demand filed by the plaintiff before the justice, is insensible, and contains no cause of action. The state of demand is as follows:

Abraham Johnson,

V8.

John A. Johnson,

On summons returnable before Daniel Vliet, Esquire one of the Justices of the Peace in Sussex county, on damage on account of the place, that John Parks lived on last year; that the said John A. Johnson gave it up to me, and afterwards forbid Parks to pay the rent to me; and if he would not, that he would bear him harmless. And further, I do demand twenty dollars of the defendant, for the removing of the line fence between the two farms; the place that the said Parks lived on, and the place that John Garrison now lives on: $40 00 May 17, 1806.

[*] There was a jury trial and verdict for the plaintiff below, for twenty dollars; but no judgment rendered. The Court were of opinion, that the state of demand was too uncertain, to render a judgment on; and, therefore, set aside and made null and void the proceedings.

Maxwell, for the plaintiff.

BOWEN, Adm'r. vs. ISAAC LANNING and WIFE.

ON CERTIORARI.

Execution without judgment, on report of referees, set aside, proceedings null.

THE record of the proceeding below, returned by the justice is as follows:

Isaac Lanning and Hannah his wife, in case,

V8.

February 26, 1802.

And chose Ebenezer Seely, George Bergin, and

Seth Bowen, Adm'r to the will annexed of Jeremiah Bennet, junr. William M'Clung, deceased. J Esquires. They being duly sworn to hear and settle the disputes between them, and make report to me; report returned, that they find due to Isaac Lanning and Hannah his wife, the plaintiffs, the sum of one hundred dollars, lawful money, of New-Jersey, exclusive of the legal costs of suit, with three dollars and seventy-five cents costs. Then, on the twenty-seventh day of Feb. one thousand eight hundred and two, by virtue of an oath taken by the plaintiff, execution granted and given to Samuel Dowdney constable.

It was alledged on the part of the plaintiff, in this Court, who was the defendant below, among other things, [*] that it doth not appear by the transcript of the justice, in what manner the parties came before the Court, whether by process or consent; nor what was the cause of action; nor whether the justice had jurisdiction of the subject matter; nor doth it appear that the referees were sworn; nor was any judgment rendered by the justice; nor does it appear for what sum the execution was issued.

BY THE COURT.-The errors are manifest; the proceedings must be set aside, and made null and void.

STOUT vs. PHILLIPS.

ON CERTIORARI.

Reversal. Demand uncertain. Damages for not paying debt punctually, not allowed.

IT was contended, on the part of the plaintiff in this Court, who was the defendant below, that the state of demand was uncertain, illegal, and wanted substance. The state of demand, is as follows:

1806, June 7th.

Aaron Stout,

To William Phillips, Dr.

To damages sustained by building a store house, &c., as per articles of agreement, entered into by myself and said Stout; likewise damages sustained by not keeping up an assortment of goods, in consequence of said articles; likewise damages sustained for the want of the money that said Stout was to pay on the first day of May, 1806. The above is my demand: William Phillips.-The cause was tried, and a verdict and judgment for fifty dollars, with costs.

BY THE COURT.-The first part of the state of demand is too uncertain for any judgment to be rendered on it, the latter part is illegal; damages cannot be recovered for the want of punctuality in the payment of a debt, both being put together, and entire damages given, [*] the whole is erroncous, and the judgment must be reversed.

FARLEY vs. SERGEANT and WIFE.

ON CERTIORARI.

Demand filed, but not sent up, rule must be taken on justice to send it up. In this case the justice, although he had stated, that the plaintiff had put in his plea and demand, yet he had not sent it up with the proceedings; an idea had been entertained, that the Court would reverse the judgment of the justice for this default.

BY THE COURT.-We cannot affirm a judgment, until, we see the state of demand, in order that we may judge of its sufficiency. But where there is no appearance of the defendant, and it appears by the transcript of the justice that a demand was filed, the plaintiff must take a rule on the justice to send up the state of demand; in case the defendant appears, he must, for his own protection, take the rule; accordingly, a rule, in this case, was taken by the plaintiff.(a)

(a) Vide ante. *98,-ED

SLOAN vs. HOLLAND.

ON CERTIORARI.

No copy of account or state of demand.

Ir appeared by the record of the justice sent up, that the plaintiff had produced his book of accounts; but had not filed with the justice a copy of his account.

[*] BY THE COURT.-There must be a copy of account, or state of demand delivered to the justice, to be filed by him, there to remain on record; for this cause this Judgment must be reversed.

ADDIS vs. EVANS.

ON CERTIORARI.

Reversal, no demand filed.

Kirkpatrick, C. J.-There is no copy of account or state of demand. This is the foundation of the action. Without it, I think we cannot affirm the judgment. That the plaintiff should have a legal cause of action, and that this should be intelligibly set forth in the proceedings, is of the essence of every record. For want of this, I think this judgment must be reversed.(a)

ROSSELL, and PENNINGTON, Justices, concurred.

Judgment reversed.

BELL vs. Assignee of READING.

ON CERTIORARI.

Covenant to deliver boards, not assignable.

IT appears from the return of the justice in this cause, that the defendant, James Bell, had entered into a covenant under seal, to deliver a certain quantity of boards to one John R. Reading; that this covenant was afterwards assigned by Reading to the plaintiff, and that upon this covenant, the plaintiff instituted this action, which is an action of debt in his own name.

(a) Vid. post. 162.-Ed.

Ante. *141.-ED.

[*] KIRKPATRICK, C. J.-Delivered the opinion of the Court. This instrument is not assignable in law; the assignee cannot maintain an action thereupon in his own name; nor if he could, would an action of debt lie: it must be of covenant broken.-Let the judgment be reversed.

BRAY vs. VAN NOTE,

ON CERTIORARI.

Reversal, written plea requisite, with set-off only. No style of action

KIRKPATRICK, C. J.-The defendant filed no plea; and, therefore, the justice precluded him from making any defence before the jury. The act does not require a written plea, except in cases of set-off; the justice therefore in this, has mistaken the law: besides, the style or nature of the action, does not appear on the record.

ROSSELL and PENNINGTON, Justices, concurred.

Judgment reversed.

REEVES vɛ. GOFF.

ON CERTIORARI.

Report of two referees on reference to three, error, The referees must appear by papers, to have been sworn.

FROM the record of the justice, it appeared, that the parties agreed to subunit the matters in dispute between them, to three men, without the usual clause, that the report of any two of them should be binding, &c. Two of these referees only, signed the report; nor did it appear [*] that the third was present at the hearing; upon this report, judgment was entered.

KIRKPATRICK, C. J.-I think that this is not regular. Besides, it does not appear that the referees were sworn; therefore, the judgment ought to be reversed.

ROSSELL and PENNINGTON, Justices, concurred.

Judgment reversed.

MONFORT vs. HOGLAND.

ON CERTIORARI.

ONE reason assigned for the reversal of this judgment, was, that the justice refused to non-suit the plaintiff below, for that the plaintiff did not prove his demand, as stated before the justice.-But it appeared, that a number of witnesses were examined, in support of the plaintiff's demand. The court could not say, but that the justice did right in in suffering the cause to go to the jury. The principal reason, however, relied on by the plaintiff's counsel, for reversing the judgment of the justice, was, that the justice admitted illegal evidence to go to the jury. To make this out, he stated that one of the charges in the state of demand, was founded on a pretended agreement between the plaintiff and defendant below, that if the plaintiff below, would take up a certain note, given by the defendant below, to one Martha Hogland, that he, the defendant would pay him the money for the note. That to prove this agreement, William Hogland, an executor to Johannis Hogland, deceased, was called as a witness. That this William Hogland, as executor as aforesaid, had assigned the note in question, to the plaintiff below; and therefore, was called to support his own interest, as the note might come back on [*] him. It did not appear how the executors of Johannis Hogland, had as such, any concern with the property of Martha Hogland, nor what relation Martha and Johannis stood in to each other. It appeared, however, from the transcript of the justice, that the plaintiff below had released the witness, and that the justice admitted him to be sworn and examined. The interest of the witness was no way satisfactorily made out.

KIRKPATRICK, C. J.-Upon inspecting the return of the justice, I see no cause of reversal.

ROSSELL and PENNINGTON, Justices, concurred.

M'Donald, for plaintiff.

Judgment affirmed.

PRALL vs. WALDRON,

ON CERTIORARI.

Justice's return not to be contradicted by affidavits.

SEVERAL reasons were assigned by the plaintiff in certiorari, for the reversal of the judgment of the justice. These reasons complained of the irregularity of the proceedings of