Barclay, 1 2, Every objection which goes to the form of a remedy, in the court of small causes, and which does not question the plaintiff's right to recover in some shape, must be made on the first trial; else it is considered as waived. It is too late to object, on the trial of an appeal. Jaques et al. v Hulit et al. See JURY. TROVER. 40 1, An action of trover lies against executors, for a bond and mortgage, on a conversion thereof by their testator; under the statute, Rev. L. 174, sec. 2. Terhune v Exrs. of Bray, 53 2, An administrator suing in trover for goods converted in his own time and from his own possession, is liable for costs, if he fail in his suit. Norcross v Admr. of Bowne, 310 3, The true rule is, that if it is not necessary for the plaintiff to name himself executor or administrator, he shall pay costs: but if his title to the action, comes to him in his representative character, and he can sue only as such, he shall be excused, if he fail in the action. TURNPIKE COMPANY. Ib. 1, An indictment against a Turnpike Company, for neglecting to keep their road in repair, should show how they are bound to do so. The State v N. J. Turnpike Company, 222 2, Quere. Whether a misnomer, in calling the defendants "The new Jersey Turnpike Company" instead of by their corporate name, "The President, Directors, &c." be amendable under the statute of 12 February, 1832, Harr. Comp. 371. UNLAWFUL DETAINER. Ib. 1, A complaint for unlawful detainer should charge the defendant with being plaintiff's tenant, and when his tenancy expired. Boylston v Valentine et al. 346 2, The Justice trying the complaint, should charge the jury. Reading the statute, is not charging them. Ib. 3, Actual possession of a landlord, must be proved;— constructive possession is not sufficient to sustain this action. 4. In case of collusion, under tenants may be held jointly liable, as fraud-doers; but separate possessions constitute separate tenants; and they must be separately sued. See FORCIBLE DETAINER. Ib. VARIANCE. 1, A party sued by a wrong name, may appeal and make the necessary affidavit therefor, in his right name, and if necessary, may prove his identity. Tomlin v Morris, 179 2, The affidavit that the appeal is not brought instead of intended for delay, and but instead of and, are variances from the words of the statute, which are immaterial. VENIRE. Ib. 1, The omission to record the sheriff's return to a venire in a suit for forcible detainer, is a fatal error. Applegate v Applegate, 321 2, A venire de novo, is often awarded by courts of Error.Carr v. Stokes et al. 407, 408 3, After having discharge a jury for not agreeing on a verdict, a Justice of the Peace cannot issue a venire for another trial of the cause. Gulick v Van Tilburgh, VENUE. 417 Motion to change the venue, denied in case of a banking company residing in, and the defendant residing out of the county, where it is laid, and where the note sued upon, is dated in the latter. State Bank at Morris v Hedenberg, VERDICT. 552 1, When a verdict has done justice, although contrary to the Judge's direction, a new trial will not be granted, nor the judgment reversed, on a writ of error. Den, Steelman v Steelman, 66. P. and K. Turnpike Co. v Gulick et al. 161 2, So where the verdict is precisely such, as the jury ought to have rendered upon the plaintiff's evidence, a new trial will not be granted because the Judge admitted unlawful evidence on the part of the defendant, if it was only corroborative of the facts already proved by the plaintiff. Steelman v Steelman, 66 3, The affidavit, on appealing from a justice's judgment upon a verdict, must appear to be in the same cause, to give a jurisdiction to the Common Pleas. Dunham v Rappelyea, 75 4, A verdict will cure an ambiguity; but it will not mend the matter, where the gist of the action is not laid. Farwell v Smith, 136 5, A regular appeal supersedes, the verdict in the small cause court. Ten Eyck, v Farlee, 269 6, The court at a special term for trying appeals, cannot dis miss an appeal where a jury has been demanded. Ib. 7, A party has a vested right of trial by jury, on such appeal, unless he expressly waives it. Ib. 348 8, A rule of court of Common Pleas, that the waiver shall be presumed unless a jury is demanded, is contrary to the statute.— 9, Rule granted, to shew cause against setting aside a verdict, against evidence, and the judge's charge; and the case involving new questions of importance, De Witt et al. v Vliet, 356 WAIVER. 1, Omitting on the trial below, to object to the form of the remedy, where the plaintiff's right to recover in some shape, is not questioned, is considered a waiver of the objection. Jaques et al. v Hulit et al. 38 2, Bail waived, upon the sheriff's return to a capias, that defendant on his arrest gave bond to appear and apply for the benefit of the insolvent laws. Chester v Chester, 270 3, On appeal from verdict of a jury, there must be an express waiver of a jury trial, before the appellate court can try the cause without a jury, or dismiss the appeal at a special term. Eyck v Farlee, Ten 348 4, A rule that omitting to demand a jury, shall be considered a waiver of it, is contrary to the statute. Ib. 5, On removing a cause into this court, if bail is not filed, or waived, the plaintiff may proceed here, or take a procedendo, at his option. Dickinson ads. State Bank at Morris, WARRANT. 354 Dun 1, The Marshal of Perth-Amboy, is not an officer authorized to serve process of the court for the trial of small causes, ham v Solomon, 50 2, A prisoner in custody by virtue of a warrant in debt, must, on the adjournment of the cause, either enter into recognizance to appear, &c; or on his refusal to do so, the justice must command the constable, to convey him to jail, or detain him until the time of trial, not exceeding three days, or until the plaintiff be notified, and have time to attend the trial. But if the magistrate neglect giving such command, the constable has no authoaity for detaining the prisoner, nor is he liable for an escape, if the prisoner is suffered to go at large. The command of the Justice, for such detention, should appear on his docket; verbal orders. are not sufficient. Ib. 3, The state of demand for an escape, should set forth that the defendant was arrested, and in custody of the officer, under a legal process. Ib. 4, May a Justice of the Peace, issue a warrant in action for tort? Quere? Neighbor v Trimmer, See RECOGNIZANCE, 1. WAY. 59 A right of way, is a hereditament; and a claim for it is not within the jurisdiction of a Justice of the Peace. Randolph v Montfort, WILL. See DEVISE. WITNESS. 226 1, A witness examined under a commission issued from this court, must be sworn by the commissioners, their commission being a dedimus protestatem, and a personal trust; a justice of the peace has no authority to administer the oath to the witness. Den, Perry et al. v Thompson et al. 72 2, A witness is incompetent, whose interest in the cause is not balanced. Scull and Thompson v Alter, 147 3, A witness who has no objection to be sworn, may not be affirmed, Williamson v Carroll, 271 4, Prima facie, every witness is to be sworn, and all evidence is to be given under oath. The privilege provided by our statute substituting an affirmation, is to be extended only to such as "shall allege" themselves conscienciously scrupulous of taking an oath. Ib. 5, An overseer of the road is not a competent witness in an action by himself as such overseer, to recover a penalty under the 33d section of the act concerning roads. Little v Arrow smith, 221 6, A Justice cannot be a witness in his own court, nor act upon his own knowledge of a fact, as evidence in the case before him. The absence of a subscribing witness must be legally accounted for, before evidence of his hand writing, is admitted.Corlies v Van Note, 324 7, The court of Appeals do not grant new trials. They proceed to try the cause over again upon its merits, as a matter of course; and the witnesses sworn on the first trial, may be exam ined touching any matter material to the issue, although not examined before, at all on that point. Ryersou v Marseillis, 450 WRIT. A writ to answer unto J. H. that he render to him two thousand dollars, which to him he owes, upon covenant," is defective; it is neither in debt, nor covenant, and has no style of action.Brown ads. Hoy, 158 ERRATA. PAGE. 28, Transpose lines 16th and 17th, from the bottom. 128, Line 8, of state of the case, for defendant, read demandant, 152, Line 4, before sufficient, insert not. 178, Line 2, after separately, insert or. 216, Line 4, for defendant, read plaintiff. 357, Name of the case, for Leagrave, read Seagrave. 514, Line 12 from the bottom, for commercial, read criminal. 551, Line 3, for 537, read 357. THE END OF VOL. I. AST |