; BAIL- BOND, 2; ACTION, 3. Executor. See LEGACY. Executory Devise. See DEVISE, 1, 2, 3. Evidence. 1. Proof of the handwriting of subscribing witness, who is dead, u not sufficient to send to the jury a bill having an ink-scroll for a seal, and which does not, on the face of it, say that it was sealed and delivered. Newbold v. Lamb, 449 2. In trespass by lessee against lessor, where lease is " for a house and lot of land containing three acres, be the same more or less," 1032 INDEX. [5 LAW Evidence Continued. lessor may, by parol, explain lease and show what is held under it. Chamberlain v. Letson, 452 3. Where constable has levied on goods, and brings trover for them, defendant may show that the judgment on which execution was issued was voluntary, by confession, without affidavit, and if it so appear, plaintiff shall not recover. Cliver v. Applegate, 479 4. Original paper must be strictly accounted for, and copy strictly proved, before it can be read. Wills v. M'Dole, 501 5. Written evidence need not appear on the transcript. Sutton v. Petty, 504 6. Promise by A to pay if B fail, evidence of judgment against B, and execution returned that B denied having any property suffi- cient to bind A. Id., 504 7. Covenant by vendee of lands, payment to be in lawful currency of New Jersey, he may prove that before day of payment defendant agreed to receive bank bills in payment, but refused them when tendered. M'Eowen v. Rose, 582 8. Testator, six months before his death, had paper ; appraiser could not find it among those shown by executor, who had the key ; a near relation of testator, who often transacted business for him and with him, knew no other place where he kept papers, but those examined by appraiser; proof of contents not admitted. Sterling v. Potts, 773 9. Trespass for taking goods; defendant offered in evidence execution delivered to him as constable ; rejected, because judgment not produced. Hamilton and Eduatt v. Decker, 813 10. In trover against insolvent debtor, transcript of action between assignee and plaintiff respecting same goods, admissible. Demund v. French, 828 11. A bought lands of administrators for mill-seat ; built mill, and overflowed other lands of intestate; heirs brought suit; the deed from administrators not competent evidence. Winans v. Brook- field, 847 See WARRANTY ; HUSBAND AND WIFE ; LEASE, 3 ; EJECTMENT, 1 ; PLEADING, 1 ; TRANSCRIPT, 1 ; CA. SA., 1 ; FEES ; TESTA- MENTARY CAPACITY, 2 ; CONTRACT, 1, 2 ; PROMISSORY NOTE, 3 ; BOOKS ; TRESPASS ; CONSTABLE, 2, 3. Fee Simple. See DEVISE. Fee Tail. See DEVISE. 2 SOUTH.] INDEX. 1033 Fees. Of witnesses and jurors, received by clerk, may be recovered by action of debt, but plaintift" must show conviction of defendant, and that fees were received by clerk. Smith v. Johnson, 511 Felony, Compounding of. See EJECTMENT. Fence. See TOWNSHIP COMMITTEE. Forgery. 1. Bill of exception states that subscribing witness proved note, it must mean its legal execution, and though alteration appears on its face, and it was permitted to go to the jury, court will not reverse. Sayre v. Brookfield, 737 2. Indictment must set out tenor of instrument forged. State v. Gustin, 744 See INDICTMENT/ Former Judgment. See PLEADING, 3. Forcible Entry and Detainer. 1. Possession in plaintiff must be shown. Mairs v. Sparks, 513 2. Plaintiff, claiming under lease, defendant may show, by parol, that lease was surrendered. Id., 513 3. Certiorari, to remove proceedings, allowed before judgment. Id., 513 4. Costs multiplied by three. Id., 513 5. Judgment of restitution sufficient after verdict of guilty. Id., 513 6. Judgment of restitution necessary after verdict of guilty. Kerr et al. v. Phillips, 818 7. Where defendants hold in severally, joint action cannot be brought. Id., 818 8. Must set out truly the place and the estate of complainants. Bank* v. Murray, 849 See SUMMONS, 2. Frauds. See TESTAMENTARY CAPACITY, 2 ; STATUTE OF FRAUDS ; BILL OF SALE. G. Guardian. Assent of, not necessary to validity of enlistment, if master assents. State v. Brearley, 555 See HABEAS CORPUS, 1 ; LEASE, 1 ; INFANT, 1. 1034 INDEX. [5 LAW Guardianship. Letters by orphans court to be received as legal and proper, until vacated on appeal. State v. Cheeseman, 445 Grand Jury. See SHERIFF, 1. H. Habeas Corpus. 1. The object of writ ad sub. is to relieve from unlawful imprison- ment, but where ward under fourteen years remains with mother of its own choice and without restraint, court will not order delivery to statutory guardians, although entitled to custody of person and estate. State v. Cheeseman, 445 2. Service must be proved by affidavit before attachment is issued. Slate v. Rahorg, 545 3. To bring up soldier. State v. Brearley, 555 4. Discharge of soldier in Pennsylvania does not preclude inquiry here. 1 d., 555 5. Bail cannot be waived ; but if not filed, cause remanded. Craig v. Berry, 852 See JURISDICTION, 1 ; ADMINISTRATOR, 1. Half-Blood. See HEIRS. Hand-Bill. See TRESPASS, 1. Handwriting. See EVIDENCE, 1. Heirs. Brothers and sisters of the half-blood, by the mother's side, inherit with half-sister on the father's side, lands acquired by deed of gift from father. Den v. Arnold, 862 Husband and "Wife. 1. Where husband lives with wife and has paid bills created by her, his estate is liable for goods suitable to his condition in life, bought by her, without his order, and received in his house after he was speechless, and a few hours before he died, and partly used before his death, and at his funeral, although she had sepa- rate property and sometimes paid bills with it. Sterling v. Potts, 773 2. Testator's situation in life shown, to prove that the goods were suitable for him. Id., 773 2 SOUTH.] INDEX. 1035 L Imprisonment. See CA. SA. Indictment. 1. Forgery of promissory note, signed "Ogden & Gustin," dated before dissolution of partnership, purporting to be signed by D. Gustin, &c., is good. State v. Gustin, 74S> 2. For perjury, on application for benefit of insolvent laws, not neces- sary to set out the manner in which common pleas obtained jurisdiction. State v. Ludlow, 772 3. It is safest, but not indispensable, that the interrogatories be in writing. Id., 772 See FORGERY, 2 ; RECORD, 1 ; CERTIORARI, 4. Infant. If infant do not appear upon service of summons, plaintiff may have rule to assign guardian and enter appearance, first serving him, and those who have him in custody, with a copy of the rule. Judson v. Storer, 544 Set HABEAS CORPUS, 1, 3, 4 ; LEASE, 1. Inhabitants of Township. See CONSTABLE'S BOND. Injunction. See JUDGMENT, 7. Insolvent. Law repealed without saving clause, after application made, the dis- charge void. State v. Shinn, 553 See WITNESS, 5; SHERIFF, 2; JUDGMENT, 5, 8; BILL OF SALE; INDICTMENT, 2. Insolvent Law. Of New York, discharging the debt, unconstitutional. Olden v. HaUett, 466 Interest. Note payable at given day, bears interest from that day, and if sued for before a justice, interest cannot be thrown away to reduce amount to his jurisdiction. Vangeisen v. Vanhouten, 822 Interrogatories. See INDICTMFJJT, 3. 1036 INDEX. [5 LAW J. Joint Defendants. See COSTS, 4. Joint Owner. See TROVER, 2. Judgment. 1. Operates extinguishment of bond debt. Olden v. Hallett, 466 2. In one state, conclusive in another, and nil debet, bad plea. Id., 466 Lanning v. Shute, 778 3. By confession, without affidavit, fraudulent, diver v. Applegate, 479 4. May be delayed for advisement, but notice must be given, that parties may be present when it is rendered. Clark v. Head, 486 5. Court reverse judgment against sheriff for escape, where it appears the execntion was issued without valid judgment, and the de- fendant had insolvent discharge, but had no opportunity to plead it. Mitts v. Sleghl, 565 6. Against two, if service of summons on one, bad. Oliver and Tillman v. HoweU, 581 7. Judgment and execution levied in 1765; proceedings stayed by injunction, which was dissolved in 1815, and scire facias for exe- cution, the law presumes the claim satisfied. Buehannan v. Row- land, 721 8. Against insolvent debtor, must be against him to be levied of his goods &c. Miller v. Tuttle, 810 See BOND FOR PRISON LIMITS ; FORCIBLE ENTRY AND DETAINER, 5, 6 ; APPEAL ; RECOGNIZANCE ; ERROR, 1 ; ADMINISTRATOR, 2 ; SCIRE FACIAS ; EVIDENCE, 6, 9, 10 ; TRANSCRIPT, 2, 3 ; COURT OF APPEALS. Jurisdiction. Quere. Have state courts power to inquire on habeas corpus into de- tention of prisoner claimed as enlisted soldier in United States army ? State v. Brearley, 555 See COURT FOR SMALL CAUSES; MALICIOUS PROSECUTION; BAS- TARD; INTEREST. Juror. 1. Interest disqualifies. Meeker v. Potter, 586 2. If jurors leave room against will of constable, their verdict bad. Shepperd v. Baylor, 827 See VERDICT; FEES; CHALLENGE. Jury. Misconduct, cause of reversal of judgment. Demund v. Oowen, 687 See PLEADING, 1. 2 SOUTH.] INDEX. 1037 Justice. Bound to declare the law to jury, when demanded. MUU v. SUght, 566 See TRANSCRIPT ; SCIRE FACIAS. Justification. See PLEA. Judgment. See CONFESSION OF JUDGMENT. L. Lease. 1. By statutory guardian, voidable, but consent of infant confirms it. Vandorn v. Everitt, 460 2. For two years, tenant has a right to two crops, and may enter to reap, after expiration of lease. Id., 460 3. Construed by course of husbandry. Id., 460 See EVIDENCE, 2. Legacy. Pecuniary legacies abate proportionably ; and if executor voluntarily pay legacy without taking a refunding-bond, and the estate be insolvent, legatee must refund ; and if he sue for debt, executor may set off what he paid beyond ratable proportion of legacy. Harris v. White, 422 Letters of Guardianship. See GUARDIANSHIP. Levy. Quere. Whether legal where officer does not see the goods. Oliver v. Appleyatc, 479 Lien. See STATUTE. Libel. See DECLARATION. Limitation of Actions. One item of account will not take case out of statute. Millar v. CW- wU, 577 See JUDGMENT, 7. M. Malicious Prosecution. Court for small causes has jurisdiction, and if there be regular plead- ings and witnesses sworn, judgment not reversed. Matthcux v. Ferguson, 1038 INDEX. [5 LAW Marriage. See SEALED BILL, 2. Master. See SOLDIER; GUARDIAN. Miller. See VERDICT, 3. Motion. See PLEADING, 2, 6. Motion to Quash. It is not necessary to file reasons on this motion. State v. Kirby, 835 See ATTACHMENT, 1 ; PLEADING, 2 ; CERTIORARI, 5, 6, 7. Mortgage. See EJECTMENT. N. New Jersey Currency. See EVIDENCE, 7. New Trial. 1. Not granted, because judge refused, under circumstances, to post- pone trial. Ogden v. Gibbons, 518 2. Not granted, where $5,000 were given for posting hand-bill on plaintiff's door. Jd. t 518 3. Granted, in ejectment, after trial at bar by special jury and ver- dict for defendant. Den v. Vancleve, 589 4. Not granted, for excessive damages in case for overflowing lands, where some witnesses swear to higher damages than are given. Winans v. Brookjield, 847 See VERDICT, 1,2, 4. Nil Debet. See NOTICE, 1 ; JUDGMENT, 2. Nonsuit. 1. Defect of pleading which verdict cures not ground of nonsuit. Jersey Company v. Halsey, 750 2. Refusal to nonsuit assigned for error. Parker v. Rose, 780 3. If court direct plaintiff to be called and he answers and obtains verdict, court will set aside verdict and amend postea so as to return the nonsuit, even though defendant proceeded to try the cause. Den v. Franklin and Sharp, 851 See RECOGNIZANCE ; TRANSCRIPT, 3 ; WARRANTY. 2 SOUTH.] INDEX 1039 Notice. 1. Court will not, on motion, strike out notice joined to plea of nil debet where there is demurrer to the plea. Lanning v. Shute, 553 2. Of set-off. See PROMISSORY NOTE, 1. o. Oath. See ROAD, 4. Original Papers. Ought not to be sent up with return of certiorari. Miller v. Carhart, 720 Orphans Court. 1. Certiorari allowed to bring up division of land after three months from its confirmation. Stale v. Judges &c., 554 2. Division confirmed by orphans court set aside because some of the lands were divided which did not belong to intestate. Id., 554 Overflowing Land. See COURT FOR SMALL CAUSES, 1 ; NEW TRIAL, 4 ; EVIDENCE, 11. Overseers of Highways. Liable in trespass for going on lands for any purpose except those stated in statute. Ward v. Folly, 435 Oxen. See TRESPASS, 2. Over and Terminer. See CERTIORARI, 4 ; RECORD, 1. P. Pauper. See BASTARD; SESSIONS. Payment. After twenty years, presumption conclusive. Huchannan v. Rowland, 721 See PROMISSORY NOTE. Penalty. See BASTARD. Perjury. See INDICTMENT, 2. 1040 INDEX. [5 LAW Pleading. 1. Account not pleaded on return-day of summons not to be laid be- fore jury. Clark v. Read, 486 2. Motion to quash not made while plea of not guilty is on record, but it may be withdrawn to move to quash. Nicholls ads. State, 539 3. Suit on book debt ; afterwards suit on sealed bill which plaintiff held when first suit was brought, defendant may plead the former judgment. Carhart v. Miller, 573 4. Plea of title to land in trover. Vanness v. Nafie, 683 5. Errors in declaration, warrant of attorney, venue <&c., cured by plea relinquished and judgment confessed. Wilson v. Wilson, 791 6. After cause brought up by habeas corpus has been noticed and carried to circuit, but not tried, plea of justification in slander may be withdrawn on motion, and issue left on not guilty. Whit- lock v. Vanpelt, , 810 See PROMISSORY NOTE, 1, 2. 3; NONSUIT, 1; SEALED BILL, 2; AMENDMENT. Possession. See TRESPASS ; FORCIBLE ENTRY, 1, 7. Postponement. See TRIAL. Postea. See NONSUIT, 3. Practice. It is not proper to bring up judgments by consent. Northampton v. Woodward, 788 Prisoner. If indictment quashed because sheriff had not jury process, prisoner must find bail to appear &c. Nicholls ads. State, \ 539 Privilege. See ATTORNEY, 1. Process. See Qui TAM, 1 ; SHERIFF, 1 ; INFANT, 1. Promise. See STATUTE OF FRAUDS. Promissory Note. 1. Declaration by endorsee against endorser, on note payable without defalcation or discount; plea, payment after it was due, and notice of set-off; plea and notice not good, and struck out on motion. Cory ell v. Croxall, 764 2 SOUTH.] INDEX. 1041 Promissory Note Continued. 2. Count, on note by A to B, on 6th of December, payable in ten days, assigned at date to C, presented for payment after the ten days, viz., 1st of January, will not support recovery by C against B. Estell v. Vanderveer, 782 3. In such case, plaintiff may not prove that note was assigned after it was due. Quere. If insolvency of drawer makes any differ- ence ; or that note was dishonored in endorsee's hands. Id., 782 4. Blank endorsement is authority to fill up assignment only in the usual form. Clawson v. Gustin, 821 See FOKGERY. Proof of Note. See FORGERY, 1. Purport. See INDICTMENT, 1. Q. Qui Tarn. 1. Name of prosecutor and title of statute must be endorsed on pro- cess, under timber act. Miller v. Stoy, 476 2. The state of demand must show in what right plaintiff' sues ; where the tree was cut; that defendant had no right ; and the title of the statute authorizing the suit. /M Service. See JUDGMENT, 6. Sessions. Directed to send up state of case. Mendhnm v. J/b/rin, 810 Set-off. See LEGACY. 1044 INDEX. [5 LAW Sheriff. 1. Cannot summon grand jury without process. Nicholls ads. State, 539 2. Not to let prisoner go because he has insolvent discharge of older date than the judgment. Mills v. Sleghl, 565 See STATUTE ; CA. SA., 1, 2. Slander. See PLEADING, 6. Soldier. Apprentice not discharged if master assented after enlistment. State v. Brearley, 555 See GUARDIAN. Special Contract. See ERROR. State. Never becomes defendant in criminal prosecution. State v. Kirby, 835 Statute. 1. The order for appearance of defendant, nnder the act for relief of creditors against corporations, remains lien until plaintiff is satisfied and is preferred to subsequent judgments. Lawrence v. Pat. Cl. Man. Co., 433 But see contra, Appendix, 861 See COMMON INFORMER, 2 ; TOWNSHIP COMMITTEE, 1 ; INSOL- VENT. Statute of Frauds. 1. Promise that A shall deliver goods to constable. Nixon v. Van- hise, 491 2. " I promise to pay the amount of said execution in six months if defendant do not," binding. Buckley v. Beardslee, 570 3. Facts to show promise good in law must be shown. Ashcroft v. Clark, 577 Scudderv. Wade, 681 State of Case. See SESSIONS. State of Demand. 1. Insufficient. Lacy and Earle v. Collins, 489 2. Must be filed before the cause is adjourned. Hunt v. South, 495 3. That defendant recommended notes to be good and of full value, when he knew they were not, is not good. Meeker v. Potter, 586 2 SOUTH.] INDEX. 1045 State of Demand Continued. 4. That defendant rented &c. Hunfv. Young, 813 See Qui TAM, 2; TROVER, 1. Style of Action. 1. On agreement to pay money, bad. Aahcroft v. Clark, 577 2. A may sue in B's name on account assigned by B to A. Non-it v. Douglas, 817 Subpoena. See WITNESS, 1. Summons. 1. Appearance of attorney cures defect of service. Ayers v. Swayze, 812 2. Served by leaving copy fastened to door &c., not sufficient. Miller v. DoolitUe, 845 See Qui TAM, 1 ; COMMON INFORMER, 1 ; JUDGMENT, 6. Supersedeas. See CERTIORARI, 1 ; WRIT OF ERROR. Sureties. See CONSTABLE'S BOND, 1. Surveyors. See ROAD, 4. T. Tax. See ROAD, 3. Tax-Warrant. Against delinquents in military service brought up by cerliorari. Stale v. Kirby, 835 See CERTIOHARI, 5, 6, 7. Tenor. See FORGERY, 2. Testamentary Capacity. 1. What. Den v. Vanclm, 589 2. Where capacity is denied and fraud charged, proof of testator's declarations incompetent. Id., 589 See WILL, 1. Timber Act. See Qm TAM, 1, 2. 1046 INDEX. [5 LAW Titles to Lands. See PLEADING, 4. Title of Oertiorari. See CERTIOKARI, 4, 5. Township Committee. Under statute (Pat. 336), may not change position of division fence. Miller v. Barnet, 547 Township. See BASTARD. Transcript. 1. Justice's signature need not be proved by parol. Miller v. Miller, 508 Ogden v. Gibbons, 518 2. Not to be altered after judgment recorded. Searing v. Lum, 683 3. Defendant called, but appearance not noted, not error. Hunt v. Young, 813 See EVIDENCE, 5, 9, 10. Trial. 1. Not postponed, because plaintiff's attorney furnished defendant's attorney with a copy of declaration variant from the record in this, that Th. was signed to hand-bill instead of Thomas. Ogden v. Gibbons, 518 2. Postponement matter of discretion, but if injustice be done, new trial granted. Id., 518 Trespass. 1. If defendant fasten hand-bill to plaintiff's door, contents of bill may be set out in declaration and considered by jury. Ogden v. Gibbons, 518 2. A's oxen broke close and killed B's cow ; B need not prove that A knew they were accustomed to gore. Angus v. Radin, 815 See EVIDENCE, 2, 9 ; DECLARATION, 1 ; NEW TRIAL. Trover. 1. Description of goods not particular. Vanauken v. Wickham, 509 2. Joint owner entitled to exclusive possession may sue alone. Thompson v. Cook, 580 See EVIDENCE, 3 ; PLEADING, 4 ; CONSTABLE. u. Unde Actio Accrevit. See SEALED BILL, 2. 2 SOUTH.] 1 XDEX. 1047 V. Variance. .S'e TRIAL, 1. Venire. Must not issue till defendant appears ; but if it be issued, and defend- ant does not appear, justice may dismiss jury and try cause. Wills v. M 'Dole, 501 Venue. Not changed on affidavit that cause of action arose in another county. Hall v. Cumberland Bank, 718 Verdict. 1. Clearly against evidence and charge set aside. Chamberlain \. Letson, 452 2. Not set aside, if evidence contradictory, and judge satisfied. Den v. Johnson, 450 Dm v. Moore, 470 3. Must show for what offence it is given, under statute, to ascertain toll of millers. Weslbrook v. Vanauken, 478 4. Not set aside on oath of juror, that he did not assent. Clark v. Read, 486 See NEW TRIAL, 2, 3, 4. W. Warrant of Attorney. See ATTORNEY, 2; CONFESSION OF JUDGMENT, 1. Warranty. No evidence being given of warranty, nonsuit should be granted. Mead v. Crane, 852 Waste. See RULE, 1 ; DOWER, 1. Will. 1. Capacity, necessary to make will. Den v. Johnton, 454 2. What legal. Den v. Vancleve, 689 See TESTAMENTARY CAPACITY ; DEVISE. Witness. * 1. Not bound to attend, unless fee given when subpoena is served. Ogden v. Gibbons, 518 2. Excluded by interest. Meeker v. Potter, BM 3. Over fourteen, not interrogated respecting capacity, unless some reason creating suspicion be shown. Den v. Vancleve, 689 1048 INDEX. [5 LAW Witness Continued. 4. Maker of bill of sale competent to prove sale, if released. Hen- dricks v. Mount and Crane, 738 5. Competency of agent who gave note and is insolvent. Ayers v. Vanlieu, 765 6. Of executor who conveyed land without warranty. Surrough v. Thome, 777 7. Constable who took bail-bond competent to prove it. Smalley and Corriell v. Vanorden, 811 See EVIDENCE ; CA. SA. ; FEES. Writ of Error. If execution issued before writ served, supersedeas or rule on sheriff will be given. Sayre v. Reynolds, 564 See PKACTICE. "Writ of Re-restitution. Granted without affidavit, if transcript shows that writ of restitution was issued. Kerr v. Phillips, 818 A 001 167 268 o