| N.J. | Nov 15, 1837
Respondeat Ouster is not a judgment of course on demurrer overruled. But where there is a real substantial defence appearing upon affidavit, leave to plead may be granted upon payment of costs, if applied for at the same term.
Mr. Jeffers. These actions are brought against the defendants for overflowing meadow by means of a mill dam across Salem Creek.
The question involves the constitutionality of the act of the Legislature of this State, authorizing the erection of the dam. Besides, the cases are brought into this court by issues directed by the Court of Chancery.
As the opinion of the Court overruling the demurrers, was delivered at the last term in the absence of the defendants' counsel, the case may be considered as standing on the same ground as if applied for at that term.
Considering the importance of the question involved, I concur with the Chief Justice, in granting the rule on payment of costs.
Rule granted.