tor of an executor, was not the representative of the testator, although an executor was the representative of the first

testator.

On the opening of this cause,

PENNINGTON, J.-Observed, that admitting that an action of debt could be maintained on a sentence or decrce of the Orphan's Court, and declared on as such, and that the proceedings were in every other respect regular, which he much doubted, yet he could not perceive from the declaration of the plaintiff below, in [*] what manner John Dickinson, the defendant below, was answerable for the demand of Brick. The decree of the Orphan's Court ascertains, it is true, that a sum of money is due to William Brick; but from whom is it due? The record is silent. It does not appear from the record, that John Dickinson was a party before the Orphan's Court; and if not, how could a judgment be rendered against him there; nor does the record show a judgment or decree against him; he does not appear to be the representative of his father, Thomas Dickinson, and so liable in that capacity.

Mr. L. H. Stockton and Mr. Ewing, for the defendant in error:-It is stated in the declaration that the inestate of the plaintiff below, was the testamentary guardian of the defendant, and that the money was due to him in that capacity; and although it is also stated that the intestate of the plaintiff was executor of Thomas Dickinson, yet that part can be struck out as surplussage, and then it will stand as so much money due to the plaintiff, as administrator of William Dickinson, the testamentary guardian of John Dickinson, the defendant.

PENNINGTON, J.-It is stated that the money is due in both capacities; can you strike out one and leave the other; if you strike the whole of the additions out, how do you connect the plaintiff with the defendant at all? But suppose it could be done as you say: It would appear then by the record that a sum of money was due to the estate of the plaintiff's intestate, which money was due to the intestate as testamentary guardian to the defendant; it would not, even in that case, follow that the defendant below was responsible for the money; it might have been advanced by the direction of the testament creating the guardianship, and the estate of Thomas Dickinson yet liable.

THE COURT took time till the next day to look into [*] and examine the case; and then gave an unanimous opinion that the declaration was insufficient to maintain an action. Judgment reversed.

VAN DORN vs. VAN DORN,

Dower is recoverable to only a third of the value of land at the time of the husband's sale. So also as to damages. Subsequent improvements are not liable to dower. (a)

THIS was an action of Dower; and the following state of the case agreed on by the parties, and submitted to the Court:

It is agreed that judgment be entered for the demandant, subject to the opinion of the Supreme Court, on the following

case.

1st. Jacob Van Dorn, the husband of the demandant, was on the 21st January, 1789, seized in fee of the premises out of which the demandant claims dower; and being so seized, he, together with the demandant, conveyed the same to the defendant; pro ut, the deed of that date, marked A, which deed was not acknowledged by the demandant, so as to bar her dower.

2d. At the time of the said sale and conveyance, the premises consisted of land which had been cleared, but was altogether unimproved by buildings, and only in a state to be used for the common purposes of husbandry. After the conveyance, and in the lifetime of the husband of the demandant, the defendant [*] laid out a considerable sum of money in erecting a Saw-Mill and other improvements on the premises, whereby the value was much increased.

3d. After the death of the husband, the defendant laid out more money, to a large amount, in further improvements; to wit, in the erection of a Grist-Mill, and other erections of the same nature, which are now on the premises, and which have increased their value.

4th. There was no demand of dower made by the demandant further than is included in the bringing of this suit.

If the Court shall be of opinion that the demandant is entitled to recover her dower of the premises as now improved; or as improved before the death of the late husband of the demandant, then a writ of inquiry is to be awarded to ascertain her dower, and the damages she may be entitled to on this state of the case, in conformity with the said opinion.

If the Court shall be of opinion, that the demandant is entitled to be endowed only as of the value of the said premises at the time of the said sale and conveyance, then a writ of inquiry is to issue to ascertain the said value, and final judgment to be entered in conformity to the said opinion.

Mr. Maxwell, for the demandant, contended, that the widow was entitled to the whole dower as the land then was; but if not to the whole, she was at least entitled to the improvements made since the death of the husband. In support of his position, he cited the following authorities, 9 Vin. 259. Coke Lit. 32, 2 Back. 368, Pat. 343.

On the other hand, it was argued, that the widow is entitled to no more than the value of one third of the land at the time of the alienation by the husband; nor is she entitled to more damages than the one third [*] of the annual value of the land at that time; that the case of the heir might be

(a) S. P. 6 Halst. 396. 9 Mass. 218. 2 Johns. 485. But otherwise, when the heir improves, if the husband died seized. 2 Johns. 485. Judgment for one third, and relief by rule, for improvements by alienee.

laid out of the question as not applying; it was the duty of the heir to assign dower, and if he did not do it, and went on and improved the land, it was his own fault; as the alienee cannot recover of the heir on the warranty of his ancestor, more than the value of the land at the time of the alienation, and the same in respect of a personal covenant; so shall he not be compelled to pay more to the widow; Bin. 145. 2 Bac. 368. Coke Lit. 32. 2 John. Rep. 484. 3 Mass. Rep. 542, 3. That the alienee is not bound to assign dower

until demand made.

Mr. Maxwell, in reply: There is no distinction in our law between the heir and the alienee; they are both bound to assign dower; they both make the improvement with a knowledge of the right of the widow.

THE COURT were unanimously of opinion, that the widow could recover no more than the value of the third part of the land at the time of alienation; that the improvement since the sale by the husband, was not a subject of dower, and that the same rule was also to govern in the assessment of damages.

Judgment for the demandant accordingly.

MATTER OF HIGHWAY.

Exceptions to surveyors' return, and rule for appointing freeholders, allowable in Supreme Court at the same time.

An order had been made, appointing surveyors to lay out a road; they had laid the road and made a return thereof to this term.

Mr. M'Ilvaine, for the landholder, through whose [*] land the road was laid, moved for leave to file exceptions to the return of the surveyors; and in compliance with the late act of Assembly on the subject, he also moved for the appointment of freeholders to review the road, in case the exceptions to the proceedings of the surveyors should be adjudged by the Court insufficient, the act requiring the application for the appointment of the chosen freeholders, to be made at the term to which the return of the surveyors should be made.

Mr. Ewing, contra, opposed the motion, on the ground that the only authority to review the proceedings of the surveyors was by act of Assembly, vested in the chosen freeholders.

BY THE COURT.-The act of Assembly does not take away from this Court its superintending authority over the proceedings of the applicants for the road, or of the sur

veyors. The office of the chosen freeholders is only intended to review the merits of the subject in controversy, and rejudge the propriety of laying out the road; both rules are proper. Rules allowed.

THE STATE v8. SIMEON VAN HOUTEN.

THE defendant was convicted at the last term, of uttering and publishing as true, a counterfeit ten dollar bank bill, knowing the same to have been false and counterfeit ; as he was on bail, he fled between the time of the trial and the rendering of the verdict of the jury. At the Morris Special Oyer and Terminer in [*] June, he appeared publicly in court, on which, Pennington, Justice, who presided at the Oyer and Terminer, ordered him taken into custody. He was now brought to the bar that judgment might be rendered. He was also charged on another indictment for a like offence, to which he pleaded guilty; on which, his counsel, by way of mitigation of his punishment, suggested to the Court, that his appearance at the Morris Oyer and Terminer, ought to be considered as a voluntary surrender to justice; that since his confinement he had manifested great contrition for his offences, and had disclosed to the officers of justice useful information in respect to his accomplices, and begged the Court to punish him by fine, and save him and his family from the disgrace of a sentence of imprisonment in the state prison; the prisoner offering to give all the aid in his power to bring other offenders to justice. It appeared that his wife was a worthy respectable woman, and that he had several young children; several persons of respectability, gave information to the Court of the regularity of his conduct since his confinement, and of the sincerity of his contrition.

THE COURT, however, were of opinion, that the atrocious nature of the crime, and its pernicious consequences to society was such, that it would be improper to pass it over in the way suggested, and sentenced the prisoner to four years solitary confinement at hard labor.

[*701]

CASES ADJUDGED

IN THE

SUPREME COURT OF JUDICATURE

OF THE

STATE OF NEW-JERSEY.

NOVEMBER TERM, 1810.

MARSTON vs. SEABURY,

Acknowledgment of a debt on bond, is no answer to a plea of the statute of limitations.(a)

THIS was an action of debt, brought on a bond given by the defendant to the plaintiff, bearing date the 13th August, 1787, in the penal sum of 183 14 2 New-York currency, value of $459 27. To the declaration on this bond, the defendant, relying on the statute of limitations, pleaded that the cause of action did not first accrue within sixteen years next before the commencement of said action. To this plea the plaintiff replied, that after the making the writing obligatory, and before the commencement of the action, to wit: on the 23d day of July, 1807, the defendant acknowledged himself to owe to the plaintiff the 1183 14 2, in the said writing obligatory mentioned. To this replication, the defendant demurred, and for cause of demurrer, says, that the matter set forth and contained in the said replication, is a departure from the declaration, as well as the time when the cause of action accrued; as also that the said replication sets up a new acknowledgment, made by the defendant after the making the said writing obligatory, as the ground of the said action, and the time when the [*] same accrued to the plaintiff'; whereas, in and by the said declaration, the said writing obligatory is relied on as the acknowledgment of the defendant to owe the said sum of money, and the said acknowledgment is alledged to have been made by the making of the said writing obligatory. To this demurrer there is a

joinder.

(a) See 2 Halst. 113; an express promise to pay such bond, is no ground for an action.