subsequent execution shall have the preference if proceeded up-
on before the sheriff is ordered to execute the first writ. Cook
v. Wood,
254
2, A plaintiff in attachment, has not before judgment, a lien
of the goods attached; they are in the custody of the law.—
Melville v. Brown,
LIMITATION OF ACTIONS.
1, The statute of limitations, applies, to actions of dower.
Berrien v. Conover,
2, A plea of non-assumpsit within eight years is bad on gener-
al demurrer. Riggs et al. v. Quick,
MANDAMUS.
1. Mandamus ordered to Common Pleas, to re-instate, an ap-
peal which was dismissed because the affidavit was indorsed
on the appeal bond. Robbins v. Bonnel, 234. S. P. Freas v.
Jones.
358
2, A different rule applies to cases of bonds dated since the de-
cision reported in 3 Green 20 in 1832. Ib.
359
3, Mandamus to Common Pleas, to vacate their rule setting
aside an execution, refused. Vanderveer v Conover,
4, Mandamus refused, commanding the Common Pleas, to hear
the second application of an insolvent debtor, for his discharge.
Thomas v. His creditors,
5, Peremptory Mandamus ordered to Common Pleas, to re-
instate an appeal dismised for want of prosecution, at a special
term, after a jury trial demanded. Ten Eyck v. Farlee, 348
MARSHAL.
The Marshal of the city of Perth Amboy,is not an officer auth-
orized to serve process of the Small Cause court. Dunham v.
Solomon,
What is a sufficient contract by a church with a minister of
the Gospel, to render their trustees liable to a suit for his sala-
ry.
Quere. Miller v. Trustees of Allowaystown Baptist
1, In trover against executors, a count in the declaration for
conversion of goods by the testator, and another count for con-
version by his executors, constitute a misjoinder of counts, and
is error. Terhune v. Executors of Bray,
2, Separate possessions constitute separate tenants, and a
complaint in one action against them for an unlawful detainer,
is a misjoinder. They must be sued separately. Boylston v.
Valentine et al.
1, A party sued by a wrong name, may appeal and make the
proper affidavit in his true name, and if necessary may prove his
identity. Tomlin v Morris,
2. Whether, under the statute of 12. Feb. 1832, Har. Comp.
371, an indictment, misnaming the defendant, "The New Jer
sey Turnipike Co." instead of their corporate name, "The
President, Directors, &c. be amendable. Quere? The State v.
The President &c. of the New Jersey Turnpike Co.
MISTAKE.
1, An action lies to recover money which appears due, upon
correcting a mistake made in the statement and settlement of
accounts. Jaques et al. v. Hulit et al.
2. A mistake in the copy of a summons, in stating the hour
of appearance, is not cause for reversal, if the defendant did not
appear at any time of the day; and where he does not show that
he was injured by the mistake. Titus v. Whitney,
MONEY.
1, Money, Whether in specie or bank notes, (which are treat-
ed, civiliter, as money,) if in the defendant's possession, or ca-
pable of being identified as his property, may be taken in execu-
tion, or under an attachment. But money in a sheriff's hands,
raised by him on execution, cannot be by him applied iu the
payment of another execution in his hands against the person
who is plaintiff in the first execution, and defendant in the second;
for it is not his goods and chattels until paid over to him. Nor
can such money in the sheriff's hands be seized as money under
an attachment in his liands, for the same reason. But the at-
tachment may be served thereupon as a right and credit of the
defendant, in the sheriff's hands. The sheriff should not deliver
the money te the auditors, but bring it into court, and inform the
plaintiff or auditors in attachment, that he has done so.
v. Freese,
2, Action of assumpsit for money had and received to plain-
tiff's use, will not lie against a person to whom a reward claimed
by him, had been paid by mistake or misrepresentation, by a
third person who ought to have paid it to the plaintiff. Sergeant
and Harris v. Stryker,
3, There must be some privity express or implied. existing
between the parties, in relation to the money sought to be recov-
ered in this action. It is express where the defendant has re-
ceived the money as agent or bailiff for the plaintiff or agrees
to apply money in his hands belonging to another, to the payment
of the plaintiff at the owner's request. But it can be implied on-
ly where the defendant has received money of or belonging to the
plaintiff, bymistake or fraud or duress, or has come into the pos-
session of it malafides, or on a consideration which has failed, or
has tortiously converted the plaintiff's property into money. The
money sought to be recovered in this action upon an implied pro-
mise, must either beidentically the money of the plaintiff, of which
the defendant has improperly possessed himself: or the proceeds
of some property or fund, or emol uments belonging to the
plaintiff.
Ib.
1, A. mortgaged land to B, and afterwards sold and conveyed
the land (subject to the mortgage,) unto C who failed, and his
assignee sold and conveyed the same to D. C died leaving the
mortgage unsatisfied. After C's death, D purchased also the
mortgage, and the bond to secure the deut in which the mortgage
was given. Held, that the widow of C, is not entitled to dower
in the said land. Woodhull v. Reid,
2, In ejectment by the grantee of a mortgagee, against the
mortgagee's tenant, it is not necessary to produce the mortgage
or the bond, in support of the plaintiff's title, against said tenant
or others claiming under him. Den, Smallwood v. Bilderback
et al.
s, The widow of the mortgagee having conveyed her estate in
dower, to the tenant against whom the mortgagee afterwards re-
covered the mortgaged premises, is barred of dower therein, al-
though the premises were afterwards conveyed by a sheriff, to
her second husband, under a sale upon an execution against the
same tenant.
4, It was competent evidence on the trial of this ejectment, for the
plaintiff to read the said widow's conveyance of her dower, to
said tenant, against whom the former recovery was had by the
mortgagee.
1, The corporation of New Brunswick city have no authority
under their charter, to create actions of debt, or confer by ordi-
nance, judicial power. Weeks v. Forman, Treasurer &c. 237
2, The charter constituting city magistrates, "justices of the
peace ex-officio," gives them no power to try actions of debt.-
An ordinance giving such power is void, quo ad hoc. Ib. 243
NEW TRIAL.
1, Where justice has been done by a verdict, although there
has been a misdirection by the judge, a new trial will not be
granted; nor will a judgment be reversed in such case, on a
writ of error. Steelman v Steelman,
2, So where the verdict is precisely such, as the jury ought to
have rendered upon the plaintiffs' evidence, a new trial will not
be granted because the judge admitted unlawful evidence en the
part of the defendant, if it was only corroborative of the facts al-
ready proved by the plaintiff.
3, A misdirection to a jury, is no
less it effect the justice of the case.
Gulick et al.
ground for a new trial, un
P. and K Turnpike Co. v.
4, Rule to show cause against a new trial, granted, on alle-
gation of insufficient proof of indorsing a promissory note.
Whitmore v Carey,
5, Rule to show cause against a new trial, granted, because
the verdict was contrary to the judge's charge and to evidence,
and the case involved new important questions. Dewitt et al. v
Vliet,
6, Newly discovered evidence, as a ground for a new trial,
must be material, of decisive character, and such as to induce a
belief that injustice was done by the verdict; mere cumulative or
corroborative evidence, is not sufficient. Mechanics' Fire Insu
rance Company, adsm. Nichols et al,
410
7, A justice of the peace has no authority to grant a new trial,
after dismissing a jury for not agreeing on a verdict. Gulick v
Van Tilburgh,
8, Newly discovered evidence may be admitted on the trial of
an appeal (the proper affidavit in such case being filed) although
it is not of such a character as would entitle a party to a new
trial, but is merely cumulative. Ryerson v Marseillis,
9, The Court of Appeals do not grant new trials. They pro-
ceed to try the cause over again upon its merits as a matter of
course; and the witnesses sworn on the first trial, may be exam-
ined touching any matter material to the issue, although not ex-
amined before, at all on that point. Ryerson v. Marseilles, 450
NORTH BRUNSWICK.
1, Proof of due notice for freeholder's meeting, to review a
road, may be taken and certified by them, or shown aliunde to
the court, by affidavits referred to in their certificate; or else ta-
ken by rule of court. But affidavits without such reference, ta-
ken by Justices of the Peace, are inadmissible. Matter of High-
way,
2, Notice of taking affidavits as ground of a motion to set
aside a judgment, is not required. Crune ads. Condit,
3, The rule requiring notice of taking affidavits, applies only
to cases when a rule to shew cause has been granted. Ib. Hal-
sey ads. Van Waggenen,
4, Execution may without notice to defendant, be issued by
the small cause Court, on a judgment in defendant's absence,
when sued by summons, upon the Court being satisfied of the
danger of losing the money, if execution be not immediately is-
sued. Shay v Norton,
5. Notice of application for appointment of surveyors to lay a
road, must designate the beginning and ending points. Matter
of Highway,
6, Notice to a non-resident defendant, to plead, &c. who has
not appeared to a suit, may be given by putting it up in the clerk's
office, and on his failing to do so, the plaintiff may proceed in the
cause. Anon.
7, If a suit is commenced by summons, and judgment is ren-
dered for the plaintiff, it is irregular to issue execution thereon
before the expiration of the time of delay allowed to a freeholder,
unless applied for instanter at the time of rendering judgment;
or, at a subsequent day, upon the proper affidavit, and notice to
defendant, of the intended application. Eddy v. Williamson, 415
8, A garnishee in attachment, is entitled to notice in nature of
a scire facias, before judgment or execution are awarded against
him. Brackon v Ballentine,
See ENDORSER, 1, 2, 3, 4, 5. PROMISSORY NOTE, 4, 5, 6, 7, 8.
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