COOK V. WOOD.

defendant could ever revive and put them in motion again: their binding effect, at least, as to other creditors, were as completely at an end, as if they had been recalled by the plaintiffs, out of the hands of the sheriff. He had no possession of, property in, or control over the goods, any more than if such executions had never been issued; and if the defendant had sold or destroyed them all, the sheriff would have been as irresponsible for them, as a stranger. Moreover, the executions had been indefinitely, superseded and put to rest; and whether they ever would be revived again, was unknown to any human being. In this condition, they were, when Cook's execution was given to the sheriff with instructions to execute it immediately. After that and not until Cook's execution had, in legal effect taken hold of and fastened upon the property, were the old executions revived and attempted to be put in motion again, by the orders of the plaintiffs. It was then too late-Cook's execution was literally the first execution put in the sheriff's hands with instructions to proceed thereon, and for the purpose of being executed in good faith, and according to law-A delivery of an execution to a sheriff, with instructions to do nothing with it, is no delivery. It would be a nullity, and would bind nothing.

Suppose a plaintiff should sue out a fi. fa. hand it to the sheriff, and instruct him, to make no seizure or levy on it, but to keep it in his pocket, and not to use it, until he gave him further orders; and in the mean time another fi. fa. comes to the sheriff with orders to proceed, and after that he is directed to levy the first writ-can any man doubt that in such case, the second writ, would in law, be deemed to be the first in order? I think not; and I can see no difference in the cases.

In my opinion Cook is entitled to the money in Court, or in other words to have his execution satisfied, with interest and costs, before Charles Wood is paid.

FORD, J. concurred in ordering Cook's execution to be satisfied out of the moneys in the hands of the sheriff, on the ground that sufficient had been raised for that purpose, out of property not levied upon under Wood's execution.

RYERSON, J. concurred generally.

BUDD v. STILLE.

In trespass quare clausum fregit,

Question as to costs.

This cause was tried at the Cape May Circuit, before Justice FORD, and a verdict rendered for the plaintiff, for six cents damages.

L. Q. C. Elmer, in behalf of Mr. Ellet attorney for plaintiff, moved for judgment on the verdict, with costs.

The Judge by request, declined at the circuit, giving the usual certificate that the title came in question, and recommended that the application be made at bar.

The act of the legislature, on this subject, must be considered as applicable to cases which cannot be tried before a Justice of the Peace, before whom the only question to be tried is the fact of possession. 6 Halst. 62, 63, Gregory v. Kanouse. The term title is to be taken in a strictly technical sense.

justa causa possessionis.

It involves the

Another question arises. Is it requisite for the Judge to give the certificate instanter, at the trial? The statute Rev. Laws, 666, should not be taken literally.

It may be given at the next term or subsequent convenient time. 2 Barn. and Cress. 580: 9 Eng. C. Law R. 186; Ib 202. 2 Barn. and Cres, 621. Held that the words "the judge at the trial of the cause" means the Judge who tried the cause.

The pleadings in this case set up a title; and where a party pleads title, the statute, Rev. Laws, 309, does not apply.

D. Elmer, contra. Application for the certificate should be made to the Judge who tried the cause, and not at bar. The Court is referred to Rev. Laws 309; Ib. 666. To recover costs in this case, the Judge's certificate upon record, must be produced. The title intended by the statute, is more than possession, or matter pleaded. The certificate should be made at the trial. 7 Hals. 177, Hunt v. Morris. The act of 1820, Rev. L. 666, refers to actions of trespass only.

The words "judge at the trial, mean the place of trial. Wilson 221. The title may come in question at the trial by evidence or pleading.

BUDD V. STILLER.

L. Q, C. Elmer in reply, cited 2 Bac. Ab. Costs, B. 38, Lon. Ed.

The act of 1820 Rev. Laws 666, repeals the clauses in Pat. Rev. sec. 4, 5, 6.

HORNBLOWER, C. J. The plea, liberum tenementum puts the title in question; and the jury having passed thereon, the plaintiff is entitled to costs.

FORD, J. I have no doubt of the plaintiffs' right to costs. By the plea, issue, and verdict, the title is directly at issue. If the certificate were necessary, I think it may now be given, but it is not necessary.

RYERSON, J. In this case there are two pleas, one of which puts the title in question. But even on the general issue pleaded, the title as offered to be set up here, entitles the plaintiff to costs. The question was one which a Justice of the Peace could

not try.

I had entertained an opinion, from the English practice, that a certificate may be given at any time; but perhaps our statute was intended to alter that rule.

Costs allowed.

D. Elmer, applied for and obtained a rule to shew cause, why a new trial should not be granted, the postea being brought in at this term.

Leave to amend the replication on payment of costs, was also granted.

SHOUGH, EXPARTE,

In matter of Road.

T. A. Hartwell moved for a Certiorari to remove the proceedings upon laying a road in Hunterdon county.

HORNER V. DELAWARE AND RARITAN CANAL COMPANY.

The reason upon which the Court granted the application, was, that it does not appear on the proceedings, that notice of the meeting of the surveyors, had been served on those of them who did not attend. Four of them were absent on the first day of meeting.

Certiorari granted.

HORNER v. DELAWARE AND RARITAN CANAL COMPANY.

J. S. Green for the defendants, applied for an order to correct the indorsement on the execution issued in this case, so that interest be credited on a payment made by the defendants previous to the verdict rendered against them, for the value of plaintiffs' lands taken by and for the use of said company.

The credit applied for, was for interest on the payment from the day when paid, until the day of rendering the verdict, inasmuch as the jury had no authority to allow such interest.

H. W. Green, contra. The defendants had possession of the land at and from the time of said payment, and ought not to have that and interest also. If a party pay money before it is due, he cannot recover interest thereon in an action for money had and received.

Hamilton in reply. On ante due payment endorsed on a bond, interest would be allowed.

BY THE COURT. Both the payment and the verdict had reference to the time of defendants' taking possession of the land. Interest ought not to be allowed. The defendants have neither legal nor equitable right to the interest claimed.

Order refused.

16 266 52 314

JOHNSON and JOHNSON ads. ROWAN.

THE SAME ads. SINNICKSON,

MATTER OF PRACTICE.

Demurrers to the declarations in these cases, were overruled at the last term.

Mr. Jeffers, attorney of the defendants, now moved for leave to plead, considering the judgment on demurrer nothing more than that of respondeat ouster, and that a right to plead is a matter of

course.

R. P. Thompson for plaintiffs, contra.

BY THE COURT. Respondeat Ouster is not a judgment of course on demurrer overruled. But where there is a real substantial defence appearing upon affidavit, leave to plead may be granted upon payment of costs, if applied for at the same term.

Mr. Jeffers. These actions are brought against the defendants for overflowing meadow by means of a mill dam across Salem Creek.

The question involves the constitutionality of the act of the Legislature of this State, authorizing the erection of the dam. Besides, the cases are brought into this court by issues directed by the Court of Chancery.

FORD, J. As the opinion of the Court overruling the demurrers, was delivered at the last term in the absence of the defendants' counsel, the case may be considered as standing on the same ground as if applied for at that term.

Considering the importance of the question involved, I concur with the Chief Justice, in granting the rule on payment of costs.

Rule granted.