Banks v. Murray

5 N.J.L. 849

Opinion

Two reasons were principally relied on, by Armstrong, for plaintiff, for the reversal of the proceedings. 1. That the complaint did not set out the estate of the complainants, in the premises. Pat. 291. Pen. 108. 8 John. 464. 2. That the premises were wrongly described in the complaint, in this, that they were charged to lie in Newtown, whereas they lie in Gloucester; the place being a substantial part of the offence. Str. 595. Woodruff, replied for defendant: that the action was not confined to individuals, but was also open to corporations ; that these plaintiffs, not having an estate in fee, or for a definite number of years, could set out no other estate than they have done; that this action was originally criminal in its nature, and still remained partly so; and, therefore, the place was not material; (2 Uaiv. 337) and that the complaint being made, the justice could not nonsuit for a variance, between it, and the case as proved, but must try the cause, and receive the verdict.

The court adjudged, that both the reasons were well founded, and, therefore, that judgment must be reversed,.