Demund v. French

5 N.J.L. 828

• Court: Supreme Court of New Jersey
• Decided: February 15, 1820
• Status: Published

Opinion

Kirkpatrick, C. J.

This was an action of trover, for 200 cocks of hay. It appears by the justice’s return and the affidavits accompanying the same, that Demund had taken the- benefit of the insolvent act, and that one Shafer, had been appointed his assignee; that F-ench instituted this suit, on the 15th of July *1818, and that it was adjourned from time to time, till the 27th of August following ; that during this time, viz. on the 3rd of August 1818, Shafer the assignee, instituted a suit against French, before one justice Little, which was adjourned till the 24th of that month, and then tried, and a judgment rendered for Shafer, the plaintiff

Upon the trial of the cause now before us, it was alleged by Demund, that this very matter about the hay, had been set up by French, in Shafer’s action against him, and had been there investigated and settled; and to prove that it was so, offered the transcript of Little’s docket, in that case duly certified; but it was overruled by the justice, upon the ground, that it was not a proceeding between the same parties,

(a) This, I think, was error. How the matter might have appeared, is immaterial, it ought to have been examined.

Southard J.

remarked, that a rule had been taken, on the justice, to amend his record, but he had thereto, that he could not, in the particulars required ; and affidavits were taken, which, among other things, stated, that a witness, Creely, had been offered, to prove, that the hay in dispute, belonged to the defendant, or his assignee, Shafer, but that the justice refused to permit any question to be put, proving the property in them, or any other person, except the plaintiff. There must be some mistake, in this matter. That any justice, in such an action, should prevent the defendant from proving, that the right of property was in himself, and not in the plaintiff, is scarcely credible, in judicial proceedings. If he did so, there ought to be a reversal for that cause, for there has been a complete perversion of justice.

Judgment reversed.

Carhart vs. Miller, ante 573. Davisson vs. Gardner, 5 Hal. 289. State vs. Water Commissioners, 1 Vr. 247.