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<M t Spen,
151; Den, Popino v. Cook, f Hal, 41; Den, Richman v. Baldwin, 1 Zab. 400;
Moore v. Rake, Dutch. 574 ; Den, Emms v. Evans, Penn. *967 ; Den, Shaw v.
Foxier, Penn. *10gl ; Den, Pinkerton v. Laquear, 1 South. SOI ; Morehowe v.
Cotheal, 1 Zab. 480 ; Den, James v. Du, Bois, 1 Hirr. S86 / Fairchild v. Cron,
Beat. 105.
502 NEW JERSEY SUPREME COURT. [5 LAW
Den v. Hugg.
the heirs of her body, if any such her surviving, and for want,
of such heirs to hold to my son, "William Hugg [called William
second], and the heirs male of his body, if any such him surviv-
ing, and for want of such heirs, to my sons, Joseph Hugg and
Samuel Hugg, their heirs and assigns, forever [Joseph was the
oldest son and survived his father, the testator]." Soon after
which the testator died, leaving the said will duly executed to
pass lands.
2d, Sarah Ellis died December 25th, 1777, leaving one
*daughter named Rebecca, who died soon after her said mother,
to wit, in 1778, under age and without issue. Upon whose-
death, William Hugg second entered into the premises in virtue
of the said devise, and was possessed thereof.
3d. William Hugg second had issue, William Hugg (called
William third), Joseph Hugg and Louisa Hugg, which Joseph
and Louisa are yet alive.
4th. William Hugg third, oldest son of William Hugg second,
died on the 5th of August, 1807, in the lifetime of his father,,
William second, leaving issue, to wit, William Hugg (William
fourth), his eldest son, Ann Hugg and Earl Hugg,
5th. William Hugg fourth, grandson of William second, is.
the lessor of the plaintiff, and claims the whole property as heir
in tail male by descent from his grandfather, William second.
The defendant was in possession of the premises in question..
If the court were of opinion that the plaintiff is entitled to-
recover, then judgment to be entered for the plaintiff; if other-
wise, for the defendant.
R. Stockton, for plaintiff, argued By the will the premis&i
were devised to Sarah Ellis in tail general. This estate was ex-
pended and gone, on the death of her daughter, Rebecca Ellis,
without issue, in 1778, before the passage of the statute to dock
entails. 2. The remainder is given to William Hngg in tail
male, and this estate still exists. William second had William
third, who was his eldest son and heir-at-law. William third
died before his father, and the land descended to William fourth,
who is the lessor of the plaintiff and third tenant in tail. The
*428
2 SOUTH.] FEBRUARY TERM, 1819. 503
Den r. Hugg.
only question can be whether the statute converted the estate into
a fee; if it did not, then the plaintiff is entitled to judgment.
The court, in 2 Penn. 819, has decided that the descent must IKJ
in the second line of entailment, and the lessor is the second per-
son taking in the second line.
Ewing, for defendant, argued That the lessor can claim cmly
under the will, per formcim doni. The estate of William the
second was not, at all events, to take effect or vest at the decease
of the testator or of Sarah Ellis, but on a contingency only, viz.,
the death of Sarah Ellis, without surviving heirs. His estate,
therefore, was either an executory devise or contingent remainder,
and it was of little importance which, so far as regarded *the
decision of this cause. That the estate of William the second
never vested, and therefore William the fourth cannot take. The
remainder was defeated, because there was an heir of Sarah Ellis
surviving her. The contingency was to happen at the death of
Sarah Ellis and not at any future period. Her surviving child,
if she had any, was to take the estate, and she left a daughter
Rebecca. If, therefore, this be an executory devise, it fails, be-
cause, if it was to take effect at her death, it could not vest. 1 f
it was to take effect on an indefinite failure of issue it was void.
4 Cm. 44$' O n tne decease of Rebecca Ellis the estate reverted
to the heirs of the testator.
But 2. If AVilliam second did take, William fourth is not
entitled to recover ; he is not his heir male, him surviving. He
cannot claim in his own right because he is not heir male of the
body of William second, him surviving ; nor in right of his
father, by descent, because William third never took any estate
in the premises ; he did not survive his father, William second.
Fearn on Rem. 5.
R. Stockton, in answer. William second took a vested re-
mainder in tail male, not a contingent remainder or executory
devise. The words " heirs, if any such her surviving," have no
operation ; or if any, they apply to Sarah Ellis and her heirs,
and restrict only to the heirs living at her death, and havi- no
*429
504 NEW JERSEY SUPREME COURT. [5 LAW
Den v. Hngg.
effect on the estate of William second. Com. Dig. "Devise" let.
R 5, 1$6. The intention clearly was to give the premises to Sarah
Ellis and her children generally, and the capacity to take at the
contingency is the real criterion.
Opinion of the court.
KIRKPATRICK, C. J.
This case is too plain to admit either of argument or illustra-
tion. The words "if any such her surviving" make no differ-
ence either in the sense or in the operation of the devise. Sarah
Ellis took an estate tail general, and William the second took a
vested remainder in tail male, as devisees under the will of their
father. This remainder to William was limited to take effect
and be enjoyed after the termination of the particular estate de-
vised to Sarah Ellis and the heirs of her body, and upon the
death of Rebecca, her only daughter, without issue, it did so
take effect, and the said William actually entered into and be-
came possessed of the premises so devised, and continued to be
so thereof possessed, until the time of his death.
*We have then only to inquire who was the heir male of the
body of William. And surely, under the canons of descent in
the common law, this can never be made a question among law-
yers ; for it is well known that the male must be preferred to
the female ; and that among the males, the elder must be pre-
ferred to the younger ; and it is also well known that, subject
to these rules, the lineal descendants, to the remotest generations,
shall represent, that is to say, shall stand in the place of their
ancestor and take that which he would have taken if living.
Upon these principles it is obvious that William the third, if
living, would be the heir male of the body of William the
second in exclusion not only of Louisa, his sister, but also of
Joseph, his brother. And it is equally clear that William the
fourth, in exclusion of his sister Ann and his brother Earl,
stands by right of representation in the place of his father, and
will take that which he would have taken if alive. William
the fourth, then, is the heir male of the body of William the
*430
2 SOUTH.] FEBRUARY TERM, 1819. 505
Den v. Hugg.
second, and as such is entitled to the inheritance per formam
doni. ,
I am of opinion, therefore, that the plaintiff is entitled to
recover, and that judgment be entered for him accordingly.
Since writing the foregoing, I have been favored with a copy
of the argument of the defendant's counsel in this case, which is
very ingenious, but I think not solid.
It is admitted in that argument (or rather it is not denied, for
indeed it cannot be denied) that if the words if any such her
surviving were not contained in the devise, Sarah Ellis would
have taken an estate tail general, and William the second, a
vested remainder in tail special that is, in tail male. It seems
to be admitted, too, that even as it stands, Sarah Ellis took an
estate tail ; but then it is insisted that the words if any such her
surviving, raise up a contingency upon which William's re-
mainder must depend ; that Sarah having left a daughter, Re-
becca, surviving her, that contingency has never happened nor
can now happen ; and that, therefore, the remainder is defeated.
The very same argument might be used in every case where
there is a limitation of a remainder upon a dying of the tenant in
tail without heirs of the body, or without issue, or without leaving
issue, or words to that effect. If a devise were to one and the heirs
of his body, and if he die without such heirs, then *over ; and if
the devisee were to die leaving a son, it might be said, as it is here
said, true it is that the devisee takes an estate tail, but then the
words if he die without such heirs raise up a contingency upon
which the remainder is to depend ; and as in truth and in fact he
has not died without such heirs, for he has left a son in full life,
the contingency has not therefore happened nor can now happen,
and of course the remainder must fall. But however plausible
this argument might be, yet certainly it would be plausible only,
and not conclusive. And the reason is that the words if he die
ictthout heirs of the body, without issue, without leaving issue, with-
out such heirs surviving him, and equivalent expressions of that
kind,are not used in devises of land, in their common and vulgar
sense, but in a legal and technical sense, and always, when un-
qualified by the connection in which they stand, signify not a
*431
506 NEW JERSEY SUPREME COURT. [5 LAW
Den v. Hugg.
definite failure of issue at the death of the tenant in tail, but an
indefinite failure thereof at any future period, how remote soever
the same may be. (a)
What, then, can be the effect of the words if any such her sur-
viving, thus annexed to the word heirs in this devise ? Can they
at all qualify the meaning of it ?
An heir is one on whom the law casts the estate immediately
upon the death of the ancestor. It is such a one him (the an-
cestor) surviving, for the law never casts an estate upon dead
men. These words then can, by no rational construction, add to r
alter, change, enlarge, or limit the meaning of the word heirs*
The devise is just the same with them as it would have been
without them. The very term heir necessarily implies that he
survives the ancestor.
But again. Upon a careful examination we shall find that it
these words do raise a contingency, it is a contingency attached
to the devise to the heirs of the body of Sarah Ellis, and not to
the remainder over to William the second. It is to Sarah Ellis
for life, and after her decease to the heirs of her body, if any such
her surviving, and for want of such heirs, then to WiUiam. Now
suppose we were to make out in words the alternate of this pre-
tended condition or contingency, what should we say ? Should
we not say, to the heirs of her body, if any such her surviving, but
if none such her surviving, then, not to the heirs of her body, but
for want thereof, to William ? This is the alternate most obvi-
ously presented by the words as they stand con*nected. The
testator does not place the remainder upon this circumstance, but
upon the want of such heirs, heirs of the body evidently mean-
ing ; and certainly, so meaning, it will better effect the general
intent of the testator. But we are not left to conjecture on this
subject, nor even to the deductions of reason. The testator him-
self has settled it. He has said that for want of such heirs (that
(a) Wallington v. Taylor, Sax. 314; Den v. Allaire, Spen. 6; Seddel v. Will*>
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 <fec. ; and that after the
entry of such order, it shall not be lawful for such corporation to
grant, bargain, sell, alien or convey their lands, or any part there-
of, until the plaintiff be satisfied his lawful demand ; that the
said action shall be a lien upon such lands from the time of such
entry, and that the same may be sold on execution, in the same
manner as if no conveyance thereof had been made by such cor-
poration.
Here these plaintiffs, in the term of February, 1817, entered
their respective rules upon the corporation to appear, and an ap-
pearance being entered for them, they so proceeded as to enter
judgment in November term, 1817, and to sue out executions
*ind deliver the same to the sheriff on the 18th of the same
month, returnable to February term following. The sheriff
levied the said executions on the lands of the said corporation,
on the same day, and immediately thereafter advertised the same
for sale by virtue of the said execution, and after adjourning the
said sale thereof several times, now absolutely refuses to sell at
all.
*While the plaintiffs were thus proceeding in their suits, to
wit, on the 7th of March, 1817, the said corporation confessed
one judgment to Joseph Shotwell and another to John Jacobs
and Joseph Shotwell for large sums of money, upon which exe-
cutions were sued out and put into the hands of the same sheriff
on the 8th of March, 1817, by virtue of which he sold the said
lands of the said corporation on the 3d of October following,
subject to prior encumbrances, of which encumbrances and par-
ticularly of this action, and of the entry of those orders, the
purchaser had notice. After the term of February and before
the term of November, 1817, sundry judgments were entered by
*440
516 NEW JERSEY SUPREME COURT. [5 L.vw
Stansbury v. Patent Cloth Manufacturing Co.
default under this act against the said corporation in the court
of common pleas of the county of Essex, and executions there-
upon issued, which said judgments and executions, as well as
those of the Shotwells, were preferred by the sheriff to the judg-
ments and executions of those plaintiffs, and paid out of the
proceeds of the said sale.
Upon this case, the counsel for the plaintiffs have stated cer-
tain questions about the priority of their lien and their judg-
ments to those of the Shotwells entered by confession, and those
in the common pleas entered by default, but the real question is,,
whether the sheriff, upon the whole case, is liable to an amerce-
ment.
I state the question in this form because, though I am not
willing to say that these judgments ought to be preferred to
those, or, indeed ought, at all, to be paid out of the avails of the-
sale, yet I think the sheriff ought to be amerced. For
1. The confession of judgment and a sale by the sheriff, in
pursuance of that judgment, is in the strictest sense an aliena-
tion by the corporation, and, therefore, as against these plaintiffs,
is inoperative and leaves the land liable to be sold upon their
executions in the same manner as if no such conveyance had
ever been made. I say it is in the strictest sense an alienation!
by the corporation, for it is wholly immaterial whether one actu-
ally make the conveyance himself or constitute an agent or
trustee to make it for him, or, in order to render the transaction
still more solemn, go into a court of justice, and by certain forms
of proceeding procure it to be made by the officer of the law ;
still it is his own act. But if it be possible that I should be
mistaken in this, yet I think, notwithstanding, the sheriff must
be amerced. For
*2. Even if these judgments had been entered against the
corporation in invitum, and executions had been issued thereupon
and the land sold, as well it might, yet these orders entered by
the plaintiffs gave them a lien upon it for their debts and sub-
jected it to their executions, as well in the hands of such pur-
chaser as the corporation itself.
For what is a lien ? what is its nature and operation ? It is a
*441
2 SOUTH.] FEBRUARY TERM, 1819. 517
Stansbury r. Patent. Cloth Manufacturing Co.
French word, and originally signifies a string, tie, or l>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<rt. 94. ,
*451
2 SOUTH.] FEBRUARY TERM, 1819. 529
Newbold's Executors v. Lamb.
sumption that what an honest man hath attested under his hand
is true ; that when he says the instrument was sealed and deliv-
ered in his presence the presumption is that it was so sealed and
delivered. But when the instrument itself does not in the body
of it purport to be a sealed instrument, when it is not in the
form of a bill, bond or other obligation usually under seal, and
when the attestation says nothing about sealing and delivery,
this presumption fails. This instrument does not purport to be
sealed ; the witness has not said that it was sealed and delivered
in his presence; there is nothing in the whole writing importing
any such thing. The scroll may have been made after the at-
testation as well as before, and indeed, judging from the face of
the instrument only, the probability is so, for the attestation is
not according to the usual form, the common practice of ,men in
similar cases, but wholly different from it. (a) Can we, then,
make this dead man say what he never did say when he was
living ? can we make him prove, now that he is dead, what, per-
haps, he could not prove if he were here present in court ? I
think not.
It is of high importance to keep up the distinction between
instruments sealed and not sealed ; they are different in their
nature and in their effects, and before they can with safety IK*
confounded together, our whole system of law must be new mod-
eled. Indeed, it may with safety be said that the statute itself,
upon this subject, is a dangerous innovation upon the settled
principles of our law, without an adequate object. Though I
have great reluctance to impede the recovery of money where it
is justly due, yet I cannot think it justifiable to break down
gen*eral principles to accommodate particular cases, and there-
fore am of opinion that
The poatea must be delivered to the defendant.
SOUTHARD, J.
My view of this question differs somewhat from that cf the
rest of the court. When a subscribing witness is dead or absent
(a) Force v. Craig, 9 Hal. 979.
*452 34
530 NEW JERSEY SUPREME COURT. [5 LAW
Chamberlain v. Letson.
it is proper to prove his handwriting, and proof of his hand-
writing is prima facie proof of everything which appears on the
face of the instrument sufficient to put the other party on his
defence, (a) When, therefore, the proof of Coate's handwriting
was made, I think the bill ought to have been submitted to the
jury, for them to determine whether the seal was upon it when it
was executed ; and the court ought carefully to have instructed
the jury that, in this action, proof of the seal was a necessary
part of the plaintiff's case, and that unless they were satisfied
from the evidence that the bill was sealed when it was executed,
and had not since been altered, they ought to find for the
defendant.
Rule for new trial granted.
JESSE CHAMBERLAIN v. JOHN LETSON.
1. Parol evidence admitted to explain ambiguity in lease and show what is
held under it. (6)
2. Verdict against evidence and the charge of the court.
In trespass.
The opinion of the court was delivered by the chief-justice.
KlEKPATRICK, C. J.
This cause was tried at the Middlesex circuit in June last, and
a verdict rendered for the plaintiff for $30. In September term
there was a rule to show cause why there should not be a new
trial because the verdict was contrary to evidence, and also
because it was contrary to the charge of the court. And the case
is now submitted without argument.
(a) Den v. Van Houten, 5 Hal. 270 ; Kingwood v. Bethlehem, 1 Or. 222.
(b) Hand v. Ho/man, 3 Hal 78; Den v. Oubberly, 7 Hal. 309; Nevius v.
Martin, 1 Vr. 468 ; Jackson v. Perrine, 6 Vr. 144 ; Opdyke v. Stephens, 4 Dutch.
84; FuUer v. Carr, 4 Vr. 157 ; McLaughlin v. Bishop, 6 Vr. 512 ; Moore v.
Moore, Coxe 376 ; Hoisted v. Meeker, 3 C. E. Or. 136.
2 SOUTH.] FEBRUARY TERM, 1819. 631
Chamberlain r. Letson.
At the trial the plaintiff, in support of his action, gave in
evidence a lease from the defendant for a house and lot of land
containing three acres, be the same more or less, situate at or near
Raritan landing, in the township of Piscataway ; and the only
question was whether this lease contained the lands upon which
<he trespass was committed.
*It appeared in evidence that at the time of making the lease
John Letson, the defendant, was in possession of the house
demised and about seven acres of land ; that the house and
house-lot were situate on the north side of the road there, but
that the principal part of the land lay on the south side thereof
in one body, and not separated by any fence. And under these
indefinite words of the lease, describing the lot to consist of
three acres, be the same more or less, the plaintiff claimed the
whole seven acres, (a)
The defendant then called several witnesses, who testified that
these seven acres now claimed by the plaintiff under this lease
originally consisted of two lots ; that these lots were purchased
In* the defendant separately, at different times and of different
persons that after they came into his hands the one still con-
tinued to be called the tavern-lot, and contained about three
Acres, and the other to be called by the name of the person from
whom it was purchased, and that there was still to be seen the
remains of an old ditch, or a range of stumps, marking the line
which originally separated them ; that when the plaintiff was
about to take this lease this line was distinctly pointed out to
him and the lot to be included in the lease, containing, together
with the house-lot, three acres, more or less, particularly shown.
And it was further testified by the person who drew the lease
that the parties were present when instructions were given for
the drawing of it ; that they, or one of them, said they could
not then give the lines exactly, but that it was not necessary to
be particular in that respect, as Letson held under separate deeds,
(o) See Miller v. Chetvood, 1 Or. Ok. 199; Coute v. BoyUs, 3 Or. Ck. tit;
Weart v. Rose, 1 C. E. Or. S90 ; Clark v. Carpenter, 4 C. E. Or. SS8 ; National
Oo. v. Bruner, 4 C. E. Or. SSI ; McEowen v. Lewis, Dutch. 451.
*453
NEW JERSEY SUPREME COURT. [5 LAW
Merritt v. Johnson.
which would always sho\\ where the line intended was and what
the lease euntained.
To all this explanatory testimony the plaintiff objected, saying
that the lease must speak for itself and could neither bo enlarged
nor restrained by parol proof; and upon the success of this ob-
jection he seemed to rely for his success in the cause; for the
tarts thus proved by the plaintiff stood wholly uneontnulietcd.
It was perfectly clear, however, that the testimony was admissi-
ble upon the strictest rules ; (a) and even if it had been less so 1
should have thought myself bound to admit it, because the very
same cause of action had once been trial before a justice, ami
brought up here by oertioran upon this very question ; the jus-
tice, on the trial before him, had rejected this testimony, and for
that cause the judgment was reversed here.
*It was attempted, by way of charge to the jury, to explain
the ground upon which this testimony was admitted, and to show
the legitimate consequences of it in the determination of the cause.
They, however, it seems, thought differently on both points, and
found a verdict for the plaintiff. And in doing so I am satisfied
they have mistaken both the law and the fact, and that therefore
the verdict must be set aside and a new trial granted, if the party
shall think proper to take a new trial.
New trial granted.
JOHN DEN, ex dem. ABRAHAM MERRITT, t>. 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
<arefnlly and very skillfully examined and cross-examined touch-
la) Thv Hiarg* tomoanttA on, SM r. J/uwf, i Or. Ck. 568.
455
534 NEW JERSEY SUPREME COURT. [5 LAW
Den v. Johnson.
ing these matters, and touching all the circumstances that could
be brought to bear upon them. The case was then very ably-
summed on both sides, and with a very few words, by way of
charge, from the bench, was submitted to the jury.
" It was stated to the jury, in the charge, that in examinations-
of wills the sanity or insanity of the testators was always a ques-
tion of fact to be decided by the jury, to be decided by them
upon the whole evidence according to the plain principles of
common sense unembarrassed by technical language or unin-
telligible rules ; that after probate the sanity of the testator was.
always to be presumed in favor of the will, the insanity always-
to be proved by him that alleges it ; that the terms ' sound and
disposing mind and memory/ so commonly used on this subject,,
stand opposed not only to idiocy and lunacy but to all derange-
ment of mind occasioned by melancholy, grief, sorrow, misfor-
tune, sickness or disease ; that it is true that every discomposure
of the mind by these causes will not render one incapable of
making a will ; it must be such a discomposure, such a derange-
ment as deprives him of the rational faculties common to man,,
that sound signifies whole, unbroken, unimpaired, unshattered by
disease or otherwise ; that a ' disposing mind and memory ' is a
mind and memory which have the capacity of recollecting, dis-
cerning and feeling the relations, connections and obligations of
family and blood ; that though it had been sometimes said, as.
had been stated from the books, that if one could count -ten, tell
his name, say the day of the week, or even ask for food, it is a
sufficient evidence of a disposing mind, yet such sayings, *though
they show that wills are not lightly to be set aside on sugges-
tions of incapacity, can and ought to have but little weight with
rational men, investigating the truth upon their oaths, that if,,
upon the whole, they should be of opinion that the mental
powers of the testatrix were so far enfeebled and broken as that
she could not make a discreet disposition of her affairs herself,,
and that the will in question was devised by other persons and
only assented to by her upon being asked, without the power of
understanding it, then they ought to find for the plaintiff.
" Again. It was stated that though they should find that the
*456
2 SOUTH.] FEBRUARY TERM, 1819. 535
Pen r. Johnson.
testatrix did possess her mind in such a degree that she might
have made a rational disposition of her affairs, yet, if they
should be of opinion, from the whole evidence, that the will was
written without any consultation with or direction from her, and
that from her great weakness and debility she was unable to read
the same, as the plaintiff had alleged, then it was incumbent
on the defendant to prove that it had been fairly read or fully
explained to her, for without that, though it might be her will in
form it could not be so in fact and in truth, and this rule ought
to be insisted on in this case particularly, because Purdy, one of
the executors and devisees in the will named, expressly prohibited
the testamentary witnesses from reading the same to the testa-
trix before she signed it ; if, therefore, under such circumstances,
the defendant had failed in such proof, they ought to find for the
plaintiff. But that when it was said the reading or explanation
of this will ought to be proved it was not intended that this
proof must necessarily be direct and positive, it might also be
proved by such circumstances as would satisfy the minds of ju-
dicious and rational men that it has been, and that in this case
the jurors were to be the sole judges.
" But that if, on the other hand, they should be of opinion
that the testatrix, at the time of signing, so far possessed her
rational powers as to be able to dispose discreetly, and even in
such a state as to be able to read understandingly, then proof
that she actually did read the will or had it read or explained to
her was not necessary, but it was to be presumed, as in all other
cases, and if she had not read it, it was her own fault. With
this charge the jury retired, and having returned into court pro-
nounced a verdict for the plaintiff, and with this verdict I was
perfectly satisfied."
*Iu addition to the case as stated by the chief-justice, the par-
ties agreed upon a report of the evidence as given on the trial ;
but from the opinion expressed by the court, a detail of it is not
supposed to be necessary.
Hornblower and Hahey, for the defendant, in support of the
rule argued : 1. That the presumption of law was in favor of the
*457
536 NEW JERSEY SUPREME COURT. [5 LAW
Den v. Johnson.
sanity of the testatrix, and the legal execution of the will ; that
there was no fact to impeach this presumption, but that all the
evidence tended to prove that the testatrix possessed the testa-
mentary capacity, and that therefore the jury had grossly erred
in their verdict. 2. That the charge of the court was contrary
to law.
Attorney- General answered for the plaintiff.
ROSSELL,, J.
In this action the defence set up by the defendant was the will
of Susannah Bailey, devising the premises in question to the
four children of a deceased sister. And the validity of this will
was the whole matter in controversy, the plaintiff alleging that
the testator at the time of signing that will, such was the violence
of her disease that the hand of death was heavy on her and
rendered her incapable of exercising a sound and disposing mind ;
that the supposed will had been written by the defendant and
one Joseph Purdy, in the kitchen, according to the contrivance
of their own minds, and without any consultation with the testa-
trix, who had never read the will, was incapable of doing so, and
that it had never been read to her. To establish these facts the
plaintiff called a number of witnesses who were present at the
time of the execution of the supposed will, and during the time
of her extreme illness. The chief-justice charged the jury, who
found a verdict for the plaintiff, with which he declares himself
perfectly satisfied.
To this charge of the chief-justice exceptions are taken, and
this motion for a new trial made.
On examining the charge of the chief-justice, it appears to me
to be substantially consistent with the law and the fact. It is
true that some authorities say that if a man is so witless that he
cannot number twenty, tell his own age, nor know his father 01
mother, he cannot make a testament. Yet this, I apprehend, is
only putting an extreme case, merely to show that wills are not
lightly to be set aside for incapacity of the testator, though he
might rather *incline to the weak or foolish amongst men ; foi
*458
2 SOUTH.] FEBRUARY TERM, 1819. 537
Den v. Johnson.
the same author continues : " It is requisite that the testator, when
he makes his will, should be of sound memory and competent
understanding to dispose of his estate with reason." Lovdass
139,140- So in 141, 14' The mere acknowledging of a writ-
ing by a blind man, that it is his will, is not sufficient, unless
there be satisfactory proof that the will had been read over to
him. The same precautions are requisite in the case of persons
who cannot read, or who by sickness are incapacitated to read
the will at the time, (a)
In this case there was also an allegation of fraud in imposing
& will contrived by others on the testatrix. (6) The whole proof
was before the jury ; on this proof, under the charge of the court,
they found a verdict for the plaintiff, with which the judge has
declared himself perfectly satisfied. And I can see no sufficient
reason for disturbing that verdict.
SOUTHARD, J.
Two reasons have been principally relied on for setting aside
this verdict misdirection of the court in matter of law, and
error in the jury in matter of fact, upon the weight of evidence.
The objection to the charge of the court applies to that part
in which the judge explained the words " sound and disposing
mind and memory," but principally to the definition of the word
sound, (c) The cause seemed to turn upon the proper construc-
tion and application of those words, and therefore a minute ex-
planation of their meaning was given. In forming our opinion
of this reason it is fair as well as safe to look through the whole
oharge, at least so much of it as relates to these terms ; its cor-
rectness is to be determined by the whole, taken together.
(a) Sufern v. Butler, S C. E. Or. 20, 4 C. E. Or. 02 ; Hyer v. Little, 5 C. E.
Or.44S.
(b) Whitenack v. Stryker, 1 Or. Ch. 9; Qoble v. Grant, 2 G.\ Ch. 629; Will
of Nancy Maxwell, 4 Hal. Ch. 251; Lynch v. dement*, 9 C. E. Or. 4SI ; Hunt
v. Hunt, 2 Beas. 161 ; Low v. Williamson, 1 Or. Ch. 82.
(t) Den v. Vandevt, post 660 ; Lowe v. Williamson, 1 Or. Ch. 82 ; Andrea
v. WeUer, 2 Or. Ch 604; Den, TrumbuU v. Gibbons 2 Zab. 117 ; Turner v.
C heeseman, 2 McCart. 243; MaUerof Vanaukcn, 2 Stock. 187.
538 NEW JEESEY SUPREME COUKT. [5 LAW
Den v. Johnson.
The chief-justice first explained to the jury the meaning and
import of the word sound by itself; he then tells them that " a
disposing mind and memory" is a mind and memory which
have the capacity of recollecting, discerning and feeling the re-
lations, connections and obligations of family and blood. And
these definitions I take to be accurately true. After explaining
the separate meaning of the words in the passage he connects-
them together, and giving their united result, he adds : " If, upon
the whole, the jury should be of opinion that the mental powers
of the testatrix were so far enfeebled and broken as that she
could not make a discreet disposition of her affairs herself, and
*that the will in question was devised by other persons and only
assented to by her on being asked, without the power of under-
standing it, then they ought to find for the plaintiff." A result
more true could not have been given, a result more favorable to
the defendant ought not to have been desired.
Should it, then, even be admitted that in describing the force
of the word sound by itself, too strong a language has been used,
still I do not perceive that it affords good cause for a new trial.
The definition of the testamentary capacity taken together is
clear, explicit and true.
In encountering the second reason the counsel for the defend-
ant have no ordinary task to perform. It is common and proper
to set aside a verdict which is clearly and conclusively against
the weight of the evidence and with which the court who tried
the cause is dissatisfied. But where the case turns on the opin-
ion which shall be entertained of the testamentary capacity and
the court is perfectly satisfied with the verdict, it is seldom, per-
haps never, found that a new trial is granted, and such is the
present case.
The case presented by the chief-justice furnishes no proof that
the jury has erred; and if we depart from his state of the facts,
and look into the evidence as agreed upon by the parties, the
proof is not increased. The counsel for the defendant have
stated several points on which they supposed that there had been
either a great misapprehension or a disregard of the evidence ;
but it is to be remarked that on each of these points there was a
*459
2 SOUTH.] FEBRUARY TERM, 1819. 539
Van Doren r. Everitt.
contradiction between the witnesses. In such circumstances
much, nay, everything, must have depended on the character and
credibility of the witnesses, and on those matters of which the
jury were the competent and proper judges. I am not, therefore,
prepared to say that I find cause for a new trial.
BY THE WHOLE COURT Let the rule be discharged.
*C. VAN DoREtf and H. VAN DOREN v. T. S. EVERITT.
1. Lease by guardian voidable, but is confirmed by an act of the ward, ex-
pressing his assent, after he is twenty-one.
2. Tenant has a right of entry on the land, after expiration of the lease, in
order to remove the usual crops, unless there be agreement to the contrary.
This cause was tried in the Middlesex circuit in June term,
1817. The case made out on the trial was this : Benjamin
Doughty, as guardian of Thomas S. Everitt and his sister, on
the 10th of February, 1813, made a lease of their lands to the
plaintiffs for the term of two years from the 1st of April then
next, containing special agreements for particular privileges and
duties (as per lease). The defendant attained his age of twenty-
one years on the 22d of July, 1814. The plaintiffs continuing
in possession, under their lease, the defendant gave them notice
in the usual form to quit &c., at the expiration thereof, but they,
notwithstanding, on the last days of March or the first days of
April, 1815, or perhaps partly on all these days (for there is a
difference as to this matter among the witnesses), sowed part of
the said lands with oats, and when the harvest-time came the de-
fendant cut and carried away the crop. There was evidence also
of the quantity and value of the said crop so cut and carried
away.
Upon this state of the case there was a motion for a nonsuit.
1. Because the lease being for a longer time than the infancy of
*460
540 NEW JERSEY SUPREME COURT. [5 LAW
Van Doren v. Everitt.
the ward, it is void ; and if not wholly void, it is so, at least,
after the ward attained his age. 2. Because the interest of the
plaintiffs in the said lands being certain and determinate, it was
their own folly to sow after the expiration of their term, or even
at the close of it, without covenants of ingress and egress for
taking of the crops.
But by the court. 1. Though the lease of a guardian extend-
ing beyond the infancy of his ward should be deemed to be void,
yet if the ward, after he attain his age, so far assents to the
terms of the lease as to let the tenant spend his labor and money
on the land, he shall not afterwards avoid it by entry. In this
case there is evidence of the defendant's recognition and assent
in his issuing notice to quit, according to the 'terms of the lease,
and that long after he came of age. This evidence must be left
to the jury.
2. As to the second reason. If a man rent lands for two
years he has a right to two courses of crops ; and though one
should not be taken off the land at the expiration of the term
(as must ne*cessarily be the case), yet he has a right without
special covenants to enter and take the same when it is ripe. If
he enters in the spring, as is the custom, and then sow his spring
crop for that year, and in the autumn his winter grain, and so
the next year also, though the winter grain of the second year
will not be ripe till July, long after the expiration of his lease,
yet he shall have a right' to enter and take it. But if, upon the
presumption of right, he should in the third spring say in
March, just before the expiration of his lease sow a summer
crop, as oats or barley, he cannot enter to take this, because it
would be giving him the product of three years instead of two.
Upon general principles, therefore, these plaintiffs would not
have been entitled to the crops in question.
But in this case there are special provisions in the lease which,
I think, may be construed so as to give the liberty cf putting
in oats in the spring of 1815 instead of the rye, which ho might,
of common right, have sowed the preceding autumn ; and being
capable of this construction I shall leave it to the jury to con-
sider whether, from the common custom of the country and from
*461
2 SOUTH.] FEBRUARY TERM, 1819. 541
Van Doren v Everitt
the expressions contained in the lease, this was not the true in-
tent of the parties.
Both these questions, therefore, must be left for the considera-
tion of the jury, taking the law as I have now stated it, and the
fact as they shall find it to be made out by the evidence.
The defendant then called sundry witnesses as to the time of
sowing the oats and as to the quantity and value thereof. The
cause was then submitted to the jury after a few words by way
of charge, recapitulating what had before been said on the
motion for nonsuit, and there was a verdict for plaintiffs for
$72.50, with which I saw no reason to be dissatisfied.
The lease let the farm " for the term of two years from the
first of April, 1813," for the rent of $65 per year, to be paid on
the first of April each year ; and among other conditions was
one in the following words : " The said Vandorens, the first
year, are to plant the field next to the barn southward, and to
sow the same with rye or oats ; and to sow the corn-ground next
the woods with oats and clover-seed which clover-seed said
Doughty and Everitt are to find. The second year said Vando-
rens 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, if there is any to gather on the
place."
*The following reasons for setting aside the verdict and grant-
ing new trial were filed :
1. Because the court refused to nonsuit the plaintiffs. 2. Be-
cause the construction of the lease was submitted to the jury
instead of being decided by the court. 3. Because the court
erred in the charge to the jury. 4. Because the verdict was
against law. 5. Because the verdict was against the evidence.
Ewing, in support of the rule.
Hardenbergh, contra.
KlRKPATRICK, C. J.
Upon this case I observe 1. A guardian appointed by the
orphans court in one of our counties, under the statute, supplies
*462
542 NEW JERSEY SUPREME COURT. [5 LAW
Van Doren v. Everitt.
the place of both a guardian for nurture and a guardian in soc-
age in the ancient law. Such guardian has not only the custody
of the person but also the care of the land, (a) This, it is pre-
sumed, will not be questioned.
A guardian in socage, then, has not only the care of the land
but also an interest in it. He is said to be Dominus pro tempore,
and to have the seizin of the land, una cum exitibus. He may
let it for years and the lessee may have an ejectione firmae there-
upon. This is settled in the case of Shoplane v. Royderer, Oro.
Jac. 55, 99.
Such guardian, then, not having a bare authority only, but
also an interest in the land, he may make leases thereof as any
other having" interest may do ; and if he make a lease to continue
beyond his guardianship it is not absolutely void upon the infant
coming of age, but voidable only. And consequently the infant
may, at that time, either affirm the lease or avoid it at his pleas-
ure. (6) If he accept of rent or do any other act or acts, show-
ing his assent thereto, it is construed to be an affirmance. In
one case the infant, after his age, saying to the tenant, God give
you joy of it, was held enough to confirm the lease. Bacon
"Leases" &c. 19.
2. It is readily admitted that according to the strictness of the
ancient law as laid down by Littleton in section 68, if the lessee,
for years or other term certain, had sown the land, and the term
had expired before the crop was ripe, he could not enter to reap
it and take it away. It was said to be his own folly to sow.
But then, this rule, even in England, admits of exceptions,
arising from the custom of the country ; and such custom, too,
*has been adjudged to be good and reasonable, and that whether
the lease were by deed or by parol only.
In this state I have always understood it to be the universal
(v.) State v. Cheeseman, ante 445 ; Ten Brook v. McColm, 7 Hal. 97 ; Matter
of Van Houten, 2 Gr. Ch. 230.
(b) Snook v. Sutton, 5 Hal. 133 ; Williams v. Mabee, 8 Hal. Ch. 500; Farley
v. Woodburn, 2 Stock. 96; Porch v. Fries, 3 C. E. Gr. 204; see Antonidas v.
Walling, 3 Gr. Ch. 42; Todd v. Jackson, 2 Dutch. 526; Rockwell v. Morgan, t
Beas. 384 ; Ownes v. Ownes, 8 C. E. Gr. 60.
*463
2 SOUTH.] FEBRUARY TERM, 1819. 643
Van Doren t>. 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 <tc. v. Haight, Sax. 393 ; Hendricluon v.
Ivin*, Sea:. 563.
544 NEW JERSEY SUPREME COURT. [5 LAW
Van Doren v. Everitt.
This stipulation of itself, therefore, amounts to a covenant that
they shall enter and reap it after that time, unless we can suppose
they were to sow it for the benefit of the landlord, and not for
their own, a supposition too absurd to be seriously maintained.
*3. The construction of the words of the lease which, it was
said, gave permission to the tenants, in the second year, to sub-
stitute one crop in the place of another, that is, instead of sow-
ing rye in the autumn to sow oats in the following spring, could
not be made with certainty and precision in any other way than
by referring them to the course of husbandry and the custom
among farmers in that particular part of the country. It was
stoutly maintained that the sowing of the corn-ground with oats
in the second year must be intended a sowing with winter oats in
the autumn, and not with the common oats in the spring, when
the lease must have expired, or nearly so. This winter oats was
altogether a new thing to me, but I thought I had heard of oats
being sown in the autumn or winter in England, and therefore
did not choose to decide the matter conclusively myself, but rather
after having first stated the general import of the words when
applied to the different positions taken by the parties, to leave it
to the jury, who were perfectly acquainted with the nature and
succession of crops, to apply them according to the subject-mat-
ter, and by that means to find the true meaning of the instru-
ment. The meaning of the words, simply considered, was clear
enough ; the state of things upon which they were to operate
was the difficulty, and this was a matter of fact to be proved by
the evidence and to be found by the jury. And besides all this,
as to the substance of the thing, it could make no difference to
the landlord whether these tenants entered to reap their crop of
oats or their crop of rye.
Upon a review of the whole matter I am satisfied the law was
correctly declared, and the verdict justly found. And therefore
Let the rule to show cause be set aside.
ROSSELL, J.
From the report of this case by the chief-justice it appears that
Benjamin Doughty, guardian to Thomas S. Everitt and his sister,
*464
2 SOUTH.] FEBRUARY TERM, 1819. 545
Van Doren c. Everilt
leased on the 10th of February, 1813, the farm of his wards
for two years from the 1st of April, 1813, to the plaintiffs. By
special provision in the said lease the Van Dorens were entitled
to plant certain fields, therein described, and sow the same with
a crop of rye or oats ; that in July, 1814, the defendant, Everitt,
attained the age of twenty-one years, the Van Dorens then being
in possession of the premises under the lease. Everitt gave them
notice in the usual form to quit at the *expiration thereof; that
on the last days of March, 1815, or on the first days of April,
or partly on all these days, the plaintiffs (Van Dorens) sowed a
part of their lands with oats, which at the time of harvest were
cut and carried away by the defendant. On the trial a motion
was made for a nonsuit, which was overruled, and the jury gave
a verdict for the plaintiffs for $72.50, with which the judge was
satisfied. There is now a motion for a new trial, with an allega-
tion that the chief-justice refused to nonsuit the plaintiffs, and
left the construction of the law to the jury, erred in his charge to
them, and that they gave a verdict contrary to law and evidence.
On examining the reasons of the chief-justice for refusing to
nonsuit the plaintiffs, and his charge to the jury on the law and
the evidence, I consider them well founded in law and equity.
The lease from the guardian, who had the sole charge of the
estate of his wards, was certainly good until those wards, or one
of them, should arrive to full age ; .whether it should be so for
the remainder of the term depended on him who was entitled
to the estate ; should he receive the rent after he came of age, it
would be a recognition of the lease, and he shall be bound by it.
Plow. lf,18. From the authority and interest which the policy of
the law hath invested guardians with, a guardian may do
.several acts which will bind the infant, such as making leases.
" And the infant, when he comes of age, may, by acceptance of
rent or other act, if he thinks proper, make such leases good ami
unavoidable." 2 Bac. Abr. 682, 683.
As to the lease itself. There was a special provision that the
lessees might sow certain fields with rye or oats. They cho>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
<?r. 116; Oilman v. Lewis, 4 Zab. 246; Maekay ads. Gordon, 5 Vr. *86.
*469
550 NEW JERSEY SUPREME COURT. [5 LAW
Olden v. Hallet.
neither will I argue it, but rather content myself for the present
with saying that I think these demurrers must be overruled.
The real defence in the cause is the discharge under the above-
recited act of the state of New York. And the demurrers to the
third, fourth and fifth pleas, pleaded to the second count in t'he
declaration, bring up the validity of that discharge. And this,
again depends upon the constitutionality of the act itself.
It has heretofore been decided in this court, especially in the
case of Vdnniixem and Clark v. Hazdhurst, that by the constitu-
tion of the United States congress has the exclusive power of
making laws upon the subject of bankruptcies ; and that all laws-
which discharge the debtor from his debts, without payment, are
bankrupt laws, in the true meaning of that instrument, (a) This-
act of the state of New York, therefore, being a law which dis-
charges the debtor from his debts, without payment, is a bank-
rupt law, and, as such, unconstitutional and void.
Again. It has been decided in this court that a law discharg-
ing a debtor from his debts, without payment, if not a bankrupt,
law, is a law impairing the obligation of contracts, the power of
making which is, by the said constitution, expressly forbidden
to the individual states. If it should be thought, then, that this-
act of the state of New York is not a bankrupt law, it is a law
impairing the obligation of contracts, and, as such, is unconstitu-
tional and void.
I am of opinion, therefore, that the demurrers to the third,,
fourth and fifth pleas pleaded to the second count in the declara-
tion, are well taken, and therefore that the said pleas be over-
ruled.
ROSSELL and SOUTHARD, JJ., concurred in overruling the
said pleas.
(a) 1 South. 192 ; Ballanline v. Haight, 1 Harr. 196; Conkling v. Haight, 1
Harr. %01 ; Leggett v. Barton, 11 Vr. 85.
2 SOUTH.] FEBRUARY TERM, 1819. 551
Den v. Moore.
*JOHN DEN, ex dem. THE STATE BANK AT NEW BRUNSWICK,
v. RYNEAR MOORE.
In ejectment, where plaintiff claims under a mortgage, defendant may show
that he is insane, and that the bond and mortgage were fraudulently obtained
and given to suppress a prosecution for forgery ; in such case a verdict with
which the judge is satisfied not disturbed.
In ejectment.
This case was argued on a rule to show cause why a new trial
should not be granted.
The action was tried at the Somerset circuit, in April, 1818,
and at the succeeding term the following report was made by the
chief-justice.
After confession of lease, entry and ouster the plaintiff gave in
evidence a mortgage of the lands in question, dated August 10th,
1813, made by Moore, the defendant, to the bank, to secure the
payment of a bond of $5,450.52, with interest &c. ; he gave in
evidence, also, the said bond, and the possession of the defendant
being admitted, he then rested.
The defendant, then, by way of defence, offered to prove
1. That one John C. Moore, the son of the said defendant, had
discounted at the bank seven promissory notes on which the name
of the defendant, either as endorser or drawer, and also the name
of one John Ryder, the father-in-law of the said John C. Moore ;
that this bond and mortgage were taken as collateral security for
the payment of these notes ; that at the time of taking the same
the -bank had been informed and well knew that the name of the
said defendant,, as well as of the said John Ryder on the said
notes, was forged, and not genuine and true ; that at the time of
this transaction, and long before and after, the said defendant
had labored under a derangement of mind which rendered him
incapable of transacting business with discretion and understand-
ing ; that under these circumstances the said bank, by very extra-
ordinary measures (particularly stated), had procured this bond
*470
552 NEW JERSEY SUPREME COURT. [5 LAW
Den v. Moore.
and mortgage, and that therefore it ought to be considered as
void.
2. That the said bank had caused the said John C. Moore to
be arrested for forgery in endorsing the name of the said defend-
ant and John Ryder on the said notes, or in passing them, know-
ing the said names to be forged ; that this bond and mortgage
were taken from the father as a composition for the crime of the
son, and that the son was thereupon discharged.
To the admission of this evidence it was objected 1. That
*the court cannot go into the consideration of the bond and
mortgage, and inquire for what they were given. 2. That it is not
admissible for a man to stultify himself in order to avoid his
deed. And 3. That the bank existing in contemplation of law
only cannot be guilty of crime, such as the compounding of
offences &c. But after stating the law upon these questions the
court overruled the objection and admitted the witness to be
sworn. Andrew Parsons, the witness, was then sworn, and after
inspecting the seven notes, said, in substance, that he was a clerk
in the bank at the time of this transaction, and that he under-
stood that the bond and mortgage in question were taken as pay-
ment for the same, that some of the officers of the bank had en-
tertained suspicions respecting the fairness of these notes, so far
as related to the name of John Ryder ; that he was sent to Ry-
der to make inquiry concerning them ; that he exhibited to him
the notes on which his name was, and that Ryder denied the
writing ; that at his return a special meeting of the directors was
called ; John C. Moore was taken into custody on a warrant and
brought before them, and being informed that Ryder had denied
his name, he said if he could see Ryder he would acknowledge
the notes ; that he, the witness, was again sent to Ryder's, in
company with one of the directors, on the same business, but
that Ryder again denied his name ; that after his return there
was another meeting of the board ; that he was then sent, in
company with James C. Van Dike, one of the said directors,
and the said John C. Moore, in the custody of the constable, to
the defendant's house, which was five or six miles distant, to see
whether the defendant would acknowledge the notes ; that they
*471
2 SOUTH.] FEBRUARY TERM, 1819. 553
Den v Moore.
set off on this expedition sometime after twelve o'clock at night
and got there a little before daylight ; that when they approached
the house John C. Moore requested the liberty of entering alone,
that he might prepare his father, as he was in a low state of
health ; that this liberty was granted to him ; that he did enter
alone and continued there some considerable time, then came to
the door and told them he believed it would do now, his father
would acknowledge them, and then they all entered the house ; that
the defendant appeared to have just risen from his bed, was very
silent and said little or nothing ; that the witness told over to
him the notes on which his name was (I think four in number),
and asked him if he acknowledged the signature, and that he
said to each " yes ; " that *he then presented to him the other
three of the said seven notes which had not his name on them,
and he endorsed them in his presence ; that he has seen the de-
fendant write several times and believes that his name on the
four notes first mentioned to him and acknowledged by him was
not his handwriting ; that when he presented to him the three
notes last mentioned for his endorsement, he did not inform him,
the defendant, that Ryder had denied his name on the same or
that it was supposed to be a forgery ; that upon these acknowledg-
ments and endorsements being made John C. Moore was dis-
charged, as he believed, from the custody of the constable,
permitted to go home, and no further steps taken concerning
him. He further stated that Ryder came to the bank (I think)
the next morning and acknowledged his hand on (I believe) four
of the said notes, but that he, the witness, did not believe that
the name acknowledged was his handwriting, nor did he believe
so when he exhibited them to Rynear Moore, the defendant. He
further stated that he had no conversation with the defendant
about the liberation of his son, nor had he any authority from
the bank to make any proposals concerning it j.that this trans-
action at Moore's was |?etween the 7th and loth of August, and
that the bond and mortgage were taken some days afterwards.
He then stated that when the notes became due the bank went
on to protest them, give notice of non-payment &c., as usual,
the bond and mortgage notwithstanding, and that an action had
*472
554 NEW JERSEY SUPREME COURT. [5 LAW
Den v. Moore.
been brought on them against the defendant and a verdict ren-
dered in his favor before this ejectment was instituted.
It was then moved to overrule this whole testimony as unlaw-
ful and irrelevant in the defendant's defence, but the court over-
ruled the motion.
Other witnesses were then called to disprove the handwriting
of the defendant on the four notes above mentioned, and admitted
and sworn.
The defendant then called Dr. William M'Kissack to prove
the state of the defendant's mind during the summer and au-
tumn of the year 1813, which was the year in which this trans-
action took place. This was objected to, on the ground that the
witness ought to be confined in his testimony to the very day
and time of the making of the bond and mortgage, because, even
admitting a general state of lunacy, he may have had lucid
intervals.
*But by the court. It is true that though a general state of
lunacy or derangement of mind should be established to the sat-
isfaction of the jury, yet, if the defendant hath had lucid inter-
vals in which he hath had the full exercise of his rational facul-
ties, in which he could clearly discern his rights, his duties and
his obligations, and fully understand the effect of what he had
done in the acknowledgment of these notes, and of what he was
about to do in the giving of this bond and mortgage, then his
acts done during such lucid intervals will bind him as effectually
as if he had labored under no such malady. But then, I appre-
hend it will be sufficient for the defendent to prove the derange-
ment generally, and then it will be incumbent on the plaintiff, if
he would make advantage of it, to show the lucid intervals, (a)
Dr. M'Kissack was then examined, and after him a number
of witnesses on both sides of the question, as to the defendant's
state of mind about the time of this transaction, and long before
and after, and also as to his state of mind on the day and at the
very time of the making of this bond and mortgage.
(a) Whitenack v. Stryker, 1 Gr. Ch. 8 ; Den, Trumbuli v. Gibbons, 2 Zab. 117 ;
Goble v. Grant, 2 Gr. Ch. 629; Turner v. Cheesman, 2 McCart. 243; Den v.
Clark, 5 Hal. 217 ; Yaugrr v. Skinner, 1 McCart. 389; Andress v. Weller, 2 Gr.
Ch. 604; Dixon v. Dixon, 7 C. E. Gr 93.
*473
2 SOUTH.] FEBRUARY TERM, 1819. 565
Den r. Moore.
The evidence was then summed up with great ability on both
sides, and to what I thought a very intelligent jury.
The questions of law which would necessarily present them-
selves in considering of the verdict having already been consid-
ered and resolved in the course of the trial, and the facts pre-
senting themselves to my mind in a very strong point of view, I
thought it most prudent to give no charge to the jury.
A verdict was rendered for the defendant, and, I thought,
rightly.
In making out this case I have stated the evidence so far only
as appeared to me to be necessary to bring into view the decisions
of the court as to the admission of testimony, and the questions
necessarily connected with it, but I have not thought it necessary
to go further, as the court, I believe, will never hear an argument
on the merits or testimony reported in this way, in order to im-
pugn the verdict of a jury.
Scott and R. Stockton maintained that the rule should be made
absolute. 1. Because the evidence respecting the consideration
of the bond and mortgage was inadmissible. Swif. Em. 2^8 ;
2 Johns. 177 ; 8 Johns. 375; 1 Johns. 139; Cowp.47 ; 2 Wils.
75 ; 1 Bur. 396. 2. Because the jury had before them no evi-
dence of fraud to justify their verdict.
*F. Frelinghuysen and the Attorney-General, for the defend-
ant, contended 1. That the consideration was properly inquired
into. Coxe 178 ; 8 Johns. 54; Pow. on Mortgages 65. 2. That
the case abundantly proved that the defendant was circumvented,
and executed the bond and mortgage in ignorance of the facts,
especially of the forgery of Ryder's name. 3. That justice had
been done, and therefore a new trial ought not to be granted.
2 mis. 306 ; 2 Salk. 644, 646; 8 Johns. 271. 4. That there
was contradictory evidence, and the judge had certified that he
was satisfied. 6 Bac. 664 ; & Str. 11J& ; Penn. 947.
SOUTHARD, J.
I do not think it necessary to recapitulate the facts. They arc
*474
556 NEW JERSEY SUPREME COURT. [5 LAW
Den v. Moore.
familiar to the recollection of those who feel an interest in the
cause.
The first question to be considered is the competency of the
evidence respecting the consideration of the bond and mortgage.
Their validity was necessary to justify a recovery of the premi-
ses by the plaintiff, and the defendant offered to prove that they
were given under an agreement to discharge John C. Moore, who
Avas in custody under an accusation of forgery, and were extorted
from the defendant by fraud, device and concealment at a time
when, by the visitation of God, he was deprived of his reason, (a)
Three objections were taken to this evidence. 1. That a
man may not stultify himself in order to avoid his deed. 2.
That the bank, who is lessor of the plaintiffs, as it exists only in
contemplation of law, cannot be guilty of crimes such as com-
pounding of felony. 3. That the consideration of the bond and
mortgage could not be inquired into. The chief-justice, however,
admitted the evidence.
Upon the argument of this rule the first two objections were
not noticed, but the counsel of the plaintiff relied altogether
upon the third. That is the only one, therefore, to which I shall
direct the attention. And in considering it, it is necessary to re-
mark that the evidence was not offered to prove that there was
no consideration for the notes or for the bond and mortgage,
which were executed as collateral security for the notes. There
is no doubt that John C. Moore received from the bank the full
amount for which they were given, and if his father, the defend-
ant, without fraud and imposition, executed them as a surety
and to secure the payment, they were unquestionably valid ; the
*consideration was amply sufficient to sustain them. We may,
therefore, lay out of view all that was said in argument, and all
the authorities which were read to satisfy the court that a writing
under seal always imports in itself a consideration, and that it is
not legal and proper to defeat it by proving that no consideration
existed.
Our inquiry on this subject resolves itself into two questions.
(a) See Price v. Summers, post 578.
*475
2 SOUTH.] FEBRUARY TERM, 1819. 557
Den o. Moore.
In an action of ejectment, where the plaintiff claims title under
a mortgage, is it proper for the defendant to prove that the bond
and mortgage were fraudulently obtained by deception and con-
cealment, or were given to suppress a prosecution for forgery
already commenced ? I think both these questions may be very
safely answered in the affirmative. Whatever will avoid the
bond and mortgage is a competent defence in such a case, and
that which shows a fraudulent or illegal consideration will avoid
them. A bond fraudulently obtained or given to suppress a
prosecution for felony never can be supported in a court of jus-
tice. 2 Wil8. 341, 347; 1 P. Wms. 156, 220.
The counsel seemed to admit, in the argument, that fraud in
the execution of a sealed instrument might be inquired into, but
that fraud in the consideration could not. (a) I do not well
comprehend the grounds of this distinction. The consideration
and execution of such instruments are so united as not readily to
be separated. It seldom, perhaps never, happens that there is
fraud in the one and not in the other. But if this were not so
the law is not as was argued. Fraud reaches through every sub-
ject which it touches ; it invalidates the consideration as well as
the execution of all contracts, and may always be proved. Be-
sides, the evidence in this case was expressly designed to show
that the execution, both of the notes and of the bond and mort-
gage, was induced by imposition and fraud. I think, therefore,
that the court judged rightly in admitting the evidence. Did the
jury correctly estimate it when admitted ? Was there proof of
fraud?
In considering this part of the case it is important to remark
that the defendant attempted to prove that at the time of the
execution of these writings an afflicting dispensation of Provi-
dence had bereaved him of his understanding. His right to
prove this was not questioned upon the argument ; and the state
(o) Accord, Armstrong v. Hall, OKU 178; Mason v. Evans, Coze 189; Dot,
Obert v. Hammel, S Harr. 81; Dm v. McKnight, 6 Hal. S9S ; Den, Wooden v.
Sh(,tweU, 3 Zab. W5 ; Mulford v. Peterson, 6 Vr. 1S7, 1S6 ; but see Rogers v.
Colt, 1 Zab. 18, 704 ; Stryker v. VandcrbUt, 1 Dutch. 4SS ; Garrctson v. Kane, S
Dutch, SOS ; Leigh v. Clark, S Stock, 110; Martin v. Righter, S Stock. 510.
568 NEW JERSEY SUPREME COURT. [5 LAW
Miller v. Stoy.
of the case, the verdict of the jury, and the manner in which the
allegation was met by the counsel leave a full impression that
this part of *the defence was amply sustained upon the trial. It
is;under this full impression that the second point is considered,
and I think it would be useless to spend much time upon it.
The question called peculiarly for the investigation of a jury
and their opinion ought not to be lightly disturbed. The train
of circumstances laid before them from the first suspicion of the
forgery and the mission to Ryder ; to the midnight visit with
the guilty son to the house of the unhappy father and terminat-
ing in the concealment of the forgery of Ryder's name, was
certainly calculated to delude and defraud a firmer mind than
Rynear Moore's in its best moments, much more in its then
feeble and imbecile state. With such evidence before it I should
liave been surprised had the jury come to a different result, and
I think their verdict ought not to be set aside.
I express no opinion upon the evidence of compounding the
felony as a distinct point in this controversy. The facts which
are supposed to prove it form a part, and no inconsiderable part
in that extraordinary detail, which so certainly and unavoidably
led the jury to the true answer to the issue before them.
I think the rule should be discharged and judgment entered
for the defendant.
BY THE WHOLE COURT. Let the rule be discharged.
SAMUEL MILLER v. PHILIP STOY.
1. Debt due under the timber act. (a)
2. Endorsement on the summons.
3. State of demand.
On certiorari.
(a) Thompson v. Burdsatl, 1 South. 170; Crane v. , Coxe 5S ; Goto
v. GUI, Coxe 11 ; Clark v. Collins, 3 Or. 478.
*476
2 SOUTH.] FEBRUARY TERM, 1819. 559
Miller . Stoy.
White and Armstrong, for plaintiff.
Opinion of the court.
SOUTHARD, J.
There was a trial below on the return-day of the summons
and in the absence of the defendant. The state of demand is
in the following words :
" Samuel Miller to Philip Stoy, Dr.
1817. February. To cutting one white-oak tree and tak-
ing the same away without leave, $8 00"
If this was designed as a state of demand in trespass there
*must be a reversal. It is, in many respects, deficient, and does
not at all comport with the style of action, which is debt.
But the plaintiff, no doubt, intended to bring an action of
debt, under what is called our timber act (Pat. 4$), to recover
the penalty for cutting a single tree. If this be so, the name
of the prosecutor and title of the statute ought to be endorsed on
the process, (a) And the state of demand is defective in not
setting out in what right the plaintiff sued whether as owner
or informer ; (6) where the tree was cut ; (c) that the defendant
had neither right nor permission to cut it ; (d) and by what act
of the legislature the suit was authorized, (e)
There must be a reversal.
(o) Oliver v. Larzaleer, post 5 IS; Aclcerson v. Zabriakie, 2 Hot. 167; Dallas
v Hendry, Penn. *97S ; Griffith v. Weal, 5 Hal. SOI.
(6) Williamson v. Carroll, 1 Harr. 217 ; Castner v. Egbert, 7 Hal. S59 ; Bns~
well v. Robinson, 4 Vr. S7S ; Harris v. Moore, Coxe 44 ; v. Gaston,
Coxe 52 ; Jones v. Pitman, 7 Hal. 9S ; Vandeventer v. Van Court, Penn. *169.
(c) Hill v. Carter, 1 Harr. 87; Matthews v. Pemberlon. Penn. *48 ; Kerr v.
Harker, 2 Hal. 349.
(d) See Winter v. Peterson, 4 Zab. 524; Davidson v. Schenek, Vr. 174.
(e) See Anonymous, Penn. *516 ; Thorpe v. Rankin, 4 Harr. 36 ; Qravford v.
N. J. R. R., 4 Dutch. 479.
*477
560 NEW JERSEY SUPREME COURT. [5 LAW
Van Horn v. Hamilton.
WILLIAM VAN HORN v. FRANCIS HAMILTON.
1. State of demand insufficient.
2. Action misconceived, (a)
On oertiorari.
Ryerson, for plaintiff.
Opinion of the court.
SOUTHARD, J.
The summons is "to answer Francis Hamilton and show
cause, if any you have, why a certain execution against said
Francis, in the hands of William Hoppough, constable, in your
favor, issued by Zebulon Sutton, Esq., for $33.41 debt, and the
costs, why they shall not be receipted ; hereof fail not " &c.
On the return-day of the summons the defendant did not
appear, but the plaintiff filed his state of demand and proceeded
to offer his evidence ; and the justice gave judgment for $29.67
debt, with $1.08 costs.
The state of demand filed complains "that the defendant,
Van Horn, had one certain execution in his favor against the
plaintiff, in the hands of William Hoppough, constable, issued
by Zebulon Sutton, Esq. amount, $33.41 debt, besides the costs
on the same which you agreed should be receipted on condition
that the plaintiff should give up to you a certain judgment in
his favor against William Fountain, on the docket of Benjamin
Hamilton, Esq., of about $29, and pay the balance in cash ; then
the said execution against said plaintiff, in the hands of William
Hoppough, constable, was to be receipted ; *all which the said
plaintiff avers he has done on his part, and the defendant hath
refused, and still doth refuse, to receipt said execution accord-
ing to his agreement, to the damage of the plaintiff $50.
(a) Sayres v. Springfield, 3 Hal. 168.
*478
2 SOUTH.] FEBRUARY TERM, 1819. 561
Westbrook v. Van Auken.
1. If upon this state of demand the plaintiff has any claim
he cannot support it in an action of debt. He must recover the
damages he has sustained in an action on the case for a breach
of the contract. Debt, even in the court for the trial of small
causes, cannot be brought except upon "a bond or other
specialty, note of hand, bill of exchange, book account or other
demand founded on simple contract for the payment of money
only" This is not such a contract. But
2. Although the justice in his docket has called it " an action
of debt," yet the summons is not in debt. It is not, indeed, a
summons in any form or style of action with which I am ac-
quainted, and is altogether informal and irregular.
In my opinion the judgment must be reversed.
BENJAMIN WESTBROOK v. EVERT VAN AUKEN.
In action on the " Act to ascertain the toll of millers" &o, the verdict
must show on what offences the conviction is had. (a)
On certiorari.
Attorney- General, for plaintiff.
Opinion of the court.
SOUTHARD, J.
The state of demand claims $63 for twenty-one different vio-
lations of the law, entitled " An act to ascertain the toll of
millers, passed the 25th of May, 1799," and gives the necessary
specifications of time &c. The jury found a verdict " that the
defendant oweth the plaintiff $18 debt, and six cents co-ts."
And the judgment was " for the plaintiff for the said sum of
$18 debt, it being for six several offences, and $6.96 costs."
(o) Whitlock v. Tornpkins, Perm. *273 ; Crawford v. N. J. R. R. Co n 4 Dutch.
479; Clark v. Collins, S Or. 473.
36
562 NEW JERSEY SUPREME COURT. [5 LAW
Oliver v. Applegate.
The objection taken is to the verdict and judgment ; that they
do not specify the offences for which they were given ; and the
objection is well founded. The particular offences on which the
conviction is had should have been specified in the verdict. Penn.
411,412,928,1007; Oro.Jao.953.
Let the judgment be reversed.
*STACY OLIVER v. JOHN APPLEGATE.
When constable sues for goods taken under an execution, defendant may
show that the judgment was voluntary by confession, without affidavit ; and
if it so appear, plaintiff cannot recover, (a)
On certiorari.
%
SOUTHARD, J.
One Thomas Stevens voluntarily appeared before the justice
and confessed a judgment to Isaac Johnson, no affidavit being
made by Johnson to justify or authorize it. On the 22d of
January, 1818, the justice issued an execution and put it into
the hands of John Applegate, the defendant in certiorari, who
was a constable. He did not go to the house of Stevens to make
a levy, but on the 24th of January saw him from home, and re-
ceived from him a list of certain goods which were left in his
possession.
Another judgment, after the service of process, was entered by
the same justice against the same defendant, on the 17th of
January, 1818, the execution put into the hands of Stacy Oliver,
who made a regular levy on and sale of the same goods.
It does not appear by the record which execution was first
issued and came into the hands of the officer, but from the course
(a) Parker v. Origgs, I South. 161 ; Sheppard v. Sheppard, 5 Hal. 252 ; Ely
v. Parkhurst, 1 Dutch. 188 ; Clapp v. Ely, 3 Dutch. 563 ; Skillman v. Applegate,
8 Hal. 62; Carson v. Wilson, 6 Hal. 43; Hall v. Snowhill, 2 Or. 551; Garret-
ion v. Kane, 3 Dutch. 208 ; Sharp v. Young, 2 South. 845.
*479
2 SOUTH.J FEBRUARY TERM, 1819. OG3
Cliver v. Applegate.
of the trial it is to be presumed fairly that the execution came
first to Applegate, and that he made his list of goods before
Cliver made his levy ; and believing that he was in possession
of and entitled to the goods under the writ which he held, he
brought this action against Cliver for taking and selling them.
It is a contest between two constables, each maintaining a right
to the goods in virtue of the execution which he held. Apple-
gate was successful, and recovered $42.25 of damages.
It is objected to this judgment that Applegate had no right to
maintain his suit. 1. Because the judgment which was the foun-
dation of the execution in his hands was void, and could be the
foundation of no rights. 2. Because he (Applegate) never made
-a levy on the goods, nor had them in his possession, but that
Oliver did make a levy and was legally entitled to hold them.
1. Upon the first point it is manifest that the judgment against
Stevens in favor of Johnson was directly opposed to the provis-
ions of our act to prevent the fraudulent confession of judgments.
It was therefore, by virtue of that act, void, not a valid judg-
ment. As such no execution issued upon it could give an
of *ficer such a right of property or possession in the goods of
the defendant as would support a claim against any one who had,
by any means, come lawfully into the possession of them. As
against Cliver, Applegate had no rights.
2. It has, more than once, been decided that an officer need
not remove the goods, but may make the defendant his store-
keeper, at his own responsibility ; it is also true that the mere
fact of seeing the goods when he makes the levy can add nothing
to his rights or responsibilities, (a) It is the possession of the
writ which confers these rights and creates these responsibilities.
They commence when he receives the writ. The goods are bound
from the receipt of it, and the officer, for his own safety, ought
speedily to see and inventory them, and take the necessary mea-
sures for their safekeeping. But if he neglect this it gives a sub-
sequent writ, in the hands of another officer, no preference. Ap-
ia) NtweU v. Sibley, 1 South. SSI; see Lloyd v. Wyckoff, 6 Hal. S26 ; Brcvn-
ter v. Vail, Spen. 57 ; Otidwell v. Fifield, 4 Zab. 150.
*480
564 NEW JERSEY SUPREME COURT. [5 LAW
Oliver v. Applegate.
plegate, if the execution first came to his hands, had a right to
the goods, and no act of Oliver's could divest that right.
KlRKPATRICK, 0. J.
I am not willing to go so far as my brother Southard has gone
in this case, and to say that the judgment against Stevens in
favor of Johnson is void. The act to prevent the fraudulent
confession of judgments does not say so.
If a justice should enter a final judgment without bringing
the defendant's note into court, by process or otherwise, or if
he should enter such judgment by default, without a hearing
upon the merits or without the verdict of a jury, when a jury
had been lawfully demanded by either party, such judgment
would be unlawfully entered, and be voidable by a proper tribu-
nal, but I believe it would not be absolutely void. So here, this
judgment in favor of Johnson being entered without the affidavit
prescribed by the act to prevent the fraudulent confession of
judgments, though unlawfully entered, is not, therefore, abso-
lutely void, but in order to make it so there must be the inter-
vention of some competent judicatory. The subject-matter is
within the jurisdiction of the justice ; he has recorded his judg-
ment upon it, and it is not for ministerial officers, or others who
may think themselves aggrieved, to pronounce it void.
But yet that judgment is not only irregularly and unlawfully
entered, but upon a fair construction of the act it may be con-
sidered as fraudulent also, and, therefore, in its very nature void
*as against bona fide creditors. The defendant in the cause
before us has set up this fraud in his defence and has brought it
before the jury as a matter in pais, as it was proper for him to
do ; for questions of fraud being mixed questions, partly of law
and partly of fact, must always be determined by the jury and
not by the judges ; (a) and the jury have found for the plain-
tiffs, and of course they have found in favor of Johnson's judg-
(a) Den, Inskeep v. Lecony, Ooxe 39 ; Hendricks ads. Mount, post 738 ; Cole v.
Taylor, 2 Zab. 59; Miller ads. Pancoast, 5 Dutch. 250 ; Rtford v. Cramer, 1 Vr.
250; see Van Pelt v. Veghte, 2 Or. 207 ; Cook v. Johnson, 1 Seas. 52 ; Bclford
v. Crane, 1 C. E. Or. 265.
*481
^ SOUTH.] FEBRUARY TERM, 1819. 565
Oliver v. Applegate.
ment and against the fraud alleged. This verdict is manifestly
founded in mistake, for the plaintiff, on the trial, having ad-
mitted that the judgment upon which the execution was issued
had been entered without the necessary affidavit, the jury were
bound by that admission, and such a judgment being, in con-
struction of law, fraudulent, they ought so to have found it. And
whether the law upon this subject was declared and given them
in charge by the justice, or they undertook to decide it for them-
selves, makes no difference ; still it is a verdict against law. If
this proceeding, therefore, were in one of the higher courts, this
verdict, manifestly founded in mistake and against law, would
be set aside.
But inasmuch as the justices do not possess the power of set-
ting aside verdicts and granting new trials, this court, in order
that there may not be a failure of justice, have, in such cases,
interfered and set aside the judgment itself, founded upon such
verdict, leaving it to the party to take such further steps as his
case may warrant. And upon this principle I think this judg-
ment must be reversed.
As to the other question, whether the mere delivery of the
execution to the constable gave him such an interest in the goods
of the defendant, or such a possession of them as to enable him
to maintain trover, (a) I shall not inquire into it at present, the
ground before stated being, in my opinion, sufficient for the re-
versal of the judgment.
ROSSELL, J., concurred in the reversal on the ground that
there was no valid judgment in favor of Johnson.
Judgment reversed.
(a) Cosher v. Peterson, 1 South. S17.
566 NEW JERSEY SUPREME COURT. [5 LAW
Ward v. Folly.
*PETEB WARD v. ABEAHAM FOLLY.
1. A road used as such for forty years and upwards, considered as regularly
laid out, though no record be found, (o)
2. Overseer justified in repairing road, though not assigned to him in writ-
ing by township committee. (6)
On certiorari.
Ward, who was the defendant below, was an overseer of the-
highways in the county of Bergen. Folly brought suit against
him, and in his state of demand, which is in trespass, complains-
that the defendant, with force &c., entered his close &c., and his-
post and rail fence then and there standing, did pull up and
throw down, break, destroy, take and carry away, and other
wrongs &c., to his damage $25.
The defence set up by defendant was that he was an over-
seer of the highways, and the trespass complained of was his-
clearing out and mending a private road. By an amended re-
turn of the justice it appears "that the road had been in use up-
wards of forty years ; that there was no recorded return of it ;
that it had frequently been altered in various parts without any
order of the surveyors ; that the obstructions removed by the
defendant were put for the purpose of altering the road, so as to-
make it more passable, it being so bad at times that the people
were obliged to leave it and pass over the ground where the new
part was made ; that the defendant agreed to the alteration before
it was made ; that the defendant took away some ground and
stones for the repair of the road, and threw down ten panels of
fence ; that the defendant, though an overseer, had not had this
(o) Smith v. State, 3 Zab 130; affirmed in 3 Zab. 712; Holmes v. Jersey
City,l Beau. 299; Atty.-Oen. v. M. & E. R. R., 4 C. E. Or. 391; Deveney
v. Gallagher, 5 C. E. Or. 38; Jersey Oily v. Morris Canal, 1 Seas. 548.
(b) See Stale v. Hageman, 1 Or. 314; State v. Holliday, 3 Hal. 205; Morgan.
v. Monmouth Plank Road Co., 2 Dutch. 99; Callahan v. Morris, 1 Vr. 160
State v. Elkinton, 1 Vr. 335.
*482
2 SOUTH.] FEBRUARY TERM, 1819. 567
Ward v. Folly.
road assigned regularly to him for that year, although he had for
a previous year."
After this state of facts appeared the defendant moved to
quash the proceedings because he was a civil officer, and the jus-
tice had no power to sustain a suit against him for such a cause.
This motion was overruled, the cause submitted to the jury and
a verdict rendered for $15.
Halsey, for plaintiff.
Attorney- General, for defendant.
Opinion of the court.
KlRKPATRICK, C. J.
The two questions raised upon this case by the counsel at the
bar, and the only two, so far as my notes enable me to say, were
1. Whether this road, the return whereof is not found recorded
in the county clerk's office, be such public highway as that *an
overseer can lawfully enter upon it and open and repair it for the
public use and accommodation. And if so
2. Whether this overseer, without having this particular part
of the road assigned to him in writing by the township commit-
tee, was justifiable in thus entering upon it and working it.
I shall take it that if these two questions can be answered in
the affirmative the judgment must be reversed. For I think it
is fairly to be inferred, from the return of the justice, that what
the overseer did was nothing more than an opening up of the
road to its proper width and transposing of materials of repair
from one part of it to another. And I take this with the greater
confidence because the two questions stated by the counsel for the
defendant here seem to me to rest upon that foundation, and be-
cause the justice, in his amended return, says "it appeared that
the defendant threw down ten panels of fence that belonged lo
the plaintiff and took away some stone and ground that had been
put across the old road," the old road and new one meaning, as it
was explained by the plaintiff's counsel, and without contradir-
*483
568 NEW JERSEY SUPREME COURT. [5 LAW
Ward v. Folly.
tion by his adversary, the mere wagon tracks upon the same road,
and not two distinct roads.
1. As to the first of these questions, then. I have looked into
the old acts of assembly upon this subject, so far as I have been
able to collect them. The first that I can find was passed in
1682, soon- after the first settlement of the province. It directs
that all necessary highways &c. shall be set and laid oui in and
through every county within this province by certain persons
therein named and appointed for their respective counties ; and
that they shall make account thereof and give and return the
same to the governor and council, that they may be entered and
registered in the public records of the said province.
The next act which I have was passed in 1716. It confirms
all roads of six and four rods wide theretofore laid out by vir-
tue of a certain act of assembly therein mentioned and thereby
repealed.
The repealed act I cannot find, but what is there said of it, and
also what is said in the preamble of an act respecting the road
from Amboy to Burlington, passed in 1758, induces a belief that
it only increased the powers of the former commissioners and
gave them more special directions as to the width of the roads
by them to be laid out.
*This act of 1716, after confirming the roads before laid out,
directs the choosing of overseers of the highways, defines their
powers and prescribes their duties ; and among other things it
expressly directs that the public highways to be laid out by tli-e
said surveyors shall be four rods wide. But it does not direct
that they shall be recorded in the county clerk's office, nor in any
other office.
The next act was passed in 1760. It confirms all roads and
highways of six and four rods wide which have theretofore been
laid by any acts of assembly whatsoever ; and after directing the
manner of choosing surveyors, and of obtaining a public road, and
after directing that the road so to be laid out shall be two, three
or four rods wide, as the case may require, it especially directs
that the said surveyors shall make return thereof to the clerk of
the county, who shall record the same in a book to be kept for
*484
2 SOUTH.] FEBRUARY TERM, 1819. 569
Ward v. Folly.
that purpose, to be called the road-book. And this is the first
act that I can find which requires such return and such entry,
and, I believe, is the origin of the road-book.
The next act in order, and the last of which I shall take
notice, is that of 1774. This act, like its predecessor, confirms
all roads and highways of six and four rods wide theretofore laid
out by any act or ads of assembly whatsoever ; directs the choos-
ing of surveyors, the mode of proceeding, the width of the roads,
and the return and recording thereof in the road-book, and then
repeals all former acts upon that subject.
If this be a correct view of these acts, it is obvious that we
are not to look for the records of roads laid out and used before
the year 1760 in the road-books of the respective counties, be-
cause until that tinie no such books existed by any provision of
the law.
It is probable, too, and indeed I have been so informed by a
gentleman who was very familiar with the public records of the
province of that day, that very few of the roads laid out by virtue
of the act of 1682, and the succeeding acts till 1760, were to be
found in those records ; and that it was therefore, principally,
that these confirming acts were made. And surely nothing could
be more reasonable, for it would have been exceedingly inconve-
nient that the whole intercourse of the people should be inter-
rupted or suspended merely because the roads happened not to
be recorded, however long they might have been in public use.
If this be so, the road in question being an ancient road, and
*used as such as far back as the memory of man can reach, it
must be considered as a public four-rod road, laid out by virtue
of some one of these former acts, before the recording in the
county-book was directed, and confirmed by those that succeeded it.
Upon the first question, then, I think the case is with the plain-
tiff in certiorari. The road was a lawful public highway.
2. As to the second question, the words of the act are : " The
township committee are hereby authorized and directed to assign
and appoint, in writing, to the overseers respectively, their seve-
ral limits and divisions of the highways within such township,
for working, amendment and repair."
*485
570 NEW JERSEY SUPREME COURT. [5 LAW
Ward v. Folly.
The great object of this clause is to inform the overseer, with
precision, what part of the road belongs to him, and to make
him responsible for the repairing of it. Whatever advantage,,
therefore, he might make of the want of formality in giving that
information, third persons who are in no way interested in it or
affected by it, can make none. Besides, after a good deal of in-
quiry, I have found that the course pursued by these committees
in very many townships, has been to lay off the township in dis-
tricts, which are entered in their books and which remain unaltered,,
sometimes for many years together ; and then at the town meet-
ing, annually, to choose an overseer for each district, and to make
no further assignment about it. And surely, whatever an over-
seer might say, in such case, in order to avoid a heavy penalty,
no other man could raise up any objection ag&inst it.
Upon the whole, then, on both these points stated by the
counsel, I think this judgment must be reversed.
Judgment reversed.
PETER WARD v. ABRAHAM FOLLY
On certiorari.
This was an action between the same parties for a subsequent
trespass. The same facts appeared as in the preceding case,
except that the place where the fence was thrown down and the
stones and ground dug up and carted away, was altogether
beyond the limits of the old and new parts of the road, and upon
the premises of the plaintiff.
Halsey, for plaintiff.
Attorney- General, for defendant.
SOUTHARD, J., remarked An overseer has no right to enter
on lands adjoining the road, to the injury of the owner, for any
*486
2 SOUTH.] FEBRUARY TERM, 1819. 571
Clark v. Read.
purposes except those specified in the statute, (a) Whether this
overseer had trespassed for other purposes, and the extent of the
trespass, were proper subjects for the jury. There is nothing in
the case to show that they erred. On the contrary, so far as the
return of the justice is to be regarded, we have full evidence
that they decided correctly. The overseer had no right to throw
down the plaintiff's fence ; to carry away his rails and stones
and dig up his ground lying beyond the limits of the road,
without his permission. The verdict and judgment are right.
BY THE COURT. Let the judgment be affirmed.]
ADRIEL CLARK v. WILLIAM READ.
1. Verdict not set aside on affidavit of juror who swears that he did not
agree. (6)
2. Justice may take time to consider of his judgment, but must give parties
notice when he will give judgment, (c)
3. Party may not lay before jury an account not filed on return-day, (d)
On certiorari.
Davenport, attorney for plaintiff.
(o) Winter v. Peterson, 4 Zab. 5S4 ; Davidson v. Schcnck, S Vr. 174 ; Wuest-
hoff v. Seymour, 7 C. E. Or. 70; see Hobolcen &c. Co. v. Kerrigan, 2 Vr, IS,
(6) Brevster v. Thompson, COM 32 ; Dare v. Ogden, Coie91, 92, note; Ran-
dall v. Orover, Coxe 151; Schenck v. Stevenson, Penn. *SS7 ; Vunck v. Hull,
Penn. *815 ; Jessup v. Cook, 1 Hal. 4$4 ; Den, Popino v. McAllister, Hal. 46 ,-
Kennedy v. Kennedy, S Harr. 4^4 ; Sheppard v. Sheppard, 5 Hal. 354 ; Deacon
v. Shreve, 2 Ztib. 176; Hutchinson ads. Coal Co, 7 Vr. 25; see Wallace v. Coil,
4 Zab. 600; Parsell v. State, 1 Vr. 5SO ; Lindauer v. Teeter, 12 Vr, 259.
(c) Pierson v. Pierson, 2 Hal, 125; Sempie v. Trustees <tc., S Hal, 60; Van
Riper v. Van Riper, 1 South. 156 ; Hendricks v. Craig, post 569 ; Van Dorenv.
Van Doren, 5 Hal, 286; Edwards v. Hance, 7 Hal. 108; Day v. Hall, 7 BaL
205.
(d) Hunt v. South, post 495; Dare v. Ogden, Coxe 91; Wright v. Rogers,
Perm, *547,
572 NEW JERSEY SUPREME COURT. [5 LAW
Clark v. Read.
SOUTHARD, J.
Three reasons were filed as grounds of reversal in this case.
1. "The verdict was given by eleven men only."
2. The justice adjourned the cause for more than fifteen days
without consent.
3. Unlawful evidence was admitted, to wit, the account of
the defendant below after the hearing was over, and after the
plaintiff", late in the evening, had retired from the court.
On the first point. It appears by the transcript that twelve
jurors were sworn, and the verdict is recorded in the usual form ;
but the justice adds "some time after the jury was dismissed
one of the jurors swore that he was not agreed to the verdict,
previous to judgment being entered." It is upon this affidavit
of the juryman alone that this reason rests. I am not willing
to rely on such an affidavit. A juror who has come into court
and publicly *assented to the verdict given in by the foreman
ought not afterwards to be permitted to gainsay or deny that
assent so as to invalidate the verdict. Such conduct in a juror
deserves severe animadversion, and such a course of proceeding
would lead to consequences much to be lamented. There is,
therefore, nothing in the first reason.
2. There is some appearance of contradiction in the record in
this matter. The summons seems to have been issued on the
27th of January, returnable on the 10th of March, but the parties
met on the 10th of February ; an adjournment took place to the
17th of February, when the constable not being able to return
the venire, a further adjournment took place to the 24th of Feb-
ruary, on which day the cause was tried. The word " March "
is probably an error, it should have been February, and then,
until the cause was tried, no illegal adjournment was made. It
ft but fourteen days between the return of the summons and the
trial. After the trial a considerable delay occurred before judg-
ment was finally entered, which was on the 23d of June ; and it
is probably against this delay that the plaintiff" in certiorari com-
plains as illegal. On the 23d of May the plaintiff" below again
summoned the defendant, and when they appeared each demanded
judgment, the plaintiif on his account, the defendant on the ver-
*487
2 SOUTH.] FEBRUARY TERM, 1819. 573
Clark P. Read.
diet which had been rendered in his favor, but no steps towards
another trial were taken, and the justice continued his adjourn-
ments. In reference to the entry of judgment, he remarks that
he had difficulty arising from the conduct of the juryman, and
that he " adjourned, by sundry adjournments at two weeks each,,
to obtain counsel." In all this there is nothing erroneous. The
statute does not require judgment to be immediately entered, and
it is common in all courts, even those of the highest and most ex-
tensive jurisdiction, to delay for the purpose of examination and
advisement. Nothing is more frequently seen in our books than
curia advisare vuli; and this advisement is not less necessary
for the judges in our courts for the trial of small causes than for
others. If, indeed, the delay arises from improper motives or is
unnecessarily and oppressively protracted, the party has his
remedy he may compel the entry of judgment. And where a
delay does take place between trial and judgment, the justice
must warn the parties that they may have notice and be present
when he does give his judgment. This he seems not to have
done, and in this the error lies.
*3. The transcript takes no notice of any account being filed
on the return-day by the defendant, and the necessary legal in-
ference is that none was filed on that day. Notwithstanding this,
the verdict is in favor of the defendant for $30.25. Accompany-
ing the papers, however, there is an account of the defendant
against the plaintiff, and in the certificate which the justice puts
to his record, he has these words : " William Read, the defend-
ant, did not produce his account in court till late in the evening,
after Mr. Clark, the plaintiff, had retired." The plaintiff below,
who is also plaintiff here, alleges that this took place on the day
of the trial, and such must be the fact or the justice would have
noteu its being filed in his record. This was certainly altogether
erroneous. The jury should not have had before them any ac-
count which had not been filed within the proper time. Upon
the legal evidence and papers before them they could not have
found a verdict for the defendant, and their verdict ought not,
therefore, to stand. The justice has erred in this matter. If the
account was filed on the return-day it ought so to appear upon
*488
574 NEW JERSEY SUPREME COURT. [5 LAW
Clark v. Read.
his record. If not filed on the return-day he ought not to have
received it or laid it before the jury.
In my opinion there must be a reversal.
KlRKPATRICK, C. J.
This cause was heard on the 27th of February, 1818, and there
was a verdict for the defendant for $30.25. Upon this verdict
there was no judgment rendered nor adjournment made at that
time. On the 12th of May the plaintiff took out 'a new sum-
mons against the defendant for $100, returnable the 26th of the
same month, at which time the parties appeared and the plaintiff
prayed judgment on his old account, and the defendant upon his
verdict in the former action. Upon this the justice says, in his
return, " I adjourned, by sundry adjournments of two weeks each,
till the 23d of June" Now, it is obvious, from this mode of
entry, that this matter of the adjournments is .altogether an after-
thought, and that none such really took place or were entered on
the docket, otherwise the entry must necessarily have been from
two weeks to two weeks and not in the form in which it appears
on this return ; nor does it appear that the parties were present
or had notices of such pretended adjournments. I think, there-
fore, the whole proceeding, in this respect, is contrary to the di-
rections and true spirit of the act, *and therefore, as well as upon
general principles, erroneous, and, of course, that the judgment
ought to be reversed as well upon the second as upon the third
reason stated by my brother Southard. I hold it to be clear
that a justice cannot thus closet himself up, or perhaps I might
rather say, go about his usual business and then give judgment
when and where he pleases in the absence of the parties, and es-
pecially at such a distant day. He must, like other judges, give
judgment in open court, when the parties are present, or had an
opportunity of being present. And so, if my memory does not
fail me, it has more than once been determined in this court.
BY THE WHOLE COURT. Let the judgment be reversed.
*489
2 SOUTH.] FEBRUARY TERM, 1819. 575
Lacey v. Collins.
THOMAS R. LACEY and ANTHONY S. EARLE v. ZEBULON
COLLINS, assignee of JOHN AYERS.
1. A writing admitting "a balance due," not assignable.
2. Suit must be in name of creditor, (a)
3. Name of creditor written on the back will not authorize holder to fill
tip assignment as in case of promissory note.
On certiorari.
Neale, attorney for plaintiff.
SOUTHARD, J.
The plaintiff claimed of the defendants, trading under the firm
of Lacey & Earle, the amount of principal and interest due on a
paper in the following words: "January 3d, 1813. Then set-
tled with John Ayers, and there is a balance due him from far-
rago books, the sum of twelve dollars and seventy cents. For
Lacey & Earle. William B. Cooke." On the back of which
was endorsed the name of " John Ayers." The transcript states
that at the trial one of the defendants, T. R. Lacey, said that
the writing was just on the farrago books in the account at the
time it was given, but this was evidently not intended as a con-
fession or acknowledgment of the debt, because on the return-day
of the summons Lacey filed a plea or account in the following
words : " John Ayers, Dr., in account with Thomas R. Lacey
and Anthony S. Earle, to sundries; account in 1811-12, $75."
And on the day of trial he filed another, containing particular
items, and amounting in their favor, when balance was struck,
to $37.41. Both these accounts were correctly overruled ; the
first, because it was not such an account as the law *requires, and
the second, because it was not filed on the return-day. The
judgment was in favor of the plaintiff for the amount claimed,
and the case stands here upon the legality, assignment and proof
of the writing, which is the foundation of the plaintiff's claim.
(a) Wright v. Williamson, Penn.*965; see Sloan v. Summers,* Gr. 609;
Purnons v. Woodward, 2 ZoJ>. 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
<loubt on this subject. The judgment can be entered in no other
way. The judgment must stand as security for future breaches.
This being so, the justice had no jurisdiction. He could not
nter a judgment for this penalty. He erred in maintaining the
suit.
2. The state of demand was insufficient. The state of demand
merely alleges generally that the township " had been obliged to
pay, lay out and expend, for and toward the expenses of the birth
and maintenance of the said child," $39.25 &c. It ought to
have shown how and when the money had been expended. The
items ought to have been set out, that the defendant might come
prepared to combat them.
3. The bond was not so proved as to make it competent evi-
dence. The error committed by the justice here was in listening
to the objections of the defendant himself, and rejecting the sub-
scribing witnesses as incompetent. They ought to have been
*494
582 NEW JERSEY SUPREME COURT. [5 LAW
Boll v. Maxwell.
sworn ; their interest as inhabitants of the township of Westfield
was not sufficient to exclude them. South. 186. But were this
the only error of the justice I should not listen to the objection
from the mouth of the defendant.
4. The proof of the handwriting to the receipts was not suf-
ficient proof of the expenditure of the money. This is so.
Something; more was necessary. The plaintiff ought to have
shown that the expense was incurred, and then have proved the
payment. The receipts would have been. competent evidence-
against the persons signing them, but were not so against Roll, a
third party.
I think there ought to be a reversal.
*KlEKPATRICK, C. J.
Upon the first question stated by my brother Southard I agree
with him, and think the judgment must be reversed.
The forty-first section of the act constituting these courts for
the trial of small causes says that when a bond for the payment of
any sum of money above $60 (now $100) shall by payment or
set-off be reduced to the sum of $60, or under (now $100, or
under), then the balance shall be considered as the real debt,
and shall be recoverable before a justice, without regard to the
penalty of such bond. In this particular case, then, the act
changes the whole course of the common law proceeding, in order
to give the greater extent to this jurisdiction ; but still it changes
it in this case only, that is to say, where the bond is for the pay-
ment of money only.
For where such bond is conditioned for the performance of
covenants, or for indemnifying and saving harmless against con-
tingent damages, losses or expenses, as is the case here, or for
any other thing than the payment of money only, the case is not
within the words of this section, and therefore remains as here-
tofore. The judgment is then entered for the whole penalty,
and execution is taken from time to time for the particular dam-
ages found by the jury on succeeding breaches ; and necessarily
so, as has been already stated, for it is contrary to the whole-
policy of the law to put the party to a new action for every suc-
*495
2 SOUTH.] FEBRUARY TERM, 1819. 583
Hunt r. South.
oeeding breach of the covenant, or item of the damage, against
which the bond was intended to secure him.
Judgment reversed.
RICHARD HUNT v. BENJAMIN SOUTH, (a)
On certiorari.
This case was argued by Ewing, for plaintiff, and Watt, for
defendant.
The opinion of the court given by Southard, J.
SOUTHARD, J.
The parties appeared on the return-day of the summons, and
the justice adjourned the cause for the usual time. After the
adjournment had been made, but on the same day, the *plaintiff
filed his state of demand. On the day of trial a nonsuit was
moved because the state of demand was not filed in season, and
the justice overruled the motion. In this I think he erred. The
fourteenth section of the act (Bloom. 55) requires the plaintiff,
on or before the return-day of the summons, to deliver his copy
of account or state of demand, and in default thereof to be non-
suited. In construing this act we must not forget the object of
the legislature in this provision, which was, that the plaintiff
should, on the return of the writ, apprise the defendant of the
claim he had to make against him. This object is totally de-
feated by permitting him to file his demand after the adjourn-
ment, after the parties are dismissed, and the defendant has
retired. The day, with respect to the cause, is ended by the
adjournment; all matters with respect to it cease for that day;
the justice ought not, therefore, to adjourn the cause unless the
demand is filed ; he ought, in obedience to the act, to enter a
(o) See Sanford v. Hoover, Penn. *99 ; Jacknon v. Darcy, Sax. 194.
*496
584 NEW JERSEY SUPREME COURT. [5 LAW
Curtis v. Hulsizer.
nonsuit. If this be not the course defendants are ever at the
mercy of plaintiffs, and may be kept in perfect ignorance of the
claim against them until after they are obliged to file their pleas.
This will not do. There are also errors in the account filed, but
it is not necessary now to notice them.
Judgment reversed.
DAVID CURTIS v. DAVID HULSIZER, late constable.
Constable may recover from plaintiff in attachment, legal costs of execut-
ing the writ, where defendant has no property ; but not expense of removing
goods, or of suit brought against him for executing writ improperly, (a)
On certiorari.
Clarke, attorney.
SOUTHARD, J.
The state of demand sets out with sufficient precision and par-
ticularity the following case: Curtis sued out an attachment
against Joseph Slack, an absconding debtor ; it was put into
Hulsizer's hands to execute ; in virtue of it he took certain goods
which were claimed by Ezra Shamp, who sued him before John
Cavanagh, Esq., for taking them, which suit the plaintiff after-
wards discontinued; Hulsizer then called three juries, one after
the other, to try the property in the goods. The first two juries
disagreed and found no verdict ; the third *declared them to be the
property of Shamp. Curtis also obtained an execution against
the same Joseph Slack, and put it into Hulsizer's hands, and he
returned that he could find no goods or person ; and he avers
that at the special instance and request of Curtis he paid the
fees to the first two juries, amounting to $3, and then charges
$1.80 for summoning the juries, $2.50 for swearing jurors and
witnesses, $1.25 for moving the property attached, and swearing
appraisers, $2.50 for his time and expenses in the suit before John
(; See Anonymous, Spen. 112 ; Hannessv. Smith, 1 Zab. 496.
*497
2 SOUTH.] FEBRUARY TERM, 1819. 585
Curtis t. Hulaizer.
Cavanagh, Esq., and $3 for his costs on the execution, making,
in the whole, $14.05.
The verdict and judgment were for the amount claimed, and
it is now alleged on behalf of the plaintiff in eertiorari, that these
costs cannot be recovered against him because the fourteenth sec-
tion of the attachment act (Pat. 297), provides that " they shall
be paid out of the estate of the defendant in attachment, if the
property be found in the claimant," as in this case.
These costs are created by the officer in defending himself under
the provisions of the act, and it was well for the law to provide
that they should be at once paid out of the defendant's property.
But suppose, as appears to be the case here, that the defendant
really has no property, how are they then to be paid ? Is the offi-
cer to lose them ? Surely not. The plaintiff in the writ, as in
every other case, must be answerable for those legal costs to which
the officer has been subjected. Here seems to have been a special
request that a part of them should be paid, but this request was
not necessary to support the plaintiff's claim. He may well
recover those costs which the law has fixed in such cases.
But there is one item which can be sustained upon no legal
principle ; I mean for his time and expenses in attending the suit
before John Cavanagh, Esq. The plaintiff in an action is not
legally answerable for the costs and damages to which the officer
is subjected by his mode of executing a writ. He must see to it
that he executes it properly, so as to be liable to no one. In this
case, also, the law declares that the officer " shall not be liable to
any prosecution for having attached and taken any goods &c.
through ignorance or want of proper information."
*The item, also, for moving the goods and swearing the ap-
praisers is liable to objection. The law gives no fee to the officer
for removing the goods.
As the judgment is for these items as well as the others, it can-
not stand.
Judgment reversed.
*498
586 NEW JERSEY SUPREME COURT. [5 LAW
Tunison v. Cramer.
HENRY TUNISON and JOSIAH BRIGGS v. MATTHIAS CRAMER.
1. Bond for prison limits may not be assigned before breach.
2. Walking two miles out of limits, breach of bond, though prisoner return
before pursuit or action brought, (a)
3. Where there is breach, plaintiff in execution cannot recover of surety
more than penalty of bond. (6)
On certiorari.
The facts are stated in the opinion of the court. The cause
was argued by Vroom, for plaintiff in certiorari.
Opinion of the court.
SOUTHARD, J.
On the 19th of June, 1817, Henry Tunison and Josiah Briggs
entered into a bond to the sheriff of Hunterdon, in the penalty
of $95, conditioned, that as the said Tunison was committed a
prisoner to the gaol of Hunterdon upon a judgment and execu-
tion in favor of Matthias Cramer, for $95 debt and $3.05 costs,
therefore, if the said Tunison should keep within the bounds of
the prison of said county, then the bond to be void, otherwise to
remain in full force. Under the allegation that Tunison did not
keep the limits, Cramer, on the 13th of December, 1817, ob-
tained an assignment of this bond from the sheriff, and com-
menced this suit against Tunison and his surety, Briggs. The
cause was tried on the 30th of January, 1818, and at the trial
the execution of the bond and of the assignment was admitted,
and two witnesses proved that they had seen Tunison at a store
two miles from the limits, about eight weeks before. The sum-
mons in this case was served on the 12th of January, at which
(a) Smith v. A Uen, Sax.; 44 S. C.,7Hal. 160; Camp v. Allen, 7 Hal. 1; see
Stephens v. Tucker, 2 Or. 600.
(b) Roll v. Maxwell, ante 49$; Seatty v. Ivins, Penn. *628 ; Lorfg, Admr., v.
Long, 1 C. E. Or. 59.
2 SOUTH.] FEBRUARY TERM, 1819. 587
Tunison t>. 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 <fec.
One of the principal reasons why this .action is preferred to
that of detinue is, that less particularity is required in describing
the chattel for the detention of which the owner claims damages
only, and not the thing itself, and this state of demand is suffi-
ciently certain for that purpose.
The second reason is not supported by the original or amended
return of the justice nor in any other way. I therefore see no
reason for the reversal of this judgment. Let it be affirmed.
JOHN CONINE t;. ALEXANDER SOOBY. (a)
On certiorari.
(a) See Den, Intkctp v. Leeony, Ooze 111; Russel v. Work, 6 Vr. S16 ; Von
Dyke v. Bastedo, 3 Or. 324 ; Van Daren v. Horton, 1 Dutch. SOS ; Smock T.
Throckmorton, 3 Hal. 216; Dnviston v Gardner, 5 Hal. S89 ; Carhart v. Miller,
post 57S; Ward v. Ward, S Zah. 699; Hopper ad*. Chnmhtrlnin 5 Vr. Ml.
*510
602 NEW JERSEY SUPREME COURT. [5 LAW
Conine v. Scoby.
ROSSELL, J.
On examining the transcript of Justice Drake and the accom-
panying papers it appears that two summonses were issued on
the same day the 15th of September, 1817 one by Justice
Babbit, at the suit of Conine against Scoby, returnable on the
22d of the same month ; the other by Justice Drake, at the suit of
Scoby against Conine, returnable on the 20th, two days previous
to the one first mentioned ; that on the 20th the parties ap-
peared before Justice Drake ; the plaintiff filed a statement of his
demand and the defendant his plea ; the plaintiff prayed an ad-
journment until the 27th instant, which was granted, and on
that day the parties again appeared and the cause was adjourned
until the 1st of October, at the request of the defendant, and on
his promise to pay the cost of the day and to produce a paper in
his possession, belonging to the plaintiff, and called in his decla-
ration an order or bill of exchange, and on which this action
was founded.
*That on the 1st of October the third meeting of the parties
before Justice Drake took place, and after the jury had been
severally qualified and the plaintiff had stated his demand, arising
on the order above mentioned, the defendant produced, under the
hand and seal of Justice Babbit, a transcript from his docket, by
which it appeared that on the 22d of September, two days after
the same parties had been before Justice Drake, they appeared
before him, and the plaintiff, Conine, filed a statement of his
demand and the defendant, Scoby, his plea. The cause was then
adjourned until the 26th instant, at which time they again ap-
peared ready for trial. The defendant admitted the plaintiff's
demand and then called a witness to prove the order mentioned
in his plea. This was objected to by the counsel for the plain-
tiff and rejected by the justice, who gave a judgment in favor of
the plaintiff for $7.56. On this transcript the defendant now
prayed a nonsuit, which motion was overruled by the justice
Drake and the trial went on. The witnesses of both parties
were examined and verdict and judgment entered in favor of
plaintiff for $23.23. In this there was error. The question of
debt had already been decided between the parties by Justice
*511
2 SOUTH.] FKHRUARY TERM, 1819. 603
Smith v. Johnson.
Babbit, by their consent, and should have estopped the after-
proceedings. Justice Babbit might have erred in rejecting the
testimony offered by the defendant before him to prove the con-
tents of the bill in the hands of the plaintiff, but until his judg-
ment could have been got rid of the parties were concluded by it.
The judgment of Justice Drake must therefore be reversed.
MERRIMAN SMITH v. ANDREW JOHNSON.
Fees of officers and witnesses received by clerk may be recovered from him
in action of debt, but party must show that defendant was convicted and sen-
tenced, (a)
On certiorari.
ROSSELL, J.
This action was brought to recover the fees alleged to be due
to the plaintiff, Johnson, who had been a constable, for serving
state process, which fees, it was said, had been received by Smith,
the defendant, who is clerk of the county of Salem. If the
clerk has actually received fees for services rendered by the of-
ficers of the court or for attendance as jurors or witnesses, there
cannot be a doubt but he is liable to an action for retaining
them. But this receiving and retaining of them must be estab-
lished according to the known rules of law. How stands this'
case ? The state of demand sets out that the constable had
served state process in the case of State v. R. Berry, the fees
amounting to $3.60 ; in that of R. Bradley, to the amount of
eighty-five cents, and in the case of J. Benson, eighty-five cents ;
and he relied on the testimony of R. Craven, late sheriff, to prove
that the defendant had received the above fees. The justice has
entered the testimony of Sheriff Craven in these words : " I
have paid fees over to the defendant, which I have received
(a) See Molt v. Fettit, Coze t98.
*512
604 NEW JERSEY SUPREME COURT. [5 LAW
Smith <. Johnson.
from the officers of the state prison, I believe all that was to be
paid over. I took some of the persons mentioned in the state
of demand to the state prison after they were convicted." On
this testimony and that of another witness on the part of the
plaintiff, who swore that he believed the book in which the above
charges were entered was the plaintiff's original book of entries ;
the jury found a verdict, and judgment was entered for $4.45,
with costs.
On this state of the case it does not appear to me there was
proof that the fees prosecuted for, or any part of them, came to
the hands of the defendant. And the motion for a nonsuit ought
to have been sustained by the justice ; this not being done, the
judgment must be reversed.
KIRKPATRICK, C. J.
From the many complaints I have heard, I am inclined to be-
lieve that the money drawn from the treasury, in cases of this
kind, does not very regularly come to the hands of those infe-
rior officers to whom it justly belongs. I should therefore be
willing to go pretty far to support claims of this sort. But
here the evidence (for the justice has sent up the whole evidence)
is so entirely defective that the judgment must be reversed.
SOUTHARD, J.
There is no legal evidence of the conviction of the defendants
in the several criminal cases, nor proof that the clerk really re-
ceived the fees.
Judgment reversed.
2 SOUTH.] FEBRUARY TERM, 1819. 605
Oliver r. Larzaleer.
*KELSEY OLIVER v. JACOB LARZALEER.
On certiorari.
This case was argued by Scudder, for plaintiff.
SOUTHARD, J.
This action was brought by Larzaleer for two penalties under
the act concerning inns and taverns. Pat. 238 17. He de-
mands $8 for two violations of the statute on the 8th of October,
1818. The first, in charging him thirty-one and a half cents
for a half pint of brandy ; the second, in demanding and charg-
ing seventy-five cents for his horse being in the stable two hours,
no hay having been ordered for him. Several objections were
taken to the legality of pleadings, trial and judgment. Two
only seem worthy of notice 1. That the title of the statute was
not endorsed on the process, (a) This is required by the second
section of the act relative to suits by common informers. Its
omission is error. 2. The process was a warrant and not a
summons. In ordinary cases the defendant in such actions can-
not be held to bail, and where this is the case a summons must
be used. This error was objected to before the justice, and ought
not to have been disregarded.
KIRKPATRICK, C. J. The judgment is in figures. (6)
ROSSELL, J., concurred in reversal.
Judgment reversed.
(a; Nix. Dig. 748 $ X16 ; Miller v. Stay, ante 477.
(b) dole v. Petty, Pom. *60 ; Robiruon v. Applegale, 6 Hal. 178 ; Berrian T.
The Stale, t Zab. S8.
*513
606 NEW JERSEY SUPREME COURT. [5 LAW
Mairs v. Sparks.
LEWIS MAZES v. JULIANN SPAEKS.
1. Possession in plaintiff necessary to maintain forcible entry and detainer, (a)
2. Where plaintiff claims under a lease, defendant may show by parol that
the lease was surrendered. (6)
3. Writ of certiorari may be allowed before judgment, to be used after it. (c)
4. Certiorari operates as superseded*, (d)
5. Costs trebled by multiplying by three, (e)
In forcible detainer.
This certiorari was brought to remove into this court the pro-
ceedings and judgment in an action for forcible detainer, to obtain
the possession of a house and lot of .land in the town of Salem.
Seven reasons were offered for reversing the judgment. The
cause was argued by Crane, Scott and R. Stockton, for the plain-
tiff. Jejfers, who was to have argued for the defendant, was
*absent. The reasons, with the facts applicable to each, are
noticed in the opinion of the court.
SOUTHAED, J.
The facts upon which Juliann Sparks founded her right to
obtain possession of the premises in question were, that a cer-
tain George Goff was seized in fee and possessed of the said
premises; that on the 10th of October, 1815, he did, by deed,
( a) Pullen v. Boney, 1 South. 125 ; Banks v. Murray, post 849 ; State v. Co-
venhoven, 1 Hal. 396 ; Bennet v. Montgomery, 3 Hal. 48 ; Mercereau v. Bergen,
8 Or. ^47 ; Corlies v. Corlies, 2 Harr. 167 ; Drake v. Newton, 3 Zab. Ill; Wall
v. Hunt, 4 Hal. 37.
(b) See Cox v. Baird, 6 Hal. 105 ; Oliver v. Phelps, 1 Zab. 597 ; King v.
King, 1 Stock. 44 ; but see Stotesbury v. Vail, 2 Beas. 390.
(c) Mairs v. Sparks, 1 South. 369.
(d) Ludlow v. Ludlow, 1 South. 389 ; Kingsland v. Gould, 1 Hal. 161 ; Hinch-
man v. Cook, Spen. 271 ; Me WiUiams v. King, 3 Vr. 21 ; Green v. Jersey City,
13 Vr. 122.
(e) Van Auken v. Decker, Penn. *111 ; Crane v. Dod, Penn. *S40 ; Davison
V. Schooley, 5 Hal. 145 ; Youngs v. Sunderland, 3 Gr. 32.
*514
'2 SOUTH.] FEBRUARY TERM, 1819. 607
Mairs r. Sparks.
lease the same to Henry Sparks, the then husband of said
plaintiff, for the term of five years, to commence on the loth
day of March then next ; that the said Henry Sparks devised by
his last will and testament all his right in said lease to the plain-
tiff, whereby she became, on his death, entitled to the possession of
the premises ; but that the defendant held and kept possession
thereof with force &c., from the said 15th of March to the day
of bringing the suit &c.
On the trial the plaintiff confessed and admitted that neither
Henry Sparks nor herself ever was in possession of the premises ;
that Stephen Hutchinson possessed them at the time when the
lease was executed and until the 21st of March, 1816, at which
time the defendant came into the possession peaceably, by virtue
of a deed from Goff conveying the land to him. This deed
was read to the jury by the consent of the plaintiff. It bears
date on the 1st of February, 1816. After this admission and
evidence the defendant offered to prove that after the death of her
husband, Henry Sparks (which was prior to the date of Goff 's
deed to him), the complainant had renounced the lease and ex-
pressly refused to have anything to do with the premises, and
that in consequence of her refusal the defendant bought and
received the deed. This evidence was overruled by the court,
as he states, upon the ground that it contradicted the written
lease. Several witnesses were sworn and other evidence offered
and received. The jury found a verdict that the defendant was
guilty of the forcible detainer &c. The justice gave judgment
that the said Juliann Sparks do have restitution of the posses-
sion of the said messuage <fec., and also that she recover $54.49,
being the treble costs &c. As soon as the verdict was rendered
and the judgment pronounced, the attorney of the defendant
took from his pocket a writ of certiorari to remove the proceed-
ings and judgment into the supreme court. This writ was regu-
larly endorsed with the aUocatnr of a judge residing many miles
*distant. The justice, therefore, supposing that it had been ille-
gally granted, as it must have been Issued before judgment was
given, paid no attention to it, but, upon the request of the plain-
*515
608 NEW JERSEY SUPREME COURT. [5 LAW
Mairs v. Sparks.
tiff, granted a writ of restitution, which was delivered to the
sheriff and by him executed and plaintiff put in possession.
Six reasons for a reversal have been argued arising from the
proceedings so far as they appear upon the record and the facts
thus far detailed ; and one additional reason has been warmly
pressed arising from the conduct of the sheriff, the court and the
agent of the plaintiff in selecting the jury. I will endeavor to
notice each of them in their order.
1. It is said that the complainant below, Juliann Sparks,
never was in possession of the premises, and cannot, therefore,
maintain this action. I apprehend that this reason is well
founded. That the plaintiff in forcible entry, or forcible de-
tainer, must have either a possession in fact or law to maintain
his suit, is too manifest to require argument or authority to prove.
A mere claim or right of possession will not be sufficient ; it
must be a right in possession which is disturbed and for which
the action is brought. In the present case the right of Juliann
Sparks arose solely from the will of her husband devising his
right in the lease to her. Neither of them had any possession
at any time. The owner of the premises had agreed that Henry
Sparks should possess them. Will a refusal to comply with his
agreement authorize this action? Clearly not. For such an
injury a remedy must be sought in another kind of action.
2. There was no evidence of force of any description used by
the defendant. However necessary a constituent in this action
force may be, the propriety of this reason may well be ques-
tioned. We are not to presume, as was argued, that the whole
evidence was spread by the justice upon his record. He is not
bound to do so ; and although part of it is there, yet he does
not assure us that he has given all ; on the contrary, it is mani-
fest that he has not. Several witnesses were sworn whose testi-
mony is not detailed. They may have proved what the counsel
require.
3. The defendant below offered to prove that the plaintiff had
given up the lease, and declared that she would have nothing to
do with it ; and that in consequence of this conduct on her part
he had been induced to buy the premises, and had bought them.
2 SOUTH.] FEBRUARY TERM, 1819. 609
Main r. Sparks.
Tin justice refused to permit him to prove this, and in doing so *he
erred. A party may surrender a lease by parol, and after he has
so surrendered it he can have no right of entry on the demised
premises. Besides, if the fact be as the defendant offered to show
it, then, I think, it is perfectly clear that that fact, taken in con-
nection with the date of the deed (February 1st, 1816), of the
lease (October 10th, 1815), of the commencement of the term
(March 15th, 1816), and of the entry of the defendant (March
Jlst, 1816), all show a consent on the part of the plaintiff that
defendant should enter and possess the premises ; and if so, the
detainer could not be forcible or unlawful. The evidence seems
to be essential to the true understanding of the rights of the
parties. The reason which the justice assigns for overruling it
i- that it contradicted the written lease. But I apprehend that
he has misapplied a correct legal principle. Though it be true
that you may not contradict or alter a written agreement by
parol, yet it is equally true that you may show that a written
lease has been given up, destroyed and vacated by a subsequent
agreement. Here the evidence offered does not alter or contra-
dict the lease. It expressly admits its existence, its force, its
meaning; but it avoids its operation by subsequent matters.
And it ought to have been admitted, especially in this case, where
the plaintiff complained that the defendant had forcibly and ille-
gally detained the premises from her rightful possession.
4. The writ of restitution was issued after the writ ofcertiordri
was presented to the justice. This is true in fact. The certio-
rari was handed to the justice as soon as the verdict was ren-
dered and the judgment pronounced, and before he had com-
pleted his record, and the legal effect is not to be doubted. The
writ of certiorari issuing out of this court and directed to the
court for the trial of small causes is, in its nature and effect, a
superseded*, and ought to stay all further proceedings in the
cause. After it is received the justice has no right to take any
proceeding, or to issue any writ. If he do he subjects himself to
an attachment for contempt, and the records of this court show
at least one instance in which the attachment has been granted,
and the justice punished for issuing an execution upon a judg-
*516 39
610 NEW JERSEY SUPREME COURT. [5 LAW
Mairs v. Sparks.
inent which had been removed hither by that writ. Nor is it
the duty of the justice to canvass and decide how far it was
legally issued. He has no power to determine that matter ; it
rests with another tribunal. It is enough for him that it appears
to be in proper form, *and with the attocatur endorsed upon it
by a justice of the supreme court. It is to be regretted that jus-
tices, no doubt with the most correct intentions, often do proceed,
and require a writ of supersedeas before they stay their further
progress in the cause. Such a course is contrary to law and pro-
ductive of much inconvenience to parties. In the present case
the justice ought to have entered his judgment, refused the writ
of restitution which was applied for, and made return to this
court, out of which the certiorari issued. But although this
would have been the legal and regular proceeding, yet I do not
perceive any other ground of censure than always exists where
a court errs in judgment upon a point of law. The distance at
which the judge lived who granted the attocatur, the time and
manner of presenting the writ, were not a little calculated to lead
him into the error he committed. He no doubt perceived that
it must necessarily have been issued before the judgment was
rendered, which it was designed to remove, and it is not strange
that he should suppose that it was therefore illegal. It has,
however, often been decided that a writ of certiorari so allowed,
will be sustained. N. J. Rep. 369. But were the conduct of
the justice, on this point, ever so erroneous, it would furnish no
ground for reversing this judgment. It cannot vitiate the pre-
vious proceedings, and all the benefit which the plaintiff in cer-
tiorari could derive from it would be to have the writ of restitu-
tion set aside, and be restored to the situation in which he was
when judgment was pronounced.
5. The costs were taxed, then multiplied by three and the ex-
ecution issued for the amount ; whereas it is contended that it
should have been for the whole, one-half, and one-quarter of the
bill added together. This reason, if true in law, will only vitiate
the judgment so far as relates to the costs, but will not destroy
it altogether. But I apprehend it is not true in law. I am
aware that such a mode of calculating the costs has been adopted
*517
2 SOUTH.] FEBEUARY TERM, 1819. 611
Maira v. Sparks.
in some cases under the British statutes ; but I do not think that
either the plain words of our law or the mode of calculation which
has always been in use here in cases of double and treble costs,
"will justify us in following the English rule on this subject. The
justice calculated them correctly.
6. There is only a judgment of restitution but no judgment
of detainer, and, therefore, it is void. The verdict found the
unlawful and forcible detainer and that the defendant was guilty.
*The judgment which followed appears to me sufficient for all
just or legal purposes in that court.
7. The last reason which engaged the attention of the counsel
was that the jury was corruptly selected by the sheriff, with the
knowledge of the court, at the dictation of the agent of the
plaintiff below. Much excitement seemed to be felt by the
counsel in the investigation of this reason. They seemed to
consider the whole case as exhibiting a high-handed violation of
law and justice by the public officers who were concerned in it.
The court have, therefore, looked with care into the bundle of
affidavits which were taken on the part of the plaintiff in
certiorari and supposed to sustain this reason. We have not
seen those which were taken on the part of the defendant ; nor
was it necessary that we should see them. The fact is not estab-
lished by the proof offered by the plaintiff. There appears to
be no just or reasonable ground for accusation against the party
or officers on this point. I do not think it important to give a
summary of the affidavits. It is sufficient to say that so far as
the case is before us, the conduct of the party, the sheriff, and
the justice seems to have been open, public and legal ; not derog-
atory to their characters as correct and just men.
For the first and third reasons, therefore, I think there must
be a reversal of the judgment. Upon the rest there is no legal
cause of complaint ; arid of this opinion are the whole court.
Judgment reversed.
*518
612 NEW JERSEY SUPREME COURT. [5 LAW
Ogden t>. 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
<Jolonel Mayo's, getting over the fence.
General Dayton being again called by defendant, testified that he
-saw defendant, before the note was due, tender to Coryell the
amount, after deducting the interest ; that he was present at the
giving of the note, and it was dated in New York, to secure
New York money in payment, but not to oblige payment to be
made there ; that Coryell expressly said his object was to get
New York money, and it was understood between them that it
should be paid where they lived, in Elizabethtown, but he did
not recollect anything said about a discount of the interest if
paid before due. Peter Coryell being called said there was no
stipulation on his part to receive the money when defendant
*chose, and discount the interest, nor to receive payment at
Elizabethtown.
After the evidence was closed the jury found a verdict for
*524
618 NEW JERSEY SUPREME COURT. [5 LAW
Ogden v. Gibbons.
$5,000 damages. Upon the coming in of the postea a rule was
granted, on motion of the defendant, to show cause why a new
trial should not be allowed. In support of this rule the follow-
ing reasons were filed :
1. Because the chief-justice, before whom the said cause was
tried, refused to put off the trial of the cause upon the applica-
tion of the defendant, although it appeared that the defendant's
attorney had been furnished by the attorney for the plaintiff
with an alleged copy of the declaration materially variant from
the declaration contained in the transcripts in said cause ; which
copy of the declaration the defendant's attorney and counsel had
supposed was a true copy and prepared the cause for trial accord-
ingly, and knew not to the contrary until the cause was moved
and the transcript produced. And because the chief-justice re-
fused to put off the trial of said cause, although a sufficient
affidavit for that purpose, of the absence of a material witness
on the part of the defendant, was made and read.
2. Because the jury assessed the plaintiff's damages at $5,000,
the whole sum demanded in the plaintiff's declaration, which
damages are excessive.
3. Because the verdict of the jury was against the evidence in
the cause.
4. Because the verdict of the jury rendered in the cause was
against the weight of evidence.
5. Because the supposed injury upon which the jury found
the said excessive damages, except the sum of $1 for the trespass,
was not real but imaginary ; was new and without precedent.
6. Because the supposed injury for which the damages were
given, except the sum of $1 in the plaintiff's declaration men-
tioned, did not entitle the plaintiff to recover any damages, or at
most but nominal damages.
7. Because the jury ought to have assessed the plaintiff's
damages at part only of the sum demanded in the plaintiff's
declaration ; the possession of the premises upon which the sup-
posed trespass was said to be committed, or some part thereof,
being in the possession of Aaron Ogden and George C. Barber.
-SOUTH.] FEBRUARY TERM, 1819, <;i:<
Ogden r. Gibbons.
* Vanaradale and Hcdsey, for the defendant, on the lir-t ivn-
son assigned, argued that where a judge at the circuit errs in a
matter of discretion, it will be reconsidered at bar, and a new
trial granted. 7 Johns. 306. That the chief-justice did err in
compelling a trial at the circuit 1. On account of the varian;-!-
between the circuit record and the copy of the declaration fur-
nished ; that the circumstance of its being furnished by the plain-
tiff's attorney, as matter of courtesy, if such it must be consid-
ered, did not lessen the injury or surprise ; that it was such a
variance as was calculated to mislead ; for relying on it the de-
fendant might alter his preparations for trial; that in this i-.:-<-
it was absolutely necessary to set out the tenor of the hand-bill,
if the pretensions of the plaintiff were right, and damages were
to be ascertained, not only from the injury of setting it up, but
from the contents of the bill, w r hich were alleged to be a libel
and challenge ; that tenor means a true copy ; that this was not
so, for Th : does not necessarily nor usually mean Thomas, and
time ought to have been given to see whether the error was in
the copy or the circuit record, for if the variance existed between
the declaration and the hand-bill it would have been fatal on tin-
trial to the admission of the evidence. 2 Wils. 260 ; 2 Satk.
660 ; 2 Stra. 770. In the second place, that the trial ought to
have been postponed on account of the absence of the witness.
In deciding this point this court must place itself in the situation
of the circuit judge, and determine from the facts then existing ;
that the previous postponements were no cause per se for forcing
on the trial ; that they were made on sufficient grounds, and left
no suspicion or prejudice on the question ; that a party was en-
titled to a postponement upon affidavit of materiality of a wit-
ness, of his absence, of due diligence to get him, and of expecta-
tion of his being present at a future time ; that the affidavit in
this case was full in all respects ; that there was no default in
giving the fees to the witness the person serving the subpoena
had the money but could not deliver it, as witness was not found ;
that there could be no suspicion that witness was improperly out of
the way, nor any suspicion from other causes ; that the court did
not require the materiality of the testimony to be disclosed,
*525
620 NEW JERSEY SUPilEME COURT. [5 LAW
Ogden v. Gibbons.
defendant was not bound to disclose it unless required, nor was
lie bound to do here what was not necessary there ; that the fair
*administration of justice requires that a party be not surprised,
but fully heard, which was not the case in this instance.
Upon the other reasons they argued that the damages were
excessive and outrageous, an injury to the extent of $1 not being-
proved ; if any were done it was of a character totally distinct
from the nature of the action, and such as could not be consid-
ered in it ; it arose from the contents of the hand-bill, and the
allegation that it was slanderous and contained a challenge ;
that trespass quare clausum fregit and slander could not be united,
but if the slander were actionable it must be separately charged ;
the two acts were different, and in this action the damages could
be aggravated only by matters of the same character as the tres-
pass itself, which were forcible and a continuation of it; that
words never are evidence to aggravate a trespass, and the court
ought not here to make the first precedent ; that if the slander
could be joined it should be distinctly set out with proper innuen-
does, allegations and averments that the defendant might plead to
it and justify if he chose, so that this might be a bar to another
action, and that the distinction of actions and of offences might
be maintained.
That even if it were proper to consider the hand-bill, yet the
jury had been misled by considering it as a challenge ; that it
was not a challenge the court had so decided, and General Day-
ton had so explained, as did also the writing at the end of it ; the
object of it was a peaceable and friendly explanation of wrongs
which defendant supposed had been done to him. That if it were
a challenge, yet it was not a ground on which damages could be
given ; a challenge, in itself, never was or could be the founda-
tion of an action ; no law gives compensation to the challenged ;
it is a public offence against morals and the peace of society, and
must be punished as such, and if pecuniary punishment be in-
flicted it should be for the benefit of the public treasury ; it works
no private injury ; it does no harm except to the feelings, and
injury to these alone is never actionable, and if actionable, must
be directly and not indirectly charged and punished.
*526
2 SOUTH.] FEBRUARY TERM, 1819. 621
Ogden v. Gibbons.
But even if a challenge be actionable, and may be joined to
trespass quare clausum jregit, yet have the jury erred in consid-
ering this as without excuse and justification ; it was excused by
the facts in the case, and by public sentiment and example ; and
*the court will look into all the facts to see how far they justify
the verdict. 2 WUs. %05. If the hand-bill were false it was
no slander and did no specific damage ; if true it was no ground
for the verdict. Coryell refused to discount, and against his
agreement collected the note in New York ; this was the com-
mencement of the difficulty ; the plaintiff' interfered without cause,
and the defendant was arrested, and his feelings and interests
wounded ; he complained ; the plaintiff apologized ; yet he com-
menced a new warfare by interference in his family disputes.
The defendant again asks for explanation ; it is insultingly re-
fused, and the hand-bill is posted. The letters were written and
the hand-bill put up under the unfavorable impression created by
the plaintiff's conduct, and it justified warmth of feeling and
expression. The real injury was all on the defendant ; on the
plaintiff only imaginary. The terms of the hand-bill, though
hard, were justified by the facts until explained, which they were
not when it was written and put up. The letters were sent by
one with whom plaintiff transacted business, and an answer might
have been given him without reposing confidence in the messen-
ger, or trusting an enemy. The plaintiff ought to have denied
his interference in justice to himself and to the defendant. In
seeking his satisfaction, even if defendant did challenge, he is
fully excusable. He was educated in the belief that such an act
was just and honorable ; he did not run counter to public opin-
ion, nor shock the mind by new and unheard-of outrage ; he
trod in the footsteps of some of the first men, and performed an
act consecrated by the best blood of the country, and if it desrrvcs
punishment he alone ought not to be made to bear the whole of
it, and suffer for example's sake, because others are in like man-
ner guilty.
That no specific damages are laid as arising from this cause,
and therefore, even if suffered, none can be recovered in this
action. Peake N. P. 46; Bui. 86, 89; SaJlk. 6J$ ; 10 Co. R.
*527
622 NEW JERSEY SUPREME COURT. [5 LAW
Ogden v. Gibbons.
130; 1 Sid. 225; 2 Saun. 171; 1 Tidd 391; 6 Bac. 55(J, 60S,
626. That the whole damages have been given to the plaintiff;
whereas, if injury is done to the possession, what is recovered in
this action must be in part due to Barber, for he had a joint pos-
session, though he claims no property or ownership. That in
cases of injury to the freehold the court have full power to rem-
edy a finding of excessive damage, or damage beyond the actual
harm to the property, whatever doubt may exist as to their
power in *torts to the person where the damages are ideal. 1 Bur.
393 ; 2 Wils. 252, 405 ; 3 Wils. 61 ; 2 Bl R. 91$ ; 4 Mass. 41 ;
Penn.578; 6 Bac. 626 ; 1 Mass. 12. That the court will
grant a new trial here, because the damages given are outrageous ;
against the sentiment of mankind ; the effect of partiality, pre-
judice, passion, or corruption ; of prejudice against the defend-
ant ; of partiality in favor of the plaintiff; evils which ought to
be cqrrected by the court, where partialities and prejudice do not
operate.
Attorney- General and R. Stockton, for plaintiff, argued in op-
position to the rule 1. That there had been a full and fair trial,
and no surprise by the variance; that the whole declaration
charged Thomas Gibbons, and therefore left no doubt who was
meant ; that the copy was given as matter of professional cour-
tesy, not required by law, and the law imposed no pledge of
accuracy ; that with reasonable and common prudence he might
have guarded himself; that he was bound to look to the files of
the office where the declaration had been for twelve months, and
where the error would have been at once corrected, as it might
also by the transcript twice before sent down, and by the indict-
ment found on this same matter ; that there really was no variance,
but if there were it was not of a fatal kind ; to be fatal it must
not merely be an abbreviation but must make a word of another
signification, in which case, as to strict identity, it would be a differ-
ent paper. Cow. 229 ; 1 Leach 172, 227 ; 5 Johns. 1, 30; 2
Wils. 160; 5 Mod. 167; 3 Salk. 224; Salk. 660; 1 T. R. 240.
That if the variance were in the declaration, as the plea was not
guilty, as it was matter of evidence, and the jury have found it, the
*528
2 SOUTH.] FEBRUARY TERM, 1819. 623
Ogden v. Gibbons.
court would not disturb the verdict. 2. As to the absence of
the witness, that postponement of the trial was a matter of sound
discretion which would not be investigated at bar, because the
whole circumstances, conduct and manner could not there be
known. 1 Set. 420 ; Barnes 44%- That the affidavit was defi-
cient in three respects 1. In not setting forth due diligence.
He was in laches, the case had before been twice noticed, yet In-
failed to takeout his subpoena until a little before the circuit, but
he did not inquire at the time of trial whether witness had re-
turned, nor .did it appear but he was at home. 2. The affi-
davit did not show the nature and materiality of the testimony
to be given by him, nor, 3. That the fees were left to induce his
atten*dance should he return in time that there was every ap-
pearance of any affected delay. 1 Bl. Rep. 514; Bur. 1514-
He had sworn to the materiality of Trumbull, yet did not call
him on this trial, and he did not now satisfy this court that
hewas injured, by showing the materiality of Burt's testimony.
In considering the propriety of the verdict it is said the hand-
bill and the character of the matter it contains cannot properly
be considered in this action ; but this is not so. A plaintiff may
have one M'rit for several trespasses (FUz. 1979), as entering his
house, beating his servants, or taking away his goods, or, as in
this case, affixing a libel to his door. The circumstances attend-
ing the trespass, and the conduct after entering, as the violence,
abuse or calumny, may be shown in aggravation. Salk. 119,
646; 10 Co. 13; 6 Mod. 128; 8 Sac. 626; 1 Tidd 391. If
this were not so, all distinction would be taken away, and all
trespasses become simple and alike. The hand-bill must be
looked into to see the nature of the trespass. The true distinc-
tion is, that in this action, plaintiff cannot prove an additional
fact, which may be the ground of action in itself, unless it be
stated in his declaration ; if it be there stated then he may
prove it, provided it be part of the same transaction. The plain-
tin complains of the transaction at that time; it is one entire
transaction, and is not to be separated. 2 WUs. 252.
Damages for an injury of this sort are discretionary, and to be
regulated by a vast variety of circumstances ; by the state, de-
*529
624 NEW JERSEY SUPREME COURT. [5 LAW
Ogden v. Gibbons.
gree, trade, profession, rank, condition and estate of the parties.
2 Wits. 160, 205, 246 ; Cowp. 131, 231. They are peculiarly
and emphatically left to the sound discretion of the jury, and the
verdict will not be disturbed unless they are enormous, such as
all mankind are ready to exclaim against at first blush ; such as
carry internal evidence of intemperance in the minds of the jury,
and not merely such as the court would not have been willing to
give. 2 Wils. 160, 207, 246, 252, 405; Cowp. 23 ; 2 Bl R.
946 ; 7 Bac. 587, 667 ; 9 Johns. 45 ; 2 Johns. 63 ; 4 Doll. 390 ;
2 Penn. 580; 5 Mod. 150; Palm. 314; 1 Leo. 97 j 10 Johns.
443 ; 4 Mass. 1.
The damages here are not enormous. They are justified by
the character of the parties, and the circumstances of the case.
The defendant has enjoyed every advantage of education and re-
fined society ; has made the law his study, and is possessed of
^immense wealth. The plaintiff sustains a high character, and has
enjoyed the confidence of his fellow-citizens. In May the defend-
ant sent a libel, and called the plaintiff's conduct rascally ; he
sent it by General Dayton, the friend of plaintiff 's youth but
the enemy of his advanced age, when there was a post-office in
the village, and both had servants by whom it might have been
carried. It was sent unsealed, not to his office, but to a tavern,
where he was engaged in public business. In July he sent a
challenge by General .Dayton and required the plaintiff to com-
mit his explanations, his motives, his character, to the bosom of
his enemy. The plaintiff saw the conspiracy against his life, but
he met it like a Christian ; submitted to the laws of God and the
land, and appealed to the justice of his country ; and the appeal
was not in vain. In the whole of the transaction the plaintiff did
the defendant no intentional wrong ; he inadvertently occasioned
an injury by having him arrested, but he made a prompt and
manly apology. The jury have properly estimated the facts, and
the court will -have respect, in deciding this motion, to the injured
feelings of the plaintiff, to the principles of public morals, and to
the situation of the defendant. 2 Ld. Ray. 995 ; 9 Johns. 51.
No difficulty can arise from the idea that Barber held a joint
possession where the trespass was committed. No such posses-
*530
2 SOUTH.] FEBRUARY TERM, 1819. 625
Ogden r. Gibbons.
sion existed, or if it did the injury was to the plaintiff only, and
he has recovered the only damages due to himself.
The parties pressed the court for an immediate decision upon
the rule. The court, therefore, pronounced its opinion after the
argument.
SOUTHARD, J., remarked : I should have felt better satisfied
to have taken a little longer to look into this matter ; but, as I
now see no cause to doubt, I am willing to yield to the request
of the parties. Four questions seem to have been pressed upon
the consideration of the court by the argument of this rule. 1.
Whether the trial ought to have been postponed at the circuit.
2. Whether the possession of Barber was such as to render the
plaintiff's recovery illegal. 3. Whether the contents of the
hand-bill were a proper subject of consideration in assessing the
damages. And 4. Whether the damages were so excessive as
to call for an interference with the verdict. I will endeavor to
express my view of each of these points.
*And 1. As to the postponement of the trial. A party who
has encountered the expense of a preparation for the circuit is
entitled to a trial, unless his adversary can satisfy the court that
he has exhibited due diligence on his part but has not been able
to come prepared, and that justice will probably not be done if
the trial progresses. In ordinary cases, upon a first application
for a postponement, an affidavit of the absence of a material
witness who has been legally subpoenaed is sufficient. But a
second or third application by the same party naturally induces
a suspicion that he is not so often unfortunate, but is seeking
delay ; and then, more particularity and more evidence is re-
quired. But whether it be the first or third application, it is
always addressed to the sound discretion of the court and is re-
fused or granted on suoh terms as justice to the parties requires, (a)
The judge before whom it is made has, in the manner and ap-
pearance and acts of the applicant, means of a correct decision
with which the court at bar cannot be furnished. His determi-
(o) See Stokea v. Oorr, Horr. 451 ; FulUr ads. Den, Soxton, Spen. 61 ; State
v. ZeUers, 2 Hal. 0.
*531 40
626 NEW JERSEY SUPREME COURT. [5 LAW
Ogden v. Gibbons.
nation of the question, therefore, affords strong presumption of
correctness, but it is not conclusive. If a clear case of mistake
on his part be made out, and we perceive that injustice has been
done, the evil will be remedied by a new trial. But the inquiry
always is, Has injustice been done? has the party been injured ?
If he have not, no good reason can be given why he should re-
ceive the favor of trying his cause over again.
In the present case, the defendant supposes that the chief-
justice erred on two points. 1. On account of the variance in
the word " Thomas," between the circuit record and the copy of
the declaration furnished to him by plaintiff's attorney, (a)
I think there is more than one sufficient answer to the defend-
ant's complaint on this point. The record throughout uses the
word " Thomas ; " the copy of the declaration does the same ; the
abbreviation which is subscribed to the hand-bill is not a word
of different signification, but means precisely the same thing.
The defendant could not, therefore, have been left in doubt or
been deceived by the copy furnished ; and I do not think that
the variance would have been fatal in any ordinary case of plead-
ing, even if it existed between the evidence and the record. It
is very clear he has not been deprived of any possible means of
preparation and defence ; nor has he been, in the slightest de-
gree, injured in the result. The record and the evidence corres-
pond. *But 2. The provisions of our law and the course of
our practice require the defendant to look to the files of the
court, not only to see when the declaration is filed, but what it
contains. And if he chooses to depart from his interest and
duty in this respect, and derive his information from other
sources, he must take the consequences upon himself. If he
relies upon copies of pleadings furnished by any person but the
clerk, and he is led into error, as the law gives him no pledge
of correctness, he must not apply to the court to relieve him
from, the effects of his own want of care and caution. In this
case, also, the defendant had much to put him on his guard and
to prevent surprise. The circuit record had been twice before
(a) Probasco v. Probaseo, Penn. *1012; Youngs v. Sunderland, S Or. S8.
*532
2 SOUTH.] FEBRUARY TERM, 1819. 627
Ogden r. Gibbons.
carried down, and the hand-bill had been presented to his obser-
vation on a still more important occasion. He ought not to
have been negligent in examining it.
The second reason offered for postponing the trial was the
absence of the witness. I cannot help believing that there is
more in the fact that the fees were not left with the copy of the
subpoena, than seemed to be supposed by the counsel on either
side, from the manner of their argument. It is an express re-
quirement of our statute that the fees shall be paid, and the
amount is fixed. The third section of the act concerning wit-
nesses (Pat. 401) provides " that if any person on whom lawful
process shall have been duly served to testify &c., and to whom
.//// have been paid or tendered, at the time of such service, fifty
cents, if he is to serve in the county &c., shall not appear accord-
ing to the tenor of said process, having no lawful or reasonable
let or impediment to the contrary, he shall, for every offence,
forfeit " &c. Can we, under the words of this section, consider
a witness lawfully subpoenaed for the purpose of punishment for
non-attendance unless the fee be paid or tendered ? Clearly not.
And can we say that the process has not been legally served
when we are about to punish the witness, and yet that it has
been legally served when we are inquiring into the default of the
party and determining whether he has used due diligence ? that
it is legal for one purpose and not for another ? This would
seem an unfit state of things. Besides, it is altogether reason-
able that this provision of the statute should be strictly complied
with. The witness comes to render a service to the party ; his
compensation is fixed ; he often needs it to bear his expenses,
and he ought *to receive it. He is not bound to serve first and
rely upon the fairness of the party or a suit at law to obtain his
fee afterwards. In England no witness is bound to appear at
all, even if subpoenaed, unless his reasonable expenses be ten-
dered to him ; nor if he does appear, is he bound to give evi-
dence until such charges are actually paid to him. S Bl. Com.
369 ; 1 Sir. 510 ; 2 Str. 1150. Here the statute fixes the sum
to be paid. A party, therefore, seems to me not regularly to
serve his process, but to stop short of strict and legal diligence,
*533
628 NEW JERSEY SUPREME COURT. [5 LAW
Ogden v. Gibbons.
when he does not deliver or tender to the witness his fee, at the
time of serving the writ. A delivery of a subpoena, or leaving
a copy without it, ought not to avail where the service is brought
in question. Wherever the copy is left with a view to produce-
attendance, the money ought also to be left. But the question
here seems rather to be whether the defendant was bound, under
the information he received, to leave either the one or the other..
Passing by this difficulty, therefore, let us look further into this
point, and I think enough will appear to justify the decision of
the chief-justice and to prevent us from according to the defend-
ant the favor which he asks for this cause.
It is to be recollected that this was the third effort at postpone-
ment, and for the same cause the absence of a material witness.
The trial was, therefore, properly ordered on. 1. Because the
process to subposna the witness ought to have been taken out
earlier and greater diligence exhibited. 2. It was not shown
that the witness was expected by the next term or at what par-
ticular time. It might be that he was expected at a period to
which the trial could not reasonably be postponed. 3. The de-
fendant ought to have shown that the witness had not returned
from the westward and could not be brought before the court at
that time. All the information given of his absence was the
declaration of his wife that he was gone and was not expected
back in time ; but there is no proof that he was not then at
home. For aught that appears he might have been there, and
had the process been served on him and the fee delivered, would
have attended. 4. The materiality of his evidence was not suffi-
ciently shown. It was sworn to in the same way as in an ordi-
nary application for a first postponement. The defendant should
have done more. He should have satisfied the judge, by a dis-
closure of what he intended to prove by him, that what he knew
was material to the defence. Nor is it a suf *ficient answer that
the court did not require this to be done. It was not the busi-
ness of the court to prescribe in what way, and for what reasons,
the defendant should make his application, but to decide upon
its merits as he presented it. But in my view, the most im-
portant consideration on this question still remains. The foun-
*534
2 SOUTH.] FEBRUARY TERM, 1819. 629
Ogden v. Gibbons.
dation of this motion is the injury which has been done to the
defendant. How has he been injured ? By being deprived of
his evidence. If this witness could say nothing in his favor he
has not been injured, and there is no ground for this motion.
Could this witness say anything in his favor ? We know nothing
on this point. It rests upon the allegation of the defendant
-alone. Now, we do not sustain such rules as this and grant new
trials upon the allegation of parties. We are as little informed
whether the witness has returned and his testimony could now
be procured. I am not willing to disturb a verdict, to put the
parties to the expense of another hearing before a jury, without
-a full conviction that the verdict might, in some degree, be
affected by the evidence which was excluded. The defendant
has no confidence in the value of this evidence, or he has been
strangely negligent in not exhibiting it to us. Upon this first
question, therefore, I do not think the chief-justice decided incor-
rectly ; and if I believed that he did, I should still be opposed
to this rule, unless, from sufficient evidence, I was convinced that
the defendant had been injured by the absence of his witness,
and there was reasonable ground to believe that his testimony
might have some operation upon the verdict. We have no such
-evidence.
2. The second question to be considered is, whether the pos-
session of Barber was such as to make the recovery of the
plaintiff illegal. But little need be said upon this question. If
I correctly understand the evidence, Barber is a very near con-
nection of the plaintiff; he uses one of the rooms in his office for
the purpose of transacting the various business in which he is
engaged without any right in it or authority over it, except what
is derived from the implied or express permission of the plaintiff.
He pays no rent and claims no property or possession which he
ould demand or enforce by legal means. Like a guest, he uses,
possesses and enjoys the room through the friendship and hwpi-
tality of his father-in-law. If this be so, the question is at an
nd. Can it be believed that this plaintiff, because he kindly
permits a relation to use his property along with him, loses his
right *and control over that property and cannot bring a suit for
636
630 NEW JERSEY SUPREME COURT. [5 LAW
Ogden v. Gibbons.
injury done to it without the permission of that relation and
joining him in the action ? It will not seriously be contended..
Why should Barber unite in the action ? Has he been injured f
Can he recover damages ? Did the plaintiff sue for or recover
damages for what he has suffered on this occasion ? Not at alL
Why, then, disturb the verdict on this account. Besides, if
Barber had a possession in common, and the defendant entered
upon it for the sole purpose of inflicting on the plaintiff alone-
an injury like the one complained of, I have no idea that he
must necessarily be united in the action.
3d question. Were the contents of the hand-bill a proper sub-
ject of consideration with the jury ? There is no doubt that
they were considered and formed the principal item in the heavy
account which was found against the defendant, and if they
ought to have been excluded from the view of the jury, I cor-
dially agree with his counsel that the damages are enormous,,
are outrageously excessive: $5,000 for passing over a gravel
walk of half a dozen yards in length and putting a man's foot
upon the sill of the door, would be intolerable, no matter who
the parties or what their situation. But is this the real case ?
Of what does the plaintiff complain in his declaration ? He
complains that the defendant illegally entered upon his premises
and put upon his door an insulting and libelous hand-bill. Is.
this hand-bill to be regarded as part of his cause of complaint,.
or is it not ? Much ingenuity was certainly displayed by the-
counsel in the discussion and application of the cases to this
question, bnt the conclusion at which they arrived does not very
well correspond with the principles of correct pleading or the
law of evidence. I am not here able to examine the cases, nor,,
perhaps, is it necessary ; we may come to a satisfactory conclu-
sion without. I understand it to be admitted that it was proper
to charge and prove the putting up of the hand-bill because it
was of the same character with and a part of the trespass; but
not proper to charge or prove the contents of the hand-bill
because they do not partake of the character of the trespass, and
a remedy for them must be sought by an action on the case for
the libel or slander.
2 SOUTH.] FEBRUARY TERM, 1819. 631
Ogden r. Gibbons.
But I do not perceive how the two are to be separated. The
plaintiff complains of a trespass. The jury are to determine the
*extent of it and the injury resulting from it. To do this they
must not only know what was done, but, as far as possible, the
motives with which it was done. How will they learn them ?
By being informed that defendant passed over the gravel walk ?
No ; for this was not all he did, and this he might have done
with the best intentions, and have committed no punishable tres-
pass. That he put his foot upon the sill and left a paper there ?
No ; for these acts might have been, and no harm done to the
plaintiff. But they might also have been, and the plaintiff deeply
wounded by them. How is the jury, then, to say whether he
was or was not injured? How are they to determine whether
the defendant came as friend or foe? to leave a paper containing
information salutary to his safety or poisonous to his reputation
and peace? to commit a trespass or to do a kindness? It can
only be done by looking into the contents of the hand-bill ; and
shall the jury be compelled to decide, and yet precluded from this
only means of judging? Suppose the contents of the bill had
been of a kind and friendly nature, and designed expressly for
benefit to the plaintiff, would not the defendant have been permit-
ted to show it ? and would not the jury in such case have refused
the plaintiff anything ? Yet the rule must operate both ways.
A man enters my house and strikes my child. I may charge and
prove both acts, and he must compensate for both. But he not only
enters my house and strikes my child, but when he does it, adds the
most malignant and unfounded slanders of him. May I not
charge or prove these to show the temper with which he did it, and
the extent of the wrong? I may, and the jury will estimate his
acts accordingly. I understand the true rule on this point to be
this : in trespass you may charge and prove the whole circum-
stances accompanying the act, and which were a part of the res
gestce, in order to show the temper and purposes with which the
trespass was committed, and the extent of the injury. A contrary
rule would certainly produce the effect argued by the plaintiff's
counsel. It would take away all distinction from acts of trespass.
And if this be the rule, its application to the present case is not
*536
632 NEW JERSEY SUPREME COURT. [5 LAW
Ogden v. Gibbons.
difficult. The hand-bill was properly proved, and was good
evidence in estimating the damages.
4. The remaining question to be considered is, Are the damages
excessive ? such as call for our interference ? (a)
In giving an answer to this question we cannot act safely un*tii
we satisfy ourselves what is the import of that hand-bill. On
the part of the defendant, his counsel at the trial, and again here,
allege that the letter was designed to obtain a peaceable and
friendly interview ; an amicable explanation of serious wrongs
which he had suffered from the hands of the plaintiff, and that the
putting up of the hand-bill was designed to bring it to the notice
of the plaintiff and thus enforce the meeting. And they appeared,
among other arguments to prove their positions, to derive some
confidence from the decision of this court in the case of State v.
Gibbons, (b) That case has certainly been ill understood if it
be supposed that this court expressed the idea that this letter did
not contain a challenge. The decision went on altogether differ-
ent grounds, and an expression of opinion on that point was
carefully avoided ; one of the court adding " whether challenge
or not is always a question for the jury upon the whole evidence."
At the trial the counsel for the plaintiff denied the conclusions in
favor of the defendant. It was for the jury to pass between them,
and the amount of their verdict is conclusive proof of the light
in which they viewed it. They have doubtless considered the
letter as a challenge, as a demand that the dispute should be
ended with blood ; and putting it up as proclaiming and posting
the plaintiff at his own door as one who had deeply and malig-
nantly injured another, and had neither the honesty nor courage
to give him satisfaction. If in this opinion of the jury, they had
no evidence to support them, and there is clear and manifest
error, though it was a matter within their province, we must cor-
'rect their mistake. But I cannot perceive clear proof that they
did err. The language of the letter itself, the manner of send-
(a) See Thompson v. Morris Caned, 2 Harr. 480 ; Berry :ids. Vrf eland, 1 Z<ib.
1SS; Winter v. Peterson, 4 Zab. 524; Phillips v. Phillips, 5 Vr 208; Vunck v.
Hull, Penn. *815 ; Allen ads. Craig, 1 Or. 29^.
(6) State v. Gibbons, 1 South. 40.
*537
2 SOUTH.] FEBRUARY TERM, 1819. 888
Ogden v. Gibbons.
ing it, the printing and publishing of the hand-bill, the posting
of it on the door, and the language which he used to Ephraim
Clark, are all strong indications of the temper that was felt and
the object aimed at too strong for me here and on this motion
to question the decision of the jury. The letter must be regarded
as a challenge; sealing it to the door as designed to irritate,
wound and disgrace the plaintiff.
Having fixed what we are to consider as constituting the tn--
pass, we may now form an opinion whether the damages are ex-
<ssive. And here it is necessary for me to remark that this is
a case most decisively within the province of the jury. It is
not simply and alone a case for a tort done to property, the value
of * which may be ascertained by evidence, and where there are
fixed rules and principles to measure the damages ; but it is one
of character, of sentiment, of feeling ; one where the court is
not entrusted with the power to estimate the wrong, but the jury
must exercise their discretion ; a case depending much on the
situation and circumstances, as well of the party injured as of
him who did the injury. In such a case, although the verdict
may be set aside if the damages given are so unreasonable as to
indicate a want of ordinary discretion in the jury, so outrageous
as to exhibit passion, prejudice, partiality or corruption, yet do I
feel no authority to touch it, unless they be evidently such. Be-
cause I may feel that if I had been a juror I should have dis-
charged my duty by giving less, I am not therefore at liberty to
say that less shall be given. This power is entrusted, and 1
think wisely entrusted, to other hands. Considering, then, th-
character and circumstances of the parties, and the nature of the
nv.-]i;i.-- ri>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 <fec. the grass and corn of the
plaintiff &c., and with cattle <fec. trampled down grass and corn
<fec. The second count charges that with hoes &c. she dug &c.
and planted &c. three hundred yards of fence over and through
the grass and corn of the plaintiff &c., and with feet and cattle
<&c. Third count charges the same as the first, done by her
agents and servants. Fourth count same as second, but done by
her agents and servants.
(a) Carlis v. Little, 1 Or. S29 ; see Chambers v. Matthcvx, S Harr. 368.
*547 643
644 NEW JERSEY SUPREME COURT. [5 LAW
Miller v. Barnet.
First plea was not guilty, and issue. Second plea, llberum
tenementum, and issue.
The third plea in substance is as follows : That the plaintiff
*ought not to have or maintain his action, because the lands of
the said Barnet and Miller joined each other in the said town-
ship of Tewksbury, and the said Barnet proposing to make the
division or partition fence between them, and they not being able
to agree upon the place where the same ought to be placed and
made, the said Barnet thereupon and before the time when &c. to-
wit, on the 23d of October, 1815, at said township, according to
the form of the statute in such case made and provided, did
apply to Andrew Bartles and Aaron Longstreet, two of the
township committee of said township, residing nearest the prem-
ises, and being disinterested and indifferent between the said Bar-
net and Miller ; and the said Bartles and Longstreet having met
together pursuant to said application, after hearing the allegations
and proofs of the said parties according to the form of the statute
&c., by writing under their hands, bearing date the 23d of Oc-
tober, 1815, and delivered to each of the parties, did therein and
thereby fix and appoint the place where the said division or par-
tition fence should or ought to be made , as follows, viz. : Begin-
ning &c. (pointing out the courses and distances), and did therein
and thereby order and appoint the said Barnet to make and main-
tain seven chains eighty-seven links of the upper end of it, and
Miller the same quantity at the lower end ; that Miller having
neglected to make his just part or proportion of said fence, Bar-
net at the said several times when &c. entered into the close
&c. to make the said partition fence in the place so appointed by
Bartles and Longstreet, and did make it conformably to said ap-
pointment and pursuant to the statute, and did dig and open the
ground and put that fence and no other, and in so doing did no
unnecessary damage &c., which are the same trespasses &c., and
concludes with a verification &c.
To this third plea Miller replied that he ought not to be barred
&c., because the close mentioned, on the 2d of October, 1815, was
the close and freehold of Henry Miller, Sr., and before the day &c.
viz., on the 15th of April, 1815, he demised it to the plaintiff
*548
2 SOUTH.] MAY TERM, 1819. 645
Miller v. Barnet.
for one year, and from year to year so long as they should please,
by virtue of which demise he entered and was possessed thereof;
and further, that on the 2d of October, 1815, and for a long time
before, there was and had been a partition fence between said
close and the adjoining land of said Barnet, in the plea men-
tioned, and that the place so fixed and appointed by *the said
Bartles and Longstreet, where the said division or partition fence
should be made is not the same place where the said fence was
and had been, but another and different place ; concluding with
verification &e.
To this replication the defendant filed a demurrer and the
plaintiff joined in demurrer.
Wall, in support of the demurrer, referred to Pat. 386 8,
And argued 1 . That the replication was no answer to the plea ;
that the object of the statute was to create a tribunal with
authority to determine where division fences should be when the
owners of the land could not. 2. That the replication was
faulty, for duplicity; setting up, first, the freehold in Henry
Miller, Sr., and second, that there was an ancient fence in the
place.
Euring, in answer, maintained that the township committee had
not authority to interfere where there was a fence, but only where
no partition fence had ever been made. That the power given
was to place, not to remove the fence. That the plaintiff here
was merely a tenant, and that the notice must be given to the
real owner. Ooxe 53. That the replication was not double,
but if it were, the demurrer must be special, and the replication
was amendable.
Wall replied that the township committee only fix the fence
but do not settle any right to the land ; that if they act incor-
rectly the party has two remedies, one by certiorari to remove
their proceedings, the other ejectment ; but that advantage could
not be taken of it in this collateral way.
*549
646 NEW JERSEY SUPREME COURT. [5 LAW
Miller v. Barnet.
KIRKPATRICK, C. J., expressed his view of the case as fol-
lows : This is an action of trespass for breaking and entering
the plaintiff's close and treading down the grass and grain there
growing &c.
The defendant pleads several pleas, and in the third, which i&
the one now under consideration, she says that she and the plain-
tiff are possessed of certain tracts of land adjoining one another
in the township of Tewksbury ; that a difficulty had arisen be-
tween them touching the placing of the partition fence between
the said tracts ; that she had applied to two of the township
committee thereupon, who had fixed the line where the same
should be made, and designated the particular part *thereof
which each of them should make ; that the plaintiff, notwith-
standing, had neglected and refused to make his part thereof;
and that, therefore, she entered into and upon the said close, in
which &c., to make the same, as by the provisions of the statute
in that case made and provided it was lawful for her to do,,
treading down as little of the grass and corn there growing, and
doing as little damage as was possible ; and that this was the
only breaking and entering of which the plaintiff complains.
To this plea the plaintiff replies that at the time when &c., and
long before, there was and had been a partition fence between the
said tracts which designated and bounded the possession of the
parties respectively ; and that the line so as aforesaid fixed by
the said township committeemen was not in the same place
where the said fence stood, but in another and different place.
And to this replication there is a demurrer and a joinder in de-
murrer.
The only question raised at the bar on those pleadings is
whether where there is a subsisting fence, designating the pos-
session of the parties, the township committeemen have authority,,
under the statute, to fix a place or line for the partition fence
different from that where such subsisting fence stands.
The statute speaks of cases where difficulty may arise touch-
ing the placing of a particular fence. Now, this phraseology is
not, strictly speaking, applicable to a case where the partition
fence is already placed. No difficulty can arise about doing that
*550
2 SOUTH.] MAY TERM, 1819. 647
Sayre v. Blancbard.
which is already done. If the statute had contemplated such a
case as this it would have spoken, not of placing, but of altering,
changing, straightening or placing upon Hie true line such fence.
Besides, the reason of the thing is against the authority. A
citizen, upon general principles, is not to be dispossessed of his
freehold by the opinion of two township committeeraen, nor by
the opinion of any other men, unless it be a lawful jury of the
county. This principle, too, has been already settled in the case
of The State v. Ford and Baldwin, Coxe 53. There, because
the surveyors altered the line where the fence stood, and which
had been acquiesced in for a long time, the court say that under
the pretence of settling a line fence they -had undertaken to try a
title to lands; and, therefore, quashed their order. Therefore,
upon principle, as well as upon precedent, I think the demurrer
must be overruled.
"KlRKPATRICK, C. J., and ROSSELL, J.
The judgment of the court goes upon the ground that the
township committee, under the statute, have no authority to in-
terfere in cases where a partition fence has already been made,
and direct it to be placed elsewhere.
SOUTHARD, J., expressed no opinion, having formerly been
of counsel with the plaintiff.
Demurrer overruled.
JOHN C. SAYRE v. ABIGAIL BLANCHARD.
Rule on justice must be taken at the term to which writ is returned or the
transcript perfected, (a)
On certiorari.
This certiorari was returned to the last term, and now attor-
ney-general applied for a rule on the justice to certify whether a
(a) Thorp v. Row, post 720.
*551
648 NEW JERSEY SUPREME COURT. [5 LAW
Den v. Kinney.
charge of interest in the plaintiff's account was made before the
account was filed, or at the time of entering up judgment, or at
what time.
Watt objected that the rule ought to have been applied for at
the last term, to which the writ was returned.
Attorney- General. The certiorari was brought because there
was no evidence, and the judgment was in the absence of the
defendant ; but on a corner of the state of demand it is noted
that the defendant admitted the plaintiff's account. This ren-
dered it necessary to apply for this rule.
BY THE COURT. It is too late; the rule cannot now be
granted,
It then appeared that at the last term, upon the return of the
writ, Wall, for defendant in certiorari, had obtained a rule on
the justice to amend and perfect his record as to the admission
of the defendant below, which he had done to the present term.
BY THE COURT. If that be so, the present application is in
time. A rule like this need not be applied for until the return
is perfected.
Rule granted.
*DEN v. JACOB A. KINNEY.
Rule to stay waste not granted where the cutting of the wood &c. is for the
ordinary use of the premises ; as cutting wood for a furnace, (a)
(a) See Harker v. Christy, post 717; Oapner v. Flemington Mining Co., 2
Gr. Ch. 467 ; Brick v. Oetsinger, 1 Hal. Ch. 391; Vervalen v. Older, 4 Hal.
Ch. 9S; Van Syckel v. Emery, 8 O. E. Or. 387 Emmons v. Hinderer, 9 G. E.
Or. 39 ; Morehouse v. Cotheal, 2 Zab. 521.
*552
2 SOUTH.] MAY TEEM, 1819. 649
Den r. K in iit- y.
Chetwood, for plaintiff, presented affidavits by which it ap-
peared that several hundred acres of woodland, annexed to a
furnace, were in dispute in this action ; that the defendant had
cut several hundred cords of wood upon it for the use of the
furnace ; but it was not more than was usually cut every year
for that purpose. Whereupon, he moved a rule to stay the de-
fendant from committing waste.
Attorney- General objected 1. That the plaintiff had not set
out that he had title nor, the extent of it. Br. Ch. 57 ; Harr.
Ch. .237, 839. That this ought to be done otherwise by issuing
a declaration in ejectment, and applying for this rule the tenant
might always be deprived of the use of his property. 2. That
it appeared by the affidavits which he read that plaintiff has
covenanted to convey the premises to the defendant, and has put
him in possession ; and that the defendant is only in the ordi-
nary enjoyment and use of the land. 1 Ves. 278 ; 1 Mod. 114-
Chetwood. In this court, title need not be set out in order to
obtain this rule. And defendant, by his own showing upon the
affidavits, cannot dispute the legal title of the lessor. The lessor
has merely covenanted to convey.
KIRKPATRICK, C. J.
In chancery, the complainant must show his right, if he would
obtain this benefit. It is not so at common law. It is against
the mode of proceeding here to spread out the title upon such
applications. But notwithstanding this, where there is a contest
for land, we will, as far as possible, keep the property from
waste, and in the state in which it was at the time when the suit
wmmenced. But then every cutting is not to be considered
waste. The use of the wood for the common purposes of the
estate is not waste. Here the land is annexed to a furnace; cut-
ting wood for it is no waste ; it is using the land in the ordinary
mode. The court will not, therefore, interfere.
BY THE COURT. The rule refused.
650 NEW JERSEY SUPREME COURT. [5 LAW
Lanning v. Shute.
*LANNING v. SHUTE. (a)
In debt.
Lanning brought, in the city of New York, an action against
Shute for slander, and obtained verdict and judgment. He then
commenced an action of debt, upon the judgment, in this court.
The defendant, Shute, pleaded 1. Nul tiel record. 2. Nil debet.
Annexed to this second plea, was a notice that he would give the
truth of the words in evidence, and also certain circumstances
which took place at the time of the trial. The plaintiff' demur-
red, and there was a joinder in demurrer.
Chetwood moved to strike out this notice of particulars upon
the ground that a part of the matters it contained would have
been fit for a motion for a new trial, and the rest, a defence in
the original suit ; but the judgment in New York was conclusive
of the matters which were the foundation of it.
Scudder answered. If the plea nil debet be good, the court
will not strike out the notice, and the validity of the plea must
abide the decision on the demurrer.
KlRKPATRICK, C. J.
The plea and notice are one thing, and you must take both
together. You cannot nullify the plea by striking off the notice.
Chetwood thought it necessary to get rid of the bill of partic-
ulars before he could get to the demurrer.
SOUTHARD, J.
The plea and notice both raise the same question.
BY THE COURT. The whole must be considered on the de-
murrer. We cannot now strike off the notice.
(a) S. C., post 778.
*553
2 SOUTH.] MAY TERM, 1819. 651
State r. Shinn.
THE STATE v. JAMES SHINN
After insolvent applies for discharge, the law is repealed, and he is after-
wards discharged, the discharge void, (a)
On Geriiorcuri.
This writ was prosecuted by Joshua G. Harker, and was
directed to the common pleas of Monmouth, to remove the
judgment, order, petition and proceedings given and made, upon
the application of the defendant for the benefit of the insolvent
laws of the state. By the return, it appears that he presented
his petition to the court on the 27th of January, 1818 ; that the
proceedings were had in the usual manner, and that the final
hearing upon the application took place on the 12th of March,
1818, on which day he was discharged by the court. In the
month of February, after the application, and before the dis-
charge, the legislature passed a law, repealing the one then in
force, for the benefit of insolvent debtors, and containing no
clause saving the benefit of such applicatioas as had been pre-
viously made.
The reason assigned and relied on for setting aside the order
and discharge was in the following words : " Because the acts of
the legislature, under which the application of the said James
Shinn was made to the said court in the term of January, 1818,
were afterwards, and before the 12th day of March, 1818, when
the said order of discharge was made, repealed, and not in force
on the day last aforesaid, by reason whereof the said order was
and is wholly unauthorized, illegal and void."
Evring, for the prosecution.
THE COURT, after argument, did order and adjudge that the
(a) See Den, Jnmf* v. D<tboi*, 1 Hear. S86 ; Hunt v. Ouliet, 4 Hal. SOS.
*554
52 NEW JERSEY SUPREME COURT. [5 LAW
State v. Burlington Orphans Court.
order of the said court of common pleas of the county of Mon-
mouth, for the discharge of said Shinn from confinement as an
insolvent debtor, and the discharge of said Shinn to be set aside.
THE STATE v. THE JUDGES OF THE ORPHANS COURT OF
THE COUNTY OF BURLINGTON.
Division of estate by commissioners under order of orphans court set aside,
because lands not of the estate set off to one of the heirs, (a)
On certiorari.
At the term of November, 1818, Wall presented two affidavits,
whereby it appeared that an application had been made to the
orphans court of Burlington for the appointment of commis-
sioners to divide the real estate of Isaac Quigley, deceased ; that
they made a division and report on the llth of February, 1818;
that this report was confirmed in the same month ; that the
whole of the land set oif and divided to Jemima South, one of
the heirs (who was, at the time of the division, and still con-
tinued, an inhabitant of the state of Ohio), and part set off to
Rachel Ro*berts and Jane Rossell, was contained in a deed given
by said Quigley, on the 21st of November, 1780, to Ebenezer
Cowell, and that Cowell went into possession of it at the date of
the deed, and he and his heirs had continued in possession ever
since.
Upon these affidavits a certiorari was issued, directing the
court to send up the report and order. Upon the return of the
writ, other affidavits were taken, which proved the facts before
stated, and it was moved to set aside the report of the commis-
(a) See Bellerjeau v. Real Estate of George Ely, 3 Hal. 273 ; Stokes v. Mid-
dleton, 4 Dutch. 32; Young v. Raihbone, 1 C. E. Gr. 225 ; Den, Richman v.
Baldwin, 1 Zab. 395; S. C , 1 Stock. 394; Van Riper v. Berdan, 2 Qr. 133; N.
J. R. R. Co. v. Siiydam, 2 Harr. 62.
*555
2 SOUTH.] MAY TERM, 1819. 653
State r. Brearly.
sioners, upon the ground that they had divided lands not
belonging to the estate of Isaac Quigley, and had not given any
of his lands to one of his heirs, and less than their proportion to
two others.
Kinsey objected. That the certiorari ought to have been
brought within three months ; that the objection to the report
ought to have been made within three months ; that the adverse
d;ii in of Cowell could not be tried here, and must be tried before
a decision can be made in favor of Mrs. South ; and that chancery
had the jurisdiction over this matter.
Wall replied that Mrs. South lived out of the state ; that the
writ was applied for as soon as could be done from her situation ;
that the division was made in February, the affidavit in August,
and the motion in November ; that the certiorari must necessa-
rily be issued in three months only in adversary suits, not in
ex parte hearings ; that this was the only mode of reaching the
evil ; that the application here was to the general superintending
power of the court, which was sufficient for the purpose.
The court ordered that the division and report of the commis-
sioners, and the order of the orphans court, be reversed and made
void.
STATE v. DAVID BREARLY, Esq., Colonel, and HENRY BER-
RYMAN, Esq., Lieutenant, in the army of the United States, (a)
On habeas corpus.
On the 23d of April, 1819, Samuel Anderson, as the next
friend of Isha Davidson, presented to Justice Southard a petition
setting forth, in substance, that the said Davidson was in the
(a) Bruen v. Ogden, 6 Hal. S8S ; Stale v. Zulich, 5 Dutch. 409; In waiter
of Troutman, 4 Zab. 634.
654 NEW JERSEY SUPREME COURT. [5 LAW
State v. Brearly.
custody of the defendants, under a pretence of having enlist*ed
him as a soldier in the armies of the United States on the 8th of
January, 1819 ; that he was eighteen years old on the 3d of
April, 1819; that Re was born of poor parents, and had been
bound out to said Anderson as an apprentice by B. Hendrickson,
overseer of the poor of the township of Trenton, by and with
the advice and consent of W. Potts and R. M'Neely, esquires,
two of the justices of the peace, according to the law of New
Jersey, by indenture dated the 9th of September, 1811 ; that no
consent to the enlistment was ever obtained from the overseer or
justices, or any of them, either before, at or after the enlistment;
that the consent of no one, save that of Davidson's, into which
he was inveigled, was obtained previous to the enlistment. To
this petition was annexed an affidavit of said Anderson " that
the facts stated in the petition, according to the best of his knowl-
edge and belief, are true."
Upon this petition and affidavit Justice Southard granted a
writ of habeas corpus, directed to the defendants. To this writ
Colonel Brearly returned, in substance, that the said Davidson,
on the 8th of January, 1819, voluntarily enlisted as a soldier in
the army of the United States for the period of five years, unless
sooner discharged by proper authority, at the same time repre-
senting himself to be aged twenty-one years ; that afterwards, on
the 20th of February, 1819, the said Anderson, pretending to be
his master, consented to the said enlistment by writing under his
hand, testifying his free will and consent that said Davidson, his
indented apprentice, to enlist in the service of the United States,
and that by virtue of such enlistment he was held &c., nevertheless
the body of the said Davidson he had ready as commanded &c.
Annexed to the return was the original enlistment, in the usual
form, and bearing date on the day stated ; on the back of it was
endorsed: " Trenton, N. J., 20th February, 1819. I, Samuel
Anderson, of Nottingham, Burlington county, N. J., do hereby
give my free will and consent for Isha Davidson, an apprentice
to me, to enlist into the service of the United States. Signed,
Samuel Anderson. [Seal.] Signed and sealed in the presence of
Robert Lyman, William Cherry."
*556
2 SOUTH.] MAY TERM, 1819. 655
State v. Brearly.
After that return Anderson filed a reply protesting that the
enlistment was void, and stating that he had forewarned the re-
cruiting sergeant not to enlist Davidson, as he was a minor and
his *apprentice, and that afterwards he had been discharged,
both by the military officers and by an order or decree of the
district court of the city and county of Philadelphia.
On the 3d of May the petitioner appeared, and the defendants
produced the prisoner. The petitioner offered in evidence an in-
denture of apprenticeship, which was executed in due form of
law, and was such as was stated in the petition. He also offered
a record, certified according to law, from the district court of the
city and county of Philadelphia, by which it appeared that on
the 18th of March, 1819, before said court, Anderson, in behalf of
Davidson, presented a petition setting out " that Davidson was
deprived of his liberty by Lieutenant Andrews, commanding
officer of Fort Mifflin, and that without any just or reasonable
cause," and praying for a habeas corpus, and he made oath to
the truth of the facts stated in his petition, and that Davidson
was not detained for any criminal or supposed criminal matter,
to the best of his knowledge and belief; whereupon a habeas
corpus was ordered and issued, returnable immediately. To this
writ Lieutenant Andrews returned that Davidson was sent to that
post on the 20th of February, 1819, and was detained, in conse-
quence of being an enlisted soldier in the Seventh regiment United
States infantry. The record adds, " and now, the 20th day of
March, A. D. one thousand eight hundred and nineteen, after
hearing, the said Isha Davidson is discharged from his enlist-
ment."
It was, at the same time, agreed by the parties that Davidson's
age was the same as is stated in the indenture ; that in the month
of February last past, and before the enlistment, the recruiting
sergeant brought him to a surgeon to be inspected, as a person
who was about to enlist ; that Anderson, his master, followed and
claimed him as his servant ; whereupon the surgeon did not in-
spect nor certify, but he was immediately dismissed ; that after
the enlistment, viz., between the 12th and 20th of February,
A nderson called on Lieutenant Lyman, who commanded the re-
*557
656 NEW JERSEY SUPREME COURT. [5 LAW
State v. Brearly.
cruiting rendezvous, and again claimed him, and requested his
discharge ; whereupon Lieutenant Lyman did discharge him ;
that after this, viz., on the 20th of February, the master, Ander-
son, voluntarily returned to the recruiting rendezvous with David-
son, delivered him to Lieutenant Lyman, and signed his consent,
which is endorsed on the back of the enlistment. After this
(the time *not precisely ascertained), Davidson left the recruiting
rendezvous and was found in his master's house. Lieutenant
Lyman declared to his master that he would take him as a
deserter, and sent men for that purpose; but he also declared
that if Davidson was peaceably delivered up, he would produce
him, provided the master chose to contest the legality of the en-
listment and holding ; whereupon he was delivered to Lieutenant
Lyman and this habeas corpus brought. Upon this state of facts
appearing, the judgment on the writ was, by the consent of the
parties, adjourned, and Justice Southard certified the whole mat-
ter to the supreme court, then about to sit, that judgment thereon
might be had at bar.
L. H. Stockton appeared for the prosecutor of the writ. Watt,
for the defendants.
L. H. Stockton argued 1. By the statute of New Jersey (Pat.
26 18) the overseers of the poor were made guardians of poor
infants, and, as guardians, authorized to bind them by indenture.
2. That the act of congress of the 16th of March, 1802, which
was referred to by the act of 1815, fixing the peace establish-
ment, requires that the consent of the parent, guardian, or mas-
ter should be first obtained, be/ore a minor could be enlisted.
The consent of the parent was first to be had, then of the guar-
dian. In this instance there was no parent to look to, and the
statutory guardians had given no consent. The enlistment was
therefore void, not voidable, and no subsequent consent could
make it good. 3. The discharge in Philadelphia has already
once relieved him from the unlawful imprisonment and ought to
have its operation here.
*558
2 SOUTH.] MAY TERM, 1819. 657
State . Brearly.
Wall. This court has no jurisdiction. The United States is
a party. 1 Johns. Cos. 136; 2 Hatfs L. Jour. 192; 9 John*.
S39; 1 Mason 86. 2. The enlistment is not void. By the
statute of 1809, and the rules and articles of war which are
referred to in the statute, it is manifest that an infant under
eighteen years may be enlisted, bat is entitled to his discharge if
the consent be not obtained. This consent may be of the parent,
master, or guardian, in the disjunctive. The person whose con-
sent is to be obtained is the one entitled to the service. 1 Mason
72. This consent may be obtained after the enlistment, and will
confirm and make it binding. 3. The discharge in Pennsylvania
was altogether ex parte; even the enlistment was not and could
not be there. It is manifest too, that the master concealed from
the court, the consent which he had given. The court, also, go
too far ; they discharge not only from the imprisonment, but from
the enlistment also.
L. H. Stockton, in reply, insisted that jurisdiction in cases like
this had never been surrendered, and therefore remained to the
states. Const. U. S. art. V., and ninth and tenth amendments ;
5 Sinn. 385. That the contract here was void ; it was against
the infant and not for his benefit, and the guardians, whose
power by the statute is complete, never consented. 6 Bac. 877
"Statutes" let. 9; 1 Mason.82.
This case was presented for consideration at the close of the
term. The court looked into it and directed Justice Southard to
pronounce the judgment.
SOUTHARD, J.
I am directed to deliver the opinion of the court and waive
the question of jurisdiction as one upon which it is not necessary,
in this case, to decide. In doing this, however; without entering
into any argument upon the subject, I must individually remark
that the question is of no ordinary importance, and I think it
will require in me a great struggle, both of feeling and judgment,
ever to arrive at the point where I shall be prepared to deny
the jurisdiction of the state and say that she has surrendered her
*559 42
658 NEW JERSEY SUPREME COURT. [5 LAW
State r. Brearly.
independence on questions like this; that her highest judicial
tribunal for such purposes is incapable of inquiring into the
imprisonment of her citizens, no matter how gross or illegal it
may be, provided it be by agents of the United States and under
color of their laws.
There are, indeed, cases of daily occurrence in which the citi-
zens of the state are parties but of which we have not jurisdic-
tion. They are those which originate from and depend altogether
upon the nature, character and powers of the general government,
and which would not have existed without its formation ; such,
for example, as relate to its revenue. These subjects, belonging,
in all respects, exclusively to the United States, the state, or its
agents, cannot judge concerning them, unless the power be ex-
pressly granted by the constitution, to which the state has given
its assent. There are other questions where the state and federal
courts both have jurisdiction. They are such as existed and
were the subjects of state cognizance and judicial notice before the
*formation of the general government, and are given to the
United States, but altogether without words of exclusion used in
application to the state. They are possessed by the federal courts
because expressly given ; they are retained by the states upon the
impregnable ground that they have never been surrendered. The
present appears to me to be a case where the right of jurisdiction
did exist in this court, in full, ample and complete extent, and it
must, therefore, still exist, unless surrendered by clear, explicit
and indubitable grant. It is a right of judgment upon habeas
corpus ; it is a question of imprisonment or release of the citizen.
When and how were that right and question, the dearest to the
citizen, relating to the highest duty of a government, to the
proudest attribute of sovereignty, given up and surrendered ?
Have we lost the jurisdiction because we cannot construe and de-
termine the extent and operation of acts of congress ? We are
often compelled to construe them; they are our supreme law
when made in conformity with the constitution. Is it because
the United States is a party ? How does she become a party
on such a question ? Is she a party for the purposes of despot-
ism whenever a man who holds a commission from her shall,
*560
2 SOUTH.] MAY TERM, 1819. 659
State v. Brearly.
without legal authority, or in violation of her own statutes, in-
jure, imprison and oppress the citizen ? Surely not. Is it be-
<ause the United States judges have jurisdiction? The jurisdic-
tion of one does not exclude the other, unless expressly and in
words so ordained and ordered. To my mind, therefore, under its
present impressions, there is no real difficulty on this part of the
-case. The power of this court, in rescuing the citizens from unlaw-
ful imprisonment, is without limit from any of these sources ; and
I do not see how it can be otherwise, so long as any portion of
sovereignty remains in the state. But I have merely suggested
these ideas because the subject is deeply important, and I did not
feel willing to give the assent which would seem to arise from
silence, to the doctrine that jurisdiction was not in this court
upon this question. These suggestions, however, are to be re-
garded as my own, the opinion of the court resting on other
grounds.
The facts in the case are these : Isha Davidson is a child of
poor parents, and was bound out under our statute by the over-
seers of the poor ; before he was eighteen years old he left his
master, without his consent, and enlisted and received the bounty
and clothes which are always given on the enlistment. His
mas*ter claimed him from the officer under whose command he
was, who surrendered him, taking, it is understood, security for
the bounty and value of the clothes. After this the master, of
his own will, without any interference on the part of the officers,
returned in company with Davidson and freely surrendered him,
upon the enlistment which had been made, and confirmed that
enlistment as far as he could by endorsing his consent upon it
and receiving the security which he had given for the bounty.
Davidson was removed to Fort Mifflin, an application made for
a habeas corpus in Philadelphia, and Davidson adjudged to be
freed from the imprisonment complained of. On his return
with his master he was here again taken possession of by the
officer, and this occasioned the issuing of the present writ.
In looking into the facts it is very obvious that the conduct
of the master has not been such as to excite any feeling on the
part of this court in his favor. If he loses the service of his
*561
660 NEW JERSEY SUPREME COURT. [5
State v. Brearly.
apprentice he must charge the loss to his own conduct. It is
also obvious that the discharge in Philadelphia furnishes no
impediment to the investigation of the case here. The decision
of the court there could in no possible respect bind this court
and close its inquiry on this subject. Its opinion may have beea
correct, yet a contrary opinion may be equally correct here and
at this time. Its inquiry and command must be bounded by the
state in which it sat, and although the imprisonment may have
been unlawful there, yet another state of facts may have occurred
which will render it lawful here. It is true the judgment of
that court purports to be not only a discharge from the imprison-
ment, but from the enlistment also ; but it is not perceived how,
upon the habeas corpus, the court can go beyond the confine-
ment, which is the great and sole object of the writ. Nor can
we see what evidence was there offered in order to determine
whether the whole case was exhibited, or whether we are called
on to form a judgment upon a totally different case. Were we
to judge alone from the record, or from that connected with the
admissions of the parties, even the enlistment itself was not
shown, nor was it at all proven that the master had at any time-
given his consent. It is believed that these facts were concealed.
But be this as it may, we do not apprehend that that record im-
pedes our inquiry.
The right of Isha Davidson to a discharge depends upon the
*proper construction of the acts of congress fixing and regulat-
ing the military peace establishment of the United States. They
provide for the enlistment of persons between the ages of
eighteen and thirty-five, and five feet six inches high ; but the
regulation as to height and age is not to extend to musicians nor
to those soldiers who re-enlist into the service. And " no person
under the age of twenty-one years shall be enlisted or held in
the service without the consent of his parent, guardian or master,,
first had and obtained, if any he have." In the construction of
these provisions we must not lose sight of three ideas. 1. That
the power to raise armies has been expressly granted to congress.
They have full and entire control over it. What they enact,
therefore, on that subject is to be liberally construed. 2. We
*562
2 SOUTH.] MAY TERM, 1819. 661
State - . Brearly.
*re not to regard the employment or profession of a soldier as
unprofitable or dishonorable, or in any way injurious to the
citizen. Whatever may be our private feelings when looking
into an act of congress making provision for the creation and
support of an army, we are not permitted to regard it in an un-
friendly or unfavorable light. So far as relates to the import of
the laws and the objects of the government, it is to be esteemed
both a profitable and reputable profession. No inference, there-
fore, is to be made in favor of the discharge of an infant because
the enlistment is against him and not for his benefit. 3. The
provisions of the law authorize the enlistment for musicians of
persons under eighteen years. There is but one form of enlist-
ment ever provided or used under the laws or the rules and
articles of war ; and as persons are enlisted under eighteen for
musicians, and all are enlisted under the same form, it must be
shown that the object here was not to make him a musician.
We do not presume and infer this. It must be proved. But
we are, in this case, left without information upon the point.
The result of these ideas is that an officer may enlist a person
under eighteen, and the enlistment is not void as against law and
the interest of the infant ; it is voidable only, and that by those
who have a right to complain. He may be enlisted, but he can-
not be held after it is shown that some one has a right to com-
plain of his detention.
The persons whose consent is pointed out as necessary are the
parent, the guardian or the master. But is the consent of all
necessary ? Certainly not, if the ideas before suggested, or the
phraseology of the law, be well considered. These persons are
*named in the disjunctive ; the business is regarded as honorable;
the only thing which any one is considered as losing is the service
of the person enlisted. The person entitled to that is the only
one whose consent is- to be obtained. The want of the master's
<x>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 <fec., S Vr. fSS; Vannoy v. Given*, S Zab. SOI; Obert
v. Whitehead, 4 Hal. *45.
(6) See Shepherd v. Laylon, Penn. *618 ; Herbert v. Cooper, Penn. *1044;
Bigelow v. Pine, Penn. *5SS ; Youngs v. Shough, S Or. 7 ; Mundy v. Boss, S
Gr. 466; Ashcroft v. Clark, post 577 ; Croser v. Chambers, Spcn. S58 ; Lainy v.
Jsce, Spen. SS7.
*570
672 NEW JERSEY SUPREME COURT. [5 LAW
Buckley v. Beardslee.
On certiorari.
Attorney-General, for the plaintiff.
The state of demand sets out the following case : That Beards-
lee, on the 2d of July, 1810, became security for one Cornelius
Smith to Martin Ryerson and Matthias Little, in a note of hand
for $64.25, payable the 1st of November, 1810 ; that on the
llth of January, 1811, Ryerson and Little obtained judgment
on the note for $65 debt and fifty-three cents costs, before Z.
Sutton, Esq. ; that execution was issued on the judgment, and
that on the 25th of February, 1811, Beardslee paid the amount
of it to the plaintiffs ; that Beardslee, " being about to prosecute
and pursue the said Cornelius and his property for the amount
of the judgment aforesaid, the said George Buckley, by his agree-
ment in writing, bearing date the 25th of April, 1811, and
signed by said George Buckley, in consideration that the said
George Beardslee would delay to prosecute and pursue the said
Cornelius Smith for the amount of the judgment aforesaid, for the
space of six months from the date of said agreement, undertook
and promised the said George Beardslee to pay him the *amount
of the said judgment and execution if the said Cornelius should
not pay the same within the space of six months from the date
of said agreement to the said George Beardslee ; and the said
George Beardslee says he did delay to prosecute and pursue the
said Cornelius and his property, and hitherto hath delayed and
forborne, yet the said Cornelius hath not, nor has the said George
Buckley, yet paid the said George Beardslee the amount of the
said judgment and execution."
The suit was commenced on the 26th of April, 1817. On the
trial of the cause, by the consent of parties, the note from Smith
and Beardslee to Ryerson and Little, the judgment and execu-
tion upon the note, and the undertaking writing from Buckley
to Beardslee were severally admitted and read to the jury. The
last-mentioned paper is in the words following, viz. : " Judgment
before Zebulon Sutton, Esq., the llth of January, 1811. Mar-
tin Ryerson and Matthias Little v. Cornelius Smith and George
*571
2 SOUTH.] SEPTEMBER TERM, 1819. 673
Buckley r. IJeanlslee.
Beardslee ; execution $65, cost $1.05, centage $1.30, amount
$67.35. I, George Buckley, of frrankford, do promise and en-
gage to pay or cause to be paid to the said George Beardslee the
amount of the above-stated execution, with cost, on the follow-
ing condition, viz.: that if the said Cornelius Smith should not
pay or cause to be paid the same in six months from this date,
then I, the said George, will pay the amount of the above-stated
execution to George Beardslee or his assigns, without defalcation
or discount. Witness my hand this 25th day of April, 1811.
George Buckley. Witness present, Charles Ingliss."
Several witnesses were sworn, and there were verdict and judg-
ment for plaintiff for $93.81.
Three reasons for reversal were filed: 1. The state of demand
contains no legal cause of action, inasmuch as the contract therein
stated is not sufficient in law to maintain an action. 2. The
agreement alleged and proved is variant from the state of de-
mand. 3. The said alleged agreement is an undertaking to pay
the debt of another, without any consideration appearing upon
the said alleged agreement. The last of these was principally
relied on in the argument.
KIRKPATRICK, C. J., and ROSSELL, J., affirmed the judg-
ment, none of the reasons being sufficient for reversal.
*SOUTHARD, J.
The declaration does not merely set out an agreement which
the plaintiff below was to establish by evidence, but a written
agreement to pay money for another, and states a consideration
as contained in that written agreement. The paper offered <.!(>*>
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 <lil
not recollect that the family called on their neighbors, except
herself and husband, to sit all night with him, until a few days
*592
700 NEW JERSEY SUPREME COURT. [5 LAW
Den v. Vancleve.
before his death. She staid with him four or five times before
the will was executed, and being a near neighbor, living within
a quarter of a mile on an adjoining farm, and often seeing him,
she could understand very well what he said, though his voice
faltered, and at some times more than others. Though he did
not, perhaps, speak twenty words together after he was palsied,
yet he often spoke to witness, inquired for her family and Mr.
Smith's, and asked about the dispute re*specting a line between
Phares and Reeder. He asked for drink when he wanted it,
except the last part of his illness, when he generally motioned
for it. He knew witness both by day and night, and once, in
the night, seeing some person in the other bed, asked who it was.
Witness told him it was Mr. Phares. He then inquired for de
fendant and was informed that he had gone to bed. On the day
the will was executed witness did not hear him say anything ex-
cept what is detailed in relation to the execution of the will. In
the afternoon of that day witness sat on the opposite side of the
room, defendant sat on the bed, and testator had his well arm
around defendant's neck; his lips moved, and he seemed to have
a long conversation with defendant. Witness sat up that night
with him, and no one that day or night thought that he was
dying. He died on the Saturday following. John Phares was
in daily expectation of death when his deposition was taken,
and died on the fourth day after. Johnson, the other witness,
was in defendant's employ at the time.
Stephen Johnson, on the day the will was executed, was pass-
ing, with a bundle in his hand, by defendant's, from New York
to Philadelphia. Defendant asked him if he would hire that
his hired man had gone away without leave. He assented, and
defendant requested him to go in and they would see more about
it. He went in and ate his breakfast, and an hour or two after-
wards defendant's daughter told him to come into the room where
testator was. When he came in defendant or his wife told him
to come near and take notice what was said. There saw testator
and witnesses all sign the will in the. presence of each other.
He' laid his hand on the seal without direction from any person
and said he acknowledged it to be his last will and testament.
'593
2 SOUTH.] SEPTEMBER TERM, 1819. 701
Den v. Vancleve.
Witness never saw him except at that time, perhaps for half an
hour ; but he believed him to know well enough what he was
about, and to be sound enough, as to his understanding, to make
a will. He lay on the bed, and as witness went in defendant
told him his wills had been taken out of the house. Testator
asked who by. Defendant said he supposed by some of his
children. Defendant then said there was a copy written by Mr.
Ewing, and asked if he wished to execute that. He replied
" Yes." Defendant asked him if he should read it to him. He
said " Yes." Defendant read it and asked if he was sensible it
was a true copy of the will he had formerly executed. He said
" Yes." *Defendant told him to speak out so that the people
could hear him. He exerted himself and said " Yes, I say so."
Phares asked if he should guide his hand. He reached out his
hand for the pen ; it was delivered to him, and Phares steadied
his hand. Either Phares or the defendant witness thought
Phares told him it was necessary he should acknowledge it to
be his last will and testament. He then reached out his left
hand, put his two fingers on the seal, and said " I acknowledge
this to be my last will and testament." A person standing near
could hear him distinctly and understand him, though he spoke
weak and low. After he had done, he seemed satisfied, reached
out his hand and took hold of Mr. Phares's hand, and witness
left the ropm. It was about eleven o'clock. The next morning
defendant told witness that his hired man, whose name was Per-
rine Castner, had returned and satisfied him about his going
away, and he was disposed to keep him, and witness could go.
Witness went on to Trenton, boarded at Atkinson's, worked at
General Wilson's house and stayed about two months, >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
<uld hear him ; that he had heard him, though he did not speak
o as to be heard at a distance. Johnson said this soon after he
began to work and several times afterwards, sometimes in General
Wilson's presence. The day before witness was sworn, Johnson
informed him what he had sworn, and witness thought he had
told two different stories.
Perrine Castner. Worked for defendant from the spring of
1817 until after testator's death, which took place on Saturday
night in the month of August. Always accustomed to go out
on Saturday night and stay until Monday morning, to which de-
fendant did not object ; went out as usual, after sunset, the Sat-
urday before testator died and returned before sunrise, and before
defendant was up, on Monday morning. On his coming home,
witness went to his room, changed his dress, went to the barn
and took care of the cattle, of which defendant had a consider-
able stock, and from thence went into the field and worked until
breakfast. Johnson was not at the house then ; witness did not
see or hear of him, nor did defendant find any fault with wit-
ness for his absence. Defendant had no other man to work for
him and take care of his cattle but a negro boy about twelve
years old. When witness went there in the spring testator could
walk and talk but had not his memory. Often, sometimes twice
a day, he asked witness who he was, and if he was the man that
Joseph had employed, and being answered, seemed satisfied. He
*sometimes walked into the field where witness-was at work and
talked with him, on which occasions defendant used to tell wit-
ness not to mind what he said, he did not know what he said
and could not remember what he said five minutes at a time.
Defendant and his wife spoke sharp to him, treated him harshly
and had him entirely under control and direction to do what
they told him to do, and prohibited witness from doing things
that he requested. He sometimes came into the kitchen in the
*600
708 NEW JERSEY SUPREME COURT. [5 LAW
Den v. Van cl eve.
summer and said he wanted more fire made on in the kitchen,
when they would stop witness from getting it, and say to him
"Father, we want no more fire," and then it would be all done
with ; he said it must be just as Joseph said, for he was afraid of
him. On these occasions witness always thought there was wanted
more fire in the kitchen. This was the only instance witness
recollected in which defendant or his wife treated testator harshly,
or in which witness was prohibited by them from doing what he
requested. He was in his senses a few minutes at a time and
then out of them again. When he spoke of wanting more fire,
as above related, he seemed to be reasonable, and when he was
done speaking he seemed to be out of his senses again. By being
out of his senses witness meant that he had lost his memory.
In June he had the fit, after which he was helpless, not able to
stir without assistance, confined to his bed, required cleaning in
the same way as a child ; and although he moved his lips and
tried to speak, yet he did not and could not, so far as witness
could ever see or hear ; persons sometimes attempted to talk with
him, but he made no answer. He did not appear to have any
senses or understanding, or to be capable of any kind of business.
Witness was sometimes called in to assist and help clean him,
and sometimes went into the room merely to look at him. Wit-
ness never had any conversation with the lessors about his testi-
mony.
James Brearley, Jr., lived about three-quarters of a mile from
testator, and knew him from infancy, but did not see him often
the latter part of his life ; for the last five years very seldom,
and had no conversation with him. About a year before his
death, witness was passing along the road towards Trenton, with
an umbrella in his hand ; he sat on the porch and asked what
witness had ; held up the umbrella, when he came to the fence
by the road, and asked who witness was and who his father was,
*and being informed, seemed satisfied. Saturday night before
his death, witness and Richard Hendrickson went to the house
about dusk and sat up with him until about sunrise ; wet his
mouth, and sometimes helped him to drink, prepared by the
family. He was frequently awake, but seemed from his appear-
*601
SOUTH.] SEPTEMBER TERM, 1819. 709
Den r. Vancleve.
ance as if he had no recollection, and could not move without
:i--i~tance, unless, perhaps, it was his left arm. He seemed
incapable of any kind of business. Witness could not tell
whether he could talk ; did not see him try. Once or twice he
seemed to take notice, and when his son came into the room, in
the morning, he seemed as if he wanted to say something, but
<uld not. Towards morning witness looked upon him as dying,
ud called up his son, the defendant.
Question by juror Did he know his son Joseph when he
<ame into the room? Answer I thought he did know him.
Richard Hendrickson. From witness' infancy acquainted with
testator, and saw him, sometimes, in the latter part of his life,
but seldom had any conversation with him. He sometimes
stopped witness, called him by name, and talked with him.
Witness sat up with him, in company with James Brearley, but
could not recollect the time. Testator then very ill ; did not
spoak or appear able to speak, or do any kind of business,
though he might have been. Towards morning he appeared to
alter so much that they thought him a dying man, and that it
was necessary to wake up the family.
Elizabeth Phillips was the daughter of Thomas Stevens, who-e
first wife was testator's daughter, and had no children. Witness
never visited at testator's with her parents, and seldom saw him
at his own house. About two years before his death, at his
house, he asked witness who she was. Witness told him,
Thomas Stevens's daughter. He asked if Thomas Stevens did
not marry his daughter Cordelia. Answer, "Yes." He then
asked if witness was her daughter, and it was some time before
witness could make him understand that she was not her daugh-
ter. Witness was with Mrs. Phares, going to church, on tin-
Sunday the will was executed. Defendant was standing at the
gate. Mrs. Vancleve came out and asked Mrs. Phares to go in,
that her father lay in a cold sweat, and she did not think he
would live until night. Mrs. Phares asked if she intended to
end for Mrs. Stevens. She replied she had gone away, and
she did not intend to send for her. Wit*ness had sometimes
*602
710 NEW JERSEY SUPREME COURT. [5 LAW
Den v. Vancleve.
seen testator at her Uncle Stevens', and her grandfather's, but had
no particular conversation with him.
Waters Smith. Sat up with the testator three times during;
his last illness ; the first time, in June ; the last time, the night
he died ; but did not see him in the day-time. The first time
he took hold of witness' hand and pulled him to him, but did
not speak, and perhaps could not ; his lips moved as if he wa&
making an effort, to speak, and witness supposed testator knew
him. The second time was some weeks after, and witness did
not go'to his bed. Witness' wife sat with him and gave testator
drink. He did not speak, as witness heard, during any of these
nights. He cast his eyes round the room, but did not appear as.
if he had any recollection or knowledge of what was going on *
nor did he appear as if he had a mind capable of transacting his
business or disposing of his property with discretion, though
witness did not know what passed in his mind. There did not
seem any very material alteration in his appearance the last night.
Mrs. Barsheba Smith, wife of Waters Smith, was a niece of
testator, and knew him from the time she was a child. Before
his last sickness he was forgetful, and asked over the same ques-
tion repeatedly ; sometimes did not know witness and asked her
name. His memory gradually grew worse. He was treated as
such old people generally are. It was twelve weeks after the
stroke of the palsy before he died. Witness sat up with him
five times in his last sickness, one of which times was the Mon-
day night after the will was executed. During the whole time
he lay in the same state ; there was no material change. He did
not speak, as witness heard, except to say Oh ! once when his
back was sore and they were turning him. Defendant was often
in the room and spoke to him, but witness heard no answer.
She thought he would have spoken to her if he could. He took
hold of her hand affectionately and always looked at her when
she went up to him. He also appeared to look at defendant and
his wife and their family with affection, and to know them. He
was incapable of helping himself, and his personal wants and
calls of nature of every kind were administered to exactly like
an infant. He always took what, and so much, as was given to
2 SOUTH.] SEPTEMBER TERM, 1819. 711
Den v. Vancleve.
him, though he could not always take it without difficulty ; the
passage of his throat was somewhat stopped. His countenance
was familiar, but somewhat wild. On the third night a bound
girl was along *with witness ; he knew the one from the other,
and looked at the girl as a stranger and as if he wanted to know
who she was. The palsy affected only his right side and he
often moved his left hand and foot.
Mrs. Ruth Stevens, niece of the testator, sat up with testator
one night, about a fortnight before his death, in company with
his daughter, Mrs. Clarke. He was very feeble and low. He
did not speak nor make any answer, although Mrs. Clarke often
asked him what he wanted to relieve him. He did not appear
able to tell her or make her understand. He only made a noise
in his throat. She was obliged to administer to him by her own
judgment. Witness did not see him show any desire or sign
that he wanted anything, or that he had enough ; he was per-
fectly passive. Witness was sometimes asleep and sometimes
awake during the night. Saw him three times in his last illness
but did not hear him speak. When she went ifi he was told
who she was that she was his sister's daughter he grasped her
hand and held it and looked up wild in her face, as if he wanted
to know her, and she thought at first that he did, but as he
grasped other persons' hands and looked at them, she could not
now tell whether he did or not. Before his last sickness his
memory had failed, sometimes knew witness, sometimes not, at
first, until told who she was. He sometimes told the same story
several times over.
Rev. Isaac V. Brown. Acquainted with testator and his
family since 1809, when he became the pastor of the conirre-
gation in Lawrenceville. Witness visited him a few days after
he was struck with the palsy, which occurred between the H)th
and 15th of June ;. found him in bed in a very low, reduced and
impaired situation. When witness came up to his bed testator
looked at him with a curious and inquisitive eye, and witness
thought testator knew him. Leaning over him, and in a loud
tone of voice, witness spoke to him at some length on the subject
of religion, stating some of those principles of Christianity which
*603
712 NEW JERSEY SUPREME COURT. [5 LAW
Den v. Vancleve.
were most deeply interesting and of extreme importance to him
in his situation. During the course of these remarks he several
times inclined his head and signified that he concurred in what
was said. Once he. uttered a sound which witness did not under-
stand, but his daughter, Mrs. Stevens, standing on the other side
of the bed, informed witness that he understood it very well,
and said " Very true," " All very true," and on reflecting on the
sounds they ap*peared, to witness, like those words. Witness
was satisfied, from the expression of his countenance, the motion
of his eyes, the inclining of his head and the sounds he uttered,
that he did understand what was stated to him. He was capable
of understanding simple but not intricate things or proposi-
tions, and could understand the important truths communicated
to him at that time, when stated clearly and distinctly, but
could not follow a common rapid conversation. Witness kneeled
by his bed and made a prayer, but doubted whether he could
follow him in his rapid way of expressing himself. Witness was
several times at the house afterwards, but did not go into that
room, because, in the state testator was in, he thought it not
probable that it would be pleasant to the family, or that he was
likely to profit much by what was said. Once witness went to
the room, but he lay asleep or under the influence of paregoric,
which he sometimes took. Before the stroke of the palsy his
memory, as to recent things, was impaired, and his recollection
of things, from day to day, was weak ; but his memory, as to
former things, was comparatively strong. After the stroke wit-
ness did not think him capable of disposing of a large estate, in
a perfect manner, but if the disposal of his property which he
had previously contemplated, and which had been familiar to him,
had been proposed to him, he would have known and remem-
bered it, and if it had not agreed with his mind he would have
refused to execute it. He could understand what he had pre-
viously fixed upon in his own mind.
Question by counsel for defendant Did not testator, many
years ago, inform you that he intended to give his real estate to
his son Joseph ? [Objected to by plaintiff's counsel, and waived
for the present.]
*604
2 SOUTH.] SEPTEMBER TERM, 1819. 713
Den v. Vancleve.
Thomas Stevens, a brother of one of the lessors, brother-in-
law of John Phares, and his first wife was Cornelia, daughter of
testator. In the month of August, 1817, after the will was
signed, and both before and after testator's death, witness con-
versed with Phares about it, and well recollected two of the con-
versations at witness' house, both of which were nearly the same,
and one of which was at the dinner-table in the presence of his
wife, mother and children. Though witness was somewhat hard
of hearing, he thought he understood these conversations perfectly
well, but did not recollect who introduced them. Phares said he
had been a witness to Benjamin Vancleve's *will, and his wife
also informed witness of the same. Witness asked Phares what
he thought of testator, and if he considered him capable of
making a will. He said he did not look upon him as capable
of any kind of business, or conveying away his property either
by will or deed. Witness asked him how he came to do such a
thing as to be a witness to his will. Witness did not recollect, cer-
tainly, what he said in answer, but believed it was that he did
it by the request of testator's son. Witness told him that he
himself would not have done such a thing he might as well
have taken hold of a dead man's hand ; at these conversations
witness did not know how the will ran. Witness had been in
the habit of visiting at testator's frequently as much so as at
any house in the neighborhood but had not seen him for six
months or a year before he had a stroke of the palsy ; saw him
once while he was ill ; he lay on his back ; his eyes open ; took
no notice of witness when he came in or went out, any more than
a dead man. Witness could not say whether testator knew him
or not. Witness was on intimate terms with John Phares ; he
was a man of good standing in his neighborhood, and witness
never heard anything against his character.
Mrs. Hannah Stevens, the wife of Thomas Stevens, and the
sister of Mrs. Phares, was present at the two conversations re-
ferred to by her husband, at his house. They were both before
testator's death, and, in both, the language of John Phares was
the same. In the first conversation Mrs. Phebe Stevens, one of
the lessors, who met him at the house, began the conversation,
*605
714 NEW JERSEY SUPREME COURT. [5 LAW
Den v. Vancleve.
and asked him if ho considered her father, on the Sunday when
she left there, capable of making a will and conveying away his
property. Phares answered, " No, by no means ; he had not utter-
ance to convey his property." Witness began the second conver-
sation by asking the same question Phebe Stevens had asked,
and Phares made the same reply. He was asked how he could
attempt such a thing as being a witness. He replied he did it
by the son's request. He called at witness' house, either going
or returning from the paper-mill. Before the first conversation
Phebe Stevens told witness what had been done, and that she
was charged with taking the wills. Witness called in once, in
testator's last illness, more than a week before his death, to see
him, went up and took hold of his hand ; he lay, apparently, in
an insensible state, with rather a vacant stare on his countenance,
but *said nothing. Witness did not sit down, nor say any-
thing, nor did anyone else say anything. Witness merely
looked at him and went away again.
Mrs. Sarah Smith, sister of Mrs. Phares and Mrs. Stevens,
lived within half a mile of testator, and knew him from the
time she was sixteen years old ; he often visited at her father's.
Saw him two or three times after he was taken down, and sat up
with him on the night he died, and the Wednesday preceding,
and then ministered to him like a child. Never spoke to him,
nor heard any one, nor heard him speak. He lay on his back,
and appeared insensible, and did not know her as she took notice
of. The first time she saw him after his illness, which was
several weeks before he died, he took her hand, or she his, and
he pulled hers towards him. Sometime before his last illness,
his memory failed him very much, and it was commonly re-
marked that he was failing very fast. Frequently at her father's
house he did not know witness ; the first occurred six or seven
years before; and about a year before, when she called at his
house, he did not know her, and inquired who she was. After
he was taken down, witness did not think that he had a mind
and judgment to do any kind of business, and, therefore, told
Mr. and Mrs. Phares that she disapproved of their signing as
witnesses. She had but little conversation with Phares, and
*60G
2 SOUTH.] SEPTEMBER TERM, 1819. 715
Den v. Vancleve.
heard him say but little about it ; but both Mr. and Mrs. Phares
said they thought what they did was right. Witness considered
the conduct of defendant and his wife towards the testator, rea-
sonable, prudent, and proper ; they always seemed attentive and
kind to him.
Mrs. Ruth Stevens, again. Intimately acquainted with the
family of the testator, and with his two daughters. He always
appeared to be an affectionate father, and they dutiful daughters.
So far as the witness knew, he was on good terms with his sons-
in-law. He visited very frequently at John Stevens's, but she
believed he did not visit much at Dr. Clarke's.
Plaintiff rested his evidence.
L. H. Stockton, for the defendant, offered Ralph Lanning, and
other witnesses, to prove that the testator at sundry times, and
many years before his death, in 1809, and at other periods, de-
clared to them that it was his intention that his son Joseph, the
defendant, should, after his death, own and enjoy all the *landed
property of which he should die possessed ; that to effect this
purpose he had made a will, devising it to said defendant ; that
he gave his reasons for so doing, and what those reasons were ;
and that these declarations were uniform and continued as long
as he was capable of speaking.
[This evidence was objected to by the counsel of the plaintiff,
as inadmissible upon the issue before the jury.]
The objection was elaborately argued by R. Stockton, Jr., and
Wall, for the plaintiff. L. H. Stockton and Attorney- General,
for defendant.
SOUTHARD, J., expressed the opinion of the court, and de-
clared the evidence .admissible. To this opinion the counsel of
the plaintiff prayed a bill of exceptions, and it was ordered.
From the course which the cause subsequently took, the re-
porter does not think it necessary to give the substance either of
the argument of the counsel or of the remarks of the court.
*607
716 NEW JERSEY SUPREME COURT. [5 LAW
Den v. Vancleve.
Evidence for the defendant.
It was admitted by the parties that John Vancleve, the
brother of the defendant, died in the month of July, in the year
1802.
Edmund Roberts. A little before John's death witness had
a conversation with testator about learning. He was then a
member of the legislature, and long before and after, a man of
high standing in society. He had given a part of his farm to
John, and told witness that he had given John an education,
which would be more valuable to him than so much fast prop-
erty, and he intended to give Joseph the farm on which he
lived ; that if he gave John nothing more, he should have done
as well by him as if he gave him more land. He said nothing
of his daughters. The last time witness called to see him,-or
had any conversation with him, was about two years before his
death. It was in the last summer of the last war. He was then
an altered man. When witness came up to him on his porch, he
did not seem to know witness, but said, " You have the advantage
of me." Witness said he thought it was strange he did not know
him. He said he thought he knew witness' voice. "Witness told
his name. He then said it was strange he did not know him,
and asked him to walk in. They sat and conversed in the pas-
sage about an hour. He spoke of what had happened in the
revolutionary war and in *the legislature, and appeared to have
his memory perfectly about ancient matters, and whenever any-
thing was presented to his mind, he understood it fully. His
judgment was very bright and accurate. He told his daughter
to bring something to drink ; asked witness to drink, and to call
and see him again, and seemed desirous to be familiar and to
keep up acquaintance.
Ralph Lanning. Sixty years old in March ; lived within a
mile of testator, and knew him for twenty years last past. In
June or July, seven years ago, was passing along the road, and
testator, who was sitting on his porch, called witness to him. In
the conversation, he asked witness what he was going to do with
all his land. Witness replied that he had heirs and heiresses
enough. He then told witness that he had better do as he was
*608
2 SOUTH.] SEPTEMBER TERM, 1819. 717
Den r. Vancleve.
going to do. Witness asked, "How is that?" He replied, "Give
it all to ray son Joseph." Witness asked why. He said Dr. Clarke
had plenty of land, and so had Major Stevens ; that Joseph should
take the land, and pay his two sisters ; and that witness had bet-
ter not break his farm, but give it all to one of his sons. After
this they conversed about farming, and such matters as are com-
mon for neighbors to talk about.
Rev. Isaac V. Brown, again. During one of witness' paro-
chial visits to testator's, between 1810 and 1813, testator said
that he would give, or had given, his farm to Joseph, so that he
should have it after he was done with it. Witness did not recol-
lect what led to the conversation ; but, as he did not wish to
enter into such subjects in his conversations, he disposed of it as
soon as he could. Witness did not recollect that anything was
said of the daughters. Witness was well acquainted with the
character of Phares and his wife. -Phares was a man of con-
siderable intelligence, good principles, correct deportment, a
professor of religion, in bad health the latter part of his life,
and passed through trying circumstances, being reduced; but
witness never heard his reputation assailed by anybody. For
several weeks before his death, he was very sick and low, and in
witness' last visit, three or four days before he died, was, or ap-
peared to be, fully impressed with the belief that he was about
to die. Mrs. Phares had been respectable, both as a young and
as a married woman. Witness considered her a pious woman
and exemplary Christian. Mrs. Ruth Stevens has a good and
correct general character ; and *Thomas Stevens was considered
upright, respectable, and of veracity.
Henry Cook was sixty years old ; had known testator forty
years, when he commanded a company at the battle of Long
Island. Witness' farm adjoined the premises. About the year
1810, testator came over to visit witness. He said that Joseph
had bought John's part of the land, which was about one hun-
dred acres, given him by testator, lying over the road, and got
it pretty well under way for paying for it. He was pleased with
it, as the place would be all together again. Witness asked tes-
tator if he had given the rest of the place to Joseph. He said
*609
718 NEW JERSEY SUPREME COURT. [5 LAW
Den v. Vancleve.
no ; he meant to keep it as' long as he lived, and then Joseph
might have it. He did not mention his daughters. The rest of
the conversation was about indifferent matters.
It being proved that Charity Smith was sick, and incapable
of attending, her deposition, which had been taken by Justice
Southard, under the statute, was read. It stated that she was
grandmother of defendant's wife ; eighty-one years old two
days before her deposition was taken ; had for thirty years been
a near neighbor of and intimately acquainted with testator, and,
for one or two years, lived in the house with him, and herself
and husband were very much attached to him, and he to them.
She went to his house every day for some time before his death,
because when she came in he used to take her by the hand and
hold and press it, tell her he was glad to see her, and wished her
to come often. He always knew her when she came in. She was
a witness to a will made by testator in 1809 ; and he afterwards
informed her that he made another will in 1814, because he had
had a property in right of his wife, in Monmouth, which he had
sold ; and he heard that Stevens said, after he was dead he meant
to get that property, which testator supposed he would be able
to do ; and, as he had given a legacy to Stevens's wife in his first
will he wished so to alter it that if Stevens did get back that prop-
erty his wife should not have the legacy. He further stated to
deponent that Doctor Clarke was the richest man in the neighbor-
hood, and able to support testator's daughter without his giving
him anything ; that Stevens had no child, and had property
enough if he took care of it, and it was needless to give him
more ; that he had advanced to his daughter, Mrs. Clarke, to the
amount of $800, and had left her $200 *more in his will, making
$1,000, and that was as much as he thought any common farmer
gave his daughters ; that he had not given quite as much to Mrs.
Stevens because she had no child, and if he gave more Stevens
would not take care of it, but would work through with it, but
he had left her the same as Mrs. Clarke in the will ; that his
daughters were both well fixed, and he intended his son should
have his farm. Deponent did not recollect that the testator told
her what he left to his daughters in the will of 1809, to which
*610
2 SOUTH.] SEPTEMBER TERM, 1819. 719
Den r. Vancleve.
she was a witness, but believed it was the same with the last ex-
cept the alteration before mentioned. He often told deponent
that he did not like Stevens ; that Stevens did not treat him with
respect ; that he was often at Stevens's house when they were
eating, and he would ask him if he had eaten in such a way as
to give him offence, and he would not eat with him ; that he was
angry with Stevens for parting with his farm. Deponent heard
testator tell his son Joseph that he must take care of Doctor Clarke,
and not put himself in his power ; that he was very rich, and a
cunning, artful man, and he would take advantage of him if he
could. Deponent had a perfect recollection of a conversation
which took place between her, defendant, his wife and Mrs. Clarke,
on the 28th of August last, a part of it in the entry, while the
door of testator's room was open, and part of it ill his room.
Defendant said to Mrs. Clarke, " My father's will is gone, and
some of you have taken it away." She replied she could take
her oath Mrs. Stevens had not taken it. Defendant said " You
know who has got it." She replied she herself had not got it.
Defendant said " Some of you have it, and you know who it is."
She replied she did not care ; it was no more than he would have
done if he had had the same chance. She added that she knew
her father had given Joseph the land in all the wills, and in-
tended him to have it, and they did not want his land. Defend-
ant then said, " What is it then, Betsey, that you do want ?" De-
ponent did not recollect the answer. Mrs. Clarke was in a vio-
lent passion, shook her fist at deponent, and raved and abused
defendant, his wife, and deponent very much. She told depo-
nent that Joseph said she (deponent) was a drunkard. Depo-
nent supposed she intended to make her angry with Joseph
and set her against him, and replied to her, " When you strike at
anyone and don't hit, the blow doesn't hurt ; " that she did not
care who called her a drunkard, it was not true, and a good con-
science was better than a thousand *witnesses. Mrs. Clarke also
told her to tell her grand-daughter Chatty to hold her tongue,
and not say so much, as she would repent it. She also told de-
fendant and his wife that they did not treat her father well, but
abused him, and deponent knew it, and that they had also abused
*611
720 NEW JERSEY SUPREME COURT. [5 LAW
Den v. Vancleve.
deponent while she lived with them. Deponent knew that this
was not true, both as to testator and herself, and told Mrs. Clarke
that she was much surprised at her conduct, and at what she
said. Mrs. Clarke came there only a short time before the con-
versation and went away very soon after it. When she went
into the room testator did not speak to her, but seemed very
much affected. He lay near the door, so that he could hear
what was said in the entry as well as that in the room ; he seemed
very much hurt; the tears rolled down from his eyes, and
he groaned worse than deponent heard him in all his sickness.
He could talk on that day and did converse with deponent after
Mrs. Clarke went away, about indifferent matters, but deponent
did not mention what had passed, as she perceived it hurt him.
What he said on that day was rational, and he had full posses-
sion of his reason and memory. Deponent thinks she saw him
on the day the will was executed, as she was there every day,
and on that day he was of sound mind and memory. They had,
at times before this, failed occasionally, but in the main he had
them very well ; could understand what was said to him, and
answer questions put by anybody that came in, so that they could
understand him, but he did not converse much with anyone.
She did not recollect any conversation with him on the day the
will was executed, nor any particular conversation in his last ill-
ness except his inquiries about the health of different neighbors,
and the dispute then existing between Mr. Reeder and Mr.
Phares about a line of their lands. He often talked about that
dispute, recollected the line, and where the old road ran, and all
the circumstances about the dispute. It arose after he was con-
fined by his last sickness.
Frazee Ayers, Esq. In consequence of his marriage with the
sister of defendant's wife he had been acquainted and visited in
the family of the testator since 1804. In the year 1809, walk-
ing from Mr. Smith's with testator, he told witness that he had
given his son John the part of his farm on the east side of the
road, with twenty acres of wood on the other side ; that since
the death of John defendant had purchased it, and he was
pleas*ed with it, as defendant would now have the whole farm
*612
2 SOUTH.] SE1TKM!JKK TKUM, 1819. 721
Den t. Vancleve.
together ; that he had made his will and left the rest to him, and
given a legacy to each of his daughters of a small sum, witness
thought about $300 or $400. Witness thought the sum so small
for his large property that he turned and looked at him. He
then said that his daughters were very well married and would
not want any more ; that Joseph had been all the time with him
on his farm and he intended to give it to him ; that he had been
obliged to make up a considerable sum of money for a sheriff
for whom he was security, and who had been in default, and
that Joseph had helped him to pay the money. He did not say
that he helped him to pay it off the farm.
Jasper Smith. Was about the same age as testator and always
lived near him as an intimate neighbor and friend. About
seven years ago witness sold a piece of land to Mr. Lanning and
testator took him to task about it, and said he did not mean to
break his farm ; that he had made or intended to make his will,
giving it to Joseph, who should pay out something to his sisters.
Witness was at testator's some time before his death, when Mr.
Brown talked to and prayed with him ; he seemed still and very
near his end ; witness did not recollect that he heard him speak.
Some years before that time he lost his recollection very much,
but his judgment was quite good some time after his memory
began to fail. When you first entered into conversation with
him he seemed quite forgetful, but after some conversation he
talked rationally and understood everything. About two years
before he had the palsy he went on horseback with witness and
defendant to view a line which was in dispute, between his farm
and Mr. Reeder. He pointed out where the line was, along the
brook, said they had encroached and cut two trees, for which he
would make them pay, but he was an olu man and did not
choose to trouble himself with it ; that they were neighbors and
Joseph might do as he chose.
Robert Phares, major, brother of John Phares. Present part
of the time when his deposition was taken ; he was cautioned by
the judge to tell the truth ; he seemed to consider himself a dying
man ; was very weak but seemed to have a clear, good recollection.
Much delicacy was exhibited towards him in the examination.
46
722 NEW JERSEY SUPREME COURT. [5 LAW
Den v. Vancleve.
Samuel L. Southard took the deposition of John Phares. He
*was weak and could with difficulty relate what he had to say.
Very few questions were put to him, but he detailed the answers
as they were taken down. The deposition is nearly, -or quite, in
his own words, perhaps more nearly so than any deposition wit-
ness ever took.
Samuel Hunt, son of Nathaniel Hunt, who was an old and in-
timate friend of testator. Witness was thirty-eight years old
and acquainted with testator from his youth, and lived within
three miles of him. Between 1810 and 1813, he informed wit-
ness that when he was done with the property where he lived he
intended to leave it to Joseph. At that time his memory and
judgment were good. Witness saw very little of him from 1809
to February, 1817, when witness visited at the house with his
wife. Then thought his memory rather impaired and not so
steady as formerly. It seemed more impaired than was usual in
old people ; but witness did not speak much with him or take
any pains to ascertain the state of his mind, but rather avoided
conversation with him. Witness' father, testator, and two others
were sureties for John Anderson, sheriff of Hunterdon. They
had to pay, each, about $800 ; after which they recovered $500
between them, and out of this $500 they paid away about $400.
That business was settled about 1811. Witness, about 1810,
heard defendant say that his sisters were to have 200.
Mrs. M. Phares, again. When Mrs. Clark and witness were
standing by the dead body of the testator, on the Sabbath after
his death, she asked witness if she thought he had his senses that
day week. Witness replied that she did. Mrs. Clarke then
said she had not seen anything like it during his illness. Wit-
ness often heard John Phares speak of the making of the will,
both in public and in private, and he always held the same
language about it till the hour of his death. He always declared
that the testator was capable of making a will ; that he was for-
getful, but his judgment was good ; that he, Phares, was satisfied
with what he had done, and would do the same if it were to do
over again. Witness never saw anything harsh or unfeeling in
defendant, or his wife, towards testator. They always behaved
*613
2 SOUTH.] SEPTEMBER TERM, 1819. 723
Den . Vancleve.
with prudence aud propriety towards him ; and witness heard
Mrs. Stevens say, in her father's last illness, that Mrs. Vancleve
had treated him in a most exemplary manner.
John Potts. Sometime last winter John Stevens called on
* wit ness, and told him he ought to allow something for the
claim, in right of his wife, on the Monmouth lands ; that he
would be reasonable, and did not expect to demand the full value.
Witness replied that he had not expected any demand for it.
Some time after, witness called on him and told him he under-
stood they were serious in the demand. Stevens replied that he
could not get anything of Joe, was the reason. Joe would not
allow them anything. A few days before Monmouth court, at
which the suits brought by Clarke and wife and Stevens and
wife for the Monmouth lands were to have been tried, witness
met him in Mr. Wall's office, and some conversation occurred
about the wills which were missing, and witness said something
to him about their being stolen. He said it was not likely that
a man could be seen at a distance, through a window, doing a
thing like that. Witness was willing to give $ 500 for their
claim rather than go to law about the lands. They were bought
of testator about twenty years before for 300. There were
seventy acres; and the tract had since been sold for $41.10 per
acre. When they were bought by witness' brother, witness told
him there would probably be some difficulty, as they belonged to
testator's wife, but testator replied that his son John would join
him in a warranty deed, and he would make such arrangement*
that there would be no difficulty. After witness heard that Doctor
Clarke meant to make a demand for the land, he went up to see
testator. It was after he was struck with the palsy. He lay in
bed and appeared to know witness, but did not speak or attempt
to speak. As witness stood by the bed, he looked earnestly at
witness, took his hand, and laid it on his face. Witness thought
he was not capable of business, and left him.
Stephen Johnson, again. Did not recollect that he ever said
that the will was made by the son, and not by the testator, nor
that he was in his dotage. He did believe that he was in his
reason on the day the will was signed, and did make the will,
*614
724 NEW JERSEY SUPREME COURT. [5
Den t>. 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
<lefendant liable to be indicted as a culprit. 2 Burr. 1127, 1129 ;
J Bac. 549 "Indictment " E; Pat. 232. These charges the jury
negatived, and the court ought not to interfere and deprive the
746 NEW JERSEY SUPREME COURT. [5 LAW
Den v. Vancleve.
defendant of the *shield of innocence afforded by the verdict.
4 Burr. 2257 ; Lofft 451; Cowp. 37.
Having presented these legal obstacles to a new trial it is
proper to examine the reasons relied on by the plaintiff, and
1. Respecting Abigail Coulter. It is not denied that the
general principle urged by the counsel and proved by his authori-
ties is correct, viz., that a witness should believe the being of a
God, and discern the nature and obligations of an oath. But
fourteen years being the age of legal discretion (Harg. Co. IM*
247 b; Gilb. Ev. 130 ; H. P. C. 263; 2 Hawk. 434; Inf. Law
30\ all persons over that age are presumed to know the law
(Lofffs Max. 10), one important part of which is the Christian
religion, which teaches these truths. LoffYs Max. 9, 10, 19, m. 2,
3, 203 ; 1 Bl. Com. 41, 42 ; Omst. of N. J. 22. This knowledge,
then, being presumed, it was not necessary to prove it. No man
can allege ignorance of the law. Gilb. 148. White's case, which
has been cited from Swift, was decided at the Old Bailey in
1786 (2 Leach 46}, and is not law here. Moreover, it was an
obiter sub silentio proceeding, and merely shows that the court
thought that in that case it had the power to propose such ques-
tions ; and its exercise was perhaps justified by the state of society
and the character of the persons who usually appear in that place,
in that great city which Doctor Johnson, in his celebrated poem
which bears its name, calls " London the needy villains' general
home." But this reason cannot apply to a witness apparently
intelligent and respectable, educated in a civilized and Christian
neighborhood and family, under the ministrations of a faithful
and zealous clergyman. Such gross ignorance would be dis-
graceful, and therefore she ought not to be compelled to dis-
close it. Swift 49, 50, 51.
But if, in technical strictness, the previous interrogatories
should have been put, still the verdict must stand, because no
positive injury has been done. 1 Burr. 54; Oro. Jac. 640 ; 3
Witts. 272. Her testimony was collateral, not perhaps impor-
tant, and stands without question.
2. Upon the third reason, that the verdict was against the
charge of the court, it is sufficient to say that the counsel have
*635
2 SOUTH.] SEPTEMBER TERM, 1819.
Den t. Vancleve.
relied upon a general allegation without stating one particular or
specific matter, and that no such contradiction in reality existed.
The nature of the case was such that an explicit charge or
"opinion of the judge on the merits of the case could not, with
legal propriety, have been given. The charge could be no other
than hypothetical, and referring the adjustment of disputed facts
to the jury. Bushel's Case, Vauyh. R. 143, 144 &c-
3. The admission of unlawful evidence, which is the principal
ground of this motion, is said to be of two sorts 1. Divers con-
versations of the testator, from 1802 to 1816, tending to show his
intention to give the land to defendant ; and 2. Parol proof of the
contents of certain wills. As to the latter of these exceptions,
Abigail Coulter, Mary Vancleve, and John Phares proved that
such wills had existed and could not now be found. Two of the
lessors, Mrs. Clarke and John Stevens, were also proved to have
confessed this fact. It was, therefore, competent, upon the strict-
est legal principles, to prove their contents. But this evidence was
not objected to in this light at the trial, and the objection ought not,
therefore, now to prevail. 3 Burr. 1255 ; Lev. 202; 10 Mod. 202.
But the other part of this exception is most important, and
the decision of the court is defensible on two grounds 1. As
original evidence. It was the conversation of the ancestor, under
whom the plaintiffs claim, relative to the land, and stands on the
same ground as the declarations of the party relative to the sub-
ject-matter in dispute. The privity of right or legal unity is
most strict between heir and ancestor. If, Johns. 280 ; 2 Doll.
93, 94. But, 2. The evidence was clearly competent to show that
defendant had not, as was pretended, taken an undue advantage
of testator's situation and dotage. To prove this, plaintiff had
sworn sixteen or seventeen witnesses, none of whom were present
at the execution of the will, or spoke of his capacity at the time ;
but all of whom spoke of acts, conversations and conduct, weeks,
months and years previous, and one of whom pretended that
defendant treated hiin harshly, and intimidated him. After this
parol evidence it was surely competent to rebut it by parol, show-
ing a different state of facts, agreeably to the ancient common
law maxim, eo ligamine quo ligatur dissolvitur. Noy 11 ; 1 El.
*636
748 NEW JERSEY SUPREME COURT. [5 LAW
Den v. Vancleve.
It. 60. The contrary doctrine leads to this result that parol x
collateral evidence is competent to create presumption of fraud
in order to avoid a will, but incompetent to rebut a charge of
fraud and sustain a will, as if the law delighted in frauds, whereas
the contrary is the fact. Noy 28 33.
*Two considerations are here important 1 . What evidence is.
2. The circumstances under which the evidence objected to was
given. 3 Burr. 1255. Blackstone vol. 3 p. 307, says that evidence
elucidates &c. the point in issue. Now, what is the issue here ?
Was the will executed in a state of legal capacity, or extorted by
fraudulent importunity from a debilitated, doting old man in
extremis ? The witnesses gave conflicting opinions, and several
of plaintiff's, as Bullock, Cook and others, detailed conversa-
tions, to show his want of memory. Can it, then, be otherwise
than competent to elucidate the point in dispute by detailing what
he said on the subject-matter of dispute, and his intentions
to devise in the precise manner he did devise? This would be
a partial and inequitable rule, and the rejection of such evidence
would, on a bill of exceptions, be at once corrected by the court
of appeals, as the counsel must believe, since they have deserted
the bill which they took at the trial.
But Powell, Vemon and others are read to show that a will
must be in writing, executed by the testator in a state of sanity,
and in the presence of witnesses &c., and that declarations will
not, in themselves, amount to what the law requires. This is
true. But the objection is not solid ; it is to a part of the evi-
dence, because that alone is not sufficient. The defendant did
produce a will in writing, executed in the presence of witnesses.
The plaintiff then alleged that the testator was incapable, and
subjected to fear and undue influence, and gave parol proof to
.support his allegations. The court will certainly permit that
parol proof to be rebutted, and will not forget one part of the
evidence and then reject another as wanting in effect. The argu-
ment of plaintiff is this : We are heirs-at-law ; you set up a will ;
we combat it by parol ; you must not answer by parol, because
you cannot establish your estate by parol. As if, in a suit on
bond of testator defendant tried to prove fraud ; plaintiff offered
*637
2 SOUTH.] SEPTEMBER TERM, 1819. 749
Den . Vancleve.
to rebut it by proof of his declarations, that he borrowed the
money, and the defendant should answer that the proof was in-
admissible, because a claim on bond could not be supported by
parol alone without a bond. In Chew v. Totem, Driver and
Sparks, in Gloucester, and Couch v. Sheppard, at Salem circuit,
such testimony was admitted without objection. Of the ground
of its admission little need be said. Cases involving charges of
fraud always afford an exception to general rules on strict prin-
ciples. *Here, as plaintiff had a right to do (1 Mor. 184), he
made a charge of fraud. Fraud avoids all acts, and the concur-
rent jurisdiction of common law with equity courts, admits a
latitude of presumptive proof in the former respecting it. 1 Mor.
288; Park, an Ins. 24%, 243.
The fourth reason assigned on this motion is that the verdict
is against the evidence. This reason is unsupported by the case.
(Here Mr. Stockton presented his view of the case as it appeared
upon the evidence, maintaining a clear and decided preponderance
in favor of the correctness of the defendant's conduct and the sanity
of the testator.) He then argued 2. That if the court thought
the evidence doubtful, or that the jury misjudged and that they,
s jurors, would have given a different verdict, still they could not
disturb it. The subscribing witnesses, with Mary Vancleve,
.spoke conclusively and clearly of the testator's capacity at the
time. They are all consistent, most of them unimpeached and
unimpeachable. The plaintiff's witnesses did not see him at the
time, and they who spoke of his failings detailed only a loss of
memory, while they gave some remarkable instances of his judg-
ment, as in the age of horses, and the value of money and land.
If a verdict had been given against such evidence the court would
have set it aside. But be this as it may, there was evidence for
the defendant, and of this evidence the jury were the constitu-
tional and exclusive judges, and their verdict, unless capriciously
against all evidence, must be conclusive. The limits between the
court and jury are as specifically and clearly defined and ascer-
tained by legal writers and positive adjudications as any in the
extensive sphere of forensic science. 8 El. Com. 392. No case
can be produced of a new trial upon the mere allegation that the
*638
750 NEW JERSEY SUPREME COURT. [5 LAW
Den v. Vancleve.
verdict was against evidence, where there was evidence on both
sides. S Wlh. 38, Jfi, This case, and the opinion of the chief-
justice in it, explain the true grounds on which this question
rests, and is the more valuable because argued and decided twelve
years after Crips and Eynon, where the doctrine of new trials is
largely laid down. Other cases are in conformity with this.
2 Sir. 114%; 7 Mod. 117 ; 1 Wils. 22 ; 1 Bl R. 1; 12 Mod.
128 1 5 Burr. 2805 ; 2 Sir. 1105. Nor have American judges
been slow in recognizing this great constitutional right to have
the facts decided by jury. 2 Dal. 121 ; 4 Dal. 390 ; 3 Johns.
170, 271 ; 5 Mass. 229, 353, *355 ; Coxe 228. Nor is this
coincidence remarkable. They are all founded on the common,
venerable and estimable basis of the common law, which directs
the court to judge in matters of law and the jury in matters
of fact. Maxims, in the law, are of powerful weight (15 Vin.
351 ; 2 Inst. 210), and these enforce the principle contended for.
Loffl's Max. p. 11, Max. 37 ; Juditium duodedm &c. Max. 4-8
ad quest, facti &c.
In this cause the principal matters in dispute before the jury
were not of law but respected the testator's capacity at the exe-
cution of the will. Now, in Den v. Moore, 2 South. JflO, and
Den v. Johnson, 2 South. 454, and in the charge of the chief-jus-
tice in this case, it was expressly held that this matter was within
the exclusive and peculiar province of the jury. Yet, still the
plaintiffs wish the court to arrogate to themselves this great con-
stitutional right of the jury, to pass on disputed facts, a right
secured by magna charta; so endeared by a knowledge of its
value in securing the blessings of civil liberty that a suspicion
of an intention to deny it was one of the grievances which first
agitated our fathers in the commencement of the revolution ; a
right formidable only to tyrants, but of such high value in the
consideration of the patriots of New Jersey in '76 that by the
twenty-second article of the constitution they engrafted it into
our system and restrained the people from depriving their pos-
terity of its benefits, confirming it without repeal forever. This
privilege is claimed for the defendant. He has been acquitted,
pronounced not guilty of the charges against him, by a jury as
*639
2 SOUTH.] SEPTEMBER TERM, 1819. 751
Den t. Vancleve.
respectable for integrity and intelligence as ever appeared at this
bar. He is confident, when he asks that this shield be not taken
from him, he will not ask in vain.
Wall read the following cases on the question of a new trial
after a trial at bar: 1 Str. 534, 1105; Stiles 462; 1 Burr.
390, 395; Bl Rep. $4,5, 348; 4 Burr. 2224; Perm. 37.
Euring, on the same side. This verdict, from the character
and condition of the parties, the extent of the evidence, the de-
liberate nature of the trial, and the respectability of the jury,
possesses every mark worthy of attention, and on behalf of the
defendant it is denied that there is either precedent or law for
setting it aside. It is a verdict, after trial at bar in an eject-
ment, for the defendant, circumstances not combined in any other
*case where a new trial has been granted. 2 Salk 648, 650 ; 7
Mod. 156; 6 Bac. 674 " Trial" L; 2 Str. 1105.
But if the ordering of a new trial in such a case were within
the" course of practice there are here no sufficient grounds for it.
Let us examine the reasons assigned, and 1. The admission of
unlawful evidence. This is no ground for setting aside a verdict
after a trial at bar. Such proceeding would be an appeal from
the same court to the same court, which can never legally be
called on to review its own opinions ; it would be inconsistent
with the first principles of our jurisprudence. To justify the
court in supporting this motion the plaintiff should show that
such a power has heretofore been exercised, but no case can be
produced from the books where, for such ground, a verdict at
bar has been set aside or the question even raised.
The defendant might rest upon this answer, but it is not neces-
sary, for an examination of the objections to the testimony will
dispel every pretence for a new trial.
First, then, as to the declarations of the testator. It will be
well recollected what these declarations were. Such evidence of
the antecedent views and feelings of the testator is competent at
all times on a question of capacity. A mind once vigorous and
sound is alleged to have become imbecile, disordered and shat-
*640
752 NEW JERSEY SUPREME COURT. [5 LAW
Den v. Vancleve.
tered. How may this be ascertained ? By comparison of its
views, feelings, acts with the views, feelings, acts and intents of
a period of acknowledged capacity. Derangement consists in a
departure from ordinary habits of thought, speech and conduct.
Rush. Lee. 366. It. is all-important, therefore, to ascertain the
ordinary habits. If a will be conformable to a man's settled ar-
rangement, a transcript of his mind when in acknowledged vigor,
there is every reason to believe the mind sound at the period of
the act. This conformity must be ascertained by proof of pre-
vious declarations and intentions; and if such conformity be
shown, the presumption that the vigor of the mind remained is
strong. Reverse the picture. Suppose it be proved that the
testator was never heard to suggest such a disposition as the will
contains, but that he always intended to make a different will,
the testimony would be both competent and overwhelming ; and
if so on one side, it is so on the other. It is not pretended to be
conclusive, but admissible ; and, in fact, evidence of this kind is,
on all occasions, received.
*But 2. Whatever may be the rule in general, this evidence
was clearly admissible when offered. The plaintiff had opened
to the jury that this will had been procured by fraud and impo-
sition ; that the testator was a machine in the hands of his son ;
that from his state of dependence and the control exercised over
him by his sou, he was not his own master, but had been moved
to make a will agreeably to his son's wishes, and not his own,
and the plaintiff had actually produced two witnesses, Reeder
and Castner, to support this opening. To repel the charges and
overcome the proof, it was right to show his previous declarations
and intentions; for they proved 1. That no control was eser-
cised over him, for he did what he always intended to do. And
2. That no fraud was practiced, for he was not made to speak
otherwise than he always intended. If an executor be sued on
his testator's bond, and he allege that it was obtained by fraud,
would it not be competent to prove that the testator had ac-
knowledged he owed the money, and repeatedly declared he
intended to give such a bond ? If the plaintiffs could have fol-
lowed up Reeder and Castner, by proof that testator had uni-
*641
2 SOUTH.] SEPTEMBER TERM, 1819. 753
Den . Vancleve.
formly and for years declared that he meant to make a different
disposition of his property, he would have offered it with triumph
and pressed it with urgency, and it would have influenced the
jury with force. The same measure ought to be permitted to
the defendant. The principles here maintained are sanctioned
in Pennsylvania. 1 Yeates 108 ; 2 Yeates 1$.
3. This testimony is admissible in another view. The defend-
ant had two objects : 1. To prove a general testamentary capac-
ity. 2. To prove a capacity to do the act in question ; to
understand, approve and execute a will which he had previously
arranged and settled in his own mind. Evidence of such capac-
ity was given ; and this testimony was calculated to show that
he had previously made such arrangements, and had, for a con-
siderable time, settled in his mind the will he intended to make.
But it is objected that a will must be in writing. This is
true, but it does not follow that all evidence relative to the will
must be in writing also ; here a will was produced, not supplied
by parol. Powell 481 only proves that parol evidence may not
be given to construe a will. Again, it is said not to be within
the issue. What was the issue ? Not capacity alone, but whether
the will had been fairly obtained ; not, not guilty, but all the
prominent *facts necessary to a recovery or defence. This testi-
mony is applicable to them.
2. As to the evidence of the contents of the wills. 1. The
evidence offered and given was not of the contents of written
instruments, but of the declarations of the testator with regard
to the disposition he had made, and intended to make, of his
property. It is not, therefore, within the rule respecting the
parol evidence of the contents of papers. 2. The plaintiff" in-
troduced such testimony by A. Reeder, Esq. 3. No objection
was made on this score at the trial it is now too late. 11 Johns.
71 ; 3 Burr. 1253.
[R. Stockton. The court does correct its own mistakes. Coxe
12, 13, 48, 78.~\
3. As to Abigail Coulter. She was sixteen years old. A
witness at fourteen has a legal discretion, and no previous exami-
nation is to be made. Her credibility is for the jury. GUb.
*642 48
754 NEW JERSEY SUPREME COURT. [5 LAW
Den v. Vanclere.
147s Hale P. C. 278; Swift 46; Peake 123. Even if there
be a mistake the court will not set aside the verdict unless injury
has been done. 2 Caines 88, 90; BOG. " Ti-iat" L 4.
4. As to the charge. It was on three points. 1. That no
precise line could be drawn where capacity ends and incapacity
begins. 2. That the declarations of testator were admitted to
repel the imputation of fraud but not to supply evidence of ca-
pacity, if that were wanting. And 3. That the jury might
arrive at a correct verdict without deciding the question of taking
the wills. On none of these points is it at all perceived that the
verdict conflicts with the charge.
5. As to the verdict being against evidence. Here it is ma-
terial to ascertain the power of the court, as established by law,
to control the acts of the jury. They are organized for different
purposes. The court must see that the jury keep within their
province, but within those hallowed precincts no court can enter.
The effect and influence of the evidence is the peculium of the
jury. The opinion of the court, as to the facts, is not the cri-
terion of the validity of a verdict. If it were, why " cheat the
deluded people with a show of liberty which yet they ne'er must
taste of ; " why the mockery of a jury trial ? The rule is clearly
this : If there be evidence on which, standing alone and uncon-
tradicted, the verdict might rest, it shall not be set aside. 3 Bl.
Com. 392; 1 Burr. 609 ; 1 Wil 22; '3 Wills. 45 ; 2 Str. 1105,
114$; Cowp.37; Penn. 947; 5 BOG. 664; Denv.Merritt,\n
this court. In the pre*sent case, so wholly did the chief-justice
deem it within the province of the jury, that he would have
given no charge but for the importunity of the plaintiffs' counsel.
With this principle of law the facts of the case must be re-
viewed and the plaintiffs' counsel must be followed, though he
did exhibit the strange spectacle of addressing the court upon
matters of fact. Picking up a scrap here and a shred there he
would present this thing of shreds and patches as the whole of
the garment the defendant had to cover him. The judges who
heard the evidence can receive no unfavorable impression from
such a view of the case, and the one who was absent will find the
best corrective in a full examination of the evidence. Here Mr.
*643
2 SOUTH.] SEPTEMBER TERM, 1819. 755
Den v. Vancleve.
Ewing proceeded to discuss the case, arguing that it was conclu-
sively with the defendant.
R. Stockton, in reply. The objections to this rule may be thus
classified : 1 . Such as depend upon the nature of the suit and
the verdict of the jury, without taking into consideration the
judicial opinions given on the trial or the verdict on its merits.
And 2. Such as relate to those opinions and that verdict on the
merits between the parties.
In the first class two grounds are taken 1. That this is a
suit, in its nature criminal, where a verdict has been rendered for
the defendant. There are degrees even in unfounded propo-
sitions, and this is, of all, most destitute of basis. It is a rule
of law that in a criminal prosecution, or suit substantially so,
where defendant is acquitted, there shall be no new trial. The
principle is beneficent and merciful, but to apply it the proceed-
ing must be, in form or substance, criminal. These are, at com-
mon law, first, indictment, second, information, the object of
which is punishment ; and if ever applied to other cases it is be-
cause they have substantially the same object. The inquiry i*,
What is the nature and object of the suit ? not what questions or
contestations arose in its progress and trial. Now, that eject-
ment is a criminal prosecution or in nature of one, has been re-
served for discovery till this time. It is a suit of the highest
order, a substitute for real actions ; its object and result the title
of land. Its nature is not altered by the facts in controversy.
In this it is like personal actions. Collateral questions may
arise in them containing charges of a criminal character against
party or witness. As *in debt of bond, plea, payment and re-
ceipt offered, plaintiff may allege that it is forged, so that a wit-
ness to actual payment was perjured. Yet this would be no
obstacle to new trial if there was otherwise good reason. The
case of Grips v. Eynon was assumpsit, the question forgery, the
verdict for defendant, yet there was new trial. 2 Burr, 1 1 .'?
shows that the frauds which are indictable are of a public nature,
against which ordinary prudence could not guard, not such as
that charged on this defendant ; yet, even if they were such, it
*644
756 NEW JERSEY SUPREME COURT. [5 LAW
Den v. Vancleve.
would not alter the case ; this ejectment would still not be a
criminal suit. The case in Cowp. 37 is a short note and badly
reported. The reason assigned is not the true one ; it should
have been that it was a hard action.
2d objection. There can be no new trial in ejectment by special
jury at bar and verdict for defendant. There is nothing, in
New Jersey, in any of these objections ; all have been separately
overruled, and their aggregate can have no avail as an impedi-
ment. 1 Sir. 504 and 1 Bl. R. 345 were ejectments and trials
at bar. 1 Burr. 395 and 4- Burr. 2224 were special juries.
Den v. Driver, Coxe 166, and 1 Penn. 37, were verdicts for
defendant ; and yet, in all these cases, new trials were awarded.
It is palpable that there is no sound principle to support any of
these objections, and, where there are grounds for new trial, to-
compel the plaintiff to pay the costs and bring a new suit with
the influence of an improper verdict against him. Justice and
convenience require that, in ejectment as well as every other
suit, the court should submit to no restriction which interrupts
the attainment of the real justice of the case. Den v. Alien is
conclusive on this point.
The second class of reasons relates to the judicial opinions pro-
nounced on the trial and to the verdict. And here it is said that
if this court did admit illegal evidence, it cannot correct its own
errors and award a new trial. Neither precedent nor principle
sanctions this idea. No writer lays down such a rule ; on the
contrary, every reason is against its establishment. Error may
creep into a trial here as well as at circuit, and should not be
without redress. It is proper and correct that it should be
redressed, and such is not only the necessary practice of the
common pleas, but the constant practice of this court also. See
Coxe Rep. Let the court think what they may or can of the
sanctity of a verdict, they will never suffer it to stand if they
are convinced that they *deprived the plaintiff of any right, or
did him any injury on the trial. In such case, the trial can
neither be fair nor satisfactory.
1. The first error of the court was in refusing to permit an
examination of a young female witness on her voir dire, touching;
*645
2 SOUTH.] SEPTEMBER TERM, 1819. 757
Den r. Vancleve.
her knowledge of the nature and obligation of an oath. She
was a servant to defendant, bound as a pauper by the overseers ;
had never been sworn, and was called to confirm the testimony
of a child of fourteen, which was chiefly intended to fix on
plaintiff the imputation of stealing the will of 1814. Her dis-
cretion and knowledge were, therefore, very important. The
influence of her evidence on the jury no one can tell.
It is competent to examine witnesses, old or young, to ascer-
tain their discretion, and how they appreciate their duties and
the nature and obligations of an oath ; and the books never
speak of their ages when this examination is made ; it is not con-
fined to those under fourteen. A witness must have discretion
and knowledge, and these may not exist in all who live in a
Christian country, in a good family, and near a church. You
can ascertain their existence only by an examination. This ex-
amination has been confounded with the question when an infant
may be sworn as a witness, which may be at fourteen, if youth
be the only objection. The law, then, presumes discretion and
knowledge ; but the presumption may be rebutted, and can only
be rebutted in this way. In Whit*? a case, read from Swift, he
was evidently an adult (Leach 368), and the inquiry never has
been refused because the witness was fourteen. GUb. 13 ; Swift
4&; 2 Hale 278. The assertion that witness may not be so
questioned in England is incorrect. Phil. 18. He may be ex-
amined further as to his religious opinions. 2 Wil. Bac. 577,
" Evidence " note a. The proper question to try competency is
not if he believes in Jesus Christ, but in God, the obligations
of an oath and a future state of rewards and punishments.
This is a restriction of the old rule, and was introduced by
Butter, 1 Peake N. P. 11.
3. The court admitted parol evidence of the declarations of tes-
tator, from 1802 to 1814, of a steady, uniform intention to leave
this land to the son. On this point there are two inquirio : 1 .
Were these declarations evidence per sef 2. Were they made
legal by the plaintiff?
1. They were illegal, because not within the issue. This
prin*ciple is clear. Evidence not within the issue cannot be re-
*646
758 NEW JERSEY SUPREME COURT. [5 LAW
Den v. Vancleve.
ceived. The issue was, guilty or not guilty ; but the title to the-
land was the general question. The plaintiffs claimed title by
descent ; the defendant by devise. These declarations were na
evidence to impugn the plaintiffs' title ; he wanted no intent for
his title. Then, as to defendant, intent that he should have the
land could not aid him, unless executed by legal will. Even a
will, in his own handwriting, with two witnesses, to aid the
intent, would not answer. Intent, without the act, is no evi-
dence of the title. But, it is argued, the particular issue wa&
compos or non compos. True ; but it wa& compos or non compos-
at the time. Now, declarations fifteen years before, could not
shed light on his capacity in 1817. If he had said in 1802, that
John and the daughters should have the land, it would not have
been competent against the will ; neither are the declarations
that Joseph should have it, evidence in its favor. This sort of
evidence is extremely dangerous; 1. Because testators often in-
tentionally conceal the truth ; and 2. It is liable to misunder-
standing, forgetfulness and perversion in witnesses, and is against
the whole policy of the law as to land. Mr. Ewing's argument
is not supported by any case or treatise ; it is a refinement not
found in books. Its fallacy is palpable. It substitutes an inten-
tion for an act, and takes the capacity for granted. If he in-
tended ever so long, to make a will exclusively in favor of his
son, and then is made to do it in extremis, the previous intention
cannot aid the act. It is directly opposed to the opinion of the
chief -justice to the jury, that the declarations were admitted to-
rebut, and ought to have no influence on the will set up.
Some declarations are competent, and there is a sound, practi-
cal rule to test them. They must show the mind when the act
was done be at or so near the time, as to be part of the res
gestce. But the evidence in question is also exceptionable, as ori-
ginal evidence. It is hearsay of the most dangerous kind, and
within none of the exceptions as to hearsay. B. Vancleve was
not on oath ; he may have meant to deceive, and we must trust
to frail memories for its accuracy.
But it is again argued that they are the declarations of a com-
mon ancestor, a party. It is answered that he is no party, and
2 SOUTH.] SEPTEMBER TERM, 1819. 759
Den v. Vancleve.
the declarations of an ancestor as to his intentions, are no evi-
dence.
*2. It is said the plaintiff made it good as rebutting evidence :
1. By alleging that he was non compos ; and 2. Imposed on.
Answer : two distinct defences were not set up. He was said to
be non compos; and being so, was made to execute the will.
Thus far fraud is included in all questions of non compos, which
presuppose the formal act. But fraud as a distinct defence,
admits the testamentary capacity, and relies on imposition. He
might have made a will, but you procured this unfairly. Now,
previous declarations are no evidence of present capacity, though
they might, under circumstances, repel the assertion that the tes-
tator was circumvented. Besides, there was nothing in Reeder's
or Castner*s evidence which they could properly rebut. In 1
Yeates 108, the declarations were shortly before making the will.
In # Yeates 46, shortly before and after, so as to be part of the
res gestoe, as they must be where used to rebut express fraud.
[L. H. Stockton cited 5 Burr. 2805.']
Again : parol evidence was given of written dispositions of
property without laying a proper foundation therefor. There
was no evidence of the loss of the wills but the declarations of
defendant. This was not sufficient; the wills ought to have
been produced. But the defendant says that he does not claim
under the will of 1809 ; it was offered, not as part of title, but
proof of uniform declarations. So much the worse. He does
not claim under it, yet proves it ; he claims under a will of a
dying man, in 1817, and establishes it, because a will was made
fifteen years before. If the verbal declarations are not evidence,
much less can this be. Again he says, that Reeder's testimony
led to it. Not so. A. Reeder was not called to prove the con-
tents, and only mentions them in detailing a conversation of
defendant. But if. he had proved them, this would not have
legalized proof of a will of 1809. Again : the plaintiff did not
object in this point of view. Answer : the plaintiff objected to
it, 1, as opened ; 2, as proved ; and he is not estopped to urge
any other reason. These two questions of evidence are conclu-
sive, if plaintiff be right on either. The illegal allegation^ .f
*647
760 NEW JERSEY SUPREME COURT. [5 LAW
Den v. Vancleve.
uniform intent, carried all before them. It was the talisman
which dispelled all doubts.
Lastly. The verdict was against the weight of evidence.
Under this head Mr. Stockton mingled a discussion of the law
with an investigation of the facts, and maintained the case on
the part of *the defendant, in its general complexion, was gross,
the circumstances attending the transaction suspicious. The
plaintiffs' title is full and clear, and defendant must not only
show a will but a sound mind in testator. Soundness of mind
is a mixed question of law and fact. The dicta in old testa-
mentary books are not to be relied on in cases of wills of land
under the statute. Anything would formerly do, especially if
the disposition was ad pios usus, but since the statute wills are
conveyances and must depend for their operation upon the same
principles. In Winchester's case, Lord Coke tells us, the mind
must be perfect, enabling a man to dispose of his property with
understanding and discretion; and the chief-justice, in Den\.
Johnson, has defined this soundness with more clearness and pre-
cision and accuracy than it has been defined since the days of
Lord Coke. South. 4^4- It is to be drawn from the situation
of testator before and after the act, as, being in health and of
common understanding, or being sick and old, yet writing or
dictating the will; but if, by sickness or age, he has lost his
mind or memory or is speechless, and the will is prepared without
consulting him, or being importuned he assents, it is no will,
there is no fact to prove a perfect and sound mind. The dis-
tinction between a general and particular capacity, a capacity to
make a will and a capacity to make the particular will, is un-
founded in law or sense. When witnesses are sworn on the
point the inquiry is always general, and so is the oath of an ex-
ecutor. Here, the evidence on both sides proved the incompe-
tency.
It is not intended to go over the doctrine of new trial. The
court wants no teacher of the legal alphabet. The rules are settled,
and many of them unite in this case value of the property, free-
hold, length and intricacy of examination, two judges absent, the
benefit of trial at bar in a great measure lost by a full charge not
*648
2 SOUTH.] SEJTKMI5KU TKKM, 1819. 701
Den r. Vancle\-e.
being delivered. The chief-justice has stated why this was so
that all were fatigued and the cause exhau.-ted by argument, but
he was mistaken ; no cause is exhausted when he takes it up ;
hi- mind has more to convince and instruct and persuade than he
will allow. If this case had been gone through by him the re-
sult might have been different. The plaintiff's had a right to it ;
they did not receive it and cannot be satisfied. The verdict i<
against the clear title of the plaintiffs and the weight of evidence.
A will ought not to be established on a sin*gle trial where there
is real doubt. A second trial will be more satisfactory, the
parties better prepared, the court enabled to sum up the cause,
separate its elements and take off false glosses. Such a trial
ought to be had, uninfluenced by the former verdict.
KIRKPATRICK, C. J.
This was an action of ejectment tried at bar by a special jury
and a verdict for the defendant. It is now moved to set a-ide.
that verdict and to grant a new trial.
It may be proj>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
<ses to which it is applicable must necessarily have been so numer-
ous since the statute of wills, that we might well have expected
to see it settled by a course of decision. Instead of this, so
often as the question has been raised before me, Hudson's * Case,
reported in Skinner (a book of itself of no great authority), has
been the only one relied upon to support it. And to that one it
has been answered, and I think satisfactorily, that the evidence
there was not objected to ; that there was no decision concerning
it, and that the court, in determining the case, did not put their
opinion upon it. And upon this trial the counsel for the de-
fendant, no doubt because they were sensible it could not sup-
port them, did not even cite that case. The only authority which
they did cite was two cases from Pennsylvania, one of which, in
my judgment, does not apply, because the declarations there
proved were so near to the time of the execution of the will as
to be connected with it, and to make a part of the transaction ;
they elucidated the state of mind of the testator at the time, and
as to the other it is not reported with sufficient accuracy to see
its direct bearing. Besides, it is well known that the people of
Pennsylvania have a jurisprudence of their own, probably im-
posed upon them at first by the imperfection of their juridical
*658
772 NEW JERSEY SUPREME COURT. [5 LAW~
Den v. Vancleve.
system, which would but ill comport with the great principle*
of the common law by which we are governed. Certain it is
that if we were to take up the decisions of all the states founded
as they are upon local customs, colonial necessities, and legisla-
tive innovations, and attempt to make them the rule of adjudica-
tion here, we should not only disfigure and break down the-
ancient temple of justice, in which we so much glory, but pile
up in its place a mass of broken fragments, without symmetry,,
form or beauty.
But there is still another view of this subject. There was a
discrimination raised by the plaintiffs at the trial, and it is still
insisted upon in this argument between the testator's declarations
as to his intentions, and his declarations as to the contents of his
former wills ; and it was said that even if the former should be
admitted, there could be no pretence for the admission of the
latter ; that these wills had been proved to have been in the pos-
session of the defendant himself, and that, therefore, being
neither produced nor accounted for, their contents could not be
given in evidence in his favor. Inasmuch, however, as the de-
fendant, at the time of this discussion, had set up no pretence of
founding a title to the lands upon these old wills, and had offered
to prove the declarations of his father touching their contents,
for the purpose of further confirming his uniform and settled
design only, no essential difference was then seen between the
two parts of *this testimony ; and, therefore, the latter was ad-
mitted as well as the former. This was certainly contrary to the
rules of evidence. These wills had been proved to be in the
possession of the defendant by his own daughter ; the contents
of them, therefore, could not be proved in his favor until he had
accounted for the papers themselves. And how dangerous it is
to depart from these settled rules on any specious distinctions not
found in the books, is very manifest from this case ; for the exe-
cution of the will of 1814 having been before proved by one of
the subscribing witnesses thereto, and the contents of it, as to
this plantation, being now proved by the declarations of the
deceased, and by these declarations only, the defendant, probably
distrusting his own proof of the will in question, resorted to that
*659
SOUTH.] SEPTEMBER TERM, 1819. 773
Den e. Vancleve.
of 1814, and maintained, before the jury, that if the former
had not been satisfactorily proved he was still entitled to the
land under the latter. Now that the will of 1814, whether ad-
missible as evidence of previous design or not, could not, mi IT
the circumstances stated, be admitted as lawful evidence of title
in the defendant, or, in other words, as an instrument that could
convey the land to him, is a position too clear to admit of argu-
ment. And yet, upon which of these wills the verdict was
really founded, remains altogether doubtful, especially if we
consider the manner in which it was urged, and the great credit
of the counsel who put himself upon it. It was, perhaps, most
natural for men not much acquainted with legal niceties and
li>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
<he disposition of his property, and as to the contents of his
former wills, was unlawful, and that the probability is that the
verdict was wholly founded upon it.
3. In the third place. Because the verdict was contrary to the
evidence.
After the plaintiffs had closed that part of the evidence which
goes to establish the incapacity of the deceased, the defendant
introduced testimony to prove these three things first, that the
deceased, for a number of years before his death, had had an in-
tention to give this land to his son, and that he had actually
car*ried this intention into effect in his wills of 1809 and 1814 ;
secondly, that Phebe Stevens, one of the plaintiffs, had purloined
these wills, and thirdly, that the deceased, at the time of the exe-
cution of the will now in question, notwithstanding what had
been said to the contrary, was of sound and disposing mind and
memory. Of the first part of this testimony, touching the de-
<-eased's declarations as to his settled intentions, I have already
spoken ; in the second part, respecting the purloining of the
Avills, the defendant wholly failed, there being nothing in it to
*660
774 NEW JERSEY SUPREME COURT. [5 LAW
Den v. Vancleve.
raise even the slightest suspicion either against Phebe Stevens or
her husband, who, it seems, had been accused, in turns, of this-
atrocious deed ; and as to the third, to wit, the capacity of the
deceased, it will require a more particular investigation, and is
made the subject of the following observations :
In every action of human life which proceeds from the un-
derstanding and which requires the exercise of the intellectual,
powers of man, it is obvious that the agent must necessarily pos-
sess that understanding and those powers, otherwise the action
is not, properly speaking, his ; he may, indeed, have performed
the mechanical part of it, like a mere machine, but the essential
part, the direction of the mind, that which makes it the action,
of the man, is not there. That understanding and those intel-
lectual powers which are necessary to enable a man to make a
valid testament, have, in some books, usually been denominated
a sound and disposing mind and memory. By these terms it has
not been understood that a testator must possess these qualities
of the mind in the highest degree, otherwise very few could make-
testaments at all ; neither has it been understood that he must
possess them in as great a degree as he may have formerly done,,
for even this would disable most men in the decline of life ; the
mind may have been, in some degree, debilitated, the memory
may have become, in some degree, enfeebled, and yet there may
be enough left clearly to discern and discreetly to judge of all
those things and all those circumstances which enter into the-
nature of a rational, fair and just testament, but if they have so*
far failed as that these cannot be discerned and judged of, then
lie cannot be said to be of sound and disposing mind and
memory, (a)
The language of our statute concerning wills differs a little^
(a) Den v. Johnson, ante 458 ; Den, Stevens v. Vancleve, 4 Wash. C. C. 26% ,--
Den v. Clark, 5 Hal. 221; Den v. Ayres, 1 Or. 153; Sloan v. Maxwell, 2 Or.
Ch. 563; Andreas v. Weller, 2 Gr. Oh. 604; Ooble v. Grant, 2 Or. Oh. 629 r
Whitenack v. Stryker, 1 Or. Ch. 8 ; Lowe v. Williamson,! Gr. Ch. 82 / Doughty
v. Doughty, 3 Hal. Ch. 643; Vanauken's Case, 2 Stock. 187 ; Stackhouse v. Hor-
ton, 2 McCart. 202; Turner v. Cheesman, 2 McCart. 28 ; Den, Trumbull v.
Gibbons, 2 Zab. 117 ; Boylan ads. Meeker, 4 Dutch. 274; Moore v. Blauvelt, 2-
McCart. 367, 384.
2 SOUTH.] SEPTKMJJKK TKKM, 1819. 775
Den B Vancleve.
from the language of the books. It does not use the words
sound *and disposing mind and memory at all, but it declares
that wills made by persons of non-sane mind and memory shall
not be good and effectual in the law. I do not perceive that
there is any great difference between these two modes of ex-
pression. Sane (sanus) means whole, sound, in a healthful state,
and is applicable equally to the mind and to the body (mens
tana in corpore sano), but I believe it is applicable to nothing
else, unless, perhaps, when it signifies wise, and then it is ap-
plicable to language or discourse. If sane, then, when applied
to the mind, means whole, sound, in a healthful state, non-sane
must mean not whole, not sound, not in a healthful state, that is,
broken, impaired, shattered, infirm, weak, diseased, unable, either
from nature or accident, to perform the rational functions com-
mon to man upon the objects presented to it.
Now, the objects of a man making his last will are his prop-
erty, its nature, its various parts and their relative value ; if he
is a father, his family, their conditions, necessities and merits ;
his own duties and obligations, too, as a father and their claims
and expectations as children, for all these are founded in nature
and in every code of law, both human and divine. The mind
which is incapable of viewing, and, in some good degree, of
comprehending and combining these, and of forming some ra-
tional judgment concerning them, is incompetent to dispose of
property by last will. I have said in another case, and I now
repeat it, that all those sayings to be found in the old books al>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" <fcc. This judgment must, therefore,
be reversed.
ISRAEL CORSE v. WILLIAM COLFAX.
Common bail ordered where defendant agreed to have appearance entered, (a)
A summons was issued returnable to September, 1819. Upon
(o) See Sexton v. New Jersey Ae. Co., 9 Hal. 169; Skillman ads. Coolbavgk,
4 Hoi. 46 ; Sailer ads. State, 1 Harr. S58, per Ryeraon, J. ; Linn v. W heeler, 6
C. E. Or. Ml.
51
802 NEW JERSEY SUPREME COURT. [5 LAW
Lewis v. Little.
the back of it was endorsed these words : " I appear to this
writ and pray that my appearance may be entered accordingly.
"June 14th, 1819. WILLIAM COLFAX."
Vanarsdale moved that an appearance be directed to be entered
by the clerk.
KlRKPATRICK, C. J.
Nothing but bail can put the defendant in court. The en-
dorsement is an authority to enter common bail. This is some-
times not done, but the court always permits it to be done.
Let common bail be filed.
*JOHN P. LEWIS &c. v. WILLIAM LITTLE.
Suit against the sureties of a constable must be brought on the bond in the
name of the inhabitants of the township, (a)
On certiorari.
The plaintiff's demand, in substance, sets forth that on the 2d
of February, 1816, he put into the hands of Benjamin R. Wol-
cott, then a constable, an execution against Joseph Vunk for $36
debt and seventy-five cents costs, which had been issued by Halsted
Wainwright, Esq. ; that Wolcott received the money, but did
not pay it over to the plaintiff; that he had left the state ; that
Lewis, the defendant, had placed himself in his situation by
being his security for his performance of his office as constable,
and had agreed to have the matter settled before the justice.
The whole amount of principal and interest claimed was $43.56.
The transcript stated that " the parties appeared and agreed to
come to trial by consent, without any process being issued."
There was verdict and judgment for the plaintiff.
(a) Boyd v. Rose, 1 South. 280.
*685
2 SOUTH.] SEPTEMBER TERM, 1819. 803
Montfort r. Vanarsdalen.
It was objected by Lloyd, for plaintiff in certiarari, that this
was an action against one of the securities of a constable for neg-
lecting to perform his duties, and that such action could only
be brought on the bond given by the constable to the town-
ship <fec.
To this it was answered by Wall, for defendant in certiorari,
that here the defendant below, the security, had consented to the
bringing of the action.
KlRKPATRICK, C. J.
This is an action against Lewis as the surety of Wolcott, a
<xmstable. It ought to have been brought on the bond given by
the constable and his sureties, in the name of the inhabitants of
the township, and not otherwise.
SOUTHARD, J.
Consent will not cure the error ; but here is no consent that
the action should not be brought on the bond ; it is mere consent
that suit might be commenced without process, and leaves the
defendant at liberty to take every objection to the form of the
action.
Judgment reversed.
* PETER MONTFORT v. MYNDERT VANARSDALEN.
1. General judgment against administrator, (a)
2. Scirc facia* to revive judgment
3. Rule of reference.
4. Uniting private accounts with accounts as administrator. (6)
(o) Little v. Brannin, 1 South. 88; Woodruff v. Woodruff, 1 Souih. S76 ;
CampjMd v. Ely, 1 Or. 150.
(b) Set- Me Keen v. Olyphant, 3 Harr. 442; Chun v. Moore, 1 McCart. 4S6.
*686
804 NEW JERSEY SUPREME COURT. [5 LAW
Montfort v. Vanarsdalen.
On certiorate,.
This case was argued by M' Donald, for plaintiff. Frederick
Frdinghuysen, for defendant.
Opinion of the court.
KlRKPATRICK, C. J.
The judgment in this case was against Montfort as adminis-
trator of one Hogland, for a debt due from the intestate, and
was entered generally, binding his own proper goods and not
specially to be levied of goods of the intestate. Several years
afterwards there was a scire facias to revive this judgment, and
upon the return-day, the defendant having alleged satisfaction^,
and having filed an account of particulars by way of set-oif
against the same, a rule of reference was entered by mutual con-
sent, referring all matters in difference in that action, and also all
accounts and demands between the parties, to certain referees ;
these referees reported that there was due to the plaintiff $43.23,
and upon that report the justice entered judgment, again gener-
ally, against the defendant.
Upon the review of this proceeding it is manifest that the first
judgment was erroneous, for the administrator was not liable in
his own estate, and it is quite as manifest that the second is no
better nay, that it is much worse for instead of a general judg-
ment against the defendant the only legitimate judgment that
could have been entered was that execution should go for the
balance found, and that against the goods of the intestate.
That there was a rule of reference does not alter the case.
The rule submits all matters in controversy in that action, and also
all accounts and demands between the parties. What parties ?"
Why, the parties to the suit, certainly, that is, Vanarsdalen, the
plaintiff, and Montfort, administrator of the defendant. The
rule could mean nothing else upon the fan? construction of the
words. It would have been perfect confusion to mingle up the
proper accounts of the defendant himself with those of the in-
testate, a confusion which the law abhors.
Let the judgment, therefore, be reversed.
-2 SOUTH.] SEPTEMBER TERM, 1819. 805
Demand t. Gowen.
* JOSEPH DEMUND and STINSON DEMUND v. JOHN GOWEN.
Misconduct of jury, (a)
On certiorari.
The conduct of the jury was assigned as a reason for the re-
versal of this judgment, and by certain affidavits taken under a
rule of the court it appeared that after the jury retired to con-
sider of their verdict, and before the verdict was rendered, and
without the consent of the defendant, some of the jurors were
out of the room at the bar of the tavern and got spirituous
liquor ; that the tavern-keeper and person concerned as attorney
for the plaintiff handed in at the window to the jury liquor and
victuals ; that the bystanders conversed with the jurors at the
door and windows, and the justice and one of the witnesses went
into the room, to the jury, in the absence of the defendants and
their attorney. (6)
There was verdict and judgment for the plaintiff, Gowen.
Studdiford, attorney for plaintiff in certiorari.
Ewing, for defendant. If the jury eat or drink at their own
expense, before agreeing on their verdict, it is a misconduct for
which they are punishable, but the party is not to lose the benefit
of their verdict. If they eat or drink at the expense of the
party, the verdict must be set -aside. By the affidavits all the
alleged misconduct may have taken place after they had agreed.
BY THE COURT. Such conduct is highly reprehensible, the
verdict is not good, the judgment must be reversed.
(o) Shepherd v. Baylor, pott 827 ; Sloan T. Harriton, Ooxe ItS ; Drake v.
Jfewlon, S Zab. Ill; Eakin T. Morris Canal, 4 Zub. 538; Tomlin ads Cox, 4
Sarr. 76; PhUiptburg Bank v. Pulmer, t Vr. 53; Hutchinson ads. Coal Cb., 7
Vr. *4; State v. Doty, 3 Vr. 403; see Clark v. Cole, Penn. **78 ; Crane T.
-Sbyre, / Hal. 110 ; Gram v. Bishop, 7 Hal. 153.
(6) Perrine v. Van Note, 1 South. 146.
*687
*CASES DETERMINED
IN THE
SUPREME COURT OF JUDICATURE
OF THE
STATE OF NEW JERSEY
NOVEMBER TERM, 1819.
DEN, ex dem. JAMES YOUNG, t>. 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 " <fcc., " and is now the property of the next devi-
see in tail," must be construed to mean the property of the
second possessor, whether he is the third or fourth person named
in the devise. The legislature intended that the first possesor
under the devise in tail should have but a life estate, and the
second possessor in the same line of entailment should have a
fee simple. If we strike out of the original act 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 in the place of these words insert the words of the explana-
tory act, the section would read as follows : " That all lands or
*693
812 NEW JERSEY SUPREME COURT. [5 LAW
Den v. Kobinson.
other real estate which have heretofore been devised in tail of
any kind, and hath, agreeably to such devise or entail, been pos-
sessed by the first devisee in tail, and is now the property of the
next devisee in tail, after the decease of the first devisee, in the
line mentioned in the devise in tail under which they may
claim" all such land shall be taken and deemed " to be the estate
in fee simple of the present possessor."
Two persons must actually possess the entailed estate accord-
ing to the line of entailment mentioned in the will. The words
41 have been possessed " mean an actual possession. And the
words " is now the property* of the next devisee in tail " prove
that an actual possession is to be had by two persons under the
devise in tail. For example if lands be devised to A for life,
remainder to B in tail, and for want of issue of B to C, and on
failure of the issue of C to D. If all the intermediate persons
die without issue during the existence of the life estate but D,
D has a vested remainder in tail. And if on the death of A
D enters, he is the first possessor under the entailment according
to the act, although he is the fourth person named in the devise,
and the heirs of D would have a fee simple; and this is the case
now before the court.
L. H. Stockton, in answer. It was his duty and he hoped it
would be in his power, in opposition to the argument delivered,
*to show 1. That Sarah Young, taking a vested remainder in
fee tail, it descended, on her death, to her eldest son, William
Young. 2. This vested remainder coming to William, by de-
scent, was converted into a fee simple by the statute (Pat. 54],
and vested in his alienee, to whom he conveyed, by deed, 20th
of February, 1773. 3. That if defendant have not the fee, the
lessor cannot recover on this record as heir in fee tail.
1. The first proposition does not require argument, being
neither doubted nor denied.
2. When William took it was either as original devisee or by
descent from his mother as purchaser or heir. He could not
take as purchaser. The words of the will, " heirs of her body,
lawfully begotten, forever," are of technical signification words
*694
2 SOUTH.] NOVEMBER TERM, 1819. 813
Den r. Robinson.
of limitation, not of purchase. 8 Hen. & M. 266; 2 BL C. 20.
It is true, in some cases, particularly in the time of Lord Mans-
field, it has been held that in very strong cases of plain intent,
" heirs of the body " may mean particular persons, in full life
and known to the testator, who should take as original devisees ;
but they are exceptions from the general rule in favor of plain
intent. 2 Burr. 1100. And though Lord Holt and Mr. Har-
grave argue the rule to be inflexible, yet exceptions of plain
intent may be admitted. But here is no such intent ; no circum-
stance or word to show that the expression was used as descriptio
personarum, or intended to carry the land to the children, or
any one of them, as original devisee, but the contrary. It
does not appear that a single child of Sarah Young was
born, or, if born, known to testator. To make William
the original devisee leads to the monstrous absurdity that one
not named, perhaps not known, should, by arbitrary assump-
tion, be first devisee, to the exclusion of Sarah, who is named
as cousin, personally known and selected in positive words as
the object of the bounty and devisee of the remainder ; an
absurdity conclusive in a case like this. The manifest intent,
if not repugnant to the rules of law, must regulate the con-
struction. 1 Wash. 102; 1 Burr. 228-285; Gttb. Deo. 68;
2 Burr. 1112, 1113. Now, the plain intent of the testator
was, after the death of his wife and of Joseph Wood, without
issue, that Sarah Young, and she alone, should be the first and
principal object of his bounty. William was to take in right of
his mother, and in virtue of his heirship to her. In fact, after
the estate vested in her it was impossible that it could go to him
as original devisee. He *took, not by purchase, but descent,
and was, therefore, second in descent from testator, and his estate
was converted into a fee by the statute. But it is said the words
of the explanatory act exclude this case ; it does not, however,
diminish the force of the argument. The word " possessed "
clearly means such existence of ownership as is consistent with the
subject-matter spoken of in the context. 1 Bl. Com. 59. Pos-
session does not always mean the touch of the foot. It may be
satisfied by the vesting of an estate. An estate is the interest in
*69o
NEW JERSEY SUPREME COURT. [5 LAW
Den v. Robinson.
the land, and where that is a remainder, and vests, its proprietor
is possessed of the estate, though the intervening particular estate
prevents the actual enjoyment. The possession of the particular
tenant is, to all necessary legal purposes, the possession of the
remainderman. 5 Jac. L. D. 44&- These explanatory words,
then, attach to Sarah Young (2 BL 166) ; they cannot apply to
William. He never took by devise ; nor, if he did, was he first
devisee. His mother was prior to him. And although he pos-
sessed, yet wanting the other constituents of being devisee and
first devisee, he is not the person contemplated in the act any
more than a juror would answer the law (Pat. 25 ff) who had citi-
zenship without residence, age, or freehold. The result is obvi-
ous. But admit that the words do not apply to Sarah, they
cannot to William, and it is demonstrable that they do not to
anyone else, and therefore the explanatory act has no applica-
tion to the case, but the decision must rest on the first act. The
result, then, is the same; his estate is converted to a fee by the
first act, because it had passed through one descent since testa-
tor's death. The better construction, however, is to apply the
supplement to Sarah Young, because then the statute takes effect.
19 Vin. 528 160. Indeed, the result of the two acts is plain,
and well expressed by Judge Pennington. See his Rep. 825.
" The plain meaning of the act is that where an entailment has
been or shall be created, the entail shall not continue beyond the
first descent. The word ' first ' in the concluding clause of the
act refers to the donee in tail, the original stock of the entail-
ment." This donee is Sarah Young. The entail shall not con-
tinue beyond her life. Her heir takes a fee. The lessor, claim-
ing in tail, cannot recover.
But if, in strict construction, this conclusion be at all doubt-
ful, it is freed from doubt on the principles applied to the con-
struction of remedial statutes, which are liberal, for the purpose
of *suppressing the mischief and advancing the remedy. 4 j ^ ac -
650 ; 19 Vin. 526. This act is remedial. Estates tail arose from
the statute de donis, enacted A. D. 1285, during the reign of a
bloody tyrant, Edward I., through the influence of haughty
barons, to subserve their aristocratical pride by perpetuating their
*696
2 SOUTH.] NOVEMBER TERM, 1819. 815
Den v. Robinson.
immense landed estates in their respective families, and pressing
down those whom they contemptuously styled villeins and V;L
sals, and to support an abominable system of feudal slavery.
2 El. US ; 2 Hume 66. It is not surprising that these estates
were considered abhorrent to the spirit and genius of our gov-
ernment, and that here and in other states, acts should have been
passed to destroy them, and avoid the expensive modes which
legal subtlety had devised to curtail them. Such acts require and
deserve a most liberal construction, and the court will lean in
favor of that argument which tends to destroy rather than that
which protracts the existence of such fettered estates so obstruct-
ing to the free commerce and liberal ideas of modern times.
Penn. 823 is cited as adverse to this argument. But it is not so.
W. Hamilton, who is recognized as a son of the testator, on the
face of the will, was correctly adjudged to be the first devisee,
and to take in tail male, both by express words and unequivocal
intent, and dying without male issue the estate reverted to the
heirs general. If he had left a son that son would have taken a
fee, as William Young did.
William Young's estate being converted into a fee it is to be
proved that the same was vested in his alienee. The subject-
matter is the land ; it is also a quality attached to the land, not a
personal privilege, but follows the land in nature of an encum-
brance. The second section declares that the possessor shall have
a fee simple, provided he was in the second or more remote de-
scent at the time of passing the act, and held in the line of en-
tailment. Now, Bilderback may be said to have then held, in
that line, as a necessary result of the unity and privity of right
between grantor and grantee, in a deed like the present, of ample
warranty and conveying all reversionary interests. Whatever
may be the strict construction of the words, on verbal criticism,
it is evident they were intended to convey the idea of unity and
privity of title between the possessor, whose estate was to be
converted to a fee, and the original creator of the estate in tail,
whether the possessor was the grantee or himself *the heir in
tail. If it had been intended to restrict the benefit to the family
or blood of testator and deny it to the alienee, purchasing for a
*697
816 NEW JERSEY SUPREME COURT. [5 LAW
Den v. Robinson.
valuable consideration, precise words phraseologically expressive
of that idea would have been used, such as, provided the pos-
sessor shall be heir in tail of the blood &c. This argument is
rendered conclusive by those words of the second section, which
substantially conclude the whole legislation on the subject, " that
no entail of any 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 given or devised by such entail."
These words, subject to no uncertainty, extend to all lands,
whether the possessor came in under the form of the original
gift of the blood of the entailing ancestor, or be an alienee of
another family coming in by deed. If, then, the benefit be con-
fined to the issue of the body, this clause is repugnant to the
former part of the section ; if it be extended to a bonafide pur-
chaser both clauses are reconcilable to each other and to reason
and justice. The latter sense is to be preferred. 19 Vin. 52? ' y
528. But if it be insisted that these clauses are irreconcilable,
then the words which speak the last intent shall prevail. 19
Vin. 522. This last principle, however, is not insisted on, be-
cause all may be reconciled. The object of this last proviso was
to guard against interfering with the title of the creator of the
estate in tail by producing a statutory confirmation of the title
of any stranger, who, after a second descent from the entailing
ancestor, might have become possessed of the land under a claim
adverse to his. It was necessary to effect this object, and if re-
stricted to it, is satisfied and usefully employed, but if perverted,
to deny the benefits of the enacting clauses to the alienee for
valuable consideration, would be against justice, convenience and
the application of remedial statutes to the evils to be remedied.
Such construction is condemned. Garth. 136 ; Litt. 138 ;
Cowdriefs Case, 5 Rep. Again, cases within the mischief are to
be considered as if mentioned in express language. 19 Vin.
514, 516; 1 Ins. 24; 4 BOG. 649.
The case from Coxe 3^0 was essentially different from the
present, and rested upon the construction of a harsh and highly
penal treason act of December llth, 1778. Wils. New Jersey
Laws 67. The point in the case most nearly resembling this
2 SOUTH.] NOVEMBER TERM, 1819. 817
Den v. Robinson.
was ""necessarily decided on the positive words of the sixteenth
section of that act, page 360.
It is confidently believed that the first two propositions are es-
tablished and are conclusive for the defendant. The third will
be cursorily examined. A plaintiff must recover on the strength
of his own title, which must be clear. 4 Burr. 2^87. Now, if
the statute did not operate on the estate of the alienee to enlarge
it, it doubtless destroyed the entail, and the fee, by way of re-
version, remained to William Young, descendible, on his death,
in 1798, to his heirs-at-law, that is, to all his children. He had
at least two sons, perhaps more. The lessor is not, therefore,
entitled to more than half as tenant in common. He cannot,
therefore, recover upon the present count, which is on a separate
lease for a separate and several estate.
Mr. Ewing here read from 1 Burr. 326, and Sider. 229, to
prove that there may be a declaration for an entire estate ; evi-
dence of title to moiety or less ; and recovery according to the
evidence.
Mr. Stockton. These cases show only that where plaintiff
counts for a certain part, as one-half, and proves title to another,
say one-third, he may recover according to his title. He may
claim more and recover less land, but they do not show that he
may claim as sole owner, and recover an undivided moiety, as
tenant in common. This would be against the rule that the
atlegata and probata must agree.
Other questions of weight are left for discussion to the asso-
ciate counsel. It is only proper to add that if the question be
abstruse, and there be doubt in the court, it ought to operate in
favor of defendant. The burden of proof is on the plaintiff.
That proof ought to be most clear, after more than forty years'
continual possession of defendants, and those under whom they
claim ; after almost twenty years' adverse possession, since plain-
tiff's pretended right of recovery arose on the death of his father,
during which time he repeatedly saw the land sold to different
alienees, and greatly improved ; and especially after his father,
*698 52
818 NEW JERSEY SUPREME COURT. [5 LAW
Den v. Eobinson.
In 1773, received for it a valuable consideration, with which, it
is highly probable, he bought other land, on which plaintiff was
nurtured, and which he now enjoys. These facts are not so dis-
closed, as to form a direct specific bar, but are pro*per to be con-
sidered as auxiliary, in determining a supposed right, resting on
doubtful grounds, if the court so regard it.
J2. Stockton, on the same side. The material facts are, that in
1755, James Mason devised to Mary Mason for life, and annexed
a vested remainder in tail in Joseph Wood, and a second vested
remainder in tail in Sarah Young. Joseph Wood died, without
issue, during the particular estate. Sarah Young also died, leav-
ing William Young son and heir in tail. He entered on the
death of Mary Mason, and in 1773, conveyed, with warranty, to
Bilderback. His son James claims, by descent, as heir in tail.
Defendant claims under Bilderback, the alienee of lessor's father.
Two propositions are to be established 1. If William Young
had remained, his estate would have been converted into a fee,
by the act of 1784. 2. His alienee took the enlargement of the
estate created by that act.
1. Sarah Young took a vested remainder ; she was the first
tenant in tail. William took, by descent, from her ; he is the
second in descent, spoken of in the act. Pat. 54- The legisla-
ture intended the land to be unalienable during the life of one
tenant in tail, but to give a fee to the second. But the words
used were calculated to prevent this effect, because the first tenant
does not claim by descent. This produced the supplementary act.
Pat. 78. The use of the word descent was the error in the first
act ; of the word devise in the second. But the object of both
is equally plain, to give the fee to the second person, to William.
It is, however, objected that the first devisee must be in actual
possession ; that Sarah Young was not, and therefore could not
be the person meant by first devisee, but that William must be.
But 1. Sarah Young answers the description of devisee, Wil-
liam does not ; he is no devisee, he takes by descent. The dis-
tinction attempted between vested remainder and remainder in
possession is not correct. The act speaks of the estate tail passing
*699
2 SOUTH.] NOVEMBER TERM. 1819. 819
Den v. Robinson.
to the second descent. The adverse argument rests altogether on
the word possessed ; but " possessor " is here used as synonymous
with " owner." It is in both acts and may be supplied by that
word in both. The intent of the law must prevail, and that was
to unfetter the estate tail. See especially the concluding clause
of section 2 of first act. It cannot last longer *than the first
life. But on plaintiff's construction it must last three lives be-
fore the change of the estate can take place. Such a construction
must be corrupt.
2. William's estate became a fee ; it shall be a fee in his
alienee. The enlargement follows the land, not the person. He
parted with his right in 1773, and covenanted that he had a fee.
The covenant follows the lands. 7 Ora. 164- The case in Coxe
-340, was a forfeiture ; there the construction is strict, here it is
to be liberal. The deed by tenant in tail carries more than the
estate for life of the grantor ; it carries a fee against all the
world but the issue, and against them until they enter. The fee
is defeasible by the heirs, but if they do not enter, the deed
enures to convey a fee simple. Here the law enlarged the estate
and the heirs could not enter. 3 Burr. 1703 ; 1 Atk. 1; Com.
Rep. 19. It follows that the estate may be and was enlarged in
the hands of the alienee. There must be an entry in fact, by
the issue in tail, and this appearing upon the record. It is abso-
lutely necessary to complete the title of the plaintiff, or to defeat
that of the defendant. Confession is not enough where entry is
part of the title. Ran. 197 -, Doug. 467; 2 Bla. 354, 355, 356.
So there must be actual ouster before tenant in common can
maintain ejectment. 7 Cm. 463, 471.
But still further. What gave heirs a right to enter? The
statute de donis. That statute is repealed, and shall the conse-
quences remain ? Before that statute these estates were fees ab-
solute after the death of an heir, and such ought to be the doctrine
now. We ought to be remitted to the old law. This point was
broached in Den v. Fogg, but it did not properly arise and could
not be decided.
But again. Defendant claims the benefit of the warranty under
which he holds from William Young, and which will prevent
*700
820 NEW JERSEY SUPREME COURT. [5 LAW
Den v. Kobinson.
the lessor, who is his heir, from recovering. At common law
the heir could not recover against a warranty. Co. Lit. 697 pp.
364, $65' The statute of Gloucester altered it as to tenant by the
curtesy, unless assets descended to the heir. This is the origin
of the distinction between warranty with and without assets.
The principle of this statute was applied, by equitable considera-
tions, to the statute de donis, so that under it warranty without
assets did not bind the issue, bu,t with assets it did bind the issue ;.
for then, if he recover the estate, he must fulfill the warranty.
Bl *Cbm. 301; 1 Oru. 53; Gilb. Ten. 132; Harg. Coke 373.
In this case assets descended. William Young died intestate on
his own farm. The verdict does not so say, but it is probable,
from its situation and acres, that it was of equal value with the
premises. And no unfavorable presumption arises from the
value not being found, for if the verdict is in this respect defec-
tive, the court will send it back to be amended. The conclusion
is that Mary Mason took estate for life ; Sarah Young a remain-
der in tail. It descended to William Young, in whom it would
have become a fee had he held it. It was enlarged by the stat-
ute, in the hands and for the benefit of his alienee. And even if
it was not, his heirs are barred by the warranty, and the lessor
cannot, therefore, recover.
Ewing, in reply. The will gives 1. A life estate to the widow
of testator. 2. A vested remainder in tail to Joseph Wood-
3. A remainder in tail to Sarah Young. After Joseph Wood's
death Sarah Young had a vested remainder in fee tail. At her
death the estate in remainder descended to William Young, who,,
after the widow died, was entitled to the possession. He entered
into possession, and conveyed by deed to Bilderback. He died,
and James, the lessor, his eldest son, became tenant in tail. This
is a fair view of the case on common law principles, and by them
it is perfectly clear, and is not even contradicted, that James ia
entitled to recover. It will be perceived that on many points the
parties do not differ. Their dispute arises upon the construction
of the acts of the legislature. But before they are examined it is
proper to answer one or two suggestions which have been made.
*701
SOUTH.] NOVEMBER TERM, 1819. 821
Den v. Robinson.
It is urged that justice and feeling plead for the defendant, and
should prevail if there be doubt. The argument is unbecoming! v
addressed to a judge, whose business is to propound the law, and
who knows that he effectuates justice when he supports the law.
But why is justice in his favor? He purchased a defective title,
with a full knowledge of its infirmities ; they are spread upon
his deed, and for upwards of nineteen years he has enjoyed a
farm to which he had no title. . Again. It is said that the- at-
tempt of the plaintiff tends to foster and continue estates tail,
which are, in themselves, odious, and were introduced under a
remorseless tyrant to pamper his libidinous nobles. But zeal
ought not to misguide us ; for though estates tail, "unrestricted,
are odious, yet, limited, they are useful and to be respected. And
although Edward's conduct towards Wallace and the Bruce are
a blot on his character, yet was he the Justinian of England (4
Bl. 44)> 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
<x>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
<fec. The necessity for assessment, if any, arose out of the fact
that part payment or satisfaction had been made. Of this there
was no proof. The levy was to no value and was in no respect
satisfied in fact or law. The property was left with defendant,
and the injunction taken out. 1 Coxe 36. The defendant can
only plead seizure under an execution where there is an actual
seizure to the full value. 1 Ld. Ray. 1070. But if defendant
wished an assessment he should have shown the value *of the
goods taken, but he deserted the issue. The jury could only
find the truth of the plea.
Attorney- General replied.
The court sustained the motion, and directed a new trial.
KIBKPATRICK, C. J.
This was a special scire facias directed to the heirs and tenants
of the lands which formerly belonged to one Thomas Peterson,
deceased, to show cause why the said lands should not be sold by
the present sheriff, by virtue of an execution levied upon the
same by a former sheriff, now deceased, to satisfy the plaintiff
of a certain judgment therein set forth.
To this scire facias there were a number of pleas, one of which
was payment and issues taken thereupon, (a) The cause was
(a) See Earle v. Earle, 1 Harr. 873.
*726
2 SOUTH.] FEBRUARY TERM, 1820. 851
Buchannan . Rowland.
Carried down for trial to the Somerset circuit in April, 1818, and
verdicts rendered for the plaintiff upon all the issues.
Upon the coming in of the postea there was a motion for a
new trial, which is now the subject of consideration.
The only facts in the case which are at all material are these :
1. In October term, 1783, the executors of one John Opdike,
of whom John Buchannan, the plaintiff here, is the survivor, in
the inferior court of common pleas of the county of Somerset,
recovered a judgment against the said Thomas Peterson and
Thomas Peterson, Jr., and Harpent Peterson, for 277 14s.
lie?., with costs. This judgment was afterwards removed, by
writ of error, into the supreme court and there affirmed, and
execution was issued thereupon, returnable to September term,
1785, and was then returned levied upon sundry goods and
chattels, to small amount, and also upon two hundred and fifty
acres of land of the said Thomas Peterson, which is found by
the jury to be the same land now in question, of which the de-
fendants are the tenants.
2. In November, 1785, the defendants in that suit filed a bill
in chancery, to be relieved against that judgment and execution,
and took out, as is said, an injunction, enjoining as well the
sheriff, who had levied the execution, as the plaintiffs, from all
further proceedings thereupon. Upon this bill there were several
steps taken by the parties respectively until the 29th of Decem-
ber, 1789, when the complainants, upon a rule obtained for that
purpose, filed an amended bill ; and, after this, there is no*thing
further done until September, 1815, when we find the injunction
dissolved without answer.
3. In April term, 1789, one Henry Garretsie obtained a judg-
ment in the supreme court against the said Thomas Peterson for
450, with costs, upon which an execution was issued, directed
to the sheriff of the county of Somerset ; and in April, 1791,
the said sheriff, by virtue of the said execution, sold the said
lands so as aforesaid levied upon, to one Roeliff Peterson, who
immediately entered upon and became possessed thereof; and,
being so possessed, about a year afterwards, sold the same to the
said Henry Garretsie, who, in like manner, became possessed,
*727
852 NEW JERSEY SUPREME COURT. [5 LAW
Buchannan c. Rowland.
and, in 1801, sold the same again to the defendant, John Row-
land, who, together with those holding under him, has possessed
the same till this day, taking the rents, issues and profits there-
of, 'without render or account, to their own proper use and
benefit.
4. In November term, 1816, this stire facias was sued out
and issues taken upon it, and tried as above mentioned.
5. In addition to the facts and proceedings above stated, it
was given in evidence to the jury that at the time of the sale of
the said lands by the sheriff there were two mortgages upon the
same one to Vanostrand and Suydam, dated May 1st, 1784 r
and the other to the said Roeliff Peterson, dated November 8th,
1787; that Roeliff Peterson, at the time of the vendue, said he-
would bid up the land so as to cover his own mortgage, and did
actually bid it up to thirty-five shillings per acre, but upon being
informed, after he had so bid, of the claim of Opdike's executors, he
told the sheriff he had been under a mistake and would recall his
bid, but that the sheriff refused to permit him to do so, and
struck it down to him accordingly ; that he was, therefore, dis-
satisfied with the purchase, and when he had sold to Garretsie he
said he was glad he had got clear of it, for it would have ruined
him. And it was further given in evidence that Thomas Peter-
son, before the year 1789, by being security for his sons and
other causes, had become considerably reduced in his circum-
stances, and had but little stock upon his farm or other personal
property about him. These are the facts.
This case, taken in extenso, presents several questions well
worthy of consideration. But as the defendants themselves have
not raised these questions either at the trial or in this argument,
*but have placed themselves upon the plea of payment alone,
and rested for the verification of that plea upon the presumption
of law arising from the length of time, it would be improper to
make them the subject of investigation or the ground of decision
upon this motion. The defendants have chosen their defence
and they must stand upon its strength.
What, then, is the ground of this presumption of payment,
*728
SOUTH.] FEBRUARY TERM, 1820. 853
Buchannan r. Rowland.
arising from length of time, to what cases does it apply and
how far is it conclusive?
It is said that by the common law there was no stated or fixed
time for the bringing of actions. This law was always open ;
satisfaction was never presumed. In the progress of society,
however, it was soon found necessary to supply this deficiency l>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 <lat-
the 1st of July, 1816, for $175, payable twelve months altrr
date, which note was produced and read in evidence. That in
*739 55
866 NEW JERSEY SUPREME COURT. [5 LAW
Hendricks ads. Mount.
the spring of 1815 he commenced business as a storekeeper in
Elizabethtown, and soon afterwards took one Thomson into
partnership with him ; that shortly after Thomson failed, leaving
a considerable partnership debt unpaid ; that after Thomson's
failure he continued in business on his own account until the fall
of 1816, when he became embarrassed and was committed to
gaol in the borough of Elizabethtown, on an execution at the
suit of Halsey Munson, and obtained the privilege of the limits
of the prison. That on the day of November, 1816,
being indebted to defendant in the sum of $440 or thereabouts,
partly on his own account and principally on account of Day
& Thomson, he made an assignment or bill of sale, by way of
mortgage, of all his household furniture and goods, to the defend-
ant to secure to him the said money, which bill of sale was pro-
duced and read in evidence; that on the 7th day of April, 1818,
not having paid defendant the money intended to be secured to
him by said assignment, he delivered to him all the goods and
furniture contained in the said bill of sale in satisfaction of the
said debt, and took his receipt for the same, which was produced
and read ; that while he was on the limits and before the bill of
sale was made to the plaintiffs, and after the defendant had been
secured by an assignment of the witness' furniture, defendant
came to witness and proposed or recommended to him to take
some of his goods out of the *store and put them away, as other-
wise he would have to give them all up to his creditors ; that
witness told him he did not wish to take any more of them than
would be sufficient to secure to the plaintiffs the moneys he owed
them; that in the night of the 6th of November, 1816, or soon
afterwards, about eleven o'clock at night, he went to his store in
company with the plaintiff, John C. Crane, and the defendant,
and that they measured and inventoried the goods in the decla-
ration and in the invoice to the plaintiff's bill of sale annexed,
mentioned ; that they packed up the goods so invoiced and re-
quested the defendant to take charge of them ; that he at first
declined but at last consented that they might be put in his cellar ;
that the cask was then put in his cellar, and it was twelve
o'clock at night before they were done ; that he went at night
*740
2 SOUTH.] FEBRUARY TERM, 1820. 867
Hendricka adf>. 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<m v. Kane, 3 Dutch. 209 ; Douyhty v. King, 2 Stock. 396;
Coley v. Coley, 1 McCart. 350; Benedict v. Benedict, 2 McCart. 151 ; Demarest v.
Terhune, 3 C. E. Or. 532; Tantum v. Green, 6 C. E. Gr. 364; National Bank,
&e. v. Sprague, 6 C. E. Gr. 530; Garretson v. Brown, 2 Dutch. 425, 3 Dutch.
644; Jones v. Naughright, 2 Stock. 298; Stratton v. Allen, 1 C. E. Gr. 229.
2 SOUTH.] 1 KBRUARY TERM, 1820. 871
Hendricks ads. Mount.
presented, were inquiries for the jury. The fair inference, from
the evidence, is in their favor on both points.
Let us now look to the charge against which complaint is
made, and see if it be erroneous as applied to these facts and
principles. I understand the court to lay down four positioiiM.
1. That the fact whether the bill of sale was fraudulent, was,
under the evidence, for the consideration and decision of the
*jury. 2. That if the jury believed the bill of sale to be fraud-
ulent, it was void as against creditors, whenever they should
legally contest it, and, as against them, could confer no rights
on the plaintiff. 3. That, as between the parties, it was binding.
4. That the defendant having no interest in the goods, or con-
cern in the transaction, had no right to interfere and set up the
fraud, even if it existed.
Upon all these points the court was clearly and unquestionably
right, and it is scarcely necessary to call in the aid of authorities
to prove them. The charge, in substance, was correct.
Upon the question of interest in the witness Day, I think
there is no necessity for argument or illustration. Whatever
doubt might have been raised before the execution of the release,
none could be fairly raised after it was executed. The argument
of the counsel that the release, if it did not discharge the con-
sideration of the bill, left the interest still existing, and, if it did
discharge the consideration, destroyed the bill, and, with it, the
rights of the plaintiff will scarcely be insisted on when he shall
more deliberately have investigated its force. The release merely
relieves Day from all claim by Mount and Crane ; but it surely
does not restore to him the property which he had, long before,
transferred to them. He had sold the goods in discharge of his
debt. The bill was the mere evidence of the sale and transfer,
and, even if the bill were destroyed, their right to the goods
under the sale would not be destroyed with it.
Judgment must, therefore, be rendered for the defendants in
error.
*744
872 NEW JERSEY SUPREME COURT. [5 LAW
State v. Gustin.
THE STATE t>. 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
<every year forever. The breach assigned is that he has not paid,
but that there is a large sum, to wit, the sum of $192, in arrear,
being the rent due on four of these lots for eight years ; and the
amount and assignment in the last deed are exactly similar,
going to one lot only instead of four.
Now, one would think it were hardly possible to express this
breach in more clear and unequivocal terms than to say the de-
fendant covenanted to pay $72 a year, and yet that he has not
paid it, but has left $192 unpaid. That the assignment goes
farther and states the particular lots upon which the rent was
not paid, and for how long time it was not paid, though unnec-
essary *and introductory of circumstances altogether impertinent,
yet certainly cannot vitiate that which is good.
Some short sayings have been picked up from the abridg-
*754
2 SOUTH.] FEBRUARY TERM, 1S20. 883
Associates of the Jersey Co. v. Halsey.
ments and cited upon this subject which seem not to have been
well considered. For instance, in Com. Dig. "Pleading" C 4?,ti
is said, If a breach assigned be not in the words of the covenant, but
-shorter or larger than the covenant, it is bad. But when we come
to look into the cases upon which this position is founded, and
thereby discover the true meaning of the writer, we see that it has
no application at all to the case before us. To take one or two
of them only. A covenant to enjoy without LAWFUL disturb-
ance, and breach assigned that he was disturbed, is bad; the
breach is shorter than the covenant ; it should have been that he
was lawfully disturbed. So, covenant to pay so much per ton for
.the transportation of merchandise, and breach assigned that he
.had not paid for so many tons and one hogshead, is bad ; the
breach is larger than the covenant ; he was to pay by the ton, and
not pro rota for any smaller quantity, as a hogshead. Again.
In Espinasse tit. " Covenant," it is said, In covenant to pay a sum
certain there can be no apportionment of demand, for the breach
must follow the covenant, which is entire. This seems to be the
principal authority relied upon in this case. But what does the
author mean ? Let us refer to his cases. The first is the one
above cited, about paying by the ton ; and then there could be
no demand of payment for anything less than a ton, as a hogs-
head ; there could be no apportionment ; the covenant was not to
pay pro rata for any less quantity. The next, and only other
case there cited, is covenant to pay two shillings per quire for
writing, and the breach assigned is that he did not pay for four
<juires and three sheets, and adjudged bad because the breach
must follow the covenant, which was to pay by the quire, and
not by the sheet at all.
But is it possible to deduce from these cases, by any process
of analogical reasoning, that if a man covenants to pay $72 per
annum rent, and pays $20 of it only, that you shall not recover
the residue because it is less than the covenant ; or because, the
$72 being a sum certain, there can be no apportionment, and you
must recover the whole or none?
Again. The defendant has cited Co. Lit. 143 to show that
this is a rent-charge, being a reservation of rent upon a fee, with
884 NEW JERSEY SUPREME COURT. [5 LAW
Associates of the Jersey Co. v. Halsej.
*po\ver to distrain. It is so. He then reads the same book,.
llfl b, to show that a rent-charge is an entire thing, issuing out
of every part of the land, and cannot be apportioned. It is so-
in a certain sense, but how does that help him ? Does it prove
that if a part only be paid you cannot distrain for, or recover,,
the residue ? Let us see what the author is speaking of what
he means by a rent-charge being an entire thing, issuing out of
every part of the land, which cannot be apportioned. He says,.
If a man hath a rent-charge out of certain land, and he purchase
any part of this land to himself and his heirs, all the rent-charge
is extinct, because it cannot by such manner be apportioned. Now,.
take it that this extinguishment would apply as well to the cove-
nant as the power of distress, and what does it amount to ? It
amounts to this, and only this : that if he who has the rent-
charge purchases part of the land out of which it issues he shall
not apportion for himself and recover accordingly ; he shall not
say the part purchased shall go for so much, and the part in the
hands of the feoffee shall render the residue, and then distrain
for such residue ; but the whole shall rather become extinct,
because, upon the purchase, he did not take care to make the
apportionment and hold the feoffee bound.
But how does all this apply to this case ? Have the plaintiffs
purchased any part of these lots ? Is there any apportionment
to be made between them and the defendant ? What is there,,
then, in this doctrine, that at all exonerates him from the pay-
ment of this money ?
We are, then, thrown back again upon the form of the assign-
ment of these breaches. And upon this it may be said that, in
order to make an assignment bad, upon either of the principles
taken by the defendant, it must be such an assignment as may be
perfectly true, and the covenant not broken, as the fact is in the
cases cited from Com. Dig. and Espinasse. Now, if what the
plaintiff has said, here can possibly be true, and yet the covenants
not broken, that is to say, if the sums of $192 and $96 can pos-
sibly be due and unpaid of these rents, and yet the defendant has
performed his covenants and paid the money, then the assign-
ment is bad, but otherwise not.
*755
2 SOUTH.] FEBRUARY TERM, 1820. 885
Sterling v. Sinnickson.
But even if there were more in the objection to the declaration
in this respect than there really is, yet it would be no ground for
s, nonsuit. No irregularity, imperfection, or deficiency, in the
*pleadings, which a verdict would cure, can be a ground for a
nonsuit. Now, by the express words of our act respecting amend-
ments and jeofails, and still more by the universal practice founded
upon the liberality of modern times, a verdict cures all misplead-
ings, insufficient pleadings, and misjoining of issues, provided suf-
ficient appear to enable the court to give judgment according to the
very right of the case. In short, to nonsuit upon the pleadings, it
must be apparent, upon the face of them, that the plaintiff has
no right of action, and that a verdict in his favor would be a
perfect nullity.
In the opinion of the whole court let the judgment of nonsuit
be reversed, and a venire facias de novo issue from this court, if
the plaintiffs will.
BENJAMIN STERLING v. SENECA SINNICKSOX.
Sealed bill to pay $1,000 provided obligee is not lawfully married in six
months, is void, (a)
In debt.
Plaintiff declared against the defendant in debt on a sealed
bill in the usual form of declarations. Defendant prayed oyer
of the sealed bill, which was given in these words :
" I, Seneca Sinnickson, am hereby bound to Benjamin Sterling
for the sum of one thousand dollars, provided he is not lawfully
married in the course of six months from the date hereof. Wit-
ness my hand and seal. Burlington, May 16th, 1816.
" Witness Jas. S. Budd. SENECA SINNICKSON." [SEAL.]
(a) Cited in Sharp v. Teese, 4 Hal. S55 ; Ou-'iek v. Bailey, 5 Hal. 92; and
*ee Qraydon v. Oraydon, 8 C. E. Or. SSO / form of pleading approved in
Jieardsley v. Southmayd, 2 Or. 541.
*756
886 NEW JERSEY SUPREME COURT. [5 LAW
Sterling v. Sinnickson.
Defendant, after oyer, demurred generally to the plaintiff's
declaration, and plaintiff joined in demurrer*
This contract militates against every legal principle
on which contracts can be supported. 1. It is against national
policy. It may be assimilated to contracts in restraint of trade.
The principle is the same. Pow. on Con. 167, 168, 169. 2.
It is against the general welfare of society. Pow. 174, 183. 3.
The object of the contract is useless. Pow. 231. Such contracts
cannot be enforced either by the common law or Roman law.
Pow. 232, ait. Puff. lib. 5 c. 2 3. 4. All engagements in re-
straint of marriage are void. 4. Burr. 2225 ; 2 Fern. 215 ; *
Atk. 535 ; Shep. Touch. 129. 5. It is a contract without con-
sideration. 6. The declaration is radically defective. The unde
actio accrevit is omitted. Where the debt arises on the obliga-
tion solely you need not aver unde &c., but where it arises by
reason of something else, also alleged, you must. 1 Chit. 345,
346; Gilb. Debt 414.
Here the action arises aliunde, as from not marrying.
Coxe, in answer. The general principle is not denied that
contracts restraining marriage are contrary to the policy of the
law and therefore void, but it is contended 1. That to render
them invalid the restraint must be general. 2. That this is not
a contract restraining marriage within the meaning of the gen-
eral rule.
1. All conditions against the liberty of marriage are not un-
lawful, but if the conditions are only such whereby marriage is-
not absolutely prohibited but only in part restrained, as in re-
spect of time, place or person, then such conditions are not utterly
to be rejected. 15 Vin. 272 pi 31 ; Godol Orp. Leg. 45 /
Swinb. 281, 282, 283 ; 4 Bac. Abr. 411 "Legacies" F; 2 Br.
Ch. Ca*. 488 ; 15 Vin. 269 pi. 16 ; 1 Fonbl. 251 note; Boxv.
Day, 1 Wtts. 89; 5 Vin. Abr. 95 pi 14; 2 Show. 352; 8. C.,
2 Fern. 572 ; Woodhouse v. Shipley, 2 Atk. 535. This instru-
ment, then, if restraining marriage, yet restraining it but for a
very short period, is valid within all the decisions.
*757
2 SOUTH.] FEBRUARY TERM, 1820. 887
Sterling r. Sinnickson.
2. But the instrument is not in any manner in restraint of
marriage nor open to this objection. 1 Paw. on Con. 165. An
obligation is void as against law 1. When the party agrees to
do something malum in se. 2. When he agrees to do something
malum prohibitum. 3. To omit doing something that is a duty.
In this instance there is no contract on the part of the plaintiif
not to marry, no obligation or promise on his part. To make
the instrument void on this ground one of the parties must
oblige himself not to marry. Here, had plaintiff married, he
would neither have subjected himself to an action nor incurred a
forfeiture. A contract in restraint of marriage is a contract by
which one obliges himself not to marry. Conditions similar to
that contained in this instrument are among the most usual in
the books. 2 Bl. Com. 124; 1 Cm. Dig. 60, 61; Barton v.
Barton, 2 Vern. 308 ; Chauncey v. Tahourden, 2 Atk. 392 ; Cro.
Eliz.414; 5 Vin. 103 ; 5 Vln. 97 pi. 6 ; 5 Vin. 103 pi 24.
*The cases in which devises and bequests, on such conditions,
have been held good, are innumerable (see Viner, Bacon, Or-
phan's Legacy, Swinburne, &c., where before cited), and their
validity has never been questioned, where the intention of tes-
tator is manifest. The law is the same in cases of feoffments,
grants, leases and bonds. 1 . There is no case or dictum in any
book that there is any distinction. 2 Most of the foregoing
cases cited are not cases of wills.
Nor can it be contended that there is any distinction in the
law between widows and other persons. 1. Whatever might
have been the rule of the civil or canon law, no such distinction
exists in the common law. 4 &<*. 1^11, " Legacies " F, margin ;
Baker v. White, 2 Vern. 217.
So that it follows, irresistibly, from all the cases 1. That
where a person obligates himself, generally, not to marry, the
eontract is void. 2. Where the restraint he imposes on himself
is limited as to time, place or person, the objection does not exist.
3. In every instance, if one gives a benefit to another, he may
annex the condition that the donee shall not marry. It is the
right and liberty of the subject who makes a voluntary disposi-
tion of his property, to dispose of it in what manner and upon
*758
883 NEW JERSEY SUPREME COURT. [5 LAW
Sterling v. Sinnickson.
what terms and conditions he pleases. Comyn's Rep. 744 ', 5 Vin.
88. But, admitting this condition to be invalid, it follows that
the money is payable absolutely. Orph. Leg. 381 c. 17 5 ;
Id. 6,7; 5 Tin. 95 pi. 14; 15 Vin. 272 pi. 30; Id. pi 31;
Swinb. 282.
If, under any circumstances, this contract is valid, it is good
on general demurrer. The special circumstances rendering it
invalid should be shown by pleading.
Ewing, in reply. The cases cited by Mr. Coxe are either
cases of devises or legacies. It is answered 1. A man has a
right to annex a condition to his gift, and there is often a pro-
priety in so doing. 2. If legatee or devisee asks the property,
he ought to comply with the condition or terms of the gift. The
case in Wilson is an engagement to marry, and not an engage-
ment not to marry.
KlRKPATRICK, C. J.
This is an action of debt upon a single bill, which is in these
words, viz. :
I, Seneca Sinnickson, am hereby bound to Benjamin Sterling
*/or the sum of one thousand dollars, provided he is not lawfully
married in the course of six months from the date hereof. Witness
my hand and seal. Burlington, May 16th, 1816. (Signed)
Seneca Sinnickson.
The declaration in this case, in the first place, recites that the
defendant had been summoned to answer the plaintiff in a plea
that he should render unto him $2,000 ; then sets forth the
making of the bill, with its date, and avers that the plaintiff was
not married within six months from the date thereof, but does
not conclude with the unde actio accredit, but merely with an
averment that the defendant had notice and that he refused to
pay &c.
To this declaration there is a general demurrer and a joinder
in demurrer.
This demurrer, as it has been argued at the bar, calls in
*759
2 SOUTH.] FEBRUARY TERM, 1820. 889
Sterling t. Sinnickson.
question, in the first place, the form of the pleading ; and in the
second place, the ground of the action.
1. It is said that when the action does not arise directly upon
the writing itself, but upon some future contingency specified in
the writing, it is necessary to aver not only that such contin-
gency has happened, but also that by reason thereof an action
.hath accrued to the plaintiff, and that the defendant hath had
notice thereof but refused to pay &c. And, though this seems
to be the most approved form in the books of entry, yet where
the contract is in writing and under seal, as is the case here, I
cannot see that the omission is fatal. All the facts necessary to
.give a complete right of action are alleged in the declaration ;
they are alleged in such manner as that such right necessarily
arises from them, and in such manner, too, as to be susceptible
of denial, or avoidance by plea properly pleaded ; this is all that
is essential.
But there is another fault in the declaration more material
than this. It is a rule that in actions of debt the writ must be
for the specific debt or sum demanded, and not for the damages
of detention. It is a rule, too, that the declaration must follow
the writ and not be variant from it. Here, the writ is for 2,000,
the declaration for $1,000 only, and the debt manifestly but
$1,000. Both these rules, therefore, are violated. Nor is this
irregularity helped by laying the damages of detention at $2,000,
for in this form of action we proceed for the debt, and the dam-
ages of detention are only consequential. But though thi> 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 <fec. lay it down, wheu
speaking of legacies, that a total restraint of marriage, in a will,
is unlawful and void, but not so if confined to time and person,,
and that testator may leave his daughter a legacy if she does not
marry before she is twenty <fec. ; and this from prudential motives,,
allowable in law. So he may restrain his widow from marrying,
for a certain period, as it may, perhaps, be necessary that she
should take care of and educate his children ; but some of the
same authorities add, " this could not be done by a stranger."
And I find no case but in that of legacies (with one exception
of a gift), that gives validity to an instrument, when made in
contradiction to the principle first mentioned. And the principle
of time, place and person appears to apply to legacies only,
unless for a good consideration. 5 Vin. Abr. 94. A man was
bound to another that he should not use his art in D. in such a
time. Hull said if the plaintiff was present he should go to
prison. So in 96, bonds restraining a man as to the exercise of
his trade are void ; so to a husbandman not to sow his land, 95 ;
one seeks to put a bond in suit against another, who promised
not to marry without the consent of friends, was ordered not to
proceed. In the present case there is no good consideration set
. forth in the instrument, nor could any be devised by implication.
I, therefore, am of the opinion that no action can be maintained
on it. It is against the general policy of the country ; it con-
tains no good consideration.
SOUTHARD, J., assented to the opinions expressed by the rest
of the court.
Judgment for defendant.
*763
894 NEW JERSEY SUPREME COURT. [5 LAW
Coryell v. Croxall.
* LEWIS S. CORYELL v. THOMAS CROXALL.
1. Suit on note payable without defalcation &c. (a)
2. Plea, payment after it was due, and notice of set-off.
3. Plea and notice struck off. (6)
In case.
The declaration was upon a promissory note for $250, drawn
by defendant in favor of Claudius F. Le Grand, or order, and
by him endorsed to Daniel Croxall, and by him endorsed to the
plaintiff, payable without defalcation or discount.
The defendant pleaded payment, by him, to Le Grand, after
the note became due, and before the assignment to the plaintiff,
and before any notice of the assignment, and before the com-
mencement of this suit.
To this plea is subjoined a notice that the said Le Grand, after
the making of the note and before the assignment to the plain-
tiff, and before the commencement of the suit, was indebted to
the defendant in $500 for goods, wares and merchandise sold
and delivered, and for money lent and advanced to, and paid,
laid out and expended for the said Le Grand, and for money had
and received by Le Grand to and for the use of the defendant ;
and for money due from Le Grand to defendant for interest ; and
upon an account stated ; and that the said sum will be set of
against the sum mentioned in the said promissory note.
(a) See Tillou v. Britton, 4 Hal. 120 ; Sanderson v. Crane, 2 Or. 506 ; Cum-
berland Bank v. Hann, 3 Harr. 222; Laubach v. Pursell, 6 Vr. 434; Little v.
Cooper, 3 Stock. 224; Duncan, Sherman & Co. v. Gilbert, 5 Dutch. 521 ; Hamil-
ton v. Vought, 5 Vr. 187 ; Holcomb v. Wyckoff, 6 Vr. 35; Acts of 1871-13, and
Armour v. McMichael, 7 Vr. 92; Youngs v. Little, 3 Or. 1.
(b) Anonymous, 2 Hal. 160 ; Inhabitants &c. v. Booraem, 5 Hal. 257 ; Coxe v.
H igbee, 6 Hal. 395; Little v. Bolles, 7 Hal. 171; ShotweU v. Dennis, 2 Or. 501;
Allen v. Whefler, 1 Zab. 94; Hogencamp v. Ackerman, 4 Zab. 133 ; see Steven-
son v. Schencfc, Perm. *434-
*764
2 So'JTH.] FEBRUARY TERM, 1820. 895
Van Dien v. Hopper.
Evnng moved to strike off the plea and notice subjoined thereto,
and read Pat. 342.
Wall answered, and referred to Chit. 144'
COURT. Let the plea and notice be struck off the files, and
defendant plead in twenty days, or judgment by default.
II A KM AX VAN DIKN v. JOHN H. HOPPER.
Owner of lands lying in a township which repairs roads by hire is liable for
tax although he resides in another township and works roads there.
A case was submitted for the opinion of the court, from which
the following facts are extracted.
The highways in the township of Franklin, in the county of
Bergen, have been repaired, by hire, since 1812, during all which
time Van Dien has been an inhabitant of the township of New
Barbadoes in that county, and owner and possessor of lands in
Franklin. The inhabitants of New Barbadoes repair *their roads
by labor, not by tax, and some of the inhabitants of Franklin
own lands there. Van Dien assisted in repairing the roads where
he resided. In 1814 Franklin voted $3000 for maintaining their
roads, and Van Dien's land there was assessed at 8.22, part of
the said amount. The collector of Franklin gave him notice
and demanded payment, which not being made he returned his
name, with other delinquents, to a justice of the peace, who
issued a warrant of distress and sale, with a list of the delin-
quents and the amount of tax to be made of each, and delivered
the same to the defendant, Hopper. Hopper, in virtue of the
warrant, took a horse of Van Dien's to sell and make the tax,
which gave rise to the present suit. The question submitted to
Jthe court was, Is the plaintiff an inhabitant of New Barbadoes,
who works the roads in his own district, but owns lauds in
*765
896 NEW JERSEY SUPREME COURT. [5 LAW
Ayres v. Van Lieu.
Franklin where the roads are worked by tax or hire, liable to-
pay taxes for the lands he owns in Franklin for the maintenance
of the roadS in that township ?
jR. Campbell, for plaintiff.
G. Cassedy, for defendant.
BY THE COURT. There can be no doubt that the plaintiff is
liable to pay the tax. Money for repairing roads is to be assessed,
levied and collected in the same manner as other taxes. See Pat.
267,284,325-328,404.
EZRA E. AYRES and JOSEPH VAN DOREN v. P. W. VAN
LIEU, (a)
1. Interest and competency of witness.
2. Agent.
In error.
This action was brought in the common pleas of Middlesex,.
and verdict and judgment given for defendant. Two bills of
exception were taken at the trial, and writ of error brought, re-
moving the cause to this court. The facts of the case are very
accurately stated in the opinions which were pronounced. Scud-
der argued for plaintiffs in error at September term, 1819.
(a) The delivery of a bill or note, either of the debtor or of a third party,
is not payment of a debt, Coxe v. Hankinson, Coxe 85 ; Martin v. Steele, Penn.
*719; Sayre v. Sayre, Penn. *1035 ; Wilson v. Fisher, 1 Hal. Ch. 493; Corri-
gan v. Trenton Del. Falls Co., 4 Hal. Ch. 4S9 ; Bird v. Davis, 1 McCart. 468;
Freeholders of Middlesex? . Thomas, 5 C. E. Or. 39 ; see Hoyt v. Hoyt, 1 Harr.
145. Unless the holder be guilty of laches, Snyder v. Findley, Coxe 48 ?
Shipman v. Cook, 1 C. E. Or. 251; Freeholders of Middlesex v. Thomas, 5 C. E.
Or. 39.
2 SOUTH.] FEBRUARY TERM, 1820. 897
Avres v. Van Lieu.
KlRKPATRICK, C. J.
This is a writ of error from the Middlesex pleas upon two
bills of exception taken at the trial of this cause.
The plaintiffs kept a lumber-yard in the city of New Bruns-
*wick. The defendant was building a house there and had em-
ployed one David Hagar as his carpenter. In order that the
lumber for the building might be skillfully selected, and the
proper quantities purchased, Hagar was sent, from time to time,
to the lumber-yard to make such selection and purchase, and the
parcels purchased were charged in the plaintiffs' books of account
against the defendant as taken away per David Hagar.
After the plaintiffs, at the trial, had proved and exhibited
their books of account containing these charges, they called the
said David Hagar as a witness to prove the facts above stated,
and to fortify the charges in their books. To the admission of
this witness for this purpose it was objected by the defendant,
and the objection was sustained by the court and the testimony
rejected.
This is the subject of the first bill of exception, and I am
wholly at a loss to discover upon what ground the court placed
their opinion.
The plaintiffs' books of account, if they were evidence at all,
were evidence of the sale and delivery of the articles to the de-
fendant, and the note showing that they were taken away per
David Hagar is a particularity which rather adds to than detracts
from their credit. It is a particularity, too, pretty common
among dealers, especially in the small way, in order to give the
greater satisfaction to their customers. Now, that this David
Hagar, who was sent for the lumber, to whom it was delivered,
who carried it away and worked it up in the defendant's build-
ing, should not be admitted as a witness, would be a strange
doctrine. He had no interest. A judgment, on whichsoever
side it might be, upon the state of facts now developed, could
never be given in evidence against him, or, in any way, subject
him to an action upon this entry. The book does not import,
nor is there any evidence that the credit was at all given to
Hagar, or to the defendant upon Hagar's word or representation,
*766 57
898 NEW JERSEY SUPREME COURT. [5 LAW
Ayres v. Van Lieu.
or anything that he had said ; it is, therefore, to be taken that it
was given upon the personal application of the defendant himself,
and upon the plaintiff's own knowledge of his circumstances.
Hagar, therefore, being in no way interested, was a lawful wit-
ness, and certainly the subject-matter to be proved was lawful.
For though the books themselves might have been considered
as sufficient evidence of the sale and delivery of the articles to
the defendant, yet a *party may always give other evidence to
corroborate his books, and to strengthen his charges against any
individual. Upon this objection, therefore, presented on this
stage of the trial, I think the court were mistaken in the law.
Again : It appeared, from the plaintiff's entries, that the first
parcel of the lumber was delivered on the 19th of July, 1814,
.and the last on the 15th of November, in the same year; and,
upon the production of their ledger, to which this account had
been transferred, there appeared, on the credit side of the account,
.this entry, viz. :
1814. Deer. 5. By David Hagar's note, which, when
paid, will be for this account in full, $242 36
It appeared further that this note had been put into the bank
for collection by the plaintiff, and again withdrawn at the request
of David Hagar, and that the said David Hagar was in credit,
and doing business till sometime in January or February, 1816,
when he made an assignment of his property, and went to gaol.
The plaintiff then offered to prove, by the said David Hagar,
that at the time of the making of the said note, and ever since,
he was and has been unable to pay his debts ; that the plaintiffs
called upon him for payment when the note became due, but
that he could not, and did not pay it. To this testimony the
defendant objected, because the said David Hagar was interested
in the event of the suit, and the court sustained the objection,
and rejected the witness. And in this, upon the case now before
them, it appears to me they judged rightly.
David Hagar had given his note for this money. His assign-
ment of his property and his going to gaol, even if he had taken
the benefit of the insolvent laws, does not discharge him from
*767
2 SOUTH.] FEBRUARY TERM, 1820. 899
Ayres v. Van Lieu.
the debt ; but if, by his testimony, he can procure a verdict to
be rendered against the defendant, and fix it upon him, he is
then exonerated, for the plaintiff cannot recover twice for the
same thing ; it would be an immediate discharge from a direct
and positive liability, and that has always been considered as a
direct interest. Upon the matter contained in the second bill of
xception, therefore, there is no error.
But even if it were otherwise, and the court had erred in this
last, too, as I think they did in the first objection, it would be
no ground to reverse the judgment. It is not enough, for this
purpose, that the court should have erred they must have erred
in *a material point ; the testimony rejected must be such as
might lawfully have produced a different verdict. Now, that is
not the case here ; for admitting everything which the plaintiffs
offered to prove by this witness, still they are not entitled to
recover, (a)
When Hagar gave his note for this money to the plaintiffs it
became a fair charge in his favor, against the defendant, and
after the day of payment, and no notice of a demand or refusal,
the defendant had a right to presume it paid, and to settle his
account with Hagar accordingly. In the reason of the thing,
the defendant stands precisely in the situation of an endorser.
When the plaintiffs accepted this note, therefore, in full of the
account, if paid, the construction which the law raises upon that
<x>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
<loubt. Blackwood paid some debts in January, and might, per-
haps, have paid this if demanded. Under the circumstances, if
the law was as defendant says it is, the court ought to have
charged in reference to this fact. 2. It is said that the note was
endorsed after it was *due, and therefore the law requires no
diligence to charge the endorser. There are several replies to
this. 1. If true, defendant cannot avail himself of it. He has
declared on a note endorsed before due ; he cannot support his
declaration by a note endorsed after due. But if such were
proved, he should have been nonsuited, or the jury charged to
find for the defendant. There is a solitary case in 1 Campb. 139,
which seems to support the idea contended for by the defendant
in error. But it is a nisi prius t dictum merely, and is so incon-
sistent with principle as not to be worthy of regard. If the posi-
tion be correct, then the difference is most substantial. If the
note be endorsed before due, you must use due diligence ; if after
due, no diligence. 2. There is no proof that the endorsement
was made after due. It is without date, and therefore the law
presumes it was at the date of the note. And there is nothing
*786
922 NEW JERSEY SUPREME COURT. [5 LAW
Estell v. Vanderveer.
to rebut this presumption. At the worst, it is but doubtful.
That Estell called on and asked Blackwood for the money is
consistent with an endorsement before it was due. 3. The law
is not that a note endorsed after due requires no diligence. No-
case in the English books has so decided. Even in the case in
Campbell an excuse for the want of notice is given. The general
expressions gathered from the books by the adverse counsel do
not support his doctrine. What if the endorsee takes the bill on
the credit of the endorser ? Does this absolve him from looking
to the drawer? Such an endorsement is a bill drawn on the
maker; and if so, diligence must be used. Such bills are, in
fact, generally taken on the credit of the drawer. The cases re-
lied on are neither of them sufficient for the purpose. 1 Bay
331 is of no authority and is decided on its peculiar circum-
stances, and 1 Yeates 361 is not in point, while in New York
the law has been settled directly the contrary. 9 Johns. 121.
3. But if the law did absolve the endorsee from diligence,
still he could not recover. He gave a credit to the drawer to the
25th of March, and before that credit expired he became avowedly
insolvent. Now, when the holder gives credit or time to the
drawer he discharges the endorser.
As to the idea that Estell waived notice, there is no evidence.
And if there were, still, with such waiver, promise to pay must
be proved. On all the points the charge of the court was
necessary.
*The declaration itself must stand without the aid of the case,
and it is faulty on the face of it. If there were circumstances of
excuse for the want of diligence, they should have been stated
and put in issue. The money count alone, as between endorsee
and endorser, never can be supported ; but if it could, this count
is for $111.49, the verdict for $136, which is fatal.
KlRKPATRICK, C. J.
This is an action by the endorsee against the endorser of a
promissory note. The plaintiff, in his declaration, sets forth
that one Blackwood made the note in question to the defendant,
Estell, dated December 6th, 1813, payable in ten days after
*787
2 SOUTH.] FEBRUARY TERM, 1820. 923
Eetell r. Vanderveer.
date, for $111.49; and that before the day of payment, to wit,
on the day of the date thereof, Estell endorsed it to him. And
he then expressly avers that after the end and expiration of the
ten days appointed for the payment thereof, to wit, on the 1st of
January, 1814, he presented it to Blackwett for payment, which
was refused.
The plaintiff cannot maintain his judgment upon this declara-r
tion. He has set forth in his declaration that the note was
endorsed on the day of its date, and, having done so, it was
essential that he should have gone further ; that he should have
set forth, also, and likewise proved, at the trial, that he had de-
manded payment of the maker when it became due ; that the
same had been refused, and that he had given notice of such
demand and refusal to the endorser. Instead of that, he ex-
pressly declares he did not present the note for payment till
January 1st, 1814, ten days after its maturity; nor does he
allege that even then he gave notice of such demand and refusal
to the defendant.
He would have excused himself at the trial from this neces-
sity by alleging, contrary to his declaration, that the note was
really and in truth endorsed, not on the day of its date but after
it became due, and that, therefore, he could not make such de-
mand and give such notice. The court below permitted him to
give evidence of this fact, and there was a bill of exception taken,
which is one of the grounds assigned for error here.
It was certainly a mistake to permit the plaintiff to prove a
train of facts directly in the face of his own declaration. This
was the very pivot upon which his right of action turned ; and to
suffer him to set forth one thing in his declaration, and to prove
directly the reverse at the trial, would be breaking down the
*whole theory of pleading ; it would be taking the defendant
unaware, unapprised of the complaint against him, and of course
unprepared to meet it.
Both because the declaration does not contain a lawful cause
of action, therefore, and because the court admitted unlawful
evidence
Let the judgment be reversed.
*788
924 NEW JERSEY SUPREME COURT. [5 LAW
Inhabitants of Northampton v. Woodward.
THE INHABITANTS OF THE TOWNSHIP OF NORTHAMPTON,
COUNTY OF BURLINGTON, v. BARZILLAI WOODWARD, SOLO-
MON GASKILL, and others ; AARON HARKER, prosecutor.
Where judgment has been entered on constable's bond, and the execution
satisfied, it will not hold and bind the property so as to give subsequent exe-
cutions on the same bond, a preference over another execution, delivered to
the sheriff before them.
In debt.
This case was brought up by agreement and submitted with-
out argument. There was a prosecution upon a constable's
bond in the penalty of $10,000, and judgment entered upon it
in August, 1815, and execution issued and the money made,
amounting to $51.78. One of the defendants only, Solomon
Oaskill, was solvent ; and the money to be made either upon
this or any other action, out of that bond, must come from his
property.
In November, 1815, rules were entered in favor of two other
creditors to show cause why the damages they had sustained
should not be assessed and levied under the former judgment ;
and on the 13th of February, 1816, those plaintiffs had their
damages assessed, and judgments and executions which were
put into the sheriff's hands and were levied on Solomon Gaskill's
property. In the meantime, however, between the date of the
rules and the date of the judgments, viz., on the 24th of Jan-
uary, 1816, a judgment upon bond and warrant for $1,900, in
favor of Sarah Gaskill against Solomon Gaskill was entered,
and execution put into the sheriff's hands on the 3d of Feb-
ruary, and levy made. And the question raised was, Which exe-
cution was to be first satisfied ?
No exception was taken to the form, the substance, the fair-
ness or honesty of any of the judgments. It was a question of
preference among honest creditors.
2 SOUTH.] FEBRUARY TERM, 1820. 925
Inhabitants of Northampton t. Woodward.
*KlRKPATRICK, C. J.
This is a case arising in the common pleas of Burlington
county. It is brought up here by the consent of the parties
without writ of error, and submitted to the consideration of the
court without argument.
This is a mode of proceeding altogether extra-judicial and
contrary to the course of the common law. If we should enter
into the consideration of the case all that we can say upon it will
be merely advisory ; we can pronounce no judgment, we can issue
no execution, we can render to none of these parties their respec-
tive rights, the court below may tell us they are obliged to us
for our advice but that we are mistaken in the law, and that,
therefore, they cannot be governed by such advice, (a)
I think, therefore, that as a general course of practice it would
be improper for the court to express any opinion upon cases pre-
sented in this way.
But, as in this particular case, the parties seem not to have
been aware of this difficulty, and as the opinion of the court,
however informally rendered, may save them from further trouble
and expense I have no objection to look into it.
The case arises upon the prosecution of what is commonly
called a constable's bond.
In August term, 1815, there was a judgment by default and
an assessment of damages by the court for the prosecutor, Har-
ker, for $30.83, with costs. Upon this judgment execution was
sued out and delivered to the sheriff September 26th, 1815, com-
manding him to make the whole penalty of the bond, being
$10,000, but endorsed for the damages and costs only. This
execution was afterwards satisfied.
In November term, 1815, John A. Johnson and Samuel
Reeves suggested further breaches of the condition of this cond,
and obtained rules- upon the defendants to show cause why
then? damages should not be assessed at the then next term and
executions go thereupon.
(a) Consent cannot give jurisdiction, Falkenbwrgh v. Cramer, Ooxt SI;
Parker v. Munday, Ooze 70; Mittm v. Smock, Perm *911 ; OottreU ads. Thomp-
on, S Or. S44.
*789
926 NEW JERSEY SUPREME COURT. [5 LAW
Inhabitants of Northampton v. Woodward.
On the 24th of January, 1816, one Huldah Gaskill entered
up a judgment upon a bond and warrant of attorney against the
defendant, Solomon Gaskill, for $950, with costs, upon which an
execution was taken out and delivered to the sheriff on the 5th
of September, 1816, and was afterwards returned levied upon all
the defendant's property, subject to prior encumbrances &c.
On the 13th of February, 1816, Johnson and Reeves obtained
*their assessments made by the court and took out their execu-
tions thereupon, which were afterwards levied upon the same
property of Solomon Gaskill, the other defendants having nothing
<fcc. The like proceedings were afterwards had in favor of one
Borden, whose execution also was levied in like manner.
The court, upon the sale of the property, ordered the sheriff to
bring the money into court to wait their order. And the ques-
tion is as to the priority of these executions.
The action is in debt upon a bond with a special condition,
the judgment is by default and damages assessed for the prosecu-
tor ; other breaches are afterwards suggested by other persons
and damages assessed thereupon by the court, on motion only,
without scire facias and without the intervention of a jury. I
cannot find any statute authorizing this proceeding at the time
of this transaction, and if not so authorized the executions issued
upon such assessments certainly cannot be maintained, and much
less preferred to those which are lawful and right. The damages
were assessed upon these breaches February 13th, 1816, and the
first act that I can find, authorizing such assessment, was passed
on the 16th of February, 1816. The legislature, indeed, by
that act, have thought proper to take away from the citizen the
trial by jury, but even if this should be submitted to, yet, if it
was subsequent to the transaction, it cannot support it.
Perhaps, however, this objection may be removed out of the
way, for I must confess that I have not been able to collect all
the acts of assembly, dispersed as they are in loose pamphlets,
and if removed, then I think there can be no doubt as to the
priority. The first execution delivered to the sheriff mifst pre-
vail. The first judgment, indeed, ties up the hands of the
debtor so that he can neither sell nor encumber the land, but as
*790
2 SOUTH.] FEBRUARY TERM, 1820. 027
Inhabitants of Northampton i . Woodward.
to creditors pursuing their rights they ais to be preferred accord-
ing to their diligence.
The act of assembly declares that an execution shall bind goods
but from the time of its delivery to the sheriff ; and if two or
more be delivered on the same day, that which was first delivered
shall be first satisfied ; and it further declares that when there
are executions against both goods and lands the priority and
preference shall be given as on executions against goods only ;
and that all disputes respecting the same shall be adjudged and
determined accordingly.
*That the prosecutor, Harker, took out execution for the whole
penalty cannot help those who came in afterwards. In the first
place, it was irregular to do so ; his execution ought to have
recited both the judgment by default and the assessment, and the
mandatory part of it ought to have regarded the assessment only.
But even if it had not been liable to this exception, the act of
assembly upon that subject expressly declares that when the sum
so assessed is made and satisfied upon such execution the lands
of the defendant shall be forthwith discharged therefrom, though
the judgment shall stand as security for other breaches, it shall
stand as security ; that is, it shall bind the lands against all sales
and encumbrances by the debtor himself, but not against creditors
who have equal rights, and who gain a preference in due course
of law by placing their executions first in the hands of the sheriff;
I am of opinion, therefore, that the execution of Huldah Gaskill
is entitled to be preferred to those of Johnson, Reeves and Borden,
and that they again have preference according to the time they
were actually delivered to the sheriff*.
ROSSELL and SOUTHARD, justices, concurred in the opinion
that Huldah Gaskill's execution was entitled to the preference,
*791
928 NEW JERSEY SUPREME COURT. [5
WSllson v. Willson.
THOMAS WILLSON v. JOSEPH WILLSON.
I,! Plea of general issue relinquished, and judgment confessed, cure error 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 <fec.
At the same term the following entry was made in the min-
utes of the court :
" Joseph Willson v. Thomas Wittson. In account. The audi-
tors, David S. Basset, Edmund Brewer and Aaron Burrough,
heretofore appointed by this court, by and with the consent of
the said Joseph Willson and Thomas Willson, to state the ac-
count of the said Thomas Willson of the time &c., in which &c.,
having reported to this court the said account, by which it
appears there is due to the said Joseph Willson the sum of
$1,154.56 : Ordered, *on motion of White and Armstrong, attor-
neys of plaintiff, that the same be filed ; and, on like motion,
ordered that judgment thereon be entered for the said Joseph
Wiilson against the said Thomas Willson. Therefore, it is con-
sidered that the said Joseph Willson do recover against the said
Thomas Willson the aforesaid sum of $1,154.56, by the auditors
aforesaid reported to be due and owing to the said Joseph from
the said Thomas, and also $133.13 for his damages, as well by
reason of the interpleading aforesaid as for his costs and charges
by the said Joseph in and about his suit in this behalf expended,
*793 59
930 NEW JERSEY SUPREME COURT. [5 LAW
Willson v. Willson.
to the said Joseph by the court here adjudged, with his assent.
And the said Thomas in mercy " &c.
Thirty-one errors were assigned by Pearson, attorney of
plaintiff. Those which were relied upon for reversing the judg-
ment will appear by the remarks of the counsel.
When the argument was called, the chief-justice objected that
no judgment of the court below had been brought ; and it ap-
peared that no record had been made up, for the return to the
writ was a mere copy of the entries in the minutes.
R. Stockton. It is certified to be a true copy from the record.
The court permitted the argument to proceed, directing that
the record should be perfected before judgment.
Coxe and R. Stockton argued for plaintiff in error.
Armstrong, for defendant.
For the plaintiff it was argued 1. The action was not prose-
cuted by the plaintiff or any attorney of the court. Pat. 355.
The names White and Armstrong aro signed . to the writ and
declaration. The warrant of attorney is to John Moore White
and Robert L. Armstrong. There is no such attorney as White
and Armstrong. Attorneys are officers of the court, and respon-
sible for their conduct and the management of the cause to the
court and party. Of such persons there can be no partnership.
A partnership cannot be criminally responsible and punished for
misconduct.
2. The declaration is defective. 1. It sets forth no right of
the plaintiff in the vessel except by inference, which will not do
in pleading. 1 Mod. Ent. 2, 47; 1 Mod. Rep. 65. 2. It
charges defendant both as bailiff and receiver, yet their liabilities
are manifestly different. 1 Mod. Ent. 65. 3. It does not charge
that he had received more than his share of the moneys made
and *earned by the vessel. Wittes 208 ; 1 Wentw. 83. At com-
mon law there was no action between joint tenants and tenants
in common. Our statute (Pat. 11$ -5) gives the action. Here,
*794
2 SOUTH.] FEBRUARY TERM, 1820. 931
Willson v. Willson.
the declaration does not follow the statute. The defendant is
not brought within it; It is a mere action at common law.
3. The declarations and proceedings do not appear to be in
any court of the state. New Jersey appears nowhere in the
record. The title given to the court is, "Gloucester inferior
court of common pleas," which is not the statutory title.
4. The conduct of the auditors and the report made are illegal.
They are not arbitrators nor can they act as such. They are
mere ministerial officers and determine no disputed questions but
refer all to the court and jury. 2 Wtts. gftj, 285 ; Mod. Eni.
44, 4&' Now, 1. They did act as arbitrators, took oath, heard
evidence and gave the result of their deliberations, thus render-
ing the action a compulsory arbitration. 2. It does not appear
that they met and heard at the time appointed by the court. 3.
The declaration calls for an account from 1802 to 1811. The
account rendered is from 1800 to 1810. 3 WUs. 73, 101. 4.
The defendant is charged with half the price of the vessel and
thus compelled to become an involuntary purchaser. 5. They
added interest even beyond the date of the report. Now, inter-
est is damages, and joint tenants and tenants in common are not
bound to pay more than is actually received. 6. What is called
the report is not so, it is mere agreement to report. 7. They
ordered defendant to pay costs ; this could not be at this stage of
the cause. Pat. 140 5. 8. It does not appear that the evi-
dence was given on oath, whereas the statute gives the power to
administer an oath. 9. The judgment exceeds the report by a
small sum. This is fatal. 10. The account is not entered upon
the record, and therefore this is a judgment without anything to
support it.
5. The court refused to hear exceptions to the report,
Armstrong, in answer. 1. The declaration does, in the words
of the forms, and with sufficient precision, state the ownership
of the plaintiff and the character of bailiff and receiver in the
defendant. Amer. Prec. 135. But if not so, the defendant
pleaded the general issue, which he withdrew, and confessed that
he was bailiff, and hence followed the judgment quod computd.
932 NEW JERSEY SUPREME COURT. [5 LAW
Willson v. Willson.
*1 BUG. 36. The confession of judgment cures the errors of
form in the declaration and warrant of attorney, if any exist,
which is denied.
2. The auditors could act in no other way under our statute.
They were obliged to take and state the account, and it was their
duty to receive the exceptions and issues, if any were made, and
return them to the court. But none were made. 4 Yeates 358 ;
3 Woodes 84- The error, if any, in going back to 1800 was at
the request and to the advantage of the defendant. The account
shows that he had large claims beyond that date, which very
much reduced the account of plaintiff.
3. In judgments in account it is the proper mode to refer to-
the account rendered as the foundation of the judgment, and this
is sufficient to sustain it. But if this be incorrect it is not,
therefore, necessary to reverse the whole proceedings. There are
two judgments ; the latter may be reversed, the former main-
tained. Eac,. " Error."
4. As to the refusal of the court to hear exceptions to the re-
port, it is sufficient to say that this is a writ of error, and no suck
fact, in any way, appears upon the record.
KIRKPATRICK, C. J.
This is a writ of error to Gloucester pleas in an action of ac-
count. This form of action is, in itself, very difficult, dilatory
and expensive ; it has long since fallen into disuse, in a great
measure, in England, and in New Jersey I have never known or
heard of more than two or three cases, either in my own time or
before ; and I doubt whether even they were carried through to
final judgment. Hence, we have but few precedents to guide us
in a suit of this kind and these few of pretty ancient date, not
very intelligible and still less applicable at this day. In most
instances, therefore, the action on the case, which is simple, easy
and well understood, has taken the place of this in the common
law courts, and, when that did not afford a complete remedy, re-
sort has been had to equity, where confidential concerns and
trusts of this kind are more properly cognizable. Still, how-
ever, like all other actions, it is open to all, and in some cases
*795
SOUTH.] FKliUl-AliY TKIt.M, 1820. 933
Willson r Wilbon.
"where the expense of a court of chancery would be too heavy f < >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<v
count returned by the auditors, in haec verba, with the issues
taken, if any, and the trials and verdicts thereupon ; and then
they close with the second judgment, that the plaintiff recover
the balance necessarily resulting from those verdicts. Others do
not contain the account returned by the auditors, but refer to it
only. After stating the previous proceedings they say, Et idem
auditores deliberant hie in curiam computum inde coram eis fae-
tum, QUI HUIC ROTULO EST CONSUTTJS (sometimes QUI HUIC
ROTULO EST ANNEXUs), d inde, the parties, petunt breve &c. de
ven. fa. &c., to try the issues taken ; and then they go on with
the trial, verdict, balance, last judgment &c. j and certainly, iu
*798
936 NEW JERSEY SUPREME COURT. [5 LAW
Strong v. Linn.
point of convenience, this last mode, which has been followed in
this case, is far preferable, especially in modern times, when ac-
counts are frequently too voluminous to be carried into a record.
Upon the whole, therefore, it is the opinion of the whole court
that the judgment must be affirmed.
SOUTHARD, J., remarked that he did not perceive any
error in the manner of prosecuting by the attorneys ; that the
statute did not absolutely require that the party should appeajj
by one only ; that the warrant filed was correctly drawn ; that
the mau*ner of endorsing the names on the declaration and writ
was sufficient to answer the purposes of the statute ; and that if
one of the attorneys of the court should be guilty of misconduct
in his office there would be no difficulty to the court in punish-
ing him, because he was in partnership with another ; and if the
client was injured by the firm he, too, could have his remedy.
Judgment affirmed.
STRONG and HAVENS v. LINN.
1. Where sheriff has two writs of fi. fa. and levies on and sells defend-
ant's goods, if plaintiff in first fi. fa. take defendant with a ca. ea. and dis-
charge him, the sheriff is not liable to said plaintiff for the money made, (a)
2. Witness.
3. Evidence.
In case.
Trial before Justice Southard at the Sussex circuit in- Novem-
ber, 1818. Rule to show cause why a new trial be not granted
at February, and argued at September, 1819.
The action was brought against the defendant, sheriff of the
(a) Miller v. Miller, ante 508 ; see Den v. Morris, 3 Hal. 215; David v.
Blunddl, 10 Vr. 614, H Vr. S76.
*799
2 SOUTH.] FEBRUARY TERM, 1320. 937
Strong v. Linn.
county of Sussex, for making a false return and not making and
paying the money upon an execution in favor of the present
plaintiffs against Jacob Kerr. The facts, as they appeared at
the trial, were, in substance, the following :
A fi. fa. de bon. et ter. in favor of John Barnet against Kerr,
for $670, and returnable to November term, 1814, was put into
the hands of B. T. Hunt, the deputy sheriff. -After this, another
fieri facias, in favor of the plaintiffs, for $579.46, returnable to
the same term, was delivered to Hunt. At the defendant's re-
quest, Hunt levied on and sold his real estate ; paid Barnet's
execution ; and, in part, satisfied the plaintiffs'. At a sale of
part of the land, Barnet bid $2,500, but refused to comply with
his bid. It was again sold and bid to 302.50, and other land
to $90. Kerr requested and urged the sheriff to sue Barnet for
not complying with his bid, and he did so, upon Kerr's giving
him bond, with security, to indemnify him against the costs of
the suit. After trial, verdict and judgment were rendered in
favor of Barnet.
A third fieri facias against Kerr in favor of J. Armstrong,
Esq., for $2,145.23, was delivered to Hunt, returnable to May,
1815, and levied on personal property. At the sale under this
fieri facias, E. Green, former sheriff, claimed the property in
virtue of & fieri facias in his hands, whereupon Armstrong agreed
*to pay him the balance due of about $60, and Hunt sold the
goods and Armstrong purchased them to the amount of $562.50,
and at the foot of a list of the articles made by Hunt put an as-
signment of his right therein to Thomas Bullman and gave Hunt
a receipt on bis fieri facias for the amount
The defendant offered to prove that after the facts before
stated had taken place, the present plaintiffs sued out a ca. sa.
and arrested Kerr, and before he was confined directed him to
be discharged, and brought the present action against the sheriff
because he had not applied the proceeds of the sale of personal
goods to their execution. But the evidence was objected to and
the judge sustained the objection. The defendant also olH ml
Armstrong as a witness to prove that the sales on Green's and
Hunt's executions were advertised at the same time, and that he,
*800
938 NEW JERSEY SUPREME COURT. [5 LAW
Strong v. Linn.
Armstrong, agreed to pay Green's if they would let the property
go to his execution, and that it was credited on his. The wit-
ness being objected to was rejected. E. Green was then sworn
and proved the same facts, and that Armstrong paid him $60,
the balance due on his fieri facias, and took the same on himself.
The defendant claimed to have deducted from the amount of
sales to Armstrong the costs on the suit against Barnet on his
bid. But the attorney of the plaintiff in that suit declared that
he had relied upon the bond taken, and was satisfied by it, for
the said costs, although no payment had been made nor receipt
given, and the judge declared it as his opinion that the costs
ought not to be deducted.
The plaintiffs agreed to deduct, and did deduct, from their
claim on the amount of the goods sold the $60 claimed by and
paid to Green on his fieri facias, and the jury rendered a verdict
in their favor for the balance.
Halsey, in support of the rule, argued 1. That the sheriff
was bound to sue Barnet, and therefore entitled to retain the
costs out of the balance of the property. That the plaintiff
declared himself satisfied made no difference. Until a release
was given, a liability to pay was sufficient to authorize him to
retain. He had especially a right to retain his own costs which
he had paid out. 2. That Armstrong had no interest in the
suit. He was entitled to the money he had received. 3 Bur.
1354- The sheriff *knew the facts ; was bound to see that he
paid to the right person, and he could not recover it back as paid
by mistake. 1 Esp. 5, 6, 7. Armstrong could in good con-
science retain it, and is in the situation of every other purchaser
at sheriff's sale. 3. The suing out of the ca. sa. and the dis-
charge of the defendant satisfy the plaintiffs' judgment, and they
can have no further or other claim against the defendant or the
sheriff. 4 Mass. 402; 3 Mass. 561; Imp. Prac. 69, 270;
Barnes's Notes 205, 376; Cowp. 72; 1 T. R. 278; 3 Johns. 364;
Coxe 160, 162, 164; % Sw. Sys. 281.
Attorney- General, in answer. 1. The claim, as to costs, was
*801
2 SOUTH.] FEBRUARY TERM, 1820. 939
Strong v. Linn.
not a legal ground of off-set. The sheriff had not paid them,
and a liability to pay is not sufficient. 2. He had no right to
prosecute the suit, either of his own accord or at the instance of
Kerr, unless he looked to Kerr to indemnify him. 3. The
attorney of the plaintiff freed him from all liability to pay.
2. As to Armstrong's competency. 1. His evidence was to
support his own claim. 2. The money may be recovered from
him as paid by mistake (Esp. 2), or on the bill of sale, and the
receipt on his execution will be no bar. 3. His testimony was
wholly immaterial. And 4. Justice was done ; the credit was
allowed.
3. The issuing of the ca. sa. was induced by the false return
of the sheriff stating that there were no goods or lands. 3 Mass.
561. And the doctrine now contended for is not true. 5 Co. R~
67; 2 W. Bl. 1235; 4 Bur. 2422; 1 Chit. 360; Coxe 167.
Opinion of the court was expressed by the chief-justice.
KIRKPATRICK, C. J.
This is a motion for a new trial. The substance of the case,,
omitting immaterial circumstances, is this :
Havens and Strong had an execution against one Kerr, issued
out of the inferior court of common pleas of the county of Sussex,
returnable to November term, 1814, for the sum of $597.46 ;.
upon this, and a prior execution in his hands returnable to the
same term, Linn, the then sheriff, by the request of Kerr, levied
upon and sold his real estate and paid the proceeds thereof upon
those executions, according to their priority, leaving a balance
due upon that of the plaintiffs.
After this, one Armstrong obtained a judgment against the
same Kerr for $2,165.25, and sued out execution thereupon, re-
turnable to May term, 1815, upon which execution the same
sheriff seized and sold certain goods of the said Kerr, then found,
to the amount of $500, and paid the same to the said Armstrong.
Subsequent to all these proceedings Havens and Strong sued
out a ca. sa. for the residue of their judgment, upon which Kerr
was arrested and taken into custody, and was afterwards dis-
*802
940 NEW JERSEY SUPREME COURT. [5 LAW
Strong v. Linn.
Charged by their order. They then brought this action against the
sheriff for the said residue of their debt, because he had neglected
or refused to levy upon and sell these goods by virtue of their
execution, and to apply the proceeds thereof towards the payment
of the same, alleging that the said goods were then the property
of the said Kerr, and in his hands ; that they were bound by
their said execution, and ought to have been levied on and sold
for their benefit.
Upon the trial of the cause we are to presume these allegations
respecting these goods were made out to the satisfaction of the
jury, for there was a verdict for the plaintiffs. And the question
is whether, upon this state of facts, they were entitled to .recover
against the sheriff after having so taken the defendant upon a
ca. sa. for the same residue, and then discharged him out of
custody.
The case of Ustic v. Allen, in this court (Coxe 168), I think,
settles this question, and even goes further. There the sheriff
had rendered himself liable to amercement for the debt and costs
before the ca. sa. and discharge ; and upon a motion to amerce,
which aims at the punishment of the officer as well as the pay-
ment of the debt, it was adjudged for the sheriff, for the debt
was satisfied by the taking of the defendant's body.
But as there seems * to be some doubt about the principles of
the law upon this subject, it may be well to look into it a little.
We will take it that the sheriff had rendered himself liable
for this residue, and that, being so liable, the plaintiffs took out
a ca. sa. against the defendant and caused him to be taken into
custody, and then discharged him, and the question will be
whether they can come back upon the sheriff.
If a man be arrested upon a ca. sa. he shall be considered as
in custody immediately upon the arrest, and before the return of
the writ. 1 Roll. 901. Whether Kerr, then, had been actually
locked up in the prison or not, and whether the plaintiffs, upon
the return of the writ, had entered a committitur or not, makes
*no difference. As soon as he was arrested the ca. sa. was exe-
cuted ; he was in custody upon it ; the plaintiffs had the effect
of it.
*803
FEBRUARY TERM, 1820. 841
Strong p. Linn.
Now, if a ca. sa. be executed, that is sufficient in law for the
whole debt ; for corpus humunum non recipit estimationem ; so
that if you take the body at all you take it for the whole debt.
Hob. 52. Again. A ca. sa., as respects the party against whom
it is taken, is a full satisfaction by force, act and judgment of
law, so that against him and his representatives there can be no
other, for when the plaintiff hath begun and chosen the body he
can resort to no other execution against the self-same party.
Hob. 59. It is a complete satisfaction, in law, of that very suit
or judgment in which it is taken. Ibid. It is true that the
common law has been altered by statute in this respect, in cases
where the defendant escapes or dies in prison ; there, by the force
of the statute, there may be a resort to the goods, but in all other
cases, and especially a case like this, it still remains in its full
force. So far as respects Kerr, then, and so far as respects this
residue, as a part of this very suit and this very judgment, this
ca. sa. was a complete satisfaction.
It must be admitted, however, that though this be so, yet it i
not a satisfaction in the same sense and to the same extent as the
payment of the money would be ; it is not a satisfaction to all
purposes, and in favor of all persons. As if two be bound in a
bond, jointly and severally, and there be several judgments
against them, and one be taken on a ca. sa. } that cannot be pleaded
in satisfaction by the other, though it be for the very same debt.
Hob. 60. So if two commit a trespass, and there be several
judgments, and one be taken upon a ca. sa., the other cannot
plead this in exoneration of himself, though the plaintiff has but
one satisfaction. But this regards the mere taking of the body
only, without regard to ulterior proceedings ; for, even in these
cases, if one be actually taken, and then suffered to go at large by
the license or command of the plaintiff", it may be pleaded by the
other, and shall be. a complete discharge. Cro. Car. 75.
The case of Hayling v. Mullhatt, 2 Black. 1235, has been cited
as containing a doctrine contrary to this last. There the endorsee
of a bill of exchange sued the last endorser, and took his body
in execution, and afterwards let him out on a letter of license ;
then he sued the first endorser, and it was pleaded that *the
*804
942 NEW JERSEY SUPREME COURT. [5 LAW
Strong v. Linn.
debt was satisfied by the imprisonment of him that was first sued,
and held to be a good plea. And, though I do not very well
see the force of what the judges there say in support of their
opinion, yet there was this good reason for it, that it was of no
consequence to the first endorser, whether the last was discharged
or not; it did not at all affect his ultimate liability; he had
endorsed the bill, and he must answer for the amount to some-
body if the drawer did not pay. But if the endorsee had first
sued the drawee of the bill upon his acceptance, and taken his
body, and afterwards had discharged him from imprisonment,
and then sued this endorser, would it not have been otherwise ?
Certainly. For an arrest and discharge of the original debtor
would have been a satisfaction as to him, and, of course, to all
the endorsers, for they could have no resort to him afterwards.
But whatever may be said with respect to liabilities upon bills
of exchange, the general doctrine is, that wherever the actual
payment of the money might be pleaded as a satisfaction and as
a total discharge of him that pleads it, a voluntary discharge upon
<a ca. sa. may also be pleaded, and the party against whom it is
pleaded shall not be permitted to aver against it that the money
has not been actually paid. Whitnax v. Hankinson, Cro. Car. 75.
If, therefore, we view this action as founded upon the judg-
ment against Kerr, and as a means of compelling the payment
of this residue out of his property, the plaintiffs must fail, for
that judgment is already satisfied by the body. If we view it as
founded upon the liability of the sheriff for his neglect of duty,
without relation to Kerr's property at all, the plaintiffs still
must fail ; for the sheriff, having rendered himself answerable
for the debt, stands in the nature of a security only, or, if you
please, in the situation of a co-obligor, jointly and severally bound,
and, therefore, may plead the discharge, and it shall be a good
plea.
In whatever light we view it, therefore, I think the plaintiffs
must fail, and, therefore, that the verdict must be set aside.
ROSSELL,, J.
The case in Coxe 168 is conclusive-
2 SOUTH.] FEBRUARY TERM, 1820. 94
Strong v. Linn.
z '
SOUTHARD, J., dissented.
This case conies up upon objections to opinions delivered by
myself upon three questions which arose at the trial. Upon the
best view which I have been able to take of the case, and the
argument delivered upon the rule, I still remain of the same
opinion which I expressed upon all the points.
*The suit was brought by Strong and Havens against the
sheriff for neglecting to levy, make and pay over the money due
upon an execution, in their favor, against Jacob Kerr ; and so
far as the facts appeared at the circuit and are necessary to a
correct understanding of the points raised, they are as follows :
Four writs of fi. fa. de bon. et ter. were regularly issued against
Kerr and came into the hands of the sheriffs in the following
order : One to Sheriff Green, and one in favor of John Barnet,
one in favor of Strong and Havens and one in favor of John
Armstrong to Sheriff Linn. Regular levies were made and re-
turned upon all these writs. Linn received from Kerr 450 and
applied it to Barnet's execution, which left something more than
$200 due upon it. After this, at the request of Kerr, his real
property was advertised by Linn and struck off upon the bid of
Barnet for 2,500, but he gave notice that hfe had bid under a
mistake and should not abide by it. The sheriff exposed the
lard a second time and sold it for $392.50, and discharged Par-
net's execution. He also exposed Kerr's personal property and
sold it for 562.50. Armstrong was the purchaser, and gave an
acknowledgment of the purchase on the list of the articles and a
receipt for the amount on his execution. It was of this payment
of the money to Armstrong that Strong and Havens complained,
their execution being the oldest.
After the plaintiffs had rested the defendant offered to prove
that after the sale of Kerr's personal property to Armstrong,
and taking his acknowledgment and receipt, a ca. a. was issued
in favor of Strong and Havens, and Kerr taken by the sheriff
but discharged by their order before he was confined ; and, after
his discharge, the present suit was brought. This .evidence, after
argument, was overruled.
John Armstrong was offered as a witness to prove that at the
*805
944 NEW JERSEY SUPREME COURT. [5 LAW
Strong v. Linn.
sale of personal property, Green, who held the first execution,,
demanded that it should be first satisfied, and that he, supposing^
that the proceeds of the sale would go to his execution, agreed
to and did pay Green the amount of his claim, which was about
$60. He was objected to and declared by the court to be an in-
competent witness. Those facts were then all proved by E.
Green, and the plaintiffs admitted, before the jury, that it was
proper to deduct the $60 out of the amount for which the goods
sold and for which they claimed a verdict. The defendant also
*claimed allowance for the amount of the costs upon an action
by the sheriff against Barnet upon his bid at the first vendue of
the real estate. It was agreed by the .parties that after Barnet
refused to take the land at his bid Kerr applied to the sheriff ta
bring suit against him, and, with good security, entered into a
bond to indemnify him from any costs which should be created
by the suit. The action was accordingly prosecuted and verdict
and judgment rendered in favor of Barnet, and the attorney of
the sheriff declared, in the presence of the court and jury, that
he relied upon the bond which had been given, was satisfied with
it, and had no claim upon anyone for any costs in that action.
Upon these facts it was submitted whether these costs ought to-
be proved and deducted from the balance, and the judge declared
it as his opinion that they ought not. There was verdict for the
plaintiff for the amount of the sales of personal property after
deducting what was paid to Green.
I will notice the three objections in their order. 1. There was
error in not directing the costs of the suit of Linn v. Barnet to
be deducted.
I do not understand that a sheriff is bound to bring suit and
expend his own or the plaintiff's mone^ in order to enforce every
questionable bid which may be made at sales of property by him.
Neither law nor the interest of parties requires it. He may re-
fuse to sue until an indemnity for the costs &c. be given to him,,
and if he does so refuse and takes a bond to indemnify him I do
not perceive by what right he can desert that bond and claim
the costs from another source. In this case the defendant seems
to have been aware that the bid of Barnet could not be enforced,
*806
2 SOUTH.] FEBRUARY TERM, 1820. 945
Strong v. Linn.
and he, therefore, refused to attempt to enforce it until Kerr, the
person whose projxjrty was sold, gave him security for the costs.
Why, then, should these costs be taken out of the amount which
was coming to the plaintiffs? The suit was not brought at their
request but at the request of Kerr. The plaintiffs gave no
promise of indemnity. Why should they pay for Kerr's acts ?
Besides, there were really no costs to come out of the sum made
by the sale of the property. The attorney of the plaintiff in
that suit had looked to his bond and was satisfied with it, and
acknowledged that no costs were due. How, then, was it pos-
sible that any should be deducted ?
2. As to Armstrong's interest. The plaintiffs, Strong and
Ha*vens, claim the amount of certain personal property sold by
the sheriff and bought by Armstrong. At the foot of a schedule
or list of the property so sold, Armstrong signed an acknowledg-
ment that he bought this property, and stated the sum given.
This sum was endorsed on his execution, and he thus received
the benefit of it. If he was not entitled to receive it, if it was
paid to him by mistake, it may certainly be recovered from him
upon the plainest legal principles. But the question whether
he was entitled to it, depends altogether upon the fact whether
Strong and Havens recovered in this action or not. If they
were entitled to it, he was not ; if they were not, he was. Their
right to it was to be settled in this action, and to be more or less
governed by this evidence. To me, therefore, the interest seems
positive, direct and immediate. If Strong and Havens recover, he
must refund the money ; and he may be compelled to do it either
upon the general principle of money received by mistake, or by
force of the acknowledgment at the foot of the articles bought.
But even if this were not so, I am not satisfied that a new
trial should be granted. The facts which he was offered to
prove were amply .proved by the most unexceptionable evidence
afterwards, and defendant had the benefit of them.
3. As to the effect of the ca. sa. This ca. sa. was issued aftrr
the execution, which was the foundation of this suit, and after
the default of the sheriff; and, also, after the sheriff had tin-
money in his hands. Now, whatever may be the law as to
*807 60
946 NEW JERSEY SUPREME COURT. [5 LAW
Strong v. Linn.
issuing a fieri facias after the body has been taken under a ca.
sa., surely the issuing of a ca. sa. can neither divest out of the
plaintiff rights which are vested in him, nor save the previous
liabilities of the defendant and justify him in keeping money
to which he had no right, but which he had made for another.
If the execution had given the plaintiffs a right to the money ;
if the money were already legally theirs, however Kerr might
complain of the imprisonment of his body, that imprisonment
would not restore to him his property. If the sheriff had sub-
jected himself to prosecution ; if he had the money in his hands,
a ca. sa. never could relieve him from that prosecution and
authorize him to keep the money ; especially when the ca. sa.
was. issued under a mistake created by his conduct in making an
incorrect return, and paying the money to a wrong person. Be-
sides, the money being due on the fieri facias of the plaintiffs,
if hQ is not obliged to pay the *money to them, I know not who
has a right to call on him for it. And, in this case, the plaintiffs
seem to me not chargeable with any intentional wrong to Kerr
in suing out the ca. sa. They were deceived by the sheriff and
discharged him as soon as they knew the course which the sheriff
had taken, and that their money really had been made out of
defendant's property.
I do not perceive that this case can be affected by the fact that
Armstrong agreed to satisfy Green's execution. What he paid
on that execution was first to come out of the property sold,
and was, therefore, properly credited by the plaintiff in this
suit ; and, by that credit, it was restored to Armstrong, for he
was thus permitted to retain so much on his execution. And
even if this were not so, the rights of the plaintiffs would not
be altered. If a third person, either through friendship or in-
terest, chose to satisfy a previous execution, it did not lessen the
lien of their execution. It still bound and held the property,
and the only effect of such a procedure would be to free the
property from previous liens and leave it unencumbered for the
satisfaction of this.
I, therefore, see no reason why the verdict should be set aside.
New trial granted.
*808
2 SOUTH.] FEBRUARY TERM, 1820. 947
Burrough v. Vanderveer.
ABRAHAM SWISHEB v. WILLIAM HIBLER.
Scire facias, (a)
On certiorari.
On the 17th of June, 1816, Jacob Kerr, then one of the justices
of the peace of Sussex county, gave judgment in favor of Hibler
against Swisher for $93.55. On the 19th of April, 1819, a scire
Jacias was issued to revive the judgment. Before issuing this
-scire facias the time of office of Justice Kerr had expired.
And Ewing, for the plaintiff in certiorari, urged that the scire
Jacias was not a common law, but statutory proceeding; and
jthat this was a case in which it could not issue, because it had
not been provided for by the statute. See act of February, 1812.
Wall answered, but the court unanimously reversed the judg-
ment upon the acire facias.
*BENJAMIN BURROUGH t>. 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
<lefect in these proceedings. The foundation of the plaintiff's
right to recover rests on our statute for distribution of intestates'
states. And by the twelfth section of that statute (Pat. 156)
the judges of the orphans court are to decree distribution of
the estate pursuant to law, after which the persons claiming a
share shall have their remedy at law against the executors or ad-
ministrators. By the construction of this statute the court is to
fix the distributive share ; they and not a jury are to determine
who are entitled to portions of the estate and what those portion*
are. The consequences of submitting such questions to a jury
would be fatal to the rights of administrators. I think, there-
fore, that this action could not, in the present instance, be sus-
tained by the plaintiff.
970 NEW JERSEY SUPREME COURT. [5 LAW
Lawrence v. Jones.
*DANIEL LAWRENCE v. JOHN S. JONES, constable.
1. Action by constable for being prevented from taking defendant in execu-
tion, (a)
2. Evidence.
On certiorari.
The facts and reasons appear in the opinions. H. A. Ford?
attorney.
KlRKPATRICK, C. J.
The constable, in his state of demand, sets forth that he had
certain executions in his hands against one Samuel T. Lawrence
and that this Daniel Lawrence prevented him from taking his
body upon these executions. If this were so it subjected him to-
a criminal prosecution and also to actions at the suit of the plain-
tiffs in these executions, respectively, but it gives the constable
no action unless it be for his own direct and personal injury.
He cannot lump it in this way and become the general avenger
of other men's wrongs. His giving his notes to those persons
for the money due upon their executions does not help him. No
man, and especially an officer of the peace, can buy up other
men's quarrels. There are sundry other substantial reasons for
reversal, but I rest upon this alone.
SOUTHARD, J.
The state of demand sets out that the plaintiff is one of the
constables of Morris county; that C. A. Pitney, on the 23d of
December, 1817, before D. Day, Esq., obtained a judgment
against S. T. Lawrence for $43.15 debt and sixty-three cents
costs ; that an execution was issued upon the judgment on the
10th of March, 1818, directed to the plaintiff as one of the con-
stables &c., by means whereof a right accrued to the plaintiff to
(a) See Leonard v. Ware, 1 South. 150 (b) ; Lloyd v. Wyckof, 6 Hal. 226.
*825
2 SOUTH.] FEBRUARY TERM, 1820. 971
Lawrence r. Jonea.
seize, arrest and take the body of said S. T. Lawrence ; that in
the lawful exercise of that right he was obstructed and hindered
and molested and altogether prevented by the defendant, and by
such obstruction &c. the plaintiff was totally unable to seize,
arrest and take the body of S. T. Lawrence, and he escaped suc-h
rightful seizure, viz., on the 22d of January, 1819. The plain-
tiff also complains that on the 20th of January, 1818, Justice
Day gave judgment against the same S. T. Lawrence in favor of E.
Byrara and N. Wilson for $25.25 debt and fifty-three cents coste r
and on the 22d of January, 1819, issued an execution directed
to the plaintiff and that he was in like manner obstructed &c. r
by which hindrance &c. he was endamaged $90.
*This suit was commenced 12th of February, 1819, and tried
27th of February, 1819. At the trial a motion for a nonsuit
was made because the executions, as stated by the plaintiff, did
not authorize the arrest of S. T. Lawrence, and the motion was
overruled. Plaintiff proved the handwriting of C. A. Pitney
to a receipt, and the receipt was admitted ; both the receipt and
mode of proof being objected to. This receipt was in the fol-
lowing words : " Rec'd of John S. Jones, const, his note for
forty-seven dollars and twenty-five cents ; when pd. will be in
full of an execution he has in my favr. agt. Samuel T. Lawrence.
Dated 10 March, 1818. Feby. 27th, 1819. Chs. A. Pitney."
Plaintiff then offered Elias Byram, one of the firm of Byram &
Wilson, to prove that he had satisfied them for their demand
against S. T. Lawrence for their execution. This evidence was
objected to on the ground of the witness' interest in the suit ;
but the justice swore the witness on his voir dire, and he deny-
ing any interest, was sworn. There was also produced a receipt,
but how proved does not appear, given by Byram & Wilson for
their execution in the same form as that of Pitney, and dated
27th of February, 1819, the day of the trial. There was a
verdict and judgment for $75.19.
To the sufficiency of this judgment several objections have
been taken. I will state a part of them only in the view which
I take of the case.
The complaint here is that the officer was obstructed in the
*826
972 NEW JERSEY SUPREME COURT. [5 LAW
Lawrence t-. Jones.
lawful right to take the body of the defendant, and thus the
defendant escaped. The first inquiry is, Had he any such lawful
right to take the body ? I think it manifest he had not.
Pitney 's execution was issued 10th of March, 1818 ; the ob-
struction was on the 22d of January, 1819. The constable had
no right to take the body on such execution. The defendant
might well have resisted him ; he was himself a trespasser and
a fit subject of punishment. His improper conduct ought not
to be rewarded by a verdict, giving him all the money due on
the execution. The same remarks apply to the other execution.
The judgment was given on the 20th of January, 1818 ; the
execution issued the 22d of January, 1819. The execution
itself was, therefore, void. For aiding in the escape of the de-
fendant upon either of these executions, Daniel Lawrence could
not be criminally punished.
In the next place, if the constable had performed his duty so
*that he could complain of anybody, he was not liable to the
plaintiffs in the execution. They had no right to call on him
for the payment of the executions ; and if he chose voluntarily
to come forward and pay the plaintiffs, that affords no ground for
calling on any one to compensate him ; and if he had not done
his duty he surely can have no claim.
In the third place, there was a plain violation of law in ad-
mitting Pitney's receipt. It was not so proved as to render it
admissible in this action.
But, in the last place, for a resistance to a public officer, unless
a personal injury is done to him, no civil action lies. The suit
is radically wrong. And it certainly assumes the appearance of
a combination between the constable and plaintiffs to extort the
money from a third person because they could not get it from
the defendant.
Judgment unanimously reversed.
*827
2 SOUTH.] FEBRUARY TERM, 1820. 973
Shotwell r. M'Kown.
JACOB SHEPHERD v. PETER F. BAYLOR.
Misconduct of jury, (a)
On certiorari.
KlRKPATRICK, C. J.
In this case the jury, after they had retired to consider of
their verdict, left the room forcibly and against the will of the
constable ; one of them actually absconded and returned home
to his own house ; and two others were found in the public road
and could not be gotten to return till they were actually seized
and taken back by the constable.
Now, though it be admitted that small irregularities in the
jury, such as eating and drinking, unless it be by the procure-
ment or at the expense of the prevailing party, is not sufficient
to set aside a verdict, yet conduct like this is too gross to be
tolerated. It is such a deviation from duty, decency and order
as to impeach the motives as well as the verdict of any jury ;
and, therefore
Let the judgment be reversed.
*SHOTWELL, v. M'KowN.
Agent not answerable in his individual capacity. (6)
On certiorari.
(a) Demund v. Oowan, ante 687 ; Or am v. Bishop, 7 Hal, 159.
(b) Tattle v. Ayres, Penn. *6Sg / Stephens v. Bacon, t Hal 1 ; The Baptist
Church v. Mulford, S Hal. 186; Kean v. Davis, 1 Zab. 68S ; Stewart v. John-
ton, Ooxe 27; Bay v. Cook, 2 Zab. Stf ; Perth Amboy Co. v. Qmdit, 1 Zab. 659;
Bwley v. Kitchcll, Spen. 305.
*828
974 NEW JERSEY SUPREME COURT. [5 LAW
Demand v. French.
This action would seem, from a very indefinite state of demand,
to be founded upon a note in the following words : " Rah way,
July 30, 1816. Dolls. 113.01. Three months after date the
Patent Cloth Manufacturing Company promise to pay William
Frazee or order, at their manufactory, one hundred and thirteen
VlOO dollars, with interest, value rec'd, without defalcation or
discount. William Shotwell, agent." On the back of the note
there is an assignment to M'Kown, dated July 31st, 1816, and
an endorsement in these words : " Rec'd on account of the within
note, at sundry times, in meal, flour &c., from grist-mill, to the
amount of thirty-two dollars I /IQO. Rahway, 1 Oct., 1817.
John M'Kown."
W. Hoisted, for plaintiff.
Scudder, for defendant.
KlRKPATRICK, C. J.
This action is brought upon a promissory note, purporting to
be given by the Patent Cloth Manufacturing Company to Wil-
liam Frazee, for $113.01, dated July 30th, 1816, and payable in
three months at their manufactory, signed, " William Shotwell,
agent," and assigned by William Frazee to John M'Kown, the
plaintiff.
Shotwell is not answerable in his individual capacity for this
money. The agent is not answerable for the principal. The
assignee must look to the company. 9
Judgment reversed.
JOSEPH DEMUND v. THOMAS FRENCH.
Evidence.
On certiorari.
Case argued by Vroom, for plaintiff; Hahey, for defendant.
2 SOUTH.] FEBRUARY TERM, 1820. 975
Demund r. French.
KlRKPATRICK, C. J.
This was an action of trover for two hundred cocks of hay.
It appears by the justice's return and the affidavits accompanying
the same that Demund had taken the benefit of the insolvent act,
and that one Shafer had been appointed his assignee; that
French instituted this suit on the 15th of July, *1818, and that
it was adjourned from time to time till the 27th of August fol-
lowing; that during this time, viz., on the 3d of August, 1818,
Shafer, the assignee, instituted a suit against French before one
Justice Little, which was adjourned till the 24th of that month,
and then tried, and a judgment rendered for Shafer, the plaint iff.
Upon the trial of the cause now before us, it was alleged by
Demund that this very matter about the hay had been set up by
French in Shafer's action against him, and had been there inves-
tigated and settled, and to prove that it was so, offered the trans-
cript of Little's docket in that case, duly certified, but it was
overruled by the justice upon the ground that it was not a pro-
ceeding between the same parties, (a) This, I think, was error.
How the matter might have appeared is immaterial ; it ought to
have been examined.
SOUTHARD, J., remarked that a rule had been taken on the
justice to amend his record, but he had returned thereto that he
could not in the particulars required ; and affidavits were taken
which, among other things, stated that a witness, Creely, had been
offered to prove that the hay in dispute belonged to the defend-
ant, of his assignee, Shafer, but that the justice refused to permit
any question to be put proving the property in them or any
other person except the plaintiff. There mast be some mistake
in this matter. That any justice in such an action should pre-
vent the defendant from proving that the right of property was
in himself and not in the plaintiff is scarcely credible in judicial
proceedings. If he did so there ought to be a reversal for that
cause, for there has been a complete perversion of justice.
Judgment reversed.
(a) Oarhart v. Miller, ante 57S ; Davisson v. Gardner, 5 Hal. XS9 ; State T.
Water Commissioners, 1 Vr. tJff*
*829
976 NEW JERSEY SUPREME COURT. [5 LAW
Hoffr. Taylor.
WILLIAM HOFF v. JOSEPH TAYLOR.
Reference to three, whose report or the report of two, to be final &c. Two
only acted. Their report is unlawful, (a)
On certiorari.
This case was presented, without argument, to the court at a
former term, and the chief-justice intimated the opinion to be
against the judgment. On which the counsel of the defendant
in certiorari, Watt and jR. Stockton, laid Wittes %15 and some
other cases before the court, suggesting that they conclusively
sustained the legality of the report. The facts are stated in the
opinion delivered.
SOUTHARD, J.
This is an action of debt commenced by Taylor against Hoff
for $39.71. On the return of the summons on. the 20th of June,
1818, the plaintiff filed an account in the usual form, and de-
fendant pleaded the general issue. Plaintiff demanded a venire,
which was issued on the 23d of June, returnable on the 26th,
when the cause was heard, and the foreman of the jury rendered
a verdict for the plaintiff for $11.06, but upon being polled, at
the request of the plaintiff, three of the jurors disagreed to the
verdict. Upon this the parties agreed to refer the cause) and a
rule of reference was entered in these words : " By consent of
the above parties, and at their request, it is ordered that the
matters in difference in the above cause be submitted to the final
end and determination of Capt. William Conover, William Mur-
ray and Cornelius Walling, referees, mutually chosen by and
between the said parties, whose report, or the report of any two of
them, made in writing and signed by the said referees, or any two
(a) Moore v. Ewing, Coxe 144 ; Egbert v. Smith, Perm. *9%4 ; Reeves v. Qoff,
Penn. *143 ; Ho/man v. Ho/man, 2 Dutch. 175 ; see Pintard v. Irwin, Spen,
510 ; Rogei-s v. Tatum, 1 Dutch. 282.
*830
2 SOUTH.] FEBRUARY TERM, 1820. 977
Hoffr. Taylor.
of them, and delivered to this court ou or before the 1st of Sep-
tember next, shall be binding &c. ; and the first meeting of the
referees shall be on the first Monday in August, 1818, at two o'clock
p. M., at &c., and afterwards on their own adjournments, giving 1
notice &c. ; that in case of the absence of either party, he hav-
ing notice of the time and place of the meeting of the referees,
they are to proceed ex parte and without him ; and that the
parties have subpoenas for their witnesses" &c.
On the 3d of August two of the referees, viz., Conover and
Murray, met, and it being proved that the defendant, Hoff, and
the other referee, Walling, had, on the 27th of July, received
notice of the time and place of meeting, they were sworn, heard
the plaintiff, and on the same day made a report in his favor for
$38.51, upon which report the justice entered judgment.
By affidavits taken under rule it appears that when the notice
was served on Cornelius Walling, the referee, he declared that he
would not attend, and gave as a reason that he was a relation of
Hoff, the defendant. And when notice was served on Hoff, he
declared that he would not attend, and gave to one of the
witnesses as his reason that Walling, the referee, would not
attend.
*The only question which has been raised upon the certiorari
which presents these facts is whether, under the circumstances,
the two referees had the power to hear the plaintiff and make a
report whether the report is good.
From the statement which has been made of the facts it is
manifest that here was a warm litigation in which neither party
was disposed to yield any of his claims, and in which it was
difficult for a jury to discover the truth ; that the parties sup-
posed they were making a reference to three men, all of whom
were to act ; that one of the parties was not willing that two of
the referees should act without the third; that this third never
did take upon himself the burden of this submission, but, on the
contrary, wholly refused, and gave as his reason his relationship
to one of the parties. Was it competent, then, for the two to
hear the cause and make a report, after the refusal of the other,
without an opportunity to supply his place and against the will
*831 62
978 NEW JERSEY SUPREME COURT. [5 LAW
Hoff v. Taylor.
of the defendant ? Their authority is contained in the written
rule ; what does that say ? The cause is submitted to the three,
" whose report, or the report of any two of them," shall bind &c.
In putting a construction upon these words we must recollect
that the power granted by them is not of a general nature and
of public concern, where, from principles of public policy, the
majority conclude the minority, and their act is the act of the
whole ; but it is a private confidence, a mere delegation of power
where the interest of the constituent is directly and only con-
cerned, and where the will of the parties and the intention and
construction of the words of the grant must be strictly followed.
The parties agree upon three men to hear ; the rule refers the
matters to be heard to three, and wherever it speaks of their acts
in relation to the hearing, as in the reference, the meetings, the
adjournments, it speaks of all without qualification, " the referees"
Wherever it speaks of the result of the hearing, it expressly
draws the distinction and states that the result may be indicated
by all or by two ; " their report, or the report of any two of
them," " signed by them, or any two of them." The fair construc-
tion of the different parts, then, is that the power is vested in
the three who are to hear, examine and judge of the cause ; but
after this hearing, if they cannot agree, the report or judgment
of two of them is to bind. All are to deliberate, consult, reason ;
but the weight or majority of opinion is to rule. The *whole
court is to hear, but the claim which gains the most suffrages is
to prevail.
So, too, I am sure, is the understanding of the parties and the
reason of the thing. When a man refers a matter to three he
does not say nor mean two. When he takes his cause from the
court and places it in the hands of private individuals, he does
it because he has confidence in their intelligence and integrity ;
and it may, and often does, happen that he has full and implicit
reliance upon one only of the persons chosen, and that reliance
governs him in agreeing to the rule. Would he consent to the
reference if he understood that he was to be bound, in every
event, even if that man refused to act ? Surely not. In the
present case, Hoff had confidence in Walling ; he was unwilling
*832
2 SOUTH.] FEBRUARY TERM, 1820. 979
Hoff v. Taylor.
that a hearing should take place without him. When he agreed
to the rule did he understand that he was to be bound, though
Walling did not act? And ought his agreement to be so con-
strued as to violate the very principle upon which it was founded ?
The practice, too, so far as I have ever learned it, is in com-
pliance with this construction of the rule. I have never heard
of a case where the rule was of this kind and one of the im-n
named refused to become a referee, yet the parties proceeded
without a new agreement, or the substitution of some one in the
place of him who declined. On the contrary, I believe the ex-
perience of every member of the bar will bring to his recollec-
tion cases where, after such refusal, the cause did not progress
until the rule was discharged or a substitution made.
Nor am I aware of any serious evil resulting from this con-
struction. It can, at most, only create a short delay where there
is a refusal to serve. If that refusal is corruptly procured, the
party is liable to punishment for his contempt. If it is on the
mere motion of the referee, the rule must be discharged or a
substitution of another referee made. In the present case, the
rule would have been discharged upon Taylor's motion, upon
proof of the facts.
The plain sense and meaning of the rule, therefore, and the
course of the practice, require that the report of these two ref-
erees, and the judgment founded upon it, should be set aside,
unless there is something in the adjudged cases compelling, irre-
sistibly, to a different result.
There is no adjudged case in this court, within my own ob-
*servation, nor is any reported. I am informed, however, that
some have arisen in former times, and that the decision has
always been unfavorable to the validity of the report.
In the books there are many cases pointing to this subject,
but I have not . found one, upon a rule or submission, worded
like the present, and although I am not satisfied with the reason-
ing upon them, yet I think there is plausible ground for the
course of decision.
The case of Dolling v. Matchett, reported in Barnes 57, in
WiUes 215, and referred to in Kyd 107 and in many othei
*833
980 NEW JERSEY SUPREME COURT. [5 LAW
Hoff v. Taylor.
books, seems to be a leading case, and, in the estimation of the
counsel of the defendant, is conclusive. The rule there is pre-
cisely the same as in 2 Oro. 278 and $ Qro. 400, and all the
other cases which have what is commonly called the ita quod
clause in them. The words are, to the three, " so AS they, or any
two of them, make the award." These words so as have, in all
the cases, been considered as disjoining the authority and author-
izing two to act without the third and make a report, provided
the third has had notice of their meeting so that he might have
attended, and was not excluded by fraud. The report of a part
is expressly sanctioned, upon the ground that by the fair con-
struction of the whole rule the authority was separated, and as-
much vested in a part as in the whole. But in comparing these
cases with the one before us, it is proper to make three remarks.
1. In none of them is the reference like the present, to three r
whose report, or the report of any two of them &c. 2. It does-
not appear in any of them that one or more of the persons ap-
pointed refused the trust. On the contrary, the fair import of
all of them is that the persons appointed undertook the trust,,
but afterwards one or more was intentionally and improperly
absent from the trial, or being present they could not all agree.
But here, Walling never agreed to act as referee but absolutely
declined. 3. In all those cases the language is that they, or any
two, may "make an award" An award is a judgment formed
and pronounced. To make an award is to form and publish a
judgment upon the facts; and, perhaps, in the construction of
the rules a force may have been given to these words, which, as
I before remarked, is plausible but not altogether satisfactory.
They may have been considered as conveying the idea of per-
forming the whole power given by the rule of *hearing and
judging and publishing the judgment. When two were author-
ized to make an award, it may have been considered that they
had full power to do everything necessary to its completion and
perfection to hear, to judge, to publish. But in this case it is
not said that the two may make a report, thus conveying the
idea that they may do everything necessary to complete it ; but
it is said, " the report of two shall be final," thus referring to-
*834
2 SOUTH.] FEBRUARY TERM, 1820. 981
Hoff t. Taylor.
the act and not the actors ; describing that matter which may a*
well be the result of the consultations of the whole as a part.
When it speaks of making the report, of the hearing and delib-
eration, it speaks of all. When it speaks of the report, the re-
sult of that hearing and deliberation, it speaks of a smaller part.
Kunokle v. Kunckle, 1 Dal. 364, has been supposed to confirm
the idea that two have power to act under a reference like thi> ;
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 <fec., but now those
not returned by the captain are to be taxed, and the tax collected
by the collector ; no notice is given of the battalion or company
court ; the first notice is a warrant ; the first act to be complained
of is that of the justice, and he is the one to be applied to for
redress. And as to his name being in the warrant, it could not
be avoided ; he was a delinquent, and he could not refuse to sign
the warrant as a justice.
It was replied that the practice was not as claimed ; that there
were cases each way, and perhaps no settled rule ; most of them
passing sub silentio, without comment ; that the Burlington case
was by agreement of parties to take no exception to form ; that
State v. Turnpike Company is proper, because, to bring up in-
quisition in their favor ; that there is no case where the court,
whose decision is to be reviewed, is defendant ; and that *as to
the argument, when the writ was ordered, the court merely
directed it to issue, but did not direct its form.
KlRKPATRICK, C. J.
This is a certiorari allowed at bar, on the motion of counsel,
in behalf of Isaac Jones, William Jones and others, who allege
themselves to be aggrieved, and who are endorsed as prosecutors.
It is directed to Stephen Kirby, Esq., one of the justices of the
peace of the county of Gloucester, commanding him to send up
a certain list of delinquents, fined for neglect of military duty,
returned to him by a certain battalion paymaster therein men-
tioned, and also his warrant of distress thereupon issued.
To this certiorari the justice returns a certain warrant of distress,
and certifies that he put his name to the said warrant without
seeing or having delivered to him any list of delinquents by the
*837
2 SOUTH.] FEBRUARY TERM, 1820. 985
State v. Kir by.
said battalion paymaster or any other officer ; and that, therefore,
no such list remains with him, nor any record thereof, nor other
proceeding from which he can make a more full return.
It is now moved to quash this certiorari. 1. Because it is
wrongly entitled ; the prosecutors cannot make use of the name
of the state to aid them ; the' public interest is the other way ;
nor can they make the justice a party defendant; he acted as a
judge only, and is no way concerned in interest or office. 2.
Because these fines are several, and not joint, and therefore a
certiorari cannot be taken out upon the joint application of many,
nor can a general judgment, either of affirmance or reversal, be
rendered upon it; each must sue for himself. 3. Because the
return is wholly insufficient.
I am inclined to think the mover is right, in his law, in every
one of these positions, and yet I am not satisfied that the writ
ought to be quashed.
As to the first reason. I am induced to believe there has been
some want of uniformity, and, perhaps, some want of caution, too,
in the entitling and the entering of certioraris, rules and other
proceedings had upon applications to the superintending power
of this court. The name of the state certainly cannot be used at
pleasure. It can be made plaintiff only where the public interest,
the public peace or the public order and economy are concerned,
and it can be made defendant in no case whatsoever. Whenever
the state, therefore, comes into the courts of justice, *it comes in
for the maintenance and preservation of these concerns, and not
otherwise. And as the state cannot be made plaintiff except in
these cases, so neither can the judicatory whose judgment is ques-
tioned, be made defendant merely because it may have erred in
judgment. I do not now speak of cases of mandamus, quo
warranto or prohibition ; they depend upon other principles, and
are founded upon the supposition of some refusal of justice,
usurpation of office or franchise, or unlawful assumption of
power and jurisdiction, all implying some degree of criminality
in the judicatory, as well as wrong to the citizen.
It lias been suggested, in the argument, that in the review of
those special jurisdictions the state, always guardful of the rights
*838
986 NEW JERSEY SUPREME COURT. [5 LAW
State v. Kirby.
of the individual and jealous of every deviation from the course
of the common law, steps in to the aid of the citizen and lends
him its name in the defence of his rights. But I do not per-
ceive that this is the case in England, nor do I think whatever
entries may appear in the minutes to the contrary, it has ever
been approved here. In all these* cases where the public is con-
cerned, if a party comes in to seek relief by certiorari or other-
wise the state is made the plaintiff, and he against whom the
judgment or proceeding is, and who seeks relief, is made the
defendant.
This, indeed, necessarily follows from the principle that the
state cannot be sued or prosecuted, or brought in to defend itself
in a court of justice by a private citizen.
The proceedings of which we have been speaking arise upon
municipal regulations made for the public benefit, the public
convenience or the public safety. In the execution of these regu-
lations the state is always the actor, carrying them into effect
either in its ordinary courts of justice, or by special commis-
sioners or agents appointed for that purpose. If these courts or
these commissioners or agents in any way injure, aggrieve or
vex the citizen, he applies to this court, where the state is con-
sidered as always present, always ready to hear, always ready to
render justice. But still, upon such application for redress, the
condition of the parties, if parties they may be called, is not
changed. The state is still considered as the actor, resting, as it
were, for a moment to hear the complaint of the citizen, but
never as the defendant, to answer for injury or wrong, for it
never can submit to be called in question upon that score. It is
true *that in writs of error and other proceedings by way of
appeal between private persons, the character of the parties is
changed ; he that brings the writ of error or takes the appeal
becomes the actor or plaintiff, and he against whom it is taken
the defendant ; but it is not so with respect to the state. It
never can be made a defendant to answer for supposed wrongs,,
for the state does no wrong. The state, therefore, in these cases,
is always the plaintiff, and he who seeks the relief is always the
defendant.
*839
2 SOUTH.] FEBRUARY TERM, 1820. 987
State v. Kirby.
This is the rule laid down with respect to settlement cases in
England. Burr. 52. It is the course on all certiwaris and
motions to quash orders and judgments made in a summary way
by justices and others. Burr. 245, 251, 385. It would be end-
less to cite cases. It is the course upon all summary convictions
and informations, orders to appoint constables, to take materials
to repair highways, to assess poor-rates, or to make any other
impositions or restraints whatsoever.
Then, to apply this to the present case. The party suing out
this writ had been charged with neglect of duty ; he had been
warned to appear before the proper tribunals to make his defence
against the penalty ; he had failed in that defence ; he had been
fined and a distress-warrant had issued against him ; in all this
the atate was the prosecutor, for there was no private interest.
Can he, then, at this stage of the business, turn round and him-
self assume the name of the state to reverse the whole proceed-
ing? The state, it is true, must stand as the plaintiff; it is
prosecuting for its right ; it is suing for its fine ; but it is not to
stand as plaintiff to shelter the party against whom it is prose-
cuting, against whom the judgment is ; he must be the defend-
ant himself; he is the real defendant, the man against whooi the
claim is, and who is defending himself against it. The justice
is the mere judicial officer he has nothing to defend, he never
can be made a party.
In mere matter of form, therefore, the party moving to quash
this certiorari may be right ; but still, as the writ itself is for a
proper object, directed to the proper officers and advisedly find
regularly issued, and as this entitling is but a mere mistake in
the endorsement and not of the essence of the thing at all, and
especially as there seems to have been no settled practice upon
this subject, I cannot think it ought to be quashed for that
cause.
Then, as to the second reason. Though the fines be several,
*and the judgments here must be several, yet as, from the nature
of the thing, there can be but one act of the justice, one record,
one distress- warrant, and when that is removed the whole i> 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<l
sisters of the half-blood on the father's side, if the estate came
. *864
1018 APPENDIX. [5 LAW
Arnold v. Den.
through him, or brothers and sisters of the mother's side, if the
estate notoriously descended from her, in conformity to the long-
established rules regulating the descent of real estate before
mentioned. The opinion of the court on this subject was fully
given and has been read to you from Pennington's reports (see
Den v. Urison, Penn. #7#), and has settled the question in this
state until it shall be otherwise decided by a superior tribunal. J>
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. <Stote, 543
4. Form of return from oyer and terminer. State v. Gustin, 746
5. To bring up military tax-warrant, should be entitled -Slate v.
Delinquents, named in the warrant, and be directed to the justice.
State v. Kirby, '-" '*
65
1026 INDEX. [5 LAW
Gertiorari Continued.
6. Such certiorari ought to be prosecuted by one delinquent only, not
by two or more jointly. Id., 963
7. If justice return such certiorari incorrectly, it will not be reason to
quash it. Id., 963
See MOTION TO QUASH, 1 ; ORPHANS COURT, 1, 2 ; RULE, 2, 4, 5,
6; RECORD, 1, 2 ; REVERSAL, 1.
Challenge.
To juror when panel is called is sufficient, must be tried, and need
not be renewed. Meeker v. Potter, 586
See NEW TRIAL, 1, 2.
Charge.
See JUSTICE, 1.
Clerk.
See FEES, 1; ATTACHMENT, 1.
Collateral Promise.
See EVIDENCE, 6.
Commission.
To take deposition of foreign witness, cannot issue without affidavit
and motion in open court. Hendricks v. Oraig, 667
Commissioners.
To divide land. State v. Judges of Burlington, 664
See ORPHANS COURT.
Common Bail.
See APPEARANCE, 1.
Common Informer.
1. Action by, must be commenced by summons. Oliver v. Larsaleer, 513
2. Title of statute must be endorsed on writ. Id., 513
Confession of Judgment.
Affidavi' is required only in cases of judgments upon bonds and obli-
gations, not on warrants of attorney without bond. Sharp and
Tultle T. Young, 845
Consideration.
Of bond and mortgage may be shown, in trial of ejectment, to have
been fraudulent, and the price of compounding felony. Den v.
Moore, 470
See STATUTE or FRAUDS, 1, 2; SEALED BILL, 2; EJECTMENT, 1.
SOUTH.] INDEX. 1027
Constable.
1. Cannot maintain an action on promise that prisoner would not
escape if lie was not carried to jail for one day. Winicrmvte v.
Swisher, 682
2. Cannot have suit for preventing him from taking defendant on
sundry executions, although he may have paid the plaintiffs'
claims. Lawrence v. Jones, 825
3. An execution which ought to have been returned, gives no right
to take the body. Id., 825
4. Two cannot have joint action for goods on which both levied, by
virtue of separate executions in their hands. Warnt v. Ease and
Leonard, 809
See EVIDENCE, 3, 9; COSTS, 1.
Constable's Bond.
Suit against sureties of constable must be brought on bond in the
name of the inhabitants of the township. Lewis v. Little, 685
See BAIL-BOND, 1, 2; EXECUTION, 1.
Construction.
See LEASE, 1, 2, 3.
Contents.
See EVIDENCE, 4, 8.
Contract.
1. Count that defendant, in consideration of $80 paid to him, under-
took to dig a well and finish it with good materials and in work-
manlike manner, and breach assigned, is supported by proof
that defendant received $80 for digging the well ; that it was
neither so deep as other wells in the neighborhood, nor finished
with good materials and in a sound manner ; that it failed of
water in a year, and plaintiff was obliged to get another dug.
Rose v. Parker, 780
2. He who undertakes to do a piece of work for a sound price, paid
in lump, undertakes to do it in a workmanlike manner, and the
law raises the assumpsit on the receipt of the money. Id., 780
See ACTION, 1, 3.
t
Copy.
See EVIDENCE, 4, 8.
Corporation.
See STATUTE.
1028 INDEX. [5 LAW
Costs.
1. Constable may recover from plaintiff in attachment the costs of
executing writ, where defendant has no property to satisfy them,
but not costs of removing goods, nor costs occasioned by execut-
ing the writ on wrong property. Curtis v. Hulsizer, 4C6
2. In action upon judgment, costs of execution may be added to
amount of the judgment. Miller v. Miller, 508
3. On judgment against defendant in forcible entry &c., to be multi-
plied by three. Muirs v. Sparks, 513
4. Two defendants, verdict against one, and no certificate of judge,
the other may have rule for costs. Abrams ads. Flatt, 544
5. Rule for security in ejectment may be granted after issue where
lessor resides out of the state. Den v. Wilson, 680
6. Costs of witnesses, for what time to be taxed. Den v. Vancleve, 719 1
Court for Small Causes.
1. Has not jurisdiction of an action of case by owner for overflowing
land to the permanent injury of the freehold. Vantyl v. Marsh, 504
2. Has not jurisdiction of covenant for breach of warranty of title
in deed. Burrough v. Vanderveer, 809*
See JUDGMENT; JUSTICE; MALICIOUS PROSECUTION, 1.
Covenant.
If plaintiff declare on two deeds, one for eight, the other for six lots
of land, with covenant to pay yearly $72 on the lots in each deed,
and assign for breach the non-payment of rent on particular lots
named, count is good. Jersey Company v. Halsey, 750-
See COURT FOR SMALL CAUSES, 2; EVIDENCE, 2, 7.
Criminal Prosecution.
See BOND.
D.
Damages.
See NEW TRIAL, 2, 4.
Debt.
See ERROR, 1.
Debtor, Insolvent.
See BILL OF SALE, 4; JUDGMENT, 5, 8.
Deceit.
Passing note to A, who cannot read, and assuring him that B is security
upon it, when he is not so, will sustain an action. Decker v.
Hardin, 57 9
Meeker v. Potter, 58ft
See SCIENTER, 1.
-2 SOUTH.] INDEX.
Declaration.
That defendant broke plaintiff's close and posted on his door a
wicked, malicious and insulting hand-bill, and then setting out
the tenor of the hand-bill and concluding " to his damage " Ac.,
is good. Gibbons v. Ogden, 853
See COVENANT, 1; SEALED BILL, 2; AMENDMENT, 1, 2; CON-
TRACT, 2; PROMISSORY NOTE, 1, 2; PLEADING, 5.
Declarations.
See TESTAMENTARY CAPACITY, 2.
Delinquent.
See CERTIORARI, 5, 6, 7.
Demand.
See PROMISSORY NOTE.
Demise.
See AMENDMENT, 2.
Demurrer.
To indictment is seldom made and never required. Motion to quash
is substituted for it Nicholis ads. State, 539
Depositary.
See BILL OF SALE, 4.
Deposition.
Sec COMMISSION, 1.
Descent.
See HEIRS.
Devise.
1. " I give unto my brother G. the use &o, during his natural life,
and no longer ; and then I give my said lands Ac. to S., his heirs
and assigns forever ; but in case S. die before he arrives to lawful
age or have lawful issue, then I give the same to J. and H., to be
equally divided, or the survivor" &c. S. takes an estate in fee,
with limitation to J. and H. by way of executory devise, not
estate tail, with remainder over. Den v. Taylor and Sheppard, 413
2. " 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 surviv-
ing." S. takes estate tail general, W. a vested remainder in tail
male. W. takes the estate after death of R., a daughter of S.,
who survived S., and died without issue. Den v. Huyg, 427
1030 INDEX. [5'LAW
Devise Continued.
3. If W. enter into possession, and his son die before him, his grand-
son takes the estate after his death. Id., 427"
4. In 1775 to A for life, then to B and his heirs male, then to C and
her heirs male. B and C die during A's life. C's son D entered
in 1793 and sold to E in fee. E holds the fee against the heirs
of D by virtue of the statute. Pat. 54. Den v. Robinson, 689*
Discharge.
See INSOLVENT, 1.
Discontinuance.
Where plaintiff discontinued, because directed to do so by award,
and award is afterwards set aside, the discontinuance may be "
withdrawn and action continued. Burrough v. Thome, 77T
Division Pence.
See TOWNSHIP COMMITTEE.
Division of Land.
See ORPHANS COURT.
Dower.
1. On proper application by tenant, court will grant rule to stay
waste. Harker v. Christy, 717
2. Widow is entitled to dower in lands on which the husband had
executed a mortgage in fee before the marriage. Montgomery v.
Bruere, 8(><>
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. /</., 476
See VERDICT, 3.
R.
Reasons.
See ERROR, 3 ; MOTION TO QUASH.
Receipc.
See CONSTABLE, 2.
Record.
1. Form, on indictment from oyer and terminer. State v. Gustin, 746
2. In account, may contain, or refer to, the account. Wilton v.
Wilson, 791
See CERTIORARI, 2, 3, 4.
Recognizance.
If plaintiff suffer nonsuit, he may not sue on recognizance. Oliver
and Tillman v. Jfmrell, 581
Reference.
See REPORT.
66
1012 INDEX. [5 LAW
Referees.
See REPORT.
Befunding-Bond.
See LEGACY.
Bent.
See COVENANT ; STATE OF DEMAND, 4.
Beport.
Reference to three, report by two. Hoff v. Taylor, 829
Be turn.
See CERTIORARI, 3, 4 ; HABEAS CORPUS ; ORIGINAL PAPERS ;
ROAD, 4.
Bestitution.
See FORCIBLE ENTRY, 5, 6.
Be-restitution.
See WRIT OP RE-RESTITUTION, 1.
Beversal. -.v'
No reversal for fact, about which contradictory evidence. Angus v.
Radin, 815
Boad.
1. Used for forty years, to be considered as regularly laid, though no
record be found. Ward v. Folly, 482
2. Overseer may repair it, though not assigned in writing. Id,, 482
3. Non-resident owners pay tax for them. Vandien v. Hopper, -764
4. Rule to set aside return, where surveyors not sworn. State v.
Lawrence, 850
State v. Potts et al, 862
Bule.
1. To stay waste, without plaintiff setting out his title ; but not to
prevent use of timber for ordinary purposes of the estate. Den
v. Kinney, 555
2. To certify or amend must be taken by defendant at the term to
which the writ is returnable, or return perfected. .Sayre v.
Blanchard, 551
3. To plead, must be served. Hunter v. Sudd and Jones, . 718
4. So on justice, to amend, and diligence used by party to procure
return. Dean v. Wade, 719
5. Must be taken by the party wishing the return to be made Thorp
v.Ross, ' 720
2 SOUTH.] INDEX. 1043
Rule Continued.
6. Necessary, before original papers be taken from files. Miller v.
Oarharl, 720
See WRIT OF ERROR; DOWER, 1.
s.
Sanity.
See EJECTMENT, 1.
Satisfaction.
See CA. SA., 1, 2.
Scienter.
Must be proved in action for deceit in sale of horse. Searing v. Liim, 683
See TRESPASS, 2 ; WARRANTY.
Scire Facias.
1. To revive actions against administrators. Montfort v. Vanarsdale, 686
2. Not lawful where office of justice giving the judgment has ex-
pired. Swisher v. Hibler, 808
See JUDGMENT, 7.
Seal.
Oydcn v. Gi66oni, 518
See EVIDENCE, 1.
Sealed Bill.
1. "To A or heirs " assignable, and suit must be in name of assignee.
Cbrhart v. Miller, 573
2. "To pay provided obligee is not lawfully married in six months,"
void. Sterling v. Sinnickton, 756
See SECURITY; PLEADING, 3; EVIDENCE, 1.
Security.
Bound to pay though he give notice to creditor to sue, who brings suit,
discontinues and gives further time to principal, and he fail-.
Manning v. Shotwell, ">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