Mr. I. H. Williamson, for the defendant. The covenant on which the breach is assigned, is not the covenant of Corey, the executor,, but of Miller, the apprentice. That there was certainly no express covenant on the part of the executor. That if it was a covenant at all, it was an implied one. That implied covenants are restrained by particular covenants in the same instrument. 1 Vesey, 101. That there was no analogy between this case and that in Mod. Each one of these parties bind themselves for their own covenants. If this construction is to prevail, no guardian will ever sign an indenture of apprenticeship. The intent of the parties is to govern, in all instruments. He cited a case from Mass. Rep. 228, to shew that a case in Massasachusetts had been decided that favored the construction which he contended for. Mr. Chetwood, in reply. The Massachusetts case is a case that arose on the binding out a pauper, and therefore inapplicable. KIRKPATRICK, C. J.-The Court are of opinion, that the instrument under consideration, cannot with propriety be construed so as to bind Corey farther than he has covenanted specifically in the indenture to bind himself; not meaning however to disturb the cases in the books, the Court confine themselves to [*] the case before them, and the intent of the parties collected from the instrument. PENNINGTON, J.-Although he concurred with his brethren in deciding this case on its own peculiar circumstances, yet he could not refrain from saying that he never was satisfied with the case in 8 Mod. or that in Douglass; and that this case, in his mind, served to exhibit in a strong point of light, the impropriety of those decisions. That the English decisions went on the ground of the father and the apprentice forming one party, and the master another, which was not his understanding of the subject; especially under our act of Assembly, which to his mind contemplated a contract between the master and the apprentice, which was rendered valid by the express provisions of positive law. That the assent of the father, and in case of his death the mother, or guardian, directed by statute to be inserted in the indenture, and the name of such father, mother or guardian, subscribed thereto, was intended, first, as a provision against improvident acts of the infant; and second, for the protection of parental authority. In case the father or guardian stipulate to do any act himself, as in this case was done, so far he is bound, and no farther. Judgment affirmed. CASES ADJUDGED IN THE SUPREME COURT OF JUDICATURE OF THE STATE OF NEW-JERSEY. SEPTEMBER TERM, 1809. PERRY vs. LAMBERT. ON CERTIORARI. Book of account, not evidence without being proved. THE trial below was in the absence of the defendant, and founded on a book account. The justice admitted the book of account of the plaintiff in evidence, without its being proved, and rendered judgment thereon without any other testimony. For which error, the Court Nugent, att'y for plaintiff. Reversed the judgment. BENNET vs. BOZORTH. ON CERTIORARI. Delivering execution to 'constable, does not of itself make him liable for the debt. THE action below was brought on the following state of demand: Joseph Bennet, late constable of [*] Burlington county, Northampton township, to Aaron Bozorth Dr. To an execution against William Shinn, issued January 18th, 1809, by Joseph Budd, Esquire, to the amount of Justice's costs, To cash, Interest on the execution, $50 88 32 8 60 2.09 $61 29 The cause was tried by the justice, who rendered a judgment for the plaintiff below, for $57 88, with costs. It was now contended on the part of the plaintiff in error, that the state of demand did not set out a lawful cause of action. BY THE COURT.-Merely putting into the hands of a constable an execution, does not of itself make the constable liable for the debt; something more must be set out in the state of demand, to maintain an action. Nugent, att'y for plaintiff. Judgment reversed. KEEN vs. SCULL. ON CERTIORARI. Charge "to debt and interest $100," insufficient. Venire awarded before defendant appears, error. THE action below was brought on the following state of demand: Capt. William Jonas Keen, Executor of the estate of Richard Somers, Esquire, dec'd, Dr. to James Scull, debt and interest, $100. On which there was a trial, verdict, and judgment for $100, with costs. The first objection to the proceeding below, was the uncertainty and insufficiency of the state of demand. [*] 2d. That a venire was awarded, although there was no appearance of the defendant. 3d. That no witness, or any proof was offered to the jury; but the plaintiff below stated to the jury his demand, on which they founded their verdict; and this all appearing by the record, BY THE COURT.-These are all errors in substance, and apparent on the record. Davenport, att'y for plaintiff. Judgment reversed. M WHORTER vs. BLOOM. ON CERTIORARI, Discretionary with justice to admit unlicensed attorney. THE opinion of the Court was delivered by Pennington, Justice. PENNINGTON, J.-The objection taken to the proceedings below, is that the justice permitted a person who was not a licensed attorney, (but who had a power of attorney from the plaintiff below, to act in his behalf in the suit,) to appear at the trial as the advocate of the plaintiff, and conduct the cause, although the plaintiff was hiniself present. That this was objected to at the time by the defendant, and the objection over-ruled. Although our act of Assembly regulates this matter in other courts of law and equity in this State, yet it is wholly silent as it respects courts for the trial of small causes. It was certainly a rule in the early ages of our common law, that every man of full age and sound mind, should appear in court in his own proper person, and prosecute or defend his suit. But to [*] establish this as a practice, would be going back to a period not far removed from the conquest, and would be at variance with the settled practice of the times we live in. To permit, however, a party to bring with him into court, as his attorney or advocate, any one that he can pick up in the street, must certainly have a tendency to promote litigation and strife, and lead to the perversion of law, and the degredation of the courts wherein it is practised; but it would be going too far to say that it can be assigned for error. As the law now stands, it appears to me a subject of sound discretion in the justice. How far persons engaged in the practice of attending the justice's courts as advocates, and stirring up suits and controversies in the neighbourhood in which they live, are liable to be punished for maintenance or barretry, is not at this time a subject for the consideration of this Court. Anderson, att'y for plaintiff. Judgment affirmed. PIERSON v8, FOSTER. ON CERTIORARI. THIS case is the same as the foregoing, except that the plaintiff below was a woman, and did not appear in person. PENNINGTON, J.-In addition to the foregoing opinion, it is proper to observe, that as the law now stands, this is a matter in the discretion of the justice. In the present case, this discretion appears to me to have been judiciously exercised. The party appearing by attorney in the justice's court, was a woman opposed [*] to a gentleman skilled in the law. No evil or irregularity could well grow out of a proceeding of the kind. Judgment affirmed. WRIGHT vs. ROGERS. ON CERTIORARI. It appeared by affidavit taken in this cause, that on the trial of the cause below, after the parties had been heard, and as the jury were withdrawing in order to consider of their verdict, that the plaintiff below took a paper out of his pocket, and handed it to one of the jurymen, who took it out with him; that it appeared to the witness to be a paper which the plaintiff had before shewn to the justice, and which he called a plea, that this paper had not been given in evidence. It was now moved on the part of the plaintiff in certiorari, to reverse the judgment, on the ground of this act of the plaintiff below. BY THE COURT.-We do not think this a sufficient ground to reverse the judgment. The contents of the paper does not appear; if it was part of the pleadings it was proper the jury should have it; at all events, the facts do not furnish such a case of illegal practice in the plaintiff below, as to justify the interference of this Court, by way of reversal. C. Kinsey, att'y for plaintiff. Judgment affirmed. [*] WILLS vs. BROWN. ON CERTIORARI. Interest allowed on book account after reasonable credit. THE action below was brought to recover the amount of a running blacksmith account, of several years standing, on which interest had been charged, and allowed by the jury. It was objected against this judgment, that interest on an open account could not legally be recovered. BY THE COURT.-It has now become the general practice to allow interest on open accounts after a reasonable allowance for the time of credit. Judgment affirmed. IVINS vs. ELLIS, ON CERTIORARI. On the trial below, the justice permitted the defendant to set off a demand against the plaintiff, notwithstanding there had not been any plea of payment filed. And this being assigned for error, the Court in conformity with former decisions, Reversed the judgment. [*] CHEESMAN and WILKINS v8. LEONARD. ON CERTIORARI. The Common Pleas act not as a court of errors on appeals. Their jdgment on the merits, is a bar to another action for the same cause. IT appeared by the state of demand filed in this cause, that a former action had been brought for the same injury as complained of in the action below, before a justice of the |