
    DEN ex dem The STATE against HELMES and HUDSON.
    A grant may be presumed, without evidence. Courts bound to take notice of cities, chartered, or by proscription. Corporations may acquire a name by reputation. Official return of facts, within officer’s knowledge, is prima facie evidence of the facts.
    This was an action of ejectment, brought by the State, for the banking house and lot in the city of Jersey. On the trial of the cause, at the bar of the Supreme Court, before a special jury of Bergen county, the defendants demurred to the evidence,-which was in substance as follows: The act of Assembly, 2d November, 1810, entitled, “An act to tax bank stock,” Bloom %!85; and also the act of the 23d February, 1811, entitled, “An act relative to the tax levied [765] on the Jersey Bank.” A warrant of distress and sale, under the hand and seal of the Chief Justice of the State. The deed of the sheriff of Bergen county, to the State, dated 14th May, 1811.
    A witness proved the possession of Elizabeth Helmes, one of the defendants, of the premises in question, at the time the ejectment was brought. That the Jersey Bank was in possession more than five years before the day of trial; that the house at that time was not finished; that the cashier of the Jersey Bank moved out of the banking house in June, before the trial, and that Elizabeth Helmes, one of the defendants, came immediately into possession, and lived in it ever since. The witness did not know to whom Low, the cashier, was tenant, when he moved out of the house. A deed [*] from Cornelius Van Vorst to Anthony Dey, for Powles Hook, which included the bank lot, dated 26th March, 1804, and proved by John Van Vorst; that he knew the premises; that the Jersey Bank had occupied them for some years past; that Cornelius Van Vorst, the father of the witness, had had the premises in possession as long as the witness could remember, which was twenty-five years, at the least; a deed from Anthony Dey to Abraham Yarick, date 18th April, 1804, for a tract containing the premises; a deed from Abraham Yarick to Richard Yarick, Jacob Radcliff and Anthony Dey, dated the 20th of April, 1804, including the premises; a deed from Yarick, Radcliff and Dey, to the associates of the Jersey Company, date 11th October, 1804; a deed from the associates of the Jersey Company to the Jersey Bank for the lot on which the banking house was built, dated 5th August, 1805; and a release from Cornelius Yan Yorst to the Jersey Bank, dated 30th July, 1806. And it was also given in evidence, by Peter Gordon, Esquire, treasurer of the State, that he was State treasurer in the year 1810, and has been so ever since; that the Jersey Bank never did pay the tax reqxrired of it, by the act laying a tax on bank stock; that he sent to the president and directors of the Jersey Bank a certified copy of the act entitled “ An act to tax bank stock,” before the tax become due; and to the best of his memory, he sent also enclosed, a printed copy of the act; he sent it by mail. It was also proved by the testimony of George Charles Herford, a clerk in the bank, that the president of the Jersey Bank, before the first day of January, 1811, received a printed copy of the law of 2d November, 1810, sent by mail.
    This demurrer to evidence was argued this term by li. Stookton, I. H. Williamson and Griffith, for the defendants; and L. H. Stookton and Hunter, for the plaintiff.
    Before the commencement of the argument, [766] Griffith, in behalf of the defendants, filed a challenge to [*] the Chief Justice, alleging the fact that the Chief Justice had issued the warrant of distress and sale. As he should contend, that act laying the tax was void; the Chief Justice, by issuing the distress warrant under the act, had formed and delivered an opinion in the cause, to wit, that the act was a valid one; but it turning out that the Chief Justice held a few shares in the stock of the bank, he considering himself as having an interest in the cause, withdrew from the bench,' and thereby put an end to the further consideration of this extraordinary question.-
    The counsel, on the part of the defendants, took the following points:
    '1st. That as the State claimed title through a corporation, it was necessary to prove the existence of the corporation; that no evidence had been given that the association of men, under the name and style of the Jersey Bank, were an incorporated body.
    • 2d. The sheriff had no authority to sell the premises to the State. The act authorizes the treasurer to purchase in his own name,, and the highest bidder to be the purchaser; the sale was therefore a void nugatory act, and contrary to the authority vested in the treasurer.
    3d. The act did not create a lien on the land; the premises of the deed conveys the right of the bank at the time of passing of the law; and although the habendum has these words, at any time afterwards, yet that did not cure the defect; the sheriff could not retrospect; therefore the deed was void.
    4tli. That the act did not contain provisions sufficient to authorize the sale; that it was incompetent for the purposes for which it was intended. The treasurer had no rule to go by in fixing the ratio of the tax; one-half of one per cent, was vague and uncertain. That the treasurer had no authority to proceed until [*] the annual period of The tax came round, and not at the.first payment; that it was to the annual period that the summary remedy applied; that the Legislature did not ascertain in the law the amount of capital stock paid in; the treasurer had no given rule by which he could assess the tax; and, therefore, could make no certain return of it. No step had been taken by the treasurer to ascertain the amount of the capital stock paid in. The bank ought to have had an opportunity to have been heard on this point.
    [767] 5th. There was no evidence of the treasurer’s making any return to the Chief Justice. The recital of that fact, in the warrant of distress, not sufficient.
    The counsel for the plaintiff contended, that as to the facts set up on the part of the plaintiff, the demurrer to evidence admitted them; that it was the legal consequences of admitted facts, that were to be determined in a demurrer to evidence; that sufficient facts had been proved to the jury, to presume all the necessary facts to enable the plaintiff to maintain the action; that the act was a plain act, laying a tax on the Jersey Bank, and had been executed according to its spirit and letter.
    The argument took up several days; and the court took time to advise, in the vacation. Between the September and November Terms, Pennington, J., was elected governor ; and in November Term, Mr Justice Rossell, delivered his opinion, and pronounced the judgment of the court.
   RosseEli, J.

The first objection taken by the demurrants, is, that the plaintiff has not proved the Jersey Bank a corporate body; without such proof, they say, the deed from the Jersey associates, to the Jersey Bank, is a nullity; that in ejectments brought by corporations, it is absolutely necessary to produce the act of incorporation; that the lessor of the plaintiff' being a purchaser at the sheriff’s sale, of the lands of [*] a corporation, and coming in under their title, is bound by the same rules of law, and that no evidence inferior to the charter of incorporation, can be sufficient to entitle a recovery.

To this, it has been answered, by the counsel for the plaintiff) that the authorities relied on by the demurrants were on motions for nonsuits; that many things might be taken advantage of on such motions, that would not prevail on demurrer; that if the best evidence is not offered, and is objected to, the plaintiff may, by further search, produce the best evidence, but he is deprived of this privilege by the demurrer. For this reason, on demurrer, all facts of which there is any proof, are well proved, as well as all fair deductions from these facts. In ejectment, a sheriff’s deed is offered without an execution or judgment; the defendant demurs. The fact of the deed is admitted, and the plaintiff shall not be driven out of court; for, if the objection had been taken, he could have produced the judgment and execution. That the deed from the Jersey associates to the Jersey Bank, the possession under that [768] deed, and the several acts of the Legislature, recognizing-the Jersey Bank, are proof sufficient of their incorporation.

This is certainly a new question in this State, and the court, in making up their opinion, cannot have the benefit of former decisions. In looking into the English authorities, we find but very little that applies to the main question; the disputes respecting corporate bodies there, have generally been concerning their power of election, and the authority of their officers, &o., &o. I have, however, found a few authorities, which in principle, according to my apprehension, will apply to the present case. In Douglass’ Reports, lift, on motion for a new trial, Lord Mansfield declared, “that no objection to a witness should be received, that was not made at the trial; if it had then been [*] made, it might perhaps have been shown, there was no residue or a release.” In the case before us, the proof is admitted; the defendants demur; and the plaintiff is precluded from giving, by further search, that proof, the defendants now declare indispensable. In the case of the Mayor of Kingston, upon Hull v. Horner, in Cowper, 102, on motion for a new trial, it appeared the action was brought by the corporation for port duties. Lord Mansfield said, “ It was admitted that the title of port duties once subsisted in the king; if so, it could not be denied he had an undoubted right to grant them to his subjects; and although no grant was shown at the trial, it had been fairly left to the jury to presume a grant, notwithstanding it was within the time of legal memory; they showing by their books, that they had for a great length of time, been in the practice of receiving such duties, which was a sufficient ground for the jury to find in their favor.” lie lays it down “as an established rule of law,” that though the record be not produced, nor any proof adduced, of its being lost, yet under circumstances, it may be left to the consideration of a jury, whether there is not sufficient ground to presume a charter. “ In the present case, (he continues) taking it for granted, that such charter would have given the plaintiff a title, I think it was properly left to a jury, whether they would presume such grant; ” and in the marginal note it is said, “a grant or charter from the crown, which ought to be by matter of record, may, under circumstances, be presumed, though within the time of legal memory.” The rule for a new trial was, by the whole court, discharged. In 1 Strange, 309, Withers v. Warner; in error, on demurrer to the deolai’ation, for a variance between London and the city of London, it was argued that every city must be so, either by charter or prescription; and therefore, to say the court will take notice of cities, is to say [*] they [769] will take notice of charters and prescriptions. The court, although at first strongly inclined to support the judgment, on consideration, were of opinion, that they must take notice that London was a city, it being mentioned to be so in several acts of Parliament, and they therefore held the error to be verified, and the judgment was reversed. In a case cited by the counsel for the plaintiff, of the Dutch West India Company v. Henriques Van Moses, 1 Strange, 612, it was adjudged, that if no name be given to a company or corporation, at their foundation, they may collect a name by reputation, by which they might sue or be sued; and the case of Queen’s College was cited in support of that point.

From the foregoing cases, it is shown, first, that circumstances may occur, sufficient to warrant a jury in presuming a grant, though none be shown, nor any evidence concerning it. Secondly that courts are bound to take notice of cities, though confessedly founded by charter or prescription, merely because they are so called in acts of Parliament. And lastly, that corporate bodies may acquire a name by reputation. The question then arises, whether the case before us comes within any, or all of the above rules of law. The plaintiff has produced a deed from the Jersey associates, who were legally seized of the premises in' question, to the Jersey Bank, for a valuable consideration. This deed has been properly acknowledged and recorded by an officer specially appointed for that purpose. They have also proved that the Jersey Bank was in the possession of these premises from the year 1805, to the year 1812; and that in several acts of the Legislature of this State, the Jersey Bank is recognized and described by that name. On this last point, it has been urged by the counsel for the defendant, that a mere name, in an act of the Legislature, does not imply an incorporation. In cases like the present, I think it does; words must be taken in their common [*] signification. The term bank, is universally understood, and where uncoupled with any other words of description, must, with us, always mean a corporate body, which loans money to others; more especially, when taken in connection with the title, to the act to tax bank stock.”

If then, from the above evidence, a jury would be warranted in presuming a corporation, this court may fairly draw the same conclusion, although the corporation itself should have been the lessor of the plaintiff; much more so, when a purchaser at sheriff’s sale, is the lessor. The State claims'a debt of the Jersey [770] Bank; execution is issued, and a sale of their property is the consequence. In all this, the Jersey Bank is the adversary of the State; and I know not by what law the bank could be compelled to give up their title papers. Shall then a purchaser at sheriff’s sale be bound to produce evidence withheld by his adversary, aud which he may not have the power of reducing to his own possession ? I think not. And from all the circumstances of this case, 1 think a charter might justly be presumed; and if so, the plaintiff is not precluded from recovering possession, by the non-production of the charter of incorporation. ,

The second objection to the demurrants is, “ that there is not any legal proof that the treasurer made a return to the Chief Justice, as he was directed to do by the act: that this return was the only foundation on which a justice of this court, could issue his warrant of sale; that the recital in the warrant, that such return was made is not evident of the fact. ISfotice should also (it is said) have been given to the Jersey Bank, of the amount of tax demanded, to give them an opportunity of appealing, if the assessed sum was too high.”

I am opinion, that the recital in the warrant of the Chief Justice, that this return was made to him by the treasurer, is good proof of the fact. Take the case [*] of paupers. The complaint of the overseers of the poor, that a poor person is likely to be, or has become chargeable to the township, is the foundation of the justice’s authority to remove him. Yet the recital in the order of removal, that such complaint was made, is ever considered (without controversy) as proof of the fact. The recital in a sheriff’s deed, of the time of advertising, the day and hour of sale, is prima fade evidence of these circumstances. It is true, a purchaser at sheriff’s sale, is bound on trial, to produce the execution and judgment, b}^ the authority of which such sale was made; not because there is any doubt of the existence of such execution, but both being matters of record, that it may be compared with the judgment, and see if it has been issued and recorded as the law directs; necessary duties, independent of the authority of the sheriff, and in which he could have no participation or control. The true distinction, as I understand it, is this: — Wherever the returning officer has full and complete official cognizance of the fact he returns, his recital is prima faoie evidence of the existence of such fact, and it lies on the party injured, to prove the falsity of the return.

But when the substance in issue depends .on some other matter, of which, from its nature or situation, he cannot necessarily be informed, as not appertaining to his office, the recital of such matter will not be [771] taken as proof. The Chief Justice having, in his warrant of sale, recited that a fact of which he was necessarily and officially informed, and on which his power to issue such warrant entirely depended, was actually performed, full faith and credit are to be given to his uncontradicted declaration. With respect to the necessity of the treasuTer’s giving notice to the Jersey Bank of the sum assessed, I think it did not exist. An act altogether nugatory, and not required by the law; there can be no necessity of performing. That this notice was not required by the law, is manifest; [*] that it could not have been of any benefit to the bank, will be as manifest on reflection. The justices of this court, to one of whom the treasurer was to return the defaulting bank, had no authority to reduce or increase the amount of tax so returned, they were ministerially to issue a warrant of sale, on application of the treasurer’, for the sum returned, and here their authority was at an end.

. The commissioners of appeal, in cases of taxation, chosen by the people at their town meetings, are to convene on the second Tuesday in November, annually, to discharge the duties of their office; and on that day only, can they lawfully assemble for that purpose, unless perhaps by adjournment. On neglect of any of the banks to pay into the treasury the amount of one half of one per cent, on their capital actually paid in, for thirty days after the first day of January, the treasurer was to return them to one of the justices of this court. No appeal then could be had under this law; and as it did not direct the treasurer to give the notice, as it could not possibly, under the circumstances of the case, be of the least benefit to the parties concerned, I cannot perceive any necessity for it. If it is contrary to usual practice in cases of taxation, the only answer that can be given, is, that so is the law. If the treasurer has arbitrarily assessed a greater sum than the law allows, the bank is not without a remedy.

A third objection is taken, that the sheriff’s deed was made to the State, when it ought to have been made to the treasurer, who was the highest bidder. That no power was given to the treasurer by the act, to purchase for the State; and by so doing, he exceeded his authority, which he was bound to pursue strictly. That no delivery was made to the State, and that for these reasons, the deed was void. To this it may be answered, that the act directed the treasurer to attend the sale of the premises in question, and to bid to the amount of the tax assessed; and if he became [*] the purchaser, to take measures to secure the State. He [772] attended the sale; became the purchaser at the sum specified. How then was he to secure the State, but by taking a deed in its name, for the premises purchased with its own funds ? Taking a deed in his own name, would not have secured the State, and would have been at least as direct a departure from the words of the act as the mode he has pursued. The treasurer, throughout the whole transaction, was nothing more or less, in legislative contemplation, that the agent of the State. As such, he attended the sale, and became the purchaser; and as such, directed the sheriff to make the deed in the name of the State, to secure, as he was directed, the tax assessed; and I can see no other mode by which he could have fulfilled that provision of the law with safety to himself. If the treasurer may be considered as the agent of the State, it will not be denied, that a delivery of the deed to him, as agent, is as amply sufficient as if such delivery had been made to his principal. But it is said, the State is not bound by this deed, nor have they accepted it. The Legislature have been thrice in session since this sale was made; and we have not heard a particle of objection to the proceedings of the treasurer; and that they have accepted the deed, is in proof on the records of this court; how else has the State become the lessor of the plaintiff? But it is said this, is a private law, taking away the property of individuals, without trial or appeal, and must, therefore, be strictly construed. The distinction between private and public laws, is well defined in 1 Blaa. Com. 86. “ The statute of the 13 of Eliz; c. 10, to prevent spiritual persons from making leases for a longer term than twenty-one years,” is a public law, being a law prescribed to the whole body of spiritual persons in the nation. But an act to enable the Bishop of C. to make a lease to A. B. is a private act, concerning only the parties. The act in question is entitled, “An act to tax bank stock,” and enumerates all the banks then in the State. [*] How then can it be called a private act ? It is time, that statutes giving a new power of jurisdiction, must, in general, be strictly pursued. But there is a still .higher rule, — that all acts made pro bono publico, are to have a liberal construction; and highly penal statutes are often taken by intendment, 1 Strange, 353 and 6. This being a public act, for the support of government, must receive that construction which will best carry the clear intentions of the Legislature into effect. This intention was, by express words, to secure the payment of the tax due from the bank to the State; and the treasurer appears to have pursued the most direct means in his power to effectuate that intention.

An exception has lastly, been taken to the form of the deed itself, by one of the counsel for the demurrants. [773] “ That in the premises, the estate in the Jersey Bank in the lands in question, at the time of passing the law, is granted, and the habendum adds, at any time afterwards. As the granting and conveying part sells all the rights held on the 2d of November, the habendum cannot enlarge the grant, and as there was no lien on the lands on the 2d of November, the deed is void.” In Cowper, 600, Lord Mansfield says, “ The rules laid down in respect to the construction of deeds, are founded in law, reason, and common sense; that they shall operate according to the intentions of the parties, if by law they may; if not in one form, yet in another, to effectuate that intention.” In 2 Jila. Com. 302, it is laid down, “that if the words of a deed clearly and legally declared the parties’ meaning, it is sufficient.” And again, “ the office of the habendum is to determine what estate or interest is granted by the deed; though this is sometimes performed in the premises, in which case, the habendum may lessen, enlarge, explain or qualify; but not totally contradict, or be repugnant to the estate granted in the premises.” The habendum in the sheriff’s [*] deed, grants the estate that the Jersey Bank held on the 2d of November, and at any time afterwards.” This, though it may enlarge the grant in the premises, is not repugnant to it. The sheriff’s authority to sell, commenced at the time the execution was put into his hands. In consequence of this power, he sells all the right of the defendants at the time the lien took effect; his power extended no further; to convey such right, was clearly his intention, as well as the expectation of the grantee; and, in my opinion, this intention is well expressed in the instrument itself.

Several other points were taken by some of the counsel for the demurrants; but as they were not strongly urged, I do not think it necessary to notice them particularly.

As this is a cause of considerable magnitude, and has excited much feeling in.this State, I lament that circumstances have deprived me of that assistance which I might have reasonably expected, from opinions of my brethren. But from the best consideration of this subject I have been able to give it, from laborious investigation, I am of opinion, that the plaintiif have judgment.

Judgment for plaintiff.

Affirmed, January 1816. See Penn. 1062, note Gordon v. New Brunswick Bank, 1 Halst. 100. Cited in Jaques v. Hulit, 1 Harr. 38. 
      
       See 3 Johns. Cases, 159; 1 Johns. Sep. 241; 5 lb. 29; 4 Oran. 219.
      
     
      
       See 5 Halst. %7‘¿.
      
     
      
       This judgment was affirmed by the Court of Appeals in Jan. 1816.
     
      
      Mahlon Dickinson, Esquire, having been appointed third Justice of this court, in vacation, between September and November Terms, in the place of Justice Pennington, and not having heard the argument, gave no opinion.
     