Egbert v. Smith

Supreme Court of New Jersey

Egbert v. Smith

3 N.J.L. 924

DecidedFebruary 15, 1812

StatusPublished

This text of 3 N.J.L. 924 (Egbert v. Smith) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Egbert v. Smith, 3 N.J.L. 924 (N.J. 1812).

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Opinion

Pennington, J.

The parties went before the justice by consent, and Smith instituted a suit against Egbert, and the parties agreed to submit all matters in difference between them, to reference. The referees met, were sworn, heard the cause, and reported in favor of Smith, the plaintiff, something more than fifty dollars, stating the sum found, precisely ; the justice did not enter his judgment, the day it was [673] delivered to him. The next morning, two of the referees appeared before him, having sent notice to the third also to appear. But he not being at his home, did not appear. The two referees that did appear, informed the justice that they had made a mistake in calculation, and had thereby reported against Egbert, [*] the defendant below, about seven dollars too much; and they then altered the report, and reduced it to forty-five dollars. By affidavits, it appears that the other referee was afterwards consulted, and satisfied that the report as corrected, was right. The justice entered judgment on this report as corrected. There cannot be any question but that this proceeding was wrong; that two referees cannot make or alter a report in the absence of a third; and that if Smith had brought this certiorari, but that the judgment must be reversed. But this error was in favor of Egbert, who brings this certiorari to’reverse a judgment for an errdr done for his benefit. It is a general rule of law, that a man cannot reverse a judgment for error, unless he can show that the error was to his disadvantage. !B Bac. 490. It is true, there is an exception to this rule, where the error is in the court, in cases where the court hath departed from its usual course, and altered its manner of judgments ; this arises from the danger of establishing erroneous [483]*483precedents. In this case the record is regular, and the error in the referees, which is made to appear by affidavits. And being in favor of the plaintiff in error, I think that he cannot take advantage from it, and that judgment be affirmed.

The other judges concurred.

Judgment affirmed.

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Pennington, J.

The parties went before the justice by consent, and Smith instituted a suit against Egbert, and the parties agreed to submit all matters in difference between them, to reference. The referees met, were sworn, heard the cause, and reported in favor of Smith, the plaintiff, something more than fifty dollars, stating the sum found, precisely ; the justice did not enter his judgment, the day it was [673] delivered to him. The next morning, two of the referees appeared before him, having sent notice to the third also to appear. But he not being at his home, did not appear. The two referees that did appear, informed the justice that they had made a mistake in calculation, and had thereby reported against Egbert, [*] the defendant below, about seven dollars too much; and they then altered the report, and reduced it to forty-five dollars. By affidavits, it appears that the other referee was afterwards consulted, and satisfied that the report as corrected, was right. The justice entered judgment on this report as corrected. There cannot be any question but that this proceeding was wrong; that two referees cannot make or alter a report in the absence of a third; and that if Smith had brought this certiorari, but that the judgment must be reversed. But this error was in favor of Egbert, who brings this certiorari to’reverse a judgment for an errdr done for his benefit. It is a general rule of law, that a man cannot reverse a judgment for error, unless he can show that the error was to his disadvantage. !B Bac. 490. It is true, there is an exception to this rule, where the error is in the court, in cases where the court hath departed from its usual course, and altered its manner of judgments ; this arises from the danger of establishing erroneous [483]*483precedents. In this case the record is regular, and the error in the referees, which is made to appear by affidavits. And being in favor of the plaintiff in error, I think that he cannot take advantage from it, and that judgment be affirmed.

The other judges concurred.

Judgment affirmed.

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Bluebook (online)

3 N.J.L. 924, Counsel Stack Legal Research, https://law.counselstack.com/opinion/egbert-v-smith-nj-1812.