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GORDEN vs. BUTTS.

ON CERTIORARI.

Damages resulting from plaintiff's negligence, not cause of action. BUTTS, the defendant in this Court, was the plaintiff below; and brought an action on the case against Gorden, on the following state of demand:

The plaintiff demands of the defendant, Thomas Gorden, the sum of $100, being the damages sustained by the plaintiff, by reason of the defendant taking from my ferry, on the river Delaware, at Belvidere, on the 1st day of October, 1804, my flatt for transporting horses, travellers, &c., whereby I was prevented from crossing said river, and was obliged to leave my wagon and two horses on the bank of said river, in search thereof; and while in search of said flatt, as aforesaid, my said horses ran in said river Delaware, and were drowned.

A trial by jury was had, and a verdict and judgment for $40, in favor of the plaintiff, Butts. Gorden, against whom the judgment was had, brings this certiorari, and relies among other matters, on what he conceives to be a defect in the state of demand, as not stating a legal cause of action.

KIRKPATRICK, C. J.-The state of demand in this cause is, in substance, that Butts, the defendant below, had taken the plaintiff's flat from his ferry at Belvidere, on the river Delaware; that the defendant being obliged to go in search of the flat, in order to cross the river, left his waggon and two horses on the beach, and that while he was gone, the horses ran into the river, and were drowned.

Now, as the plaintiff has undertaken to state the damages specially, he must rest upon that statement on the trial.

The question then will be, is the defendant answerable for the the loss of this waggon and these horses? and I think he is not answerable in the law. It was the [*] plaintiff's own negligence to leave them, without first securing them. I think, therefore, there must be a reversal.

ROSSELL, J.-Concurred.

PENNINGTON, J.-This is a special action on the case, for consequential damages. The loss sustained by the plaintiff below, is too remote from the injury complained of, to constitute the ground work of an action. (a) The drowning the horses were not the consequence of taking away the boat from the ferry, but of the negligence of the owner in not taking care of them.*

(a) Tidd, 399.

Judgment reversed.

* 2 Lev. 196. Virtue v Bird, in point.

VUNCK vs. WHORL.

ON CERTIORARI.

No costs allowed on discharge of apprentice by justices of the peace. Execution for costs of suit, set aside.

THIS case is sufficiently stated in the opinion delivered by the Chief Justice.

KIRKPATRICK, C. J.-The proceedings returned with this certiorari, are a mass of confusion. The best I can make of them is, that one David Whorl was bound as an apprentice to the defendant, Joseph Vunck; that one David Crawford, in behalf of Whorl, but in his own name, entered a complaint against Vunck, for the maltreatment of Whorl; that Cook, the justice to whom the complaint was made, under the act concerning apprentices and servants, called to his assistance two other justices, who, together upon hearing, discharged the apprentice, and gave judgment against Vunck, to pay nine dollars and thirty cents of costs to one Robert Whorl, the apprentice's father. Three dollars of [*] this sum the defendant Vunck paid-and Cook, the justice, issued execution against him for the residue.

To be relieved against this judgment for costs, is the object of this certiorari.

It has been said at the bar, that the party has mistaken his remedy; that he ought to have taken an appeal to the sessions that a certiorari will not lie.

This notion is founded on the 10th section of the act, which says, that no writ of certiorari or other process, shall issue or be issuable, to remove into the Supreme Court any proceedings had in pursuance of this act, &c. But the complaint here is, not that the justices have proceeded erroneously, or judged wrongly in the subject matter submitted to their cognizance by the act; it is because they have rendered judgment upon a matter not submitted to their cognizance at all; because they have exceeded their jurisdiction. Suppose they had proceeded to punish Vunck as a criminal, to fine or to imprison him: certainly the mere pretence that they proceeded under this act, would not prevent this Court from looking into the proceeding, and giving remedy. It is the duty of this Court to see that the inferior tribunals in no case exceed their jurisdiction; and that is to be done, in most instances, by certiorari only.

By the common law, there are no costs:-Till this day there are no costs, unless they are expressly given by statute. On proceedings of this kind, the statute has given none— and therefore, I think none can be adjudged. Here then is an excess of jurisdiction, a proceeding not in pursuance of

the act: And for this cause, in my opinion, the judgment for costs must be reversed and set aside.

ROSSELL, J.-The whole of these proceedings were under colour of the act, called the apprentice act, The 10th section of which, prohibits any proceedings in [*] pursuance of that act, from being removed by certiorari. The party injured, should, in my opinion, have appealed to the General Quarter-Sessions.

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PENNINGTON, J.-I am clearly of opinion with the Chief Justice: The object of this certiorari is not to disturb any matter done by the justices below, in pursuance of the apprentice act, but to correct a proceeding wholly unauthorised by that act. The justices had no authority to adjudge costs; nor had justice Cook, on their judgment, an authority to issue execution, especially in favor of Robert Whorl, who was not a party before the justices. The proceedings of the justices, so far as they respect the controversy between the master and his apprentice (which is a proper subject of their jurisdiction) however erroneous they may be, are not touched by this decision.

Judgment as to costs, reversed; and the execution thereon ordered to be set aside, and rendered null.

[*337]

CASES ADJUDGED

IN THE

SUPREME COURT OF JUDICATURE

OF THE

STATE OF NEW-JERSEY.

FEBRUARY TERM, 1808.

THE STATE vs. NEWARK and POMPTON TURNPIKE COMPANY.

ON CERTIORARI.

Special certiorari not to issue without leave of Court. Attorney may not issue subpoena for witnesses in certiorari cases.

A certiorari had issued in the ordinary course of certiorari to justices of the peace or Quarter Sessions, to the Secretary of State, to send up the proceeding, had in laying out and return of the road, laid out under the act, to incorporate the Newark and Pompton Turnpike Company. The counsel for the prosecutors, finding that they had not taken the regular course as to the issuing the writ, moved in November term last, to quash the writ of certiorari. This being granted, they then presented for allowance in open Court, a new writ. The counsel for the Turnpike Company being in court, said that he would not at that time object to the allowance of the writ, but saved all legal objections to be taken at another day; and now

Mr. M'Whorter, in behalf of the Turnpike Company, moved on notice previously given, to quash the writ of certiorari, on the ground of its having improvidently issued.He said, in all cases of special certioraris of this nature, they were not to issue but on special application and rule to shew cause, on which the court [*] could judge of the propriety or impropriety of the allowance, for which he cited 19 Vin. 425.

Mr. A. Ogden and Mr. I. H. Williamson contended, that no notice was necessary in such cases; and that the writ in this case, was issued on an allowance actually made in open court, and that the constant practice of the court was to allow such writs without notice.

KIRKPATRICK, C. J.-Said, that the court was of opinion, that these writs could not issue as of course, but on a special case made out, on which the court could judge of the propriety of the allowance; but as matter had been disclosed by the return, that would have induced the court to have allowed the writ, they saw no use in quashing it-and refused the motion. (a)

A subpoena had been issued to one of the Commissioners to appear in court this term, and give testimony in the cause which, according to the language of subpoena, was to be then and there tried. The person subpoenaed did not appear.

Mr. Kearney moved for an attachment against him, for not appearing

PENNINGTON, J.-Asked Mr. Kearney what authority he had for issuing the subpœna? That it appeared to him a crude proceeding, for an attorney at his pleasure, to issue subpoenas in cases of certiorari, commanding persons to attend this court as witnesses, from the most distant parts of the State.

KIRKPATRICK, C. J.-Said, that he was clearly of opinion, that an attorney had no such authority; and on Mr. Williamson's asking how the facts in those cases were to be made out, the Chief Justice answered, by obtaining a rule to examine witnesses, and that subpoenas issue. It was said, by the counsel for the prosecutors, that the person subpoenaed could not judge of the legality of process, or whether it issued on rule or not, on which the court inclined to allow a rule which was now asked for, on the Commissioner subpoenaed, [*] to shew cause at the next term, why an attachment should not issue against him; but it satisfactorily appearing that he was in ill health, the court refused the rule on which

Mr. I. H. Williamson moved for and obtained a rule for the examination of witnesses, and the issuing subpoenas in the cause.

CRANE vs. DOD and ux.

ON CERTIORARI.

I forcible entry, &c.—“I give judgment accordingly," error. (b) Notice to quit necessary only when tenants hold over. Treble costs are thrice the amount of single costs. (c)

DoD and wife, brought an action of forcible entry and detainer against Crane, before justice Harrison, and ob

(a) Notice of motion for certiorari needless-7 Halst. 366, vid, Cox, 393. (6) Southard, 818.-(c) Ib. 517.

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