township committee, by colour of the act.

If it is correct

to presume this fact, no doubt can be entertained but that the bond is void. A township committee, under colour of lawful authority, extorts from a constable before they will permit him to exercise an office, to which he is elected by the people, and in which he is compelled to serve under a penalty, a condition which they are not authorized by law to exact from him. The constable must either give up the advantages and emoluments of his office, and expose himself to punishment, or submit to the terms imposed on him by the town committee-a bond so obtained, cannot meet with countenance in a court of justice.

But as doubts may be entertained as to the correctness [*] of the construction which I have given the record, I shall put my opinion on another point. At common law, a grant, lease or obligation made to a corporation, must be made to them in their corporate name. It is true there is a distinction in this respect between writs and grants, &c. Any variance from the name of a corporation, in a writ, whether in form or substance, will vitiate it; not so in a grant, lease, or obligation. For in the latter, an immaterial variance in a syllable or word, not changing the substance, will not render the instrument ineffectual; but the least variance in substance, will. This distinction between form and substance, is fully recognized in the case of the Mayor and Burgesses of Lynne Regis, 10 Coke 123, and The reason of the runs through all the cases there cited.

distinction between writs and grants, is founded in good sense. If a writ is erroneous, it may be abated and a new one taken out. But there is not the same remedy in case of grants; errors in them are fatal. Hence judges have strained a point to uphold them against mere formal defects; but they have not yet been bold enough to protect them against substantial errors. If in the present case, the bond had been to the inhabitants of the town of Woolwich in the county of Gloucester, making use of the word town in the room of township, this error would be fatal in a writ; but as the variance would be only verbal, it would not vitiate the bond. But the defect, as I apprehend, might be corrected by proper averments-that the words town and township, were substantially the same thing; when the fact might be proved by evidence dehors the instrument. But the omission here is matter of substance, and cannot be got over; the county in which the township is situate, being part of the name of the corporation, is a material and substantial part; the want of it leaves the instrument too vague:

and uncertain for judicial cognizance. My opinion, therefore, is, that the defendants must have judgment.

BY THE COURT.-Judgment for the defendants.

[*]INHABITANTS of Nottingham vs. GILES and SURETIES. Constable's bond must conform to the statute.

THE plaintiffs declared against the defendants, in debt on bond, in the usual form; the defendants prayed oyer of the bond and condition; by which it appeared that, John Giles, one of the defendants, was duly elected at the annual townmeeting, a constable. The condition was to this effect: If, therefore, the said John Giles shall in all things touching his said office, conduct himself well and faithfully, as a constable ought by the laws of this State, and the United States, to do, and pay forward all monies according to law, that may come into his hands by virtue of his said office, and all other monies that he may be accountable for, as constable, and that without fraud and other delay, then, &c. The defendants then aver that they went before the township committee to give the security required by the act of Assembly that the bond and condition aforesaid were required and taken by the said township committee, by colour and under pretence of the act of Assembly, and plead this special matter in bar, and alledge the bond is void; to which the plaintiffs demur, joinder in demurrer and issue.

Mr. Ewing, for the defendant, contended that this bond, being taken under the act of Assembly, the act ought to have been strictly pursued; that the township committee had, under colour of law, extorted from the defendants, a bond containing a condition not required by law; that it was therefore void.

Mr. L. H. Stockton, for the plaintiff, contended that the bond was good at common law; that if it was to be considered as taken under the statute, yet, that the statute had been substantially pursued; and even if part of the condition was bad, the bad might be rejected, and the good supported.

[*] Mr. Ewing, in reply. This bond being taken under the statute, if any part is bad, the whole is bad.

KIRKPATRICK C. J.-This case is different from that of Woolwich; by the pleadings in this case, the question is

brought fairly and fully up; and it appears that the bond was taken by colour, and under pretence of the act of Assembly, which has not been pursued, but new conditions added. In my opinion, the defendants must have judgment. ROSSELL, J.-Concurred.

PENNINGTON, J.-Giles was elected constable of the township of Nottingham, at an annual town-meeting, and went in conformity to the law, with his sureties, before the township committee, to give a bond of security, required by the act of Assembly in such cases. The committee, acting under the law, and by colour and pretence thereof, require of him a bond, different in form and substance from that required by the law, exacting conditions to which the statute is a stranger; this bond, in my opinion, is void. The counsel for the plaintiffs, however, very truly says, that a bond may be good in part, and bad in part; and that the court will support the good, and reject the bad part. It must, however, be in those cases where the good can be separated from the bad; in this case, the good and bad are so blended and interwoven, that it is impossible to separate them. If there were a number of independent conditions, one of which was in conformity to the act, I incline to think, if the bond was voluntarily entered into, that the bad might be rejected, and the one made in conformity to the statute, supported. It makes no difference in this respect, whether the bond is taken under the statute, or at common law, unless the statute, like that of 23d Henry the 6th, contain negative words. It was on the construction of that statute, that Lord Hobert made the observations attributed to him by justice Twisden-that the statute was like a tyrant-wherever it came, it made all void; but that the common [*] law was like a nursing father, that where it came, it only made void that which was bad, but preserved that which was good. The statute 23d Henry 6th, prescribes the form of bail bonds to be taken by sheriffs, and expressly enacts, that obligations taken in any other form, by colour of their office, shall be void. Not so with the act authorizing the township committee to take bonds of constables; yet, in this case, the impossibility of separating the good from the bad, renders all void.

BY THE COURT.-Judgment for the defendants.*

*The authority for township committees to take bonds of constables, is derived from the 52d section of the act constituting courts for the trial of small causes, Paterson 323. The condition of the bond required by the act is simply, "for the true and faithful performance of all the duties enjoined on him by this act," that is, the act constituting courts for the trial of small causes.(a)

(a) Vid. Rev. 644 The form now is, "shall truly and faithfully perform all the duties enjoined on him, as constable of said township."-ED.

HALSEY vs. BEACH.

ON CERTIORARI.

A plea of non-residence, at the time of trial, no exception, under the statute of limitations.

THE action below was brought by the defendant in this Court, on a note of hand, of an old date, much beyond six years; and on the trial below, before the justice, a motion was made to non-suit the plaintiff, on the ground of the statute of limitations, which motion was refused by the justice, and judgment rendered for the plaintiff below. It appeared by the record, that the defendant below, at the time of the trial, lived in the state of New-York, it was thereupon contended, by

Mr. Van Arsdale, for the defendant here, that the defendant below, being a non-resident, came within [*] the provision of the 7th section of the act of limitations; and that the plaintiff below, had six years after the defendant below came into the State, to commence his action.

Mr. McWhorter, for the plaintiff here, observed that because the defendant below, was a non-resident at the time of the trial below, it was no evidence that he was out of the State at the time the right of action accrued.

BY THE COURT.-The judgment must be reversed; the justice should have non-suited the plaintiff below.

Another question, of some importance was raised; but as the Court gave no opinion thereon, it is useless to state it. [*123]

CASES ADJUDGED

IN THE

SUPREME COURT OF JUDICATURE

OF THE

STATE OF NEW-JERSEY.

NOVEMBER TERM, 1806,

WINANS vs. J. and W. DENMAN.

ON CERTIORARI.

Insufficient demand. Joint action lies not, for injury to one. THE state of demand exhibited to the justice below, was as follows:

Joseph Denman and
William Denman,

V8.

Isaac Winans,

In case.

Joseph Denman demands of Isaac Winans forty dollars, damages for converting to the use of said Isaac, a bond of him the said Joseph."

After a trial by jury, and verdict, a judgment was rendered for the plaintiff below, for $25. Two reasons were assigned for the reversal of this judgment.

1st. Because the demand filed by the plaintiffs below, is uncertain, and contains no cause of action whatever; nor does it appear that the said William ought to have been a party to the suit.

2d. Because the said action was brought to recover damages for the detention of a bond given by the plaintiffs [*] below, to the defendant below, which the said plaintiffs alledged they had paid off, whereas, no action lies for any such thing.

BY THE COURT.-This judgment cannot, by any rule of law, be sustained. The state of demand does not set out a legal cause of action, even if it was alledged as an injury done to both the plaintiffs; further, a joint cause of action is not even alledged, but an injury to one of the defendants in this Court, only, is stated. Two men cannot join in an action for an injury done to one of them only.

Judgment reversed.