of William Dickinson, his two sons, Smith and David, procured an order of the Orphan's Court of Salem county, to divide the lands of the father; that commissioners were appointed, and the lands divided between the two sons, Smith and David; that no part of the lands had been allotted under this partition to Hannah; that Hannah Dickinson, widow of William Dickinson, and mother of the said Smith, David and Hannah, died in 1797, before which, she by will, dated in March, 1797, devised to the said Hannah in fee, her lands in Salem county, in lieu of the said Hannah's share in her father's estate; which will contained this clause:-But if the said Hannah Dickinson, shall, when she arrives at the age of 21 years, refuse to convey to her brothers, David and Smith, her right to her father's land, then the plantation so left her, shall be divided as the law would direct, had no will been made. On the death of the mother, the guardian of Hannah took possession of the plantation thus devised to her, and kept possession until she married Henry Cozens, the other lessor; that after the marriage, Cozens took possession, rented part, cut and sold wood, &c. There was also evidence given of the sale of the lands thus devised to Hannah by the mother, by order of the Orphan's court, for the payment of the debts of the mother. It was, however contended, on the part of the defendants, that these sales were collusive, and some evidence given to that effect. The counsel for the defendants, offered to prove that Smith Dickinson, since the partition between him and his brother David, had died, and devised to the lessors of the plaintiff, his whole estate, real and personal, including the share allotted to him of his father's estate; and that they were in the actual possession thereof at the time of the trial, except such part as had been lawfully aliened; and that the [*] said Henry Cozens is an executor named in the will, and had proved the same. This will and evidence was objected to by the counsel for the plaintiff, and rejected by the judge, it being, in his opinion, inadmissible. That the other defendants are the children and heirs at law of David Dickinson, who had died since the partition of the estate between him and Smith, and were in the possession of the part allotted to their father, the said David Dickinson, by the commissioners appointed by the Orphan's Court. This ejectment was brought to recover one fifth of this part of the real estate of William Dickinson, the father of the lessor, Hannah, as heir at law to her father. There was a general verdict for the plaintiff. A rule had been obtained to shew cause why the verdict should not be set aside, and a new trial awarded.

L. H. Stockton, for the defendants:-The verdict is against

were a

Dan

Bai

evidence. The partition made under the order of the Orphan's Court is conclusive of the right of the defendants. The order being a judicial act, is not void, but at most voidable. 7 Bac. 67, 2 Salk. 674, Coke Lit. 170. C. The Orphan's Court had jurisdiction of the subject matter. Pat. 77. Besides, the lessors of the plaintiff have concluded themselves by accepting the devise of the mother, entering upon it, occupying and cutting the wood off of it, they have made their election; again, the eventual inheritance is not in controversy; Henry Cozens has a freehold in the premises in question; if he has concluded himself it is immaterial what the rights of the wife may eventually be; whatever they are they may be hereafter asserted, notwithstanding a judgment for the defendants in this action, Lit. 256, Pat. 289, 1 Bac. 495; the will of Smith Dickinson, with the accompanying testimony, ought to have been admitted by the Judge, to have shewn that Henry Cozens entered on the lands of Smith Dickinson, devised to him and wife, part of which land being Smith's dividend of his father's estate, allotted him by the partition made under the direction of the Orphan's Court; he acquiesced in [*] that partition, by entering on the land, and is now precluded from denying its legality, 4 John. Rep. 142.

M'Ilvaine and Hunter, for plaintiff:-Even if equitable considerations could have weight in an action of ejectment, which we deny, yet the equity is with us. The estate of the mother was swallowed up in the payment of her debts. The division, by order of the Orphan's Court, was between David and Smith. Hannah was no party to it. The right we pursue is unquestionably in Hannah; nor has she, or her husband, the other lessor of the plaintiff, done any act to estoppe them from recovery. It is not a case of election, but of condition; yet if it is to be considered as a case of election, the manner of election is pointed out in the devise of the mother; it is by a specific release.

PENNINGTON, J.-Can it be contended, that mere equitable circumstances can be set up in ejectment to defeat a legal title?

Stockton, in reply:-I do not contend that a mere equitable title can be set up as a defence in ejectment; but having a strict technical right, and having the equity of the case also, the Court will feel no difficulty in supporting that right. The husband, in whom the present right is, by entering on the land allotted to Smith, has thereby sanctioned the partition, and is concluded by his own act from denying the legality of that partition.

Pennington, J.-Smith dies possessed of the share allotted to him, devising it to Cozens and wife. They enter under the devise. So far as it respects Smith's own right, they have it under the devise; and so far as it respects the right of Hannah, on the entry of herself and husband, she is remitted to her ancient right. Nor is there any injustice in this operation of law. The estate of the mother was given to Hannah, on the condition that she released to her brothers, her right [*] in her father's estate. She refused to release. The estate given to her is defeated. Let the heirs of David pursue the estate; if it has been fairly swallowed up in the payment of the mother's debts, it is gone, and that rightly. If the sales have been collusive, there is a remedy. The brothers took a wrong course, and the defendants are pursuing it. The judge did right in rejecting the evidence, and the jury have done right in finding a verdict for the plaintiff.

KIRKPATRICK, C. J.-I am clearly of opinion, that on the whole of this case, the plaintiff is entitled to judgment. ROSSELL, J.-I have not changed my opinion as to rejecting the testimony; and am satisfied with the verdict. Rule for a new trial refused, and judgment for plaintiff.

MATTER OF HIGHWAY.

An appointment had been made by this Court, of Surveyors of the Highway, to lay out a road running into two counties. The Surveyors had met and laid out the road, and made return.

C. Kinsey, now moved the Court, on behalf of the land holders to appoint Chosen Freeholders to review the road.

BY THE COURT.-The former Road Acts are repealed. We have looked into the late Road Act, passed the last Session, and are of opinion, that this Court is not authorised by that act, to appoint Chosen Freeholders. The return is to be made to the Common Pleas. Bloom. 241.

Mr. Kinsey took nothing by his motion.

[*] Den ex dem CRANE & ENGLISH vs. HAMILTON and al. Court will not stay execution, to give time to file bail on a writ of error. Such bail must be in double the rent of the lands, and of the costs.

A WRIT of error having been presented by the defendants, this term, Leake and Ewing applied to the Court to stay or suspend the execution, on the judgment rendered in the

*3 Blac. Com. 19.

cause, to give time to the plaintiffs in error, to enter into recognizance in compliance with the statute.

L. H. Stockton, contra:-This would be in direct violation of the act of Assembly, both as to the letter and spirit of the act; which contains an express prohibition to the court, restraining it from staying execution in this case, unless the recognizance shall be entered into. Pat. 346.

Leake and Ewing, in reply:-The act contains no positive injunction, but leaves the discretion of the Court over its own process as before. Barne's N. 212, 2 Impey, C. P. 691.

BY THE COURT.-The act of Assembly lays down the rule, and is positive. The case in Barnes is not repugnant to this opinion. In that case, the costs were not taxed; the judgment was not complete; we may stay execution until the judgment is complete, by the taxation of costs, but not to give time to put in bail, for that would be delaying it by reason of the writ of error.

Rule refused. The next day recognizance was taken. The court, as to the sum, adopted the English practice, and required double the annual rent, or profit of the land; and also double the costs. In this case, $276 in all.(a) .

[*] ANONYMOUS.

Rule to stay proceedings till security for costs are filed, refused when some of the plaintiffs are non-residents,

EWING in this case, being an action of ejectment, moved that the proceedings be stayed until the lessors of the plaintiff file security for costs, on an affidavit stating that part of the lessors lived out of the State.

Stockton, contra.

BY THE COURT.-This would be depriving such of the lessors of the plaintiff as reside in the State, of a right which they have of suing, without giving security for costs. Rule refused.

NOTE::::The term for which AARON DICKINSON WOODRUFF, Esq. was appointed Attorney-General, having expired, the Joint-Meeting, on the 30th October, 1811, appointed ANDREW STOCkton Hunter, Esq. Attorney-General, to fill the vacancy caused thereby.

(a) Burr. 2501. 1 Halst. 473.

CASES ADJUDGED

IN THE

SUPREME COURT OF JUDICATURE

OF THE

STATE OF NEW-JERSEY.

NOVEMBER TERM, 1811.

VAN DOREN vs. STAATS.

Action lies not for prize money of a foreign lottery ticket.

THIS was an action of assumpsit, for money had and received to the plaintiff's use. This cause was submitted to the Court by an agreement of the parties, on the following facts admitted, and the evidence of several witnesses, detailed at large in the case submitted. [*] It was agreed between the parties, that the Court should weigh the evidence, and draw such conclusions both of fact and law, as it should think warranted by the evidence, and render judgment according to the result.

It was agreed by both parties, that in February, 1810, the defendant, Staats, in connection with fifteen other persons, was concerned in the purchase of twenty tickets in a lottery, then about to be drawn in the City of New-York, for which he paid at that time, ten dollars; that the plaintiff, the defendant, and Ralph V. Beekman, had been in partnership in a mercantile concern, and had one store at NewBrunswick, where the defendant resided, which partnership was about expiring, and did expire on the first day of March, then next.

Ralph V. Beekman, according to the case submitted, testified in substance, that after the defendant, Staats, had become concerned in the lottery company, and before it was known that the company had drawn a high prize, he agreed to let the witness, Beekman, and his other partner, Van Doren, the plaintiff, have each a third part of his share in the lottery company; that the witness and the plaintiff agreed to it; that it was not to be a partnership concern, but