Den v. Banta

1 N.J.L. 308

• Court: Supreme Court of New Jersey
• Decided: April 15, 1795
• Status: Published

Opinion

Per Cur.

The solution of this question depends on the first section of the act of 11th of December, 1778, which forfeits the lands of the offender, “of which he was seized at the time the offence is charged in the inquisition to have been committed.” The inquisition in this ease charges the offence to have been committed on or about the 10th of January, 1777. The 10th of January is therefore the only certain time mentioned, and it appears by the testimony that Banta was dead at least fifteen days previous.

Our opinion is, that in this case the estate was forfeited. This uncertainty of time on an indictment or inquisition at common law might have been fatal; but the legislature have, in the act under which these proceedings were had, directed the very form of words which has been here pursued.

The defendant has himself produced the testimony to prove at w.hat time his father died ; and from this evidence his death appears to have occurred on or about the time charged in the inquisition, viz., in the month preceding. In Kelynge 16, it was held that the day in the indictment is not materialand that treason maybe laid “on a certain day, and [272] divers days and times before and after;”

(a) and the jury may find defendant guilty on a day long before, and the forfeiture relates to the day found.

An inquisition, therefore, having been found, and judgment entered on it, and the lands sold, and it being proved that on or about the day laid in the inquisition, Wiert Banta was seized, the lessor of the plaintiff is entitled to recover. (a)

The Chief Justice observed that, had it not appeared that the offender was seized of the premises on or about the tima charged in the inquisition, be should have doubted whether the plaintiff ought to recover; for unless the purchaser had shown the seizin of the offender on or about the time, it could not appear that the commissioners had a right to convey. It was also said, and assented to by the whole court, that if a party calls a witness and examines him as to a fact which regularly would not operate against him if proved by the other party, unless proved by written testimony, yetas against the party who thus establishes it himself, from his own witness, it shall be conclusive.

Judgment for the plaintiff.

Elisha Boudinot and B. Stockton, for plaintiff.

Aaron Ogden and Ah. Ogden, for defendant.

See Charnock’s case, 1 Salk. 288; 2 Hawk. 614.

See Jackson, ex dem. Williams, v. Stokes and Thompson, 3 Johns. 151.