not be amended after the term; but the error of the clerk in recording the judgment pronounced, may; that is, the record may be so amended as to comport, with what was really and truly done.

KIRKPATRICK, C. J.-That is the true rule.

BY ALL THE COURT.-Let the amendment be made.

FORMAN vs. MURPHY.

Courts of small causes may not set aside verdicts, and award new trials, Mandamus, but not peremptory, to render judgment on verdict delivered.

I. H. Williamson, moved for a mandamus to justice M'Chesney, of the county of Middlesex, commanding him to render judgment in a cause which had been tried before him. The cause had been tried before him by a jury, and the jury rendered a verdict in favor of one of the parties, and the justice set aside the verdict of the jury, on the ground, that the jury had rendered a verdict against evidence. Mr. Williamson contended, that a justice could not set aside a verdict on the merits; that this was a power only exercised by superior courts; that a court for the trial of small causes, was, from its nature, an Inferior Court; he cited 1 Bur. 568, 571, 1 Salk. 202, 2 Salk. 650; he also stated that this question had been repeatedly decided in this Court, against the power now exercised by the justice.

Scott, contra:-He had a much higher authority to cite than the books cited by Mr. Williamson; that was the statutes of the State, which expressly declared, that courts for the trial of small causes, were courts [*] of record, and vested them with all such powers as is usual in courts of record of this State, Pat. 313; that at the time of passing the act, all courts of record did of right, exercise the authority of granting new trials on the merits of the case.

Williamson, in reply:--The granting a new trial, was not incident to a court of record; but was exercised by superior courts, and came in the place of attaints; that it had been settled in the State of New-York, that even the Courts of Common Pleas, could not grant new trials on the merits, they being inferior courts.

KIRKPATRICK, C. J.-I came on the bench about the time that the present law, constituting courts for the trial of small causes, passed; soon after which, this question was brought before the Court; and although I had strong doubts upon the subject, and inclined the other way, yet my brethren, three in number, the Court then being composed of four

judges, were all of them clearly against the practice, and prohibited it by mandamus; and this has been the understanding on the subject ever since. I do not feel inclined to over-rule the authority of a settled course of adjudications; and, therefore, am of opinion, that the mandamus must be allowed.

ROSSELL, J.-Agreed to this opinion, on the ground of former decisions of this Court.

PENNINGTON, J.-I have never entertained a doubt on the subject. On a full investigation of the question, I am clearly of opinion, that the exercise of this authority by the justices, is against law; it can only be entrusted with safety to intelligent courts, acting under known established rules, and governed by a settled course of adjudications. It is also against public policy. To invest three hundred courts in the State, with the power of granting new trials whenever the justice is dissatisfied with the verdict, would lead to endless litigation; be attended with confusion [*] and uncertainty, and often with oppression and injustice.

BY THE COURT.-Take your rule for a mandamus, but not peremptory; that the justice may have an opportunity to shew cause against it, if he desires it.

MATTER OF HIGHWAY.

Certiorari disallowed to remove road case from Common Pleas, on the ground of not appointing a Chosen Freeholder of the township in which the road was laid.

R. Stockton moved, on the part of the landholders, for the allowance of a certiorari to the Common Pleas of Middlesex, to remove the proceedings in case of a road. Surveyors had been appointed, and laid the road. The landholders thinking themselves aggrieved, entered a caveat; and made application for the appointment of Chosen Freeholders to view the road. The Court, in the appointment of the Freeholders, passed over one of the Freeholders of the town through which the road run, and took one from another town. This he contended, was error; that the act required the Freeholders to be taken from the town through which the road run, one case excepted, that of the Frecholders owning land through which the road run. The words of the act are, "always having regard to the appointment of the Chosen Freeholders of the township through which the road shall have been laid out, vacated, or altered. Provided, that no Freeholder be appointed through whose land the road

may run." This exception, he contended, excluded all others, and made it obligatory on the Court, to appoint the Freeholders of the town, unless they came within the exception. He anticipated an objection arising out of the prohibitory clause in the act, to a certiorari. The act says, that the "proceedings of the Freeholders shall be binding and conclusive in all cases, and shall not be subject to an appeal or certiorari, or to be [*] set aside for lack of form, either in the former proceedings, either of the applicants, or of the Surveyors of the Highways, or in that of Chosen Freeholders.' He said that the object of this certiorari was not to meddle with the proceeding of the Freeholders, but to correct an error of the Court in the appointment of them. Supposing the Court had appointed Freeholders of an adjoining county, was there no remedy? The wording of the prohibitory clause in the act, in Pat. 389, is different from this act. But he contended, that the jurisdiction of this Court could not be taken away but by express negative words; that it was intended that the jurisdiction should be taken away, was not sufficient; it must be done directly, and in clear and unequivocal terms, 2 Bur. 1040, 1 Salk. 146, 1 Lord Ray. 850, 1 Blac. Rep. 131.

Scott, contra:-A certiorari removes the tenor of the whole of the proceedings below. There could not have been a certiorari to the proceedings of the Surveyors or Freeholders, even if this act did not exist. The certiorari must, in all cases, be directed to the Conrt; and must remove the whole record. Again, there is no mandate in the act against going out of the town for the Freeholders. The court are to have regard to their appointment. It is only recommended to the Court by the Legislature, to consider them while making the appointment. The Court assigns a sufficient reason for its conduct, that the Freeholder rejected, had given his opinion on the question; he had prejudged the cause.

The Attorney-General, on the same side:-The object of the certiorari asked for, is to set aside the proceedings of the Surveyors and Chosen Freeholders; and this is prohibited by the act. The bringing up the proceeding, therefore would be nugatory.

R. Stockton, in reply:-The proceedings of the Common Pleas, is not warranted by law. This is the error of the Court, not of the Chosen Frecholders. The [*] Freeholders appointed, are not the Freeholders authorized by law, to determine the question put to them; and therefore, the certificate is void, and ought not to be recorded. It is an ex, cess of authority in the Court. The language of the act is not recommendatory, but mandatory, from the subject matter,

KIRKPATRICK, C. J.-Was of opinion, that the true construction of the act was, that the Chosen Freeholders were to be appointed from the township through which the road run, with the single exception mentioned in the act; and that as the act had not been pursued, he thought, in this case, a certiorari ought to be allowed.

ROSSELL, J.-From the whole view of the subject, was of opinion, against the certiorari.

PENNINGTON, J.-It is evidently the intention of the maker of the act, that the proceedings should not be removed by certiorari, although the prohibition is obscurely expressed; but he would not say but that a case might arise where it would be proper for this Court to interpose. For instance, the extreme case put by Mr. Stockton. The allowance of a certiorari to a special jurisdiction, is in the sound discretion of the Court; and he was not sure that the Common Pleas had done wrong. He inclined to the construction given by the Chief Justice to this clause of the act. But it was certainly obscurely worded; he admitted, that statutes could not be recommendatory; they were simple commands; you shall, or you shall not. But when statutes are ambiguously worded, it is the duty of the Court to search for the motive and intention of the Legislature. It has shut out the case of interest; and he had no doubt that if this case of bias had been put to it, it would also have done the same thing in this case too. In any view of the subject, he could not think it such a case, taken altogether, as to call for the extraordinary interposition of this Court.

Certiorari disallowed.*

[*]* Another case of an application for a certiorari under this act, was considered and rejected this term, on the ground of inexpediency, by the whole Court.

[*1029]

CASES ADJUDGED

IN THE

SUPREME COURT OF JUDICATURE

OF THE

STATE OF NEW-JERSEY.

MAY TERM, 1813.

POTTS vs. HARPER.

ON CERTIORARI.

A black witness, reputed free from childhood, sworn without other proof of his freedom,

THE error assigned in this case was, that on the trial of the cause in the Common Pleas, the court admitted a black man to be sworn as a witness, without evidence of his freedom. The fact was, that the man had been considered and reputed by his neighbors, to be free from his childhood; but it was contended, that nothing short of proof that he was born free, or that he had been manumitted, and the instrument of manumission produced in court, would have been sufficient. BY THE COURT.-We think the Common Pleas did right.

Ewing, for plaintiff.

Let judgment be affirmed.

[*] LONGSTRETH vs. LITTLE.

ON CERTIORARI.

THE action below, was an action of trover, for two hundred bushels of oats. There was a long string of errors assigned in this cause, but was no other way supported by the record, than that the defendant below, had moved the justice to nonsuit the plaintiff below, for those causes; and the justice refused.

BY THE COURT.-Merely because a defendant moves for a nonsuit, and is refused; and the reasons alledged for his mo