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John Stites executor of Elijah Stites deceased  
v.  
Jacob Houk

1771

New Jersey ss. 

George the third by the grace of God of Great Britain France and Ireland King defender of the faith &c.

To John Ross Esq. one of the Aldermen of the free Borough and town of Elizabeth Greeting, willing certain causes, to be certified as well of the record of a certain Judgment by you given and affirmed, against John Stites, executor of the last Will and Testament of Elijah Stites deceased, at the suit of Jacob Houk, of a plea of debt, as of a certain execution thereupon issued for two pounds five shillings and ten pence into the hands of William Millar ..? delivered, to be by him executed according to the tenor of the same execution;

We do command you that the record of the Judgment and the execution aforesaid with all things touching the same as fully and entirely, as before you it doth remain, by whatsoever names the parties, in the same, may be called, before our Justices of our Supreme Court, at Perth Amboy on the first Tuesday in April next, you send together with this Writ, that our Justices may therein further cause to be done what of right, and according to the laws and customs of that part of Great Britain called England, and this our Province of New Jersey, ought to be done;

Witness Frederick Smyth Esq. Chief Justice of our Province of New Jersey, at Burlington the fifteenth day of November in the eleventh year of the reign.
Read
Skinner Atty

Sir,
I am surprised at your letter for the last time that you talked with me on that affair of Jacob Houks you promised me that you would not proceed any further on that affair but said that Houk should come to trial before some other magistrate and we agreed upon Jonathan J Dayton Esq. but Houk appeared at my house but refused to come to trial before any magistrate in the County or Borough which I offered him the choice of –

You might remember that I asked for an appeal when you first gave Judgment and you put me off. I do not plead no assets but here declare I have effects sufficient to discharge that Judgment and am willing to pay all honest and lawful debts that I find due from the estate of Elijah Stites which I desire may be settled in the easiest way which I have offered as above written. But if the case be as you wrote to me  entirely before your ??. I must submit if I cannot get help.

This from yours to ??
John Stites November 23rd 1770

To John Ross Esq. 

Note – this letter was poorly spelt, which I have corrected to make better reading.  
 

 Jacob Howke
ag.
John Stites Esq. Executor of Elijah Stites decd. 

Sur Action on the case.
In obedience to a certain Writ of Certiorari, to me directed and hereunto annexed, I do hereby humbly certify unto the Honle. the Justices of the Supreme Court of the Province of New Jersey, that on the 10th day of May 1770. 

The parties above named appeared before me the subscriber John Ross, one of the Aldermen of the free Borough and Town of Elizabeth, by consent, and without any process for that purpose, and agreed to have an action entered as above, between them, in my records, and that I should hear and determine the matters in difference in the said cause as a Magistrate. 

Whereupon the action being entered accordingly, the parties proceeded to trial; and after hearing all the proofs, and allegations of each party, examining their accounts, and maturely considering the same, I did on the said tenth day of May, deliver my Judgment to the parties, and entered the same in my record to the effect following (that is to say), 

That it appeared to me, the said testator Elijah Stites, was indebted to the said plaintiff Jacob Howke, in the sum of two pounds seven shillings and ten pence, current money of New Jersey at eight shillings the ounce; And that the said plaintiff ought to recover the same, with ten pence against the said John Stites executor as aforesaid out of the effects of the said testator, in the hands of the said John Stites, to be administered, if any he then had, or should thereafter acquire; And I do hereby further certify, that the said executor John Stites denying upon the trial, and it not then appearing in proof, that he had any assets in his hands wherewith to satisfy the said debt and costs, or any part thereof, or that the said John Stites the executor as aforesaid, had rendered himself liable to pay the same by any waste or misapplication of the effects of his testator, I did not enter any Judgment at that time against the said John Stites, the executor as aforesaid whereby to charge him personally with the said debt and costs, so as to answer the same out of his own pocket : But the said Judgment against him being only for assets in future, was to remain on my record, unsatisfied and unproceeded upon, until assets should be made appears : 

And I do hereby further humbly certify, that the said Judgment for assets in future, did remain unsatisfied and without any proceedings had thereon, for above six months, after the entry thereof, and until sometime after the receipt of a letter from the said John Stites the executor as aforesaid, dated November 23rd 1770. Whereby the said John Stites, did give up his former plea of want of assets, and acknowledged that he had in his hands effects of his said testator, sufficient to satisfy the said Judgment. Which letter I was satisfied of my own knowledge to be the proper hand writing of the said John Stites the said executor, and as by the said original letter (which I desire may be admitted as part of this my return) Proved to be the hand writing of the said John Stites, and hereunto annexed, will more fully appear. 

And I do further certify, that the effects of the said testator above acknowledged to be in the hands of the said executor John Stites as aforesaid, appeared to me, to consist either of money, bonds, or other credits, and not assets of such nature so as to be levied on by execution; of all which, or to that effect, I did make an entry in my record under the said action; And in order to compel without further delay, the payment of the said debt and costs, I thereupon issued an execution against the said executor John Stites in the words following (to wit) – 

Borough of Elizabeth ss.
These are in his Majesty’s name, to require you to make distress on the goods and chattels of John Stites executor of Elijah Stites’s estate decd. and make sale thereof at public vendue, and pay out of the same unto Jacob Howke the sum of two pounds seven shillings and ten pence debt, and ten pence costs, together with the costs of this process, which sum of debt and costs was recovered before me the tenth day of May last past; And return the overplus if any be; but for want of effects whereon to levy, you are to take the body of him the said John Stites executor of Elijah Stites decd. and him convey to the gaol of said Borough, where the Gaol Keeper is hereby commandeered to keep safely in gaol until debt and costs be paid, or discharged by a due course of law; Fail not, given under my hand and seal this thirteenth day of December Anno Dom. 1770
Jno. Ross 

The foregoing, is a copy of the record and proceedings in the action above named, together with the execution issued thereon, and all things touching and concerning the same, as fully and entirely as before me the same remaineth. Which by a certain Writ of Execution hereunto annexed I am commanded to send to the Honle. the Justices of the Supreme Court of the Province of New Jersey.
John Ross

Sir,
I am surprised at your letter for the last time that you talked with me on that affair of Jacob Houks you promised me that you would not proceed any further on that affair but said that Houk should come to trial before some other magistrate and we agreed upon Jonathan J Dayton Esq. but Houk appeared at my house but refused to come to trial before any magistrate in the County or Borough which I offered him the choice of –

You might remember that I asked for an appeal when you first gave Judgment and you put me off. I do not plead no assets but here declare I have effects sufficient to discharge that Judgment and am willing to pay all honest and lawful debts that I find due from the estate of Elijah Stites which I desire may be settled in the easiest way which I have offered as above written. But if the case be as you wrote to me  entirely before your ??. I must submit if I cannot get help.

This from yours to ??
John Stites November 23rd 1770

To John Ross Esq.

John Stites Executor of Elijah Stites deceased
v.
Jacob Houk 

Sur Certiorari to remove a Judgment entered against the said John Stites in favour of Jacob Houk before John Ross Esq. one of the Aldermen for the free Borough of Elizabeth 

And the said John Stites says that the Judgment entered against him by the said Alderman ought to be set aside for the following reasons 

1: For that the above parties agreed to go before the said John Ross by consent, without process being issued, the 10th  day of May last past, and he having heard the allegations of both parties refused to give his Judgment therein. 

2d. For that the said Alderman, after having refused as aforesaid did without the knowledge of the said John Stites, and as the said John Stites verily believes within a month before the date of these reasons enter Judgment, as of the said 10th of May, against the said John Stites and issued execution thereupon. 

3d. For that the said Alderman had no authority to enter Judgment between the parties aforesaid after the said 10th day of May, as it was only by consent they appeared before him, and that after he refused as  aforesaid his authority was wholly determined. 

4th. For that the execution was issued against the proper goods and chattels of the said John Stites, when it ought to have been (if legally issued) against the goods and chattels which were of his testator. 

5th. For that the Judgment was entered for the said Jacob Houk when by the laws of the land, it ought to have been entered for the said John Stites. 

C. Skinner p. Quer. 

January 4th 1771 Filed Jany 28th 1771

New Jersey State Archives  –  Supreme Court case file # 35856
  


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