Sinnickson v. Johnsons.

plead the act, to any indictment for a nuisance, or against any complaint for an infringment of a public right, but cannot plead it as a justification for a private injury, which may result from the execution of the statute.

Or again, if it is to be esteemed an act to promote the interest of John Denn whilst the execution of it may incidentally advance the public interest, I apprehend the same construction is to be given to it as in the latter case. And the defendants are to be answerable to the same extent for any consequences resulting from the execution of the act as if it was wholly a private act.

Upon examining this act I cannot view it in any other light than a private act and intended for the benefit of John Denn. He seeks the privilege of erecting a dam across a navigable stream, and the legislature having the constitutional right to grant such privilege, (see Wilson et al v. The Black-bird Creek Marsh Company. 2 Peters, 245) do grant it and impose upon him certain terms, among others that he shall construct a canal to answer the purposes of navigation. It is to be of sufficient depth and width to admit the passage of such vessels as were used to navigate this creek. It was to be constructed upon his own land and at his own expense, and forever to be kept in repair at his own cost, to be fairly tested and tried, before the grant to him to erect a dam, should become complete and absolute. Nor was it made incumbent on him to construct this canal. After the passage of the act it was entirely optional with him whether he would construct it or not. It was not made obligatory except he availed himself of the benefit of the grant, by the erection of the dam. In all these particulars, the act bears no resemblance to a public act. It would seem to have been induced by the application of John Denn himself, and in its passage, the legislature seem only to have been careful to protect the public interests. The construction of this canal was a permission and not a direction or obligation imposed upon the grantee; it was an authority to do it, not a requirement. Nor does the language used in the title and in the first section of the act "To shorten the navigation of Salem creek," at all change its character. It was essentially and to all intents and purposes a private act and designed for the benefit of John Denn and only induced by the consideration that it might not be injurious to public interest, but that the public interest might thereby be incidentally promoted.

Does this act then confer upon John Denn and his assigns, the right to take, injure or destroy private property, without compensation to the owners. If it does, it is unconstitutional and void, and in violation of natural justice, and therefore would not be a defence to the plaintiff's claim. If it does not confer such right, it constitutes no justification, and the plea cannot therefore be sustained. The legislature are to be considered as conferring nothing but what they had a constitutional right to grant. They could not grant to him the right to overflow the land of the plaintiff, or in any other way to injure or destroy it without compensation, and if no such compensation is provided for, the plaintiff has a right to seek his remedy through courts of justice by suit. It is no answer to say that the party injured must or may resort to the justice of the legislature. If such be his only remedy, it is of too vague, indefinite and uncertain a character to be recognized by courts. The constitution and laws of this state can never leave the citizen such remedy only, for a clear infringement of his private rights. Nor is it an available argument to say that if the defendants, as the assignees of John Denn, are to respond to the plaintiff in this action for the injury to his property by reason of an act authorised by law, the consequences to them may be ruinous, and the work contemplated by the act, absolutely prevented. Suppose it to be so, may it not be answered that in accepting the grant, they acted voluntarily, and should have foreseen and provided against the consequences, and would it not be equally if not more unjust and oppressive upon the plaintiff, to ruin and destroy his property, without the slightest compensation or recompense.

I am of opinion that the plea is no justification to the act complained of, and that the demurrer therefore be sustained.

HORNBLOWER, CH. J. concurred in sustaining the demurrer. He had not time to prepare a written opinion.

FORD, J. Read an opinion sustaining the demurrer.

WHITE, J. was not present at the argument, and gave no opinion.

Judgment for Plaintiff, on the demurrer, with costs.

CITED in Bordentown & S. A. T. R. Co. v. C. & A. R. R. Co., 2 Harr. 320; American Print Works v. Lawrence, 1 Zab. 260; Del. & Rar. Can. Co. v. Lee, 2 Zab. 247; American Print Works v. Lawrence, 3 Zab. 600–601–613; Tinsman v. Bel. Del. R. R. Co., 2 Dutch. 167-168-174; Trenton Water Power Co. v. Raff, 7 Vr. 340-342-343; State v. Crane, 7 Vr. 403; Coster v. Tide Water Co., 3 C. E. Gr. 63-64.

Rowan v. The Same.

THOMAS ROWAN v. THE SAME, DEFENDANTS.

In case.

R. P. Thompson, for plaintiff.

Wm. N. Jeffers for defendants.

This cause involving precisely the same points, was submitted at the same term, and received the same decision as the foregoing

case.

DANIEL CONARD v. ISAAC W. CONARD.

On Certiorari to Cape May Pleas.

An affidavit to obtain an attachment, stating that the defendant absents himself from his creditors, and is not resident, &c. is deficient.

Certiorari lies to remove proceedings in domestic or foreign attachment, after judgment in Court of Common Pleas.

This was a Certiorari directed to the Inferior Court of Common Pleas, of the county of Cape May, to remove the judgment and proceedings of that Court, upon a writ of attachment, issued out of that Court, under the "act for the relief of creditors against absconding and absent debtors," passed 8th March, 1798.

On 20th April, 1837, the plaintiff below, Isaac W. Conard, made, and filed with the Clerk of Cape May Pleas, an affidavit, in the following words, viz:

State of New-Jersey, Cape May county, ss. affidavit for attachment. Cape May Pleas.

Isaac W. Conard, being by me duly sworn according to law, did depose and say, that Daniel Conard is justly indebted to him the said Isaac, in the sum of one hundred and twenty-eight dollars and sixty cents, for work and labor done at the steam mill of the said Daniel, situate in the county of Cape May, and

Conard v. Conard.

State aforesaid, and cash paid, laid out and expended by him the said Isaac, for him the said Daniel, for machinery for said mill, and all done at the special instance and request of him the said Daniel. And that having written three several letters to the said Daniel, directed to him at his late residence, and not having received any answer, and other reasons, this deponent verily believes, that the said Daniel absents himself from his creditors, aud is not to his knowledge or belief, resident in this state, at this time."

ISAAC W. CONARD. Taken and subscribed this 20th day of April, 1837, before me, JOSHUA HILDRETH, Judge.

Upon this affidavit, a writ of attachment issued out of the Cape May Pleas; returnable to May Term, 1837: by virtue of which, the sheriff of that county attached the real estate of Daniel Conard therein, consisting of one hundred and fifty acres of "land and timber swamp," valued and appraised in his return at three hundred dollars.

On the return of the writ, (May Term, 1837,) the first default of the defendant, below, was recorded, and the Court ordered, "that notice of the attachment, according to the statute, be published in one of the news papers of this State, and that a more extensive publication is not necessary." At the term of August, following, the second default was recorded, and auditors appointed.

At October Term, 1837, the auditors made their report, and judgment was rendered against defendant, for the sum of one hundred and twenty-eight dollars and sixty cents, with thirtyseven dollars and twenty-five cents costs of suit.

The judgment and proceedings in the attachment, were brought into this Court, by Certiorari, and a rule granted the plaintiff, to take affidavits, to be used upon the hearing and argument of the case.

Several reasons for the reversal of the judgment, were filed. Those chiefly relied upon, were

1. That the affidavit upon which the writ of attachment issued against defendant below, is inconclusive and insufficient.

2. That no evidence was produced before said Court of Common Pleas, of the publication of said attachment.

Conard v. Conard.

3. That said Daniel Conard, at the time of the issuing of said writ of attachment, and for many years before was, and still is, a resident freeholder of the county of Gloucester in this state, and never did, either before, at the time of, or since the issuing of the said writ of attachment, abscond or absent himself, from his creditors.

R. W. Howell, for plaintiff, in Certiorari. First of the affidavit. An attachment is an extraordinary writ; and is not to be used when the debtor can be reached by ordinary process. The affidavit is the foundation and ground work of the proceeding, and must set out such a case as to warrant the use of the writ. It should strictly comply with the requirements of the statute.

In cases of domestic attachment, (and it is presumed this was intended as such,) the act requires that the creditor shall make oath or affirmation, "that he verily believes, that his debtor absconds from his creditors," &c. R. L. 355, s. 1.

And so important does the law deem this affidavit, that it declares, "that if any clerk shall seal such writ of attachment, before such oath or affirmation shall be delivered to him, he shall forfeit and pay twenty dollars, to the party injured, to be recovered with costs, &c." ib. 356, 8. 3.

In the present case, the plaintiff, in his affidavit, swears, that he "verily believes that the said Daniel absents himself from his creditors, &c."

Absenting and absconding, are words of very different signification. A man may be absent, or absent himself from, without absconding from, or meaning to elude his creditors. But suppose the words to mean the same thing; the affidavit required by the attachment act, is not so conclusive that this Court may not inquire into the reasons for the plaintiff's belief, 1 Green, 131. In this case, the plaintiff below, has set them out in his affidavit, and they show upon how slight a ground, that belief was established, viz: "that having written three several letters to the said Daniel, directed to him, at his late residence, and not having received any answer, and other reasons," this deponent verily believes the said Daniel absents himself, &c."

Three letters appear to have been written and directed to the defendant, in attachment, at his late residence, but whether sent or not, and if sent, how? whether by mail or private hand, and