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Case Appellant v. Rowland Appellee.

as a transcript, has a certificate appended, that "the above is a true copy of the above proceedings had before me," without stating it to be a copy of the record or docket of a justice. The Common Pleas were right in dismissing the appeal.

Wurts in reply. Whether the transcript be a record or not, at common law, is immaterial. It is not pretended to be such a record. All that the statute requires, is a copy of the proceedings before the Justice. The Common Pleas do not on appeals, sit as a Court of Error; they are to re-try the cause upon its merits. 3 Green, 470. The certificate is no part of the record. The summons and demand, both set forth the county, and the office of the justice.

PER CURIAM. Few transcripts set forth the county in which the cause was tried, or the official character of the officer who tried it. Nor is it requisite. This transcript is sufficient.

Let a Mandamus be issued.

CITED in Howell v. Van Ness, 2 Vr. 444.

CASES

DETERMINED

IN THE

SUPREME COURT OF JUDICATURE

OF THE

STATE OF NEW JERSEY,

AT MAY TERM, 1839.

PETER P. OBART v. JOHN S. LETSON.

On Certiorari to Middlesex Pleas. On a writ of attachment.

A Sheriff has authority to reject unlawful evidence, on an inquest held before him, to try the claim of property which he has levied upon by virtue of an attachment.

The receipt of the defendant in attachment, for the price of the property claimed, is competent prima facie evidence in support of the claim.

W. H. Lupp, for plaintiff in Certiorari.

J. Van Wyke, for defendant, who was plaintiff in attachment.

The opinion of the Court, was delivered by

DAYTON, J. A writ of attachment having issued from the Middlesex Pleas, returnable December T, 1838 against one Wareham Fifield, the Sheriff by virtue thereof, attached one bay mare which was claimed by Obart the plaintiff in Certiorari. Upon the trial of his claim, before the sheriff's inquest, Obart offered in evidence, after the same was duly proved, a receipt from Fifield for one hundred and ten dollars, for a bay mare about six years old. dated October 30, 1838.

Peter P. Obart v. John S. Letson.

I infer from the dates and proceedings, that the receipt was prior to the execution of the attachment, and that there was no dispute as to the identity of the mare.

The receipt having been over-ruled by the sheriff, it is agreed that the case here, shall be decided on the errors assigned.

1. That the sheriff holding said inquest, had no authority to exclude testimony.

2. That the receipt which he excluded, was competent evidence.

That the Legislature intended the sheriff should have authority to exclude testimony in such a case, is evident from the language of the 5th sec. of the supplement to the attachment act passed 13 February, 1830, Harr. Comp. 293, which enacts, among other things, that "the sheriff or other officer shall have power not only to administer the usual oath or affirmations to the jurors, but to swear or affirm the witnesses offered by either party, and admitted by him." This language most clearly recognizes his right to admit or reject testimony.

The case of Tillotson v. Cheetham, 2 J. R. 63, cited upon the part of the plaintiff, simply shows that the powers of the sheriff on the ordinary inquest of damages, after a judgment by default, are ministerial, and may be exercised by deputy; not that he may not admit or reject evidence, which is really requisite to the performance of his ministerial act. The power to admit or reject evidence, in such cases, is in the sheriff, not the jury. Snowden v. Johnson, 2 Penn. 469; Williams v. Cooper, 3 Dowl. 204; 3 Chitty's Pract. 48, 673.

And of course nothing is competent, except such as would be competent upon the trial of an issue in Court; 2 Saund. on Pl. and Ev. 686. The sheriff had authority in this case, to reject illegal evidence, but the receipt offered was not illegal evidenceit was clearly competent. The issue was, did Fifield own the mare? The receipt was prima facie evidence that he had sold her to the claimant, and received the purchase money. It was not necessary to produce Fifield himself, even if he had been disposed to come. If fraud, or collusion were alleged, it was the duty of Obart to prove it.

For the rejection of this evidence, the inquisition must be set aside,

The State v. Berry et al.

HORNBLOWER, C. J. and FORD, WHITE and NEVIUS, Justices, concurred.

Inquisition set aside.

THE STATE v. BERRY ET AL.

Certiorari, on matter of taxation, against the Paterson and Hudson River Rail Road Company.

The Charter of this Company provides for the payment of certain taxes to the State, and then enacts "that no further or other tax or impost shall be levied or assessed upon said Company."

Held that this does not exempt the franchises or privileges merely, of the Company; but the Company generally and its property, from taxes for county, township and all other purposes than those stated in the Charter.

Th. Frelinghuysen, for prosecutor.

I. H. Williamson, for defendant.

The opinion of the Court, was delivered by

DAYTON, J. The Certiorari in this case, brings up an assessment upon the Paterson and Hudson River Rail Road Company, for township and county purposes, amounting in the aggregate to about seventy dollars. The Company say they are exempt by their Charter, from such tax or assessment.

The 18th sec. of the act of incorporation (Harr. Com, 326) pro.. vides, that the said Company shall after the expiration of five years from the passing of this act pay to the Treasurer of this State, yearly and every year, a tax of one quarter of one per cent upon their capital stock paid in, and yearly and every year after the expiration of ten years, a tax of one half of one per cent

The State v. Berry et al.

upon the capital stock so paid in as aforesaid; " and that no further or other tax or impost shall be levied, or assessed, upon said Company."

It is contended by counsel, that the exemption contained in the last clause of this section, applies merely to the franchise granted to the Company, and not to its property; but this certainly cannot be the true construction of the act. To take away the inherent and all important right of government, to levy a tax upon property for its support, the language should certainly be clear and explicit, 4 Peters, 514. But could words have been adopted less liable to doubt, than such as are here used? I think not. It is enacted, that the Company after, &c. shall pay yearly, a tax, &c. upon the capital stock paid in, and that no further or other tax or impost shall be levied or assessed upon said Company. Here is a tax laid upon stock, or, in other words, upon property which it, the Company, is directed to pay. And in the same connection, it is added, that no other tax or impost shall be levied or assessed upon the Company. This does not exempt the franchises or privileges of the Company merely, from taxation, but it exempts the Company generally, from all other taxation, and to which, their property in common, with the property of individuals, would have been subject without such special exemption. 4 Peters, 514.

this

But a conclusive answer to this ingenious construction, that exemption from tax, applies to the franchise merely, and not the property, is this; it makes the exemption utterly futile-it avoids this most important part of the statute. The Legislature could never, after the passage of the act, have imposed any new or additional tax upon the company for its franchises or privileges.

Its charter was in the nature of a contract, and the State would have had no constitutional power, thus to vary its terms, or add to its burthens. Unless therefore, the exemption applies to the property of the Company, it has no application. A Statute ought upon the whole, to be so construed, that if possible, no clause, sentence, or word, should be superfluous, void, or insignificant. 4 Bac. Abr. Tit. Statutes, I. p. 644. 1 Harr. R. 286. There can be no doubt, I think, but that in this case, and in many others where the Charters of these Companies, contain a like provision, the Le

VOL. II.

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