Volume 1 — Delaware Reports

<p>A deposition to a leading interrogatory will not be suppressed at the trial if full opportunity has been given to object to it before.</p> <p>Words spoten to a magistrate, though slanderous and malicious, are not actionable: but, if the slander be proved aliutme, they may be given in evidence to aggravate the damages.</p>

<p>Capias case for use and occupation. Plea non assumpsit. Issue.</p>

<p>Trover will lie against an administrator personally for a conversion by him, though the property came to him with the esta.e of his intestate.</p>

<p>This was an action of debt on the official recognizance of George Platt, formerly sheriff of New Castle County, against the defendant, one of his sureties. Plea, performance, and replication, assigning breaches, &c.</p> <p>The plaintiff, David Roe, had a judgment in the Superior Court for the County against Simon Spearman, payable by -instalments: one-third on the 1st of April, 1846; one-third on the 1st of April, 1847; and the remainder on the 1st of April, 1848; upon which a fieri facias had been issued to Jacob Caulk, the preceding sheriff', returnable to May Term, 1846, and which had been levied on the goods of Spearman, and stayed by order of the plaintiff, on part payment of the judgment by Spearman, and his entering into bond to the plaintiff for the safe keeping and forthcoming of the property which continued in his possession. Afterwards a further writ of fieri facias was issued upon the judgment to George Platt, sheriff, on the 14th of July, 1847; and on the same day a venditioni exponas was sued out and placed in his hands, commanding him to sell the goods levied on in the first exechtion; to the first of which he made return at the November .Term, 1847, “ Goods levied on, October 16, 1847, as per inquisition, &c.and to the latter he made return at the same term as follows : “ Within goods advertised to be sold October 16, 1847, and pn that day not to be found within my bailiwick.” It was proved that Spearman had driven away from a farm of his in New Castle County to Philadelphia, in the latter part of September of that year, a large amount of live stock, consisting Of cows, oxen, mules, and horses, to the value of seven hundred dollars; and had gathered and sold from his orchard on the farm between three and four thousand dollars’ worth of peaches during the months of August and September, the same season. The plaintiff, it-appeared, resided out of the State, and had no attorney or agent in it at the time to attend to his interests, or give directions to the sheriff in regard to the matter. The third instalment of the judgment was not due when the last execution was issued, and the sum demanded in the action was the amount of the two first instalments with interest.</p>

<p>In a mixed possession, the law adjudges it to him who has the legal title.</p> <p>The boundaries in a deed are to be first regarded; the courses and distances next.</p>

<p>Summons case. Nam/? Pleas. Non assumpsit; payment and discount, and the Act of Limitations. Reps, and issues.</p> <p>This was an action brought by the Bank of W. and B. as the holder of anote dated I8th Jan. 1819, for $2,000: against W. B. Cooper, adm’r. of Thos. Cooper, who was the indorser of said note.</p> <p>The note was as follows:</p> <p>“IS January, 1819.</p> <p>For $2,000.</p> <p>Sixty days after date I promise to pay to Thomas Cooper, Esq., or order, two thousand dollars, without defalcation, for value received; negotiable and payable at the Bank of Wilmington and Brandywine. 0. HORSEY.</p> <p>Credit the drawer, Thomas Cooper.</p> <p>To be done for eighteen hundred dollars. 0. H.”</p> <p>The note was indorsed “Thomas Cooper.” Noted Mar. 21. Pro’t. Mar. 23. Cr. Dec. 13, 1828, $1.020 44 in full of in’t,</p> <p>The declaration alledged the making and indorsement of a note of $2,000, and averred “that afterwards when the said note became due and payable according to the tenor and effect thereof, to wit: on the 22nd of March, in the year afs’d. at Wilmington, in the county of Newcastle and state afsd. to wit: at Sussex county afsd. the said note so indorsed as afsd. was duly presented for payment to the said 0. Horsey and the said 0. Horsey then and there had notice of the said indorsement made thereon as afsd, was then and there requested to pay the said sum of money in the said note specified according to the tenor and effect of the said note and of the said indorsement so made thereon as afsd. but that the said 0. Horsey did not nor would, at the said time when the said note was so presented to him for payment thereof as afsd., or at any time afterwards, pay the said sum of money therein specified, or any part thereof, but wholly neglected, &c. of all of which said several premises, the said Thomas Cooper afterwards, &c. had notice.” The second count declared on a note made by 0. Horsey, and indorsed by Thos. Cooper to plffs. for $1,800, and then averred a presentment to 0. Horsey and non-payment as in the first count.</p> <p>' The execution of the note and the indorsement were admitted; also, the probate by the cashier. The Notary Public being dead, his handwriting was admitted and the protest read, subject to all legal objections. The protest was dated 20th March 1.829, and stated a presentment at the house of the drawer, O.-Horsey, who was not at home “and the said 0. Horsey notappearing atthe said bank, nor any person or persons on his behalf, to pay off the sum due on the said note, and the indorser being duly notified of the non-payment thereof” the protest was thereupon made. The notary’s book was also produced, in which was the following memorandum:—</p> <p>“B. W. & B., March 20, 1819.”</p> <p>(Copy of the note and indorsement.)</p> <p>“Noted, protest sent to bank.”</p> <p>Thomas M‘Dowell, Esq. sworn. Proves the handwriting of Edward Roche, the Notary Public, by whom this protest and memorandum were made. He is now dead. This is his notarial book, and the official registry of the demand and protest of this note. The book came to me with the records and dockets of Mr. Roche, who. was a magistrate, and whom I succeeded in office. I am also a Notary Public. The mails have usually left Wilmington for Georgetown on Mondays, Wednesdays and Fridays. Mr. Roche was in the habit of notifying the indorser on the last day of grace. If the drawer or indorser lived in town, he called; if out of town, he mailed a letter on the last day of grace. Thomas Cooper lived in Georgetown. The note became due on the 19th March 1819, payable on the 22d. The date at the top of the register, is the time the notary received the note from the bank.</p>

<p>Assumpsit on a warranty in the exchange of horses. Plea, non assumpsit. Issuer</p>

<p>Indentures of apprenticeship will not be vacated merely because the master is compelled to take the benefit of the insolvent laws.</p>

<p>Exclusive possession is sufficient to maintain trespass q. c. /. against one entering without license, or a legal title.</p> <p>In a case of common possession by two or more persons, the law adjudges the rightful possession to him who has the legal title; and no length of holding in such cqse can give title by posession, against such legal title.</p> <p>What kind of possession will give title to real estate, depends on the nature and condition of the property itself. An actual inclosure is the most obvious proof of possession, but itis not indispensably necessaryfor such purpose: cutting wood, or grass, or even the pasturing of cattle repeatedly and as a matter of exclusive right, upon uninclosed land, is evidence of possession, and if exclusive and adverse in their character to the rights of all others, and continuous for twenty years, will confer an absolute title by possession merely.</p> <p>Ro act, however, which does not amount in itself, to an assertion of right to the soil, can be evidence of possession of the soil. Thus the use of water for a mill, or any other privilege connected with the use of the water simply, is not of itself alone, evidence of title tq the land covered with it; because the right to use the water for such purposes, may well be in one, while the title and possession of the land covered with the wdter, subject to that easement, or privilege, may remain in another person.</p> <p>If a deed admitted in evidence, recites another deed as duly recorded, it will not be necessary to produce the original, nor the record of the recited deed, nor to account for the absence of it, to make the recital of it evidence, with whatever weight its connection with the other proof in the case may give it.</p> <p>The words “together with all and singular the mill, mill-dam, races, water-courses and other the appurtenances" contained in a deed for mill property, will not convey the bed of the mill-pond, or the land covered with the water of it.</p>

<p>Certiorari. Judgment before a justice of the peace in an action at the suit of Thomas May vs. Nathaniel D. Hasten. An execution issued in 1826, on which a sale was made, but no part applied to that execution. Hasten died in 1826, and his widow administered, and afterwards intermarried with Cooper. An alias fi. fa. was issued in 1829.</p> <p>This was the error assigned, that the alias fi. fa. issued several years after the defendant’s death, and without any sci. fa.</p> <p>The case was argued by Frame for the plff. in error, and Johnson for deft, in error.</p>

<p>The proper proof of a sealed instrument is by the attesting witness, or by proof of bis handwriting if'he be dead, &c.</p> <p>Proof o£ the handwriting of the obligor is not sufficient.</p>

<p>Proof of facts amounting to a payment or discharge in law, does not support a plea of actual payment.</p> <p>Evidence of a bond to Sarah Eliza R. does not support the averment of a bond to Eliza R.</p> <p>The admissions óf a party having a community of interest with the other defts. are evidence against all.</p>

<p>A bill of particulars does not restrict the party furnishing it to distinct proof of the several matters which it contains, but he may prove by general evidence the value of the whole, or the aggregate of his demand.</p> <p>A provision in the charter of a company, that any trustee or manager of it, who had contracted debts or expended money for the benefit or improvement of the property of the association, before its incorporation by the Legislature, shall, after its incorporation, have a claim and a lien on the proceeds of the sale of such property" belonging to the company, gives a legal remedy against the company, and not an equitable remedy against the proceeds of such sale merely, and an action of • assumpsit may be maintained .for the recovery of it, to be paid out of the proceeds of the sale of the property.</p> <p>Parol proof that a bond given to such a creditor for two thousand dollars was accepted by him in lieu of all other claims against the company, is admissible, and does not contradict, or vary, or add to the terms of the bond, but is consistent with it.</p>

<p>A By-Law giving the bank a lien on stock for the debts of the holder is valid.</p> <p>The discharge of an indorser by the acts of the holder cannot be set up at law after judgment.</p>

Action of ejectment for a vacant lot in the city of Wilmington.

<p>Certiorari. Exceptions. 1st, But one of the executors was summoned, and judgment is given against both. 2nd, The judgment is against the executors personally, and it ought to have been of assets. 3rd, The execution is against the executors personally, Whereas, it ought to have been cle bonis testatoris.</p>

<p>If constable takes the body to prison, he must leave a certified copy of the execution to authorize the prisoner’s detention.</p>

<p>Certiorari. This was an action brought by Webster against Humphries, the constable, for the amount of an execution, at the suit of the said Webster against Andrew Alston, which the said constable had not returned agreeably to the command thereof; and thus rendered himself liable. Big. 341.</p> <p>The question was, whether the justice had jurisdiction.</p>

<p>A variance between a contract alledged and one offered in evidence, is fatal; and this, whether the action be upon the contract or in tort arising out of it.</p> <p>Distinction between allegation of an instrument by its tenor and by its substance.</p> <p>The court will not reserve a clear point for argument before all the judges however important the point may be, in the particular case.</p>

<p>An agreement to board and lodge another implies an engagement to pay the usual and reasonable attentions to the health and comfort of the boarder to be expected under the circumstances, and srich reasonable and customary attentions will furnish no ground for a distinct or additional charge against the boarder.</p> <p>There is nothing, however, in this relation or agreement to entitle the hoarder to expect or demand of the family boarding him, the usual and often arduous attentions and services of a nurse, in a case of extreme or protracted illness, without paying additionally for such services ; but if such services are rendered by the wife or other member of the family, through a series of years, to an infirm and aged boarder, with the hope and expectation merely of being remembered in his will and rewarded for it, by devise or bequest, after his death, it will furnish no ground of action for such services against his executors.</p>

This case arose on a motion for a rule on Charles H. Warren, the respondent, to show cause wherefore a writ, in the nature of a writ of quo warranta, should not issue against him for usurping the office of a road commissioner in Pencad'er Hundred, New Castle County.

Rule to show cause why an inquisition should not be set aside. The deft, sold a vessel to plff. for @1,000, and warranted her sound. She proved to be unsound and not sea worthy. Plffs. had been compelled to pay several sums on account of goods being damaged, and the vessel finally sunk. An action was brought on the warranty and judgment went by default. The plffs. issued a writ of inquiry, and the inquest found @20 damages.

' This was an issue of devisavit vel fion, ordered by the .Register of Wills for New Castle County, to try the validity of the last will and testament of Samuel B. Davis, deceased.

<p>Appeal from the judgment of a justice of the peace. Narr. Assumpsit for dividends. Plea, non-assumpsit. Issue.</p> <p>This was an action by Bush, for the dividends on. nine shares of stock in this turnpike, standing in his name on the books of the company. This stock originally belonged to James Eaves. lie placed the scrip in the hands of John Platt, as an indemnity against some suretyship; for which, however, John Platt never suffered any loss. John Platt holding the stock thus, assigned it (irregularly,) to James Platt. There was never any transfer on the books of the company, from Eaves to Platt. James Platt assigned the stock and transferred it regularly, on the books of the conrpany to Potter, and Potter transferred it regularly in like manner, to Bush, the plff. below. The company has paid previous dividends on this slack to Bush. The stock was attached and sold as the property of James Eaves, who' had never transferred it to any one on the books of the company. After this the company refused.to pay the. dividends to Bush; and this action was brought to recover them. The regularity of the transfer from Potter to Bush, by Edward Tatnall, the treasurer of the company, a special agent for that purpose, was proved.</p> <p>Verdict for plff. subject to the opinion of the court on these facts.</p>

<p>Writ of Error to the justices of the Supreme Court.</p> <p>This was an ejectment for-acres of land in Kent county, called “Jones’ fancy.”</p> <p>William Ford the grandfather of the lessor of the plff., being seized of the lands in question, by his will duly executed, bearing date the 15th August, 1771, devised the same to his son Daniel Ford, “to him and his heirs of his body lawfully begotten, or assigns.” William Ford died seized, and Daniel Ford entered under this devise; and, on the 25th Nov. 1784, conveyed the land by deed of bargain and sale to John Harrington, his heirs and assigns forever, with the usual covenant of warranty against himself and his heirs, and all persons claiming through or under him or them. This deed was made before the passing of an act of assembly for docking estates tail. The deed was made to Harrington for a money consideration, but it effected an exchange of Jones’ fancy by Daniel Ford,with the heirs of William Ford, Jr., his brother, for certain other property of equal value, devised by old William Ford, to his son William Ford, Jr., who died intestate and without issue. The exchange was thus effected. Daniel Ford conveyed to Harrington, who paid the consideration, according to the recital of the deed, to the heirs of William Ford, Jr.; and these heirs, to wit: Thomas Ford and wife, Martin Ford and wife, and William Downs and wife, in consideration thereof, conveyed to Daniel Ford the lands so devised by William Ford, Sen., to William Ford, Jr., which had by his death descended to them. Martin Ford, the lessor of the plff., is the oldest son of Daniel Ford and is now the owner, by descent, of the lands so conveyed to his father. • Margaret Sutton, one of the defts., was the daughter of Rebecca, one of the children of old William Ford; but she showed no title in1 herself except the presumption arising from a possession of more than thirty years. The other deft, was her tenant, or in by her permission. At the trial she proved that the lands acquired by Daniel Ford of the heirs of William Ford, Jr., in exchange for Jones’ fancy, were of equal value with that tract; that he died intestate and that lands of equal value descended from him to the lessor of the plff.</p> <p>Exceptions were taken to the charge of the court below; and the case came up and was argued here hy Bates for plff. in error and Ridgely for deft., in error. All the judges were present, but Harrington did not sit, having, as Chief Justice of the late Supreme Court, delivered the charge excepted to.</p>

Writ of error to the Supreme Court, in and for Newcastle county. Johns, Jr., Chancellor, did not sit on account of h:s connexion with the respondent. This was an action of assumpsit brought by James Booth, now deceased, against John Stockton, also deceased.

Newcastle County. Black, J. did not sit, he having been of counsel below. This was a bill filed by Euphemia Newbold, against Anthony T. Newbold the heir, and Jacob Ridgeway, a purchaser, for an assignment of dower, and for damages from the death of her husband. Barzilla Newbold, the husband, died seized of the land in Feb. 1815, and devised it by will to his two sons Anthony T. and Daniel Newbold. The heirs entered; and, by deed dated 4 June, 1833, made partition.

<p>Appeal from the Court of Chancery for Newcastle county.</p> <p>“Jacob Broom by his will, Ordered his executors to sell his real estate, and from the proceeds, together with the balance of his personal estate after payment of debts and specific legacies, to create a fund to be applied and distributed as follows: 1st. To invest so much thereof as the executors should think necessary to yield $600 per annum, to be paid by them to his wife; the residue of the said fund to be applied and distributed as follows: one-seventh to J. M. Broom his son; one-seventh to his daughter Ann Littler, and five-sevenths to trustees, to hold one-seventh for the use of his daughter Hetty W. Lyon, the proceeds to be paid to her separate use during her life; and after her death, to be paid to her children or legal representatives; one-seventh for the use of his daughter Sarah Roberts, the proceeds to be paid in the same manner; one-seventh for the use of John and Rachel Roberts, the children of his deceased daughter Elizabeth, to be paid to them when they severally arrive at age, and in the mean time, the proceeds to be paid to their maintenance and education; one-seventh for the use of his son Jacob P. Broom, the proceeds to be paid to him during his life, and after his death the said one-seventh to be paid to his children or representatives, and the remaining one-seventh for the use of his daughter Livinia R. Broom, to be paid in the same manner.</p> <p>He constituted the said James M. Broom sole executor and trustee. The testator died in 1810. J. M. Broom took out letters; and, in execution of the will, sold all the real estate so directed to be sold. He passed sundry administration accounts, the last of which is on the 7th May, 1816, and shows a balance in his hands of $52,925 48; and also a trustee account on the 29th Nov. 1816, showing a balance of $-</p> <p>The said James M. Broom purchased sundry tracts of land and other real property in- Pennsylvania, Delaware, Maryland and Ohio, to a very large amount, and he re-purchased the estate iiTuscul'um,'> which had been sold under the will of his father to John Lowber, which estate he improved at a considerable expense, for his own residence. The deeds for all the property were taken to himself without any mention of the trust.</p> <p>J. M. Broom becoming embarrassed in his circumstances, and there being sundry judgments against him at the suit of defts., on the 31st May, 1826, executed a deed of assignment of all his property in Delaware, Maryland, Ohio or elsewhere, (except in Pennsylvania) to John Lowber, in trust to pay off the said legatees of Jacob Broom, the several sums to which they were entitled under the will afs’d., they executing a release. This deed recited that certain sums of money came to the hands of the said J. M. Broom, as executor and trustee under the will afs’d. of Jacob Broom “which have not been paid over to the persons entitled to the same, or invested in any separate and distinct investment by him as trustee; but the said J. M. Broom with the said moneys hath purchased sundry parcels of real estate, intending that the same should be holden for the use and security of the persons so entitled to the said moneys.” It further recited, that, from the depreciation of real estate “and the loss' of rents and inadequacy of the same, to meet the payment of interest received by the said devisees, and made by the said J. M. Broom since the year 1810,” and from other causes, he is unable to satisfy the demands of said legatees, but being desirous of doing them all the justice in his power, by appropriating these estates “which were intended for their use and benefit, to the satisfaction of their claims” he therefore made the said assignment. This assignment was acknowledged before the Mayor of Philadelphia, on the day 'of its date, (31st May, 1826,) and recorded in Newcastle,. Sept. 9, 1826.</p> <p>The dates of the several judgments claimed by defts. are as follows: Bank of Delaware, judgment entered 31st Oct. 1818, principal, interest and cost $1,824 58. Jeffries’ exr’s. judgment entered 18th Oct. 1825; bal. of prin., int. and costs $1,196 94. Monro’s adm’r. judgment entered 1st March, 1821‘; bal. of prin., int. and costs $929 22. Bank of W. & Brandywine, two judgment's, 3rd June, 1626, and 15th Dec. 1827, for $769 72.</p> <p>Under these circumstances the complainants’, legatees under the will of Jacob Broom, filed their bill for the purpose of securing these estates so purchased as they contend with the trust funds and in the-execution of the trusts, which gives them the equitable title to the lands,, not to be affected by the debts or incumbrances of the trustee James M. Broom.</p> <p>The Chancellor decreed, at the June Term, 1831, against the complainants, and directed payment, out of the proceeds of the sales of James M. Broom’s real estate, (which had been brought into' court) of the afs’d. judgments of defts. respectively against Ji M. Broom.</p> <p>Whereupon, an appeal was prayed and granted.</p>

New-Castle County. Joseph Yannini was the inventor and patentee of a mode of drawing lotteries and making schemes for lotteries on the combination and permutation principle, which has been adopted and used by Yates and M‘Intyre, by authority from him. Yates & M‘Intyre having purchased some lottery privileges in the State of Delaware, proceeded to drawing in a series of classes.

The court consisted of Johns, Jr. Chancellor, (the appeal being from- the decree of the late Chancellor) Clayton, Chief Justice, Harrington, Associate. Judges Black and Robinson did not sit.

<p>Plea in abatement. Demurrer and joinder.</p> <p>The declaration was in trespass quare clausum fregit against Jo- 1 seph Dutton. His death was suggested and Jacob Dutton, his administrator, admitted a party deft. Plea in abatement and general demurrer.</p>

Petition for freedom. The mother of the petitioner was a slave, and by the will of her master, dated 13 May 1797, was manumitted in these words: “I give to my daughter Betsy my negro girl Rhoda until she arrives to the age of 30 years, then to have her freedom from slavery.” The petitioner was born in 1805, before the mother attained the age of 30 years.

<p>A probate must disclose all the credits within the plff’s. knowledge.</p> <p>It is not sufficient to make a general reference to the defendant’s books for credits.</p>

<p>The proviso (sec. 10,) in the act of limitations, which allows one year for re-commencing actions in which the judgments have been reversed, &c., applies to suits pending at the date of said law, and on the 1st Sept., when its repealing clause took effect,</p> <p>A law which enlarges the time for bringing suit beyond the time allowed by the law-existing when the contract was made is not a law impairing the obligation oí the contract.</p> <p>Shcere. Would a law limiting the right to sue to a less time than was allowed by the law existing when the contract was made be unconstitutional, as impairing the obligation of the contract!</p> <p>In an action on a guardian bond, the plff. must show a sufficient breach in his replication or other pleading, or by suggestion on the record.</p>

Writ of error to the Superior Court for Hew Castle County, heard before Johns, Chancellor, Harrington, Chief Justice, and Milligan and Houston, Judges. Held: and is now held for the use of the members and the ministers of said church duly licensed and ordained according to the rules and discipline thereof.

<p>The court will not permit a party to demur after issue joined and jury sworn.</p> <p>Affirmative pleadings do not always give the right to conclude; this depends on the onus probandi and is in the discretion of the court.</p>

<p>Certiorari to justice. Trial by referees, report and judgment, thereon.</p> <p>Exception. That it does not appear that the referees were duly sworn.</p> <p>The record did not otherwise allude to the qualification of the referees than by the usual expression in the report “we the referees after having been duly qualified,” &c.</p>

<p>Summons debt. Pleas, nil debet; payment and the act of limitations. Reps, and issues to first and second pleas. Demurrer to the third plea.</p> <p>"This was an action for the arrears of an annuity of forty pounds granted by the will of Thomas Beeson to his wife Rebecca Beeson and charged upon the real estate devised to his two sons Jonathan and Thomas Beeson. The amount claimed to be in arrear at the death of Mrs. Beeson was $382 92 which sum plff. claimed, with interest by way of damages.</p>

<p>Fi. Fa. Sale made, inter alla, of the unexpired term of a lease of land from 1st January 1832 for one year. Sale made 1st August 1832.</p> <p>Rule to show cause why the sale of the term should not be set aside. First, Because it was not entered in the inventory and appraisement until after the sale; and, Second, Because it was not advertised in the notices of sale; which being proved—</p>

<p>Capias case. Pleas, Ne unques executor, non assumpsit, payment and discount, and act limitations. Replications and issues.</p> <p>This action was brought for the amount of a due bill ($65,) given by M‘Dowell to Nicholas Samuel for services on board of a light boat belonging to the United States. The evidence was that M‘Dow-ell was a deputy of the collector of the port of Wilmington, and received money to pay the wages of the hands employed in the light boats of whom Samuel was one. These hands were in the employment of the United States. The due bill was produced. It was as follows: February 8. 1828, Samuel M‘Dowell acknowledges to owe Nicholas Samuel $65, being the balance due for his services on board of light boat No. 2. (Signed) Samuel M‘Dowell.</p>

Ejectment. This ejectment was founded on a deed from A. Jamison, a former owner of the property, to John S. Vandyke in trust for his son, which deed the defts. alledged to be a forgery. It had not been recorded until about the time of bringing this suit though dated several years previous. Before recording, the deed was proved in open court by Henry Sinex one of the subscribing witnesses, the other being dead.

<p>A paroi promise revives a debt due by promissory note for six years.</p>

<p>Ejectment, Verdict taken subject to the opinion of the court on a case stated.</p> <p>The case stated set forth that William Woodcock and others by deed dated 12th March 1792, conveyed the land in question to Patrick 0‘Flinn, his heirs and assigns. That Patrick 0‘Flinn died intestate in July 1818, leaving a widow Sarah, and one child Elizabeth, the wife of Alexander Reynolds. After 0‘Flinn’s death Reynolds and wife went into possession of the land, and built a house on it and lived there till their death. Upon their death Sarah 0‘Flinn took possession of the land claiming the same under a deed of parti-tian executed by a certain Mary Huggins of the one part, and by Patrick O‘Flinn and the said Sarah of the other part, bearing date the 13th September 1811. Sarah 0‘Flinn continued to receive the rents and profits of the land in dispute, and acted as the owner thereof until her death in December 1839. On the 36th June 1819 Alexander Reynolds and wife executed a mortgage of this land to George Simmons and Eli Sharpe. On this mortgage the land was sold by the sheriff and purchased by the said George Simmons the plff ’s. lessor, to whom a deed has been made by the sheriff. Logan the deft, is in possession, claiming under Sarah O’Flinn’s title derived as aforesaid through the said deed of partition.</p> <p>Extracts from the deed:</p> <p>Indenture made 13th September 1811 between Patrick 0‘Flinn and Sarah his wife of the one part, and Mary Huggins, widow, of the other part. Here follows a recital that William Marshall deceased, was in his lifetime seized in fee of the several tracts and pieces of land mentioned in this deed except the premises now in dispute, designated in that deed as No. 7: that being so seized the said Wm. Marshall died having made a will; that by virtue of the said will the said Mary Huggins and Sarah 0‘Flinn, became seized of all the real estate of their father the said Wm. Marshall, “as co-parceners in fee simple.” Then follows this recital: “And whereas during the existence of the said co-parcenary the said Patrick 0 ‘Flinn, by virtue of an indenture of bargain and sale duly executed under the hands and seals of Wm. Woodcock and Letitia Woodcock, Samuel Cars-well and Margaret Carswell, for the consideration therein mentioned became lawfully seized as of fee, of and in a certain plantation or tract of land situate, &c.” (described as No. 7, being the land in question,) “which said tract of land called.herein No. 7, hath ever since the purchase thereof as aforesaid, been held, considered and enjoyed by the aforesaid co-parceners as and for a part of the estate so as aforesaid held by them in co-parcenary. And whereas, the aforesaid co-parceners have concluded and agreed to have, hold and enjoy their respective parts and shares of and in the before mentioned lands, tenements and hereditaments, with the appurtenances thenceforth in severalty; it is therefore covenanted, granted and agreed by and between the said Mary Huggins and Patrick O‘Flinn and Sarah his wife for themselves, their heirs, executors and administrators respectively; and they do hereby covenant, grant and agree to and with each other, their heirs and assigns respectively, that a partition and division of the same shall be and is hereby made and determined in manner and form following, to wit: Firstly, that the said Mary Huggins, her heirs and assigns shall and may henceforth forever hold and enjoy in severalty, all that the following described parts or shares of the estates so as aforesaid held in coparcenary which are hereby divided off, partitioned and allotted to her the said Mary Huggins, her heirs and assigns. ”</p> <p>■ (Here follows a description of the premises allotted to M. Huggins,) “and the said Patrick 0‘Flinn and Sarah his wife have granted, released and confirmed, and by these presents do grant, release and confirm all the aforesaid four several lots, tracts or pieces of land and hereditaments with their appurtenances to the said Mary Huggins, her heirs and assigns, as and for her the said Mary Huggins’ full share, part and proportion of in and to the estate so as aforesaid heretofore held in co-parcenary.</p> <p>(Then follow the habendum, and tenendum in the usual form with a covenant by 0‘Flinn and wife of special warranty against themselves and their heirs, &c.)</p> <p>“Secondly. That the said Patrick 0‘Flinn and Sarah his wife, their heirs and assigns shall and may from, henceforth have, hold, possess and enjoy in severalty all the following described shares or parts of the real estates so as aforesaid held in co-parcenary which are hereby divided, partitioned and allotted to the said Patrick 0‘Flinn and Sarah his wife, their heirs and assigns.” .</p> <p>(Here follows a description of the premises allotted to Patrick 0‘Flinn and Sarah his wife, in which is included the whole of the tract No. 7, being the premises in dispute, and the same which were conveyed to Patrick 0‘Flinn by the aforesaid indenture of Woodcock and others bearing date March 12, 1792.)</p> <p>“And the said Mary Huggins hath granted, released and confirmed, and by these presents doth grant, release and confirm unto the said Patrick 0‘Flinn and Sarah his wife, their heirs and assigns, the above four several lots, tracts or pieces of land, tenements and hereditaments with their appurtenances, as and for the ■ said Patrick 0‘Flinn and Sarah his wife’s full share, part and proportion of in and to all the real estate late of William Marshall, deceased, and, so as aforesaid held in co-parcenary. To have and to hold the same with every the hereditaments and appurtenances, to them the said Patrick 0‘Flinn and Sarah his wife, their heirs and assigns, to his, her and their only use, benefit and behoof forever.”</p> <p>(Then follows a covenant by Mary Huggins of special warranty, &c.)</p> <p>This deed was executed and acknowledged in due form. The certificate of acknowledgment bears date 21st April 1812. The deed was recorded September 2, 1812. .</p>

<p>Commutation not allowable for a fart of this road only.</p>

Assumpsit. Pleas, non assumpsit, payment, discount and the act of limitations. Issues. This was an action brought against the bank to recover the amount of a deposit alledged to have been made by plff. He had made, as he contended, a deposit in the bank of $600, and he had an entry of that amount in his bank book, which the bank alledged was a mistake. The bank’s books credited him with $400 only. The plff. produced and proved his bank book.

<p>Debt on a bond.</p> <p>Thomas H. Larkin one of the defts., summoned. Non est inventus, as to Rogers.</p> <p>The pleas were ne tonques executer and performance. Replications and issues.</p> <p>This action was on a bond given by William Larkin as manager of a lottery for the benefit of St. Peter’s church—conditioned to account for and pay over moneys received, &c.</p>

Covenant. Pleas. First. That deft, made no covenant with plfFL Second. That the supposed covenant in the narr. mentioned was made with Thomas Whiteman the constable. Third. That said Whiteman seized in execution certain goods of N. Coggins and that deft, undertook to be surety to said Whiteman for the forth-coming of said goods and that he had performed his undertaking with said Whiteman. Reps, and issues.

Case. Plea. Non assumpsit. Issue. Narr. The first count was on a promissory note from David Morgan to Christopher Brooks for $71, payable in six months and dated 14 February 1827. Second count. Indebitatus assumpsit for $71, the price of a horse and saddle. Third count. On a note, Thomas Stevens to Christopher Brooks for $71, and the guarantee of David Morgan in consideration of the sale of a horse and saddle by Brooks to Morgan. Fourth count.

Action on the case for harboring an apprentice. Plea. Not Guilty. Issue. To prove the plff’s. right to the service of the apprentice the plff. gave in evidence an indenture of apprenticeship executed by the Orphans’ Court of the state of Maryland for the city of Baltimore, binding the boy to plff. as a poor child.

Case. Pleas, non assumpsit; payment and discount; replications and issues. The action was brought on the following note and indorsement. Wilmington, 26th April 1825. @462 75 Sixty days after date, I promise to pay to John Erwin or order @462 75 without defalcation, for value received. (Signed) ELI LAMBORN.

<p>Debt on constable’s bond.</p> <p>This was an action against the deft, as surety in a constable’s bond for the negligence of the constable. The plff. had obtained a judgment against J. F. Clement for $50, and he issued an execution on the 9th October 1829, and delivered it to J. C. Allen constable, who neglected to levy it until the 3rd of November. On the 2nd Nov. an execution issued against Clement at the suit of John Gordon, which took all his property, and Jewell lost his debt.</p> <p>The only question was, whether the constable had used due diligence in levying this execution.</p>

<p>Case, for malicious prosecution. Plea, non cul; issue.</p> <p>This was an action for a malicious prosecution instituted by the deft, against the plff. before justice Paris, for a violation of the Sabbath day. Upon this charge the deft, obtained a state’s process against Rhodes, and had him arrested under circumstances of great outrage. The charge was founded upon the act of assembly of this state. Digest 483.</p>

<p>Assumpsit for a counsel fee. Plea, non-assumpsit; issue.</p> <p>The question was raised in this case whether an action would lie for a fee due to counsel.</p>

<p>A promise by an administrator will revive a debt barred by limitation.</p> <p>Surety in an administration bond is a witness in an action against the administrator, where there is no suggestion of a devastavit.</p>

Capias case. Narr. Plea, Not guilty. Issue. This action was brought against Wm. D. Waples for recommending a certain Thomas E. Waggoman to plff., as a person fit to be trusted when in fact he was insolvent. Plff. on this recommendation trusted him for a gig and harness, the price of which he lost. The plff. is a gig and harness maker in Sussex county. In May 1830, a stranger presented himself with the following letter of introduction: Millsiorough, Del., May 13, 1830.

<p>To declare in a different form of action from that in which the bail is taken releases the bail.</p>

<p>Infancy must be specially replied to a plea of the act of limitations.</p>

<p>An attorney is not competent to contradict his own entry of satisfaction on a judgment; and deny that the money was paid.</p>

Issue from the Orphans’ Court. The issue was to enquire and ascertain whether the sum of $438 64 Mrs. Griffith’s share of the balance due from Joseph Sudler the executor of Nathan Willey to the said James Johnson as guardian of the said Elizabeth Griffith “was lost by the wilful default or negligence of James Johnson the late guardian of the said Elizabeth” or whether any part, &c., was so lost.

<p>The court will entertain a suit for divorce though the defendant appears and does not deny the petition.</p>

<p>Replevin for a negro boy. The deft, pleaded “property in Levin H. Adams as administrator d. b. n. of William Brincklce deceased, and that he levied on the boy by virtue of an execution against Levin H. Adams administrator de bonis non of William Brincklce, at the suit of the Commercial Bank, for the use &c.”</p>

<p>Action on the case for use and occupation. Plea, non assumpsit. Issue.</p> <p>The deft, rented the house in June 1828 of one Shrowders. In January 1829 it was sold by virtue of a judgment and execution process as the property of Shrowders and purchased by Reed. Plff. proved his title and repeated recognitions by deft, as having repairs done on Reed’s account, &c.</p> <p>The deft, offered a paper with a view to controvert Reed’s title.</p>

This case came up on a caveat entered by Records, the plaintiff, before the Recorder of Deeds for Sussex County, under the provisions of a private act of Assembly authorizing Melson, the defendant, to locate and obtain a patent for certain vacant land in Broad Creek Hundred; and the first question which arose on the trial of it was, which party was entitled to the opening and conclusion to the jury.

<p>Alias scire facias d. s. b.</p> <p>The defendant pleaded First, Payment. Second, Nul tiel record. Third, that a fi. fa. issued, was levied on lands which were found sufficient to pay the judgment, and that to complete the execution of the judgment an elegit issued and was afterwards countermanded by the plff. Fourth, Levied by fi.fa. Fifth. Levied by fi. fa. and elegit. Sixth, Levied by elegit, with leave to give the special matter in evidence.</p> <p>The plff. tendered an issue to the first and second pleas; and replied to the four last by way of estoppel that since the happening of the matters therein alledged and set forth, to wit, on the 19 March 1821 a scire facias issued on said judgment to which the defendant appeared; and at the March Term 1822, judgment was rendered in favor of the said plff.</p> <p>To this the deft, rejoined that the judgment on the said scire facias was a judgment “amount to be ascertained by the clerk” and that no amount was ever ascertained. Demurrer and joinder.</p> <p>Frame for plff. contended that, although the amount had never been ascertained, the judgment on the scire facias estopped the deft, from pleading any matters that took place prior and which might have been pleaded to that judgment. 2 Tidd. 1046; 2 Saund. 72; I Do. 219. The object of a sci. fa. is to get execution; the cause shown in the fourth, fifth and sixth pleas is that the debt has been made, they deny that any thing is due. But by confessing judgment on the sci. fa. the deft, admits that something is due and he is estopped from now controverting his own admission. It does not alter the case that the amount has not been ascertained. The judgment admits something due and this raises the estoppel. The third plea does not alledge that the debt was satisfied either by the fi. fa. or the elegit; the facts stated therefore amount to no defence. Taking out execution is no satisfaction; and, unless the elegit was executed, this is no defence. The plea here negatives the payment as it statés that the elegit was stayed.</p>

<p>An officer, who had received money on an execution and delivered it to another person to be paid to the plaintiff without his order, is not a competent witness to prove the delivery of the money to such person, in an action by the plaintiff against the latter for money had and received to his use.</p>

<p>The plea of non cepit in replevin admits the property.</p> <p>A plea of property in a negro slave is not supported by evidence of her freedom, )</p>

Debt on an administration bond. Pleas, plene administravit; retainer, and debts of superior dignity. Replications and issues. Beckley was the administrator of Thomas Kearns. The breach assigned on the bond was that he had filed no inventory of the goods of Kearns, nor any account of his administration. The plffs. then showed a judgment at their suit against Kearns for $268 69, and a judgment of assets on a sci. fa. on this judgment against Beckley the administrator.

<p>Injuries to cattle, though trespassing, are actionable.</p>

This was an action of indebitatus assumpsit for the support and maintenance of two young children of the defendant by the plaintiff, from May,. 1850, until the commencement of the action. The defendant stood in the relation of son-in-law to the plaintiff, whose daughter he had married, and who was the mother of the children in question.

<p>A false imprisonment does not necessarily include an assault and battery.</p> <p>If an officer illegally imprisons a person he is liable not only for the time he is in the officer’s custody, but for all the time of his imprisonment.</p>

<p>Trespass, assault and battery. Pleas, Not guilty and justification.</p> <p>The case was this. Kennedy being in the plff’s. store and a dispute arising, the plff. ordered him out, when he refused to go. Plff. then took hold of him to put him out; and, in the struggle, they both fell down the steps and the plff. was badly injured.</p> <p>The case was submitted to the jury,</p>

<p>A covenant for the forthcoming of goods to be levied on at the suit of A. is broken by causing them to be levied on in the mean time at the suit of the covenantor.</p>

Trespass .quare clausum fregit. Plea, Not guilty; justification and a license. Three of the defts. were the road commissioners of Brandywine hundred, and the others their agents. On an application to the Court of General Sessions, an order had been regularly made to lay out a road through the plff’s. premises, according to a certain return of freeholders.

Trespass quare clausum fregit. Pleas, Not guilty; justification and liberum tenementum. Plff. proved the trespass, and that the locus in quo being a certain marsh in Redlion hundred, had descended from Patrick Porter, and had been in the several and undisturbed possession of plff. and those under whom he claimed from 1801-2 or 3 to 1821, since which time the possession had been disturbed by Reybold by repeated claims of ownership.

Rule to set aside the report of referees on a rule of reference out of Court. The evidence before the referees was that the parties had had frequent dealings prior to the year 1847, when Robert Burton, the deceased, paid Warrington eighty dollars and gave him his bond for nine . hundred dollars, which was afterwards paid by him.

<p>The Delaware Railroad Company was chartered in 1836, with authority to construct a railroad throughout the length of the State, hut no company was organized under the charter at that time. In 1849 the Legislature revived and amended the charter, with authority to the company to construct a railroad on a reduced scale, to extend from Dona River, in Kent, to the Nanticoke River, in Sussex County, under which amendment the company was duly organized, and under the charter as thus amended the defendant subscribed for forty shares in the qapital stock of the company, on which a call of three dollars per share was made by the directors of the company, payable on the first day of December, 1852. In 1853 the company applied to the Legislature for the purpose, and the Legislature amended its charter so as to authorize the abandonment Of the terminus of the railroad at Dona River, and that portion o^ it projected from Dover to that point, and to extend and unite it with the New Castle and Erenchtown Railroad in New Castle County, on which ground the defendant refused to pay for the call or instalment demanded of him. Held that this change in the direction, location and construction of the road, authorized by the Legislature, and adopted by the company Subsequent to the subscription to its stock by the defendant, did not absolve him from his subscription for the stock, but that - he was .still bound to pay for it.</p> <p>The grsjit of an act of incorporation by the State is professedly for the public good generally, and there is an inherent right in the Legislature to amend, alter and change it with the assent of the corporation, and those who become corporators in it do so with that contingency, and their engagements are therefore subject to it.</p> <p>If a subscriber to stock enters generally into a corporation, without specific stipulations, he is bound and concluded by the action of a majority of the corporation, and if the Legislature amends and changes the charter with the assent of the company, he will not be thereby discharged from his liability for his subscription for stock made previous to the amendment and change of the charter. But if the subscription for stock is of such a character, and the change in the object of the charter is of such a nature as to increase the amount which he was .originally bound to pay by virtue of his subscription to the stock, it will absolve him from his contract and liability to pay for it.</p> <p>There is no substantial distinction between the terms subscriber ahd stockholder in the Delaware Bailrpad charter, and a subscriber may be sued for arrears of subscription for stock due from him, without proof that certificates of stock have been issued or tendered to him by the company. '</p>

<p>Covenant. Demurrers to the seventh and eighth counts of the narr.</p> <p>These demurrers were argued at the present term by Frame, Attorney General, and Walter Jones, for the defts., the demurrant; and J. M. Clayton, C. J. Ingersoll, Rogers and Read, jun., for the plaintiff.</p> <p>The narr set out the following contract between Randel and the Canal Company, the whole of which is inserted here for future reference, though a part only, two clauses thereof, were immediately involved in the present argument.</p> <p>“Articles of agreement made and concluded the twenty-sixth day of March, in the year 1824, between John Randel, junior, of the state of New-York, civil engineer, of the first part, and the Chesapeake and Delaware Canal Company of the second part.</p> <p>The party of the first part for himself, his executors, administrators and assigns, covenants and agrees to and with the party of the second part, to excavate, embank and construct in a good substantial and workmanlike manner, all that part of the Chesapeake and Delaware canal included in sections number one, two, three, four and that part of section number five, which extends from station number two hundred and ninety-eight, to number three hundred seventy-three, as the same are protracted and defined on a certain map and estimate prepared by the party of the first part, and now in the possession of the party of the second part, together with the proposed harbor on the river Delaware. The canal and banks to be so constructed, that the water may be in all places at least sixty feet at the surface or top water line, and thirty-six feet at the bottom in width, and eight feet deep. Each bank to be raised one foot above the top line of the highest tide heretofore known, except on the summit level, where it shall be from two to seven feet above the water line: and such a slope shall be preserved on the inner side both above and below the water line (not exceeding two feet base to one foot perpendicular elevation,) as the engineer of the company for the time being, shall direct. The towing path shall be on the north side of the canal: its upper surface twelve feet wide: the upper surface of the bank on the opposite side of the canal from the towing path, six feet wide. Both banks shall be constructed of the best earth which the adjoining excavation will give, in a workmanlike manner with a slope on their outer sides, not less than that hereinbefore prescribed for their inner sides.</p> <p>(Covenant to pay.) And the party of the second part agrees to the party of the first part his executors, administrators and assigns for completely performing this contract the sums which are stated as the cost thereof in the said estimate of the party of the first part, under the conditions and provisions expressed in the annexed schedule (semi monthly.) payment to be made every fortnight according to the said schedule for the work which the engineer of the Company .shall certify to have been actually done by the party of the first part. (Ten per cent, for contingencies.) Provided however that no part of the amount of ten per cent specified in the estimate aforesaid to be for contingencies on the whole contract shall be payable to the party of the first part until the final and absolute completion on his part of the whole of this contract. (In case of RandeVs death.) And in case of the death of the party of the first part pending this •contract, and before default or delinquency on his part, and this contract is thereby determined, such portion of the said ten per cent, -shall be paid to his representatives, as upon consideration of all cir-cumstances of difficulties overcome by him and future security of the company for the completion of the unfinished residue at the cost specified in the said estimate shall be just and reasonable. The certificate of the principal engineer of the company for the time being on this point to be final and conclusive between the parties. (Revision of prices.) The object of the parties being to fix such a rate of payment as to secure the company against future delinquency and at the same time enable the contractor to make progress in his work; it is further agreed, that it shall be competent to the parties at any time between the first and seventh of June next to revise and remodel the schedule annexed and change the rate of payment; in case of difference of opinion between the parties as to the proper revised prices the engineer of the company for the time being shall be an umpire, and his certificate on the matter final and conclusive. If the schedule is not so revised the prices therein stated shall be final and established.</p> <p>(Inspection covenant.) And the said works during their progress shall be carefully examined and inspected, and to prevent misunderstanding and disputes it is hereby agreed that Benjamin Wright, esquire, or some other competent engineer to be selected by the party of the second part, shall be the inspector of the said works (Estimates $s'C.) and shall estimate the number of cubic yards of excavation and also of embankment, and his estimate thereof when certified to the party of the second part shall be final and conclusive between the parties. (Abandonment.) And it is further agreed that if the opinion of the engineer in chief for the time being in the employ of the party of the second part shall be that the party of the first part refuses or unreasonably neglects to prosecute this contract, such engineer may certify the same to the said party of the second part, and on his certificate, the said party of the second part shall have the power of determining that he has abandoned it; and such determination shall altogether exonerate the said party of the second part from every obligation imposed on them by the said contract, except to pay as aforesaid for work already done; and they may immediately thereafter proceed to dispose of the subject matter of this contract in the same manner as if this contract had never been made; (Deviations.) and the party of the first part further agrees that during the progress of the work he will from time to time conform to such deviations from the present line of canal, and to such alterations in the form, slope and dimensions of the banks, towing paths or any other of the said works, as the said party of the second part or their engineer shall direct; provided that the said party of the second part shall pay to the said party of the first part such additional sum as the engineer of the party of the second part for the time being shall certify to be a fair compensation for any additional expense incurred by the said party of the first part by reason of such deviations or alterations. And it is further agreed between the said parties that whenever this contract in the opinion of the inspector hereinbefore described is completely performed in every respect by the said party of the first part the said inspector shall certify the same in writing under his hand together with his estimate of the number of cubic yards of excavation and also of embankment: and the said party of the second part shall within thirty days after notice of such certificate pay to the said party of the first part the sum which according to this contract and the said estimate shall be due to him including therein the ten per cent, reserved for contingencies as aforesaid.</p> <p>(Prevention. Breach of this clause assigned in the 8th count.) And it is further agreed as aforesaid that in case the party of the first part shall, from the default of the party of the second part in any, particular be prevented from pursuing the due and best mode of executing this contract, or from entering upon or flooding lands for that purpose, the pecuniary damage sustained by him in consequence thereof shall be certified by the engineer of the party of the second part for the time being; and, on his certificate, which shall be final and conclusive between the parties, the party of the second part shall make to the party of the first part such reasonable compensation and allowance as by the said certificate may be ascertained and fixed.</p> <p>( Time covenant, (iff* Breach of this clause assigned in the 1th count.) And it is further understood and agreed as aforesaid that the time within which it shall be incumbent on the said party of the first part fully to perform and complete the said contract shall not be taken to be less than four years from and after the first day of May next ensuing, and that upon the completion of the same he shall deliver over the work and canal into the exclusive charge of the said party of the second part free from all incumbrance whatsoever.</p> <p>( Umpirage.) And lastly to prevent and avoid all litigation between the parties it is agreed and stipulated that in case of dispute or difference of opinion between the said parties as to any point whatsoever connected with or in any manner affecting this contract or the execution thereof, the engineer in chief for the time being in the employ of the party of the second part shall be the umpire and judge between the parties, and his certificate in writing shall be a final and conclusive determination of the matter.”</p> <p> Schedule of prices referred to in the preceding contract. </p> <p>For section No. 1. from the river Delaware to station No. 8, twenty-nine chains in length—price for the section twelve and a half cents per cubic yard—ten cents only per cubic yard for all excavation to within two feet of bottom, and the balance when the section is completed. .. ..</p> <p>If the contractor shall remove the surplus earth of excavation and place it in próper form to,construct a harbor according to the plan proposed by him, for such'eaHIi*so removed and placed he shall receive three cents additional pe/ cubic yard, and when the same shall be secured by stone he shall receive for every cubic yard so placed and secured one cent further additional.</p> <p>For section No. 2, from station No. 8, to station No. 24—thirty-two chains in length—price for the section fifteen cents per cubic yard; fourteen cents only per cubic yard for all excavation to within two feet of bottom and the balance when the section is completed. All the surplus earth of excavation of this section shall be deposited in such places as shall be directed to form a harbor as mentioned in in section No. 1. For every cubic yard of earth so deposited he shall receive four cents additional, and when secured with stone he shall receive the further sum of one cent additional.</p> <p>For section No. 3. From station No. 24 to station No. 166, at St. George’s milldam, two hundred and eighty-four chains in length —price for the section twelve and a half cents. For all earth excavated and placed in bank as required to within two feet of bottom, eight cents, and when any half mile is completed the balance is tó be paid.</p> <p>Note. The contractor shall at all times excavate to the bottom if in the opinion of the committee of works it can be done with good economy.</p> <p>For all drains, extra embankment according to the project of Mr. Randel, the prices to be paid from time to time to be those estimated and reported by him it being understood that the work on back drains is to be paid only" for the part finished, and on embankment as it is made allowing reasonably for settling fully and becoming-more solid and permanent.</p> <p>For section No. 4. from station No. 166 to station No. 298.-chains in length, price for the section fourteen cents per cubic yard. All earth excavated and removed so as to form part of towing path through the millpond, fourteen cents per cubic yard—and all other earth excavated, but not so removed for the constructing of the towing path unless excavated from within two feet of the bottom, eleven cents per cubic yard and the balance on the completion of the section; if excavated from within two feet of the bottom though not used for towing paths, fourteen cents per cubic yard.</p> <p>For section No. 5, from station No. 298 to station No. 273, - •chains in length—price for the section-cents per cubic yard. For all earth removed from surface to ten feet deep sixteen and seven-tenths cents per cubic yard.</p> <p>per cubic yard.</p> <p>10 not exceeding 20 feet deep 22i 20 <6 30 “ 28 30 ( Í 40 “ 33-| 40 Ci 50 “ 39 60 a 60 “ 44i 60 a 70 “ 50 70 and downwards 61 1-10</p> <p>It is understood that this graduation of price is made expressly to conform to the difference in labor and to be.so estimated when done as that the whole excavation of this aplsteceed twenty-five cents per cubic yard for the rtPoMer to induce the contractor to remove the earth & M^ereh as possihdevby dirt boats so as to form from the excavated ezhth a^oCt^|gtwmg path on St. George’s millpond twelve feet wide aha with proper slopes it is agreed that in addition to the prices above^t^tfcWoy excavation there shall be allowed for the first te'p f^gí.iíiif'teen cemts per cubic yard of earth so deposited where therex4§eaclefimeady of excavations to form the towing path; and for the earm Tíélween ten and twenty feet five cents for every cubic yard of earth so removed and deposited: provided that in no case shall any earth be so estimated as to make the whole excavation when done to exceed twenty-five cents per cubic yard, including all deposited in the millpond.”</p> <p>The seventh count of the narr after setting out the contract, assigned a breach of the following clause:</p> <p>“And it is further understood and agreed as aforesaid, that the time within which it shall be incumbent on the said party of the first part, fully to perform and complete the said contract, shall not be taken to be less than four years from and after the first day of May next ensuing.”</p> <p>(7th Breach.) The breach was assigned in the following words: “Nevertheless the said, The Chesapeake and Delaware Canal Company did on the first day of October, A. D. 1825, to wit: at, &c., and on the fifth day of June A. D. 1824, and on divers other days and times between the day of the date of the said articles of agreement, and the day of bringing this suit, to wit, at, &c., take the time within which it should be incumbent on the said John Handel, jun., fully to perform and complete the said contract, to be less than four years from and after the first day of May next ensuing the date of the said articles of agreement; and so the said John Randel, jun., in fact saith, that the said The Chesapeake and Delaware Canal Company, have not kept their said covenant so by them made as aforesaid, but have broken the same, and to keep the same with the said John Randel, jun., have hitherto wholly neglected and refused, and still do neglect and refuse, to the damage of the said John Randel, jun., of four hundred thousand dollars lawful money, &c.”</p> <p>(Demurrer.) To this breach the defts. demurred; after setting out the deed on oyer: “which being read and heard, they the said defts. say that the said seventh count of the said declaration as amended, and the matters therein contained, are not sufficient in law for the said John Randel, jun., to have or maintain his aforesaid action thereof against them the said defts., and that they the said defts. are not bound by law to answer the same, and this they are ready to verify; wherefore, by reason of the insufficiency of the said seventh count of the said declaration as amended in this behalf, the said defts. pray judgment, and that the said John Randel, jun., may be barred from having or maintaining his aforesaid action thereof against them, &c. And the said defts. according, &c., state and show to the court here, the following causes of demurrer, that is to say, “that there is no issuable fact presented by the said plff. in and by his said supposed breach of covenant assigned in his said seventh count, and that it is not stated or set forth how or in what manner or particular, or by what act or matter, the said defts. did take the time within which it should be incumbent on the said John, fully to perform and complete his said contract to be less than four years, from and after the first day of May next ensuing the date of the said articles of agreement; and also the said seventh count is further in other respects bad, uncertain, informal and insufficient,” &c. Joinder in demurrer in the usual form.</p> <p>The eighth count of the narr assigned a breach of the following clause:</p> <p>“And it is further agreed as aforesaid, that in case the party of the first part shall from the default of the party of the second part, in any particular, be prevented from pursuing the due and best mode of executing this contract, or from entering upon or flooding lands for that purpose, the pecuniary damage sustained by him in consequence thereof, shall be certified by the engineer of the party of the second part for the time being, and on his certificate, which shall be final and conclusive between the parties, the party of the second part shall make to the party of the first part, such reasonable compensation and allowance as by the said certificate may be ascertained and fixed.”</p> <p>(8th Breach.) The breach was:</p> <p>“Nevertheless, although the said John Randel, jun., was from the default of the said The Chesapeake and Delaware Canal Company, prevented from pursuing the due and best mode of executing the said contract, to wit, on the first day of October, A. D. 1825, and on divers other days and times between the date of the said articles of agreement, and the day of bringing this suit, to wit, at Newcastle county aforesaid, the pecuniary damage sustained by the said John Randel, jun., in consequence thereof, hath not been certified by the engineer of the said The Chesapeake and Delaware Canal Company for the time being, to wit, at, &c. And so the said John Randel, jun., in fact saith,” &c. (as in the last breach.)</p> <p>(Demurrer.) The demurrer to this count, after setting out the deed on oyer, proceeds: “which being read and heard, they the said defts., say that the said eighth count of the said declaration as amended, and the matters therein contained, are not sufficient in law, for the said John Handel, jun., to have or maintain his aforesaid action thereof against them the said defts., and vfchat they the said defts. are not bound by law to answer the same, and this they are ready to verify; wherefore, by reason of the insufficiency of the said eighth count of the said declaration as amended, in this behalf the said defts. pray judgment, and that the said John Handel, jun., may be barred from having or maintaining his aforesaid action thereof, against them,” &c. And the said defts. according, &c., state and show to the court here, the following causes of demurrer, that is to say, “that it is not stated in the said supposed breach of covenant assigned in the said eighth count of the said declaration, in what particular matters or things the alledged default of the said defts. consisted, took place and existed; or how or in what manner, or by what act of the said defts. the said John was prevented from pursuing the due and best mode of executing the said contract; and also further, the said eighth count is uncertain, informal, insufficient,” &c. Joinder in demurrer.</p> <p>These pleadings presented the two issues now before the court. The other pleadings in the cause were not considered or adverted to, except so far as they bore incidentally on the present discussion.</p>

<p>A bond with warrant of attorney to confess judgment, given to one creditor alone, to secure a debt due to him, and also debts due to other creditors not named in it, if given with their knowledge and consent, is valid and binding; and when collected by him the creditors not named in the bond may sue for and recover their respective claims from him. ’</p>

This was an action of ejectment, to recover certain lands in Appoquinimink Hundred, Hew Castle County, in which the case turned chiefly on the question of possession. Trial and verdict for defendant.

Writ of error to the Supreme Court in and for Newcastle county. Extracts from the record: Thomas Bradun vs. Peter Bauduy, Judgment D. S. B. confessed, April 3d, 1815, as of April term, 1815. Penalty or sum in narr. $40,000: Real debt $-, interest from-.

There were two cases on the record of the Court between these parties.

All the judges sat except Mr. Black; this appeal being from a decree of the late Chancellor.

This was an action of trespass on the case. The narr contained two counts; the first of which was for a trespass upon real property by the defendant in maintaining a fence on the land of the plaintiff; and the second was for an assault and battery. Pleas, not guilty; and to the second count, molliter manus impossuit.

Writ of error to the late Court of Common Pleas, Newcastle county. This was a scire facias upon a recognizance in the Orphans’ Court acknowledged by Philip Reading on the 16th September 1813 in the sum of $28,770 36, on the acceptance of the real estate of Philip Reading deceased, and conditioned in the usual form for the payment to the other children of Philip Reading deceased, of their proportions of $14,385 18, the appraised value of said lands.

Thomas Coleman being the administrator of William Coleman, sold to Rhoda Coleman, the widow of the said William, or permitted her to take, at the appraised value, sundry articles of personal property belonging to the estate of the said William, to the amount of $551 28; and, at the bottom of the list of the said articles, the said Rhoda Coleman executed and delivered to the said Thomas the following receipt and pledge: “Received April 9, 1829, of Thomas Coleman,…

Action on the case for taking away four cart-loads, of gravel and feldspar from the land of the plaintiff. There was a public road, on both sides of which the plaintiff owned the land, and the material was taken from a bank alongside of the road, but whether within the limits of it as surveyed and laid out, did not appear from the evidence. The close was described in the narr by abuttals, but no proof was offered to sustain them.

<p>The holder of a negotiable note may maintain an action against the maker of it, without showing how he obtained it, unless he is notified previous to the trial that the payment of it will be resisted for good and sufficient reasons in law.</p>

The bill stated that Doctor Evans by his will bequeathed to Frances L. Evans, the complainant, the interest on £400 to be paid to her annually during her life. That letters of administration d. b. n. c. t. a. were granted on the estate of Dr. Thomas Evans to the respondent, Dr. James Couper.

This was an action on the case to recover the amount of a judgment obtained in an amicable action on a rule of reference out of court, hy Richard Bonsai against the plaintiffs, for the value of a horse belonging to him, which was accidentally killed by falling into a trench, which was dug, and negligently left exposed, across a street in the city of Wilmington, by the defendant as the agent or servant of the plaintiffs.

Marvell, Justice of the Peace. Record. The State of Delaware v. Peter B. Socum. The proceeding before the justice of the peace was against the defendant for coming into the State contrary to the provisions of the first and second sections of chapter 52 of the Revised Code, pp. 143, 144, which prohibit free negroes and free mulattoes, not lawfully resident in the State at the time of the Code’s going into effect, from coming into it, except as provided for in the act.

<p>The acknowledgment of a debt barred by limitation revives the old debt and does not create a nevi</p> <p>Payment of a part of a debt, or any recognition of a debt existing or acknowledgment of a subsisting demand, is evidence of a- promise to pay it,and prevents the operation of the act of limitations.</p> <p>The principle of that act is a presumption of payment which a slight acknowledgment may rebut.</p> <p>Questions of law reserved by the Superior Court in Newcastle county to be heard in the Court of Errors and Appeals.</p>

<p>Writ of error to the Superior Court in and for Newcastle county.</p> <p>The Court of Appeals in this case consisted of the Chancellor and Judges Black and Harrington.</p> <p>(j^PSee a statement of the case ante page 128.</p>

<p>Assumpsit for work and labor. The narr contained several counts; the first were special counts on an express contract, and the latter were the common counts for work and labor. The plaintiff was a son of David Watson, the deceased, and the proof was that the latter promised him after he attained his majority, that if he would remain with him, and work for him as long as he lived, as he was then an old man, be would leave him one-half of his land in his will when he died. That the plaintiff continued with him for two or three years afterwards, and worked diligently for him as an ordinary laborer on his farm, and the father in the meanwhile had a division line surveyed across his lands, stating, at the time, that he was having it done for the purpose of dividing them in his will between his two sons, the plaintiff' and David 8. Watson, the defendant. A short time before the death of his father, however, the plaintiff' contracted a marriage, to which he was much opposed, and in consequence of it he would not permit the1 plaintiff to remain with him, but discharged him entirely from his service, and afterwards made a will in which he devised all his lands to the defendant, without making any provision whatever in it for the plaintiff.</p> <p>After the counsel for the plaintiff had closed his evidence,</p>

<p>If after a tenant has given three months' notice in writing of his intention to deliver up the demised premises to his landlord at the end of the year, another person in the meanwhile enters into possession of them by the permission of his wife, the husband being present and having knowledge of the entry, though he refused his permission, he will be presumed to have permitted it and assented to it, and if the sub-tenant holds over, he will be liable for double rent.</p> <p>A motion for leave to amend the declaration is too late after the Court has announced its opinion on a motion for a nonsuit.</p>

The pronarr was in assumpsit on a promissory note for $77.48, from the defendant to the plaintiff below. The usual pleas 'were entered, with notice to the plaintiff that the defendant would insist on a failure of the consideration of the note at the trial. The consideration for the note was a quantity of lime and Bolivian guano, which the defendant had purchased of the plaintiff, who was a general trader in those articles.

<p>Pleadings are amendable, in the discretion of the court, at any time before judgment.</p> <p>The distinction between pleadings in paper and of record not applicable to our practice.</p> <p>The object of pleadings is to present clearly the points in dispute, and to give notice of what is to be tried, so that justice may be done.</p> <p>And where this object cannot be effected without altering the pleadings, amendments are at all times allowable in the discretion of the court.</p>

<p>A narr in the detmuit in replevin amended to a narr in the detinet on, motion after the jury was sworn.</p> <p>If a principal in the sale of goods directs his agent not to deliver them until they have been paid for, and the agent without his knowledge and authority, delivers them to the buyer on trial, to be paid for, or returned by a certain day, and it is not done; there is no change of property in the goods by such delivery of them, and the seller may retake them, notwithstanding he may have afterwards acquiesced in the delivery of the agent, and declared in the mean time that he had:sold them to the buyer.</p>

<p>Replevin will not lie at the suit of a master to recover an apprentice.</p> <p>It seems that replevin will not lie for a free man.</p>

<p>Ejectment. Case stated.</p>

A case stated. James Spencer, by his will, devised a tract of land in Little Creek Hundred to his wife, Celia Spencer, for the term of her life, and after her death to Maria J. Spencer, the plaintiff, in fee.

This case came up on appeal and objections taken in the nature of a bill of exceptions, from a decree of the Orphans’ Court of Sussex County, on the petition of Robert D. Buttel and Mary his wife, for the assignment of her dower out of certain lands formerly owned by William W. Smith, her late husband during their marriage, and then in the tenure and possession of Lot Rawlins, the appellant, who had since purchased them.

<p>If a trial be”granted after judgment entered on a judgment note it vacates that judgment, unless there has been a levy.</p> <p>And in such case there is no appeal from a subsequent judgment under five dollars and thirty-three cents.</p>

<p>Petition for freedom.</p>

Case. Pleas non assumpsit; payment; discount and the act of limitations. ■ The plffs. declared against Houston as the indorser of three several promissory notes dated the 8th of March, 1833, drawn by Joseph Roberts in favor of Margaret Booth, Peter B. Dulany an “Prom’y notes—> Jos. Roberts to Margaret Booth for $600; dated 30 June, ’31, at 60 days. Same to Peter B. Dulany for 600; “ Same to E. H. Thomas for 400; “ To Jos.

<p>If referees report against a person not regularly a party in the cause the report as to him is a nullity and no judgment can be rendered upon it; but it will not vitiate the report as to other parties.</p>

<p>Action of replevin for a stock of goods and merchandise replevied and delivered to the plaintiff. The principal defence relied upon at the trial was, that the goods in question were the property of Eutter L. Davis and Mark J. Davis, the plaintiff, as partners in business, and the defendant justified the taking of the goods on certain writs of testatum Ji. fa. from the Superior Court for Kent County, at the suit of several parties, against Eutter L. Davis and Andrew J. McColley.</p> <p>The evidence in regard to the alleged partnership of Mark J. Davis and Eutter L. Davis in the mercantile' business was contradictory and conflicting. For the plaintiff', it was proved that the business was conducted in the name of Mark J. Davis; that the advertisements of the store, the bills and receipts for goods bought as well as sold, were made and given, and the books were kept in his name alone. For the defendant it was proved that Eutter L. Davis was the brother of the plaintiff, and was as much and as actively employed in the store, and took as prominent a part, and exercised apparently as much authority and discretion in the transaction of business, in all respects, as the plaintiff, and was dealt with and regarded by many as having the same interest in it, and as being a partner with the plaintiff in the store. The defendant then offered in evidence the writs of testatum fi. fa., on which he had seized the goods.</p>

<p>Nul tiel record is not a good plea in an action on the official bond of the prothonotary or other public officer, though such bond is directed to be recorded.</p> <p>Shiere: Whether non est factum can be pleaded to a public bond without affidavit deny, ing the execution! .</p> <p>So much only of an instrument need be set out as entitles the plaintiff to his action; but he must set it out truly.</p>

<p>Construction of the contract between John Handel, jun., and’the Chesapeake and Delaware Canal Company.</p> <p>A contract is to be construed with reference to the whole instrument.</p> <p>No form of words necessary to make a covenant; but any expression in a sealed instrument which manifests an intention to bind either party to do or omit any act, possible in itself and not immoral or unlawful, will make a covenant.</p> <p>If there be any doubt on the words of an agreement they are to be referred to the proper party.</p> <p>If the language used be the language of both parties, it may be taken distributively, and used as the words of either, according to the true intent and meaning of the contract:</p> <p>And, even where the language is that of the covenantee, it will be applied to the other party, if the intent so require it.</p> <p>An agreement on the part of A. to pay B. every fortnight for the work which A’s. engineer shall certify to have been done by B. is a covenant on the part of A. that his engineer shall make the certificates.</p> <p>An agreement that the plff’s. work shall during its progress be carefully examined and inspected; and to prevent misunderstandings and disputes, it is agreed that B. W. or some other competent engineer, to be selected by the defendant, shall be the inspector of the works, and shall estimate the excavation and embankment, and his estimate -thereof, when certified to the defendant, shall be final and conclusive between the parties—construed a covenant by defendants to select an engineer, and that their engineer should inspect and estimate the work; and a covenant on the part of the plaintiff, that he would be bound by the result of such estimate.</p> <p>An agreement that in case the plaintiff shall, from the default of the defendant, be prevented from pursuing the best mode of executing his contract, the pecuniary damage sustained by him in consequence thereof, shall be certified by the defendants’ engineer, and, on his certificate, which shall be final and conclusive between the parties, the defendant shall make to the plaintiff such reasonable compensation as by said certificate may be fixed—construed a covenant on the part of the defendant, that in case of prevention, their engineer should make a certificate of damage.</p> <p>An agreement that the time within which it shall be incumbent on the plaintiff to •complete his contract shall not be taken to be less than four years, is a covenant by the defendant that he will allow the plaintiff four years to complete it in; and the unlawfully driving him away from the work within that time is a breach of the covenant.</p> <p>An agreement that if the opinion of the defts’. engineer shall be that the plff refuses or unreasonably neglects to prosecute his contract such engineer may certify the same to the defts. and on his certificate the defts. shall have the power of determining that he has abandoned it;—is a covenant on the part of the plff, and gives to the deft, the power, upon the certificate being made, to put an end to the contract.</p> <p>Such certificate does not make the contract void but only voidable; and the power of avoiding it may be waived.</p> <p>Any discretionary power may be waived.</p> <p>And though this power of annulling the contract is derived from a deed, or instrument under seal, it may be waived by paroi,</p> <p>The party having the power of establishing the forfeitnre, or of avoiding a voidable contract, must do it within a reasonable time, and in a lawful manner, or it is a waiver.</p> <p>Any act.legally inconsistent with the exercise of the power will amount to a waiver.</p> <p>A prospective agreement to refer all matters in dispute which may hereafter arise wilt not oust the jurisdiction of the courts over such matters.</p> <p>And even in the case of a submission of existing disputes either party has the right to revoke the submission and prevent'the award: though he would be liable on his agreement to refer.</p> <p>A contract may be declared on by setting out a counterpart executed by only one of the parties,</p> <p>In a plea of confession and avoidance the plea admits all the material and traversable facts averred in the breach; they need not, therefere, be proved; but it does not admit the damage, which must be proved.</p> <p>Judgment by default, or on demurrer, admits the cause of action, and establishes the plff’s. right to recover; and, where the contract declared on is for a sum certain, as in debt, and the declaration eiiher ascertains the amount or sets out an instrument from which the amount can be certainly ascertained by calculation, the judgment is also conclusive as to the amount.</p> <p>But where the matter sued for sounds in damages, or is in its nature uncertain, such a judgment establishes no amount of damages, but it fixes the right to recover, and the cause of action need not afterwards be proved.</p> <p>In covenant the damagfes are merely compensatory or remunerative, and cannot be exemplary.</p> <p>And, though the violation of a covenant be with intent to injure the other party, the intent cannot be considered in estimating damages</p> <p>The rule of assessing damages is, that whatever loss or damage naturally and immediately results from the wrong complained of, the wrong-doer is bound to compensate. .</p> <p>Interest on damages is discretionary with the jury.</p> <p>In an action of covenant against a corporation a contract made and executed by a committee of the board of directors, but not under the corporate seal, is not evidence; though the authority of the committee be proved, and the contract actually recognized and acted upon by the company.</p> <p>The answer of a corporation is evidence against them, though made in a different cause, and without oath.</p> <p>The directions of an agent of a company in relation to their business, and his declarations at the time of giving such orders in relation thereto, or to their business generally, being part of the res gesta, are evidence against the company—but his gene, rai declarations, conversations or letters not immediately connected with or growing out of the discharge of his agency, are not evidence.</p> <p>And the nature of his agency, and its extent, may be inferred from facts, and the connexion of his acts with the business in which he is employed,</p> <p>A party calling for papers from the other side makes them evidence if he inspects them,</p> <p>A director of a company, not being a stockholder nor a party of record, is a competent witness for the- company.</p> <p>Depositions taken on leading interrogatories will be suppressed at the trial if exceptions have been filed, and the party not taken by surprise.</p> <p>Service of interrogatories by copy left at the office of the attorney of the opposite party, is sufficient notice of the taking out a commission.</p> <p>A witness allowed to write out his answers to interrogatories where he was unable, through sickness, to deliver them orally to the commissioners; and the depositions, thus taken, admitted in evidence.</p> <p>The protest of an inland bill is not proved by the notarial seal, but the notary must be called: and this though it appear from the bill that it has been indorsed to a foreigner.</p>

<p>This was an action of debt on a recognizance entered into by William R. Hickman, the defendant, as the surety of William and Benjamin Collins (n.) on appeal from a judgment recovered by McColley & Brothers for the use of Mitchell Warren against them before a justice of the peace for sixty-eight dollars and costs. The declaration in the action set forth-the recovery of the judgment before Lemuel B. Shockley, Esq., one of the justices of the peace for the county, for a cause of action within the jurisdiction of the said justice of the peace, from which the defendant appealed in due time,- and that William R. Hickman, the defendant in this action, thereupon became surety for them in the appeal. That after the appeal was entered in this Court, it was referred by the consent of parties on a rule of reference, out of court, in which the referees made a report and return at the next term in favor of the plaintiffs against the defendants for eighty-eight dollars, on which this Court gave judgment for that amount and costs; that an execution was afterwards issued on the judgment against the defendants, to wThich the sheriff made return of nulla bona, and thereupon this action was commenced. To this declaration" the defendant demurred generally; first, because the cause of action was referred out of court after the appeal was entered, without any averment that the defendant as such surety consented to the reference; and secondly, because it was not averred with sufficient certainty that the justice of the peace had jurisdiction of the cause of action below.</p>

Replevin for certain 'household goods and furniture, seized and taken in execution by the defendant as sheriff, as the property of Rutter L. Davis, on sundry writs of testatum fieri facias, from the Superior Court for Kent County, at the suit of several judgment creditors, against Andrew J. McColley and Rutter L. Davis.

<p>The effect of a recovery in an action of ejectment is not conclusive-as to title; but it is evidence of the right of possession in the party recovering, at the time of the recovery.</p> <p>A judgment by default in a former action of ejectment between the same parties, legally establishes the right of the plaintiff to the possession of the premises in a-second action of ejectment between them for thesame premises; but unless it is followed by an entry into possession, either by a writ of possession, or without writ, but with the consent, or by the surrender or abandonment of the defendant, such judgment can have no effect on the defendant’s possession, or upon the question of title, founded, upon his part, on an actual and uninterrupted adverse possession of twenty years’ continuance.</p>

<p>The Court will not compel the production of a promissory note by a plaintiff before trial for the inspection of the defendant, although he is an administrator, on an affidavit submitted by him, alleging grounds to suspect its genuineness, and that the plaintiff had refused to allow the defendant to see it.</p>

<p>The existence, identity, and loss of a deed, are questions addressed to the Court, and are first to he decided by it, and afterwards the evidence of its contents goes to the jury; and if the evidence is irregularly introduced on these points, and is left in terms of too general import in the charge by the Court to the jury, the Court will, on motion, set aside the verdict and grant a new trial.</p>

This case came up on a scire facias on a recognizance taken in the Orphans’ Court for Kent County, upon a case stated in the Superior Court, and on a question of law reserved for a hearing before all the judges in kank.

This was an action of trespass quare clausem fregit forbreaking and entering the stable of the plaintiff, and endeavoring to take a horse from it, which the plaintiff had locked up in it. The defendant claimed to own the horse, and resorted to force by removing several boards from the stable to regain 'the possession of him, which he had recently lost, by the plaintiff’s taking him a short time before, and locking him up in his stable.

<p>Mothing short of a direct acknowledgment, or a distinct admission of the •existence of the debt as a subsisting demand, is sufficient to take it oui .of the operation of the statute of limitations.</p> <p>A qualified and conditional acknowledgment of a debt barred by the statute will not revive it, unless the condition is performed.</p>

<p>The formal execution of a will being established, the presumption of law is in favor of the capacity of the testator to make it.</p> <p>Testable capacity in a testator amounts to nothing more than a knowledge of what he was about and how he was disposing of his property and the purpose so to do it, when he made the will. The simple question therefore is, did the testator know and understand what he was about when he made the will; that he had a family, and the relation in which he stood to it, and that he had property, and what it was, and a will, or desire to devise it as disposed of; if so, then it is his will. What degree of influence will vitiate a will.</p>

W. Kollock, Esq., J. P. The record set forth the copy of a note from Connoway to the deceased, for the sum of eighty-four dollars, with'legal -interest from the date thereof, with a warrant empowering any justice of the peace in the State to enter judgment for the above-mentioned sum, together with lawful interest and costs of suit, with stay of execution, six months from the date thereof, &c. The judgment entered thereon was for ninety-eight dollars and four cents, and…

, J. P. The record stated that it was an action on a proved account, and that summons was issued returnable the 22d of March, 1855, on which day the parties appeared, and at the request of the plaintiff the case was adjourned to the 5th proximo, on which day the defendants failed to appear, and that after examining the account of the plaintiff he gave-judgment in his favor against the defendants, for &c. The exceptions to the record were, 1.

<p>This was an action of ejectment brought by the lessors of the plaintiff, Thomas W. Ingram and Caroline his wife, late Caroline Hemphill, and Virginia Hemphill, to recover their undivided shares in a two-story brick messuage or tenement and lot of ground thereto belonging, situate on King Street, in the city of Wilmington, devised by William Hemphill, deceased, in his will to his grandson, William Hemphill, then in the possession of John A. Girard and Ellen his wife, late Ellen Hemphill, the defendants. The facts were submitted for the decision of the Court upon a case stated, which was as follows:</p> <p>William Hemphill in and by his last will and testament, duly made and published in his lifetime, and duly proved and allowed after his death, devised and bequeathed -as follows, viz.:</p> <p>Item 2d. I give, devise and bequeath to my grandson, William Hemphill, his heirs, executors, administrators and assigns, on his attaining the age of twenty-one years, all my other two-story brick messuage or tenement and lot óf ground thereto belonging, with the appurtenances, situate on King Street aforesaid, adjoining the last-mentioned messuage, and being the same which I bought of Michael Lavery, and also the sum of five hundred dollar’s in cash, and I do will and direct that the rent of said house and lot, after deducting therefrom the repairs and taxes, and the interest on said sum of five hundred dollars, from my decease, be applied to his maintenance and education during his minority, by my executors.</p> <p>Item 3d. I give and bequeath to my grandchildren, Ellen Hemphill,, Stephen Girard Hemphill, Elizabeth Hemphill, Sarah Ralston Jones, Maria Jones, and James Hemphill Jones, on their respectively attaining the age of twenty-one years, the sum of five hundred dollars each; and I do will and direct that the interest of said sum of five hundred dollars, from my decease, be applied by my executors to the maintenance and education of my said grandchildren respectively during his or her minority.</p> <p>Item 4th. In case I should leave any grandchildren or grandchild born between the date of this will and my death, I give and bequeath to every such grandchild so born, on attaining the age of twenty-one years, the sum of five hundred dollars; and I do will and direct that the interest of said sum of five hundred dollars, from my decease, be applied by my executors to the maintenance and educatian of such grandchildren or grandchild respectively during his or her minority.</p> <p>Item 5th. In case any of my grandchildren hereinbefore named or referred to shall die before attaining the age of twenty-one years, leaving issue, then I will and direct that such issue shall take the share of my estate which his or her or their parents would have taken under this will; and in case such grandchild so dying shall not leave lawful issue, then I give, devise and bequeath the estate hereby given, devised and bequeathed to such grandchild, to the surviving brothers and sisters of such deceased grandchild, their heirs, executors, administrators and assigns, to be equally divided among them, share and share alike.</p> <p>And the parties for greater certainty refer to said last will and testament, of record in the office of the Register for the Probate of Wills in and for Hew Castle County, and agree that the same and all the provisions therein contained shall be taken as part of the case stated.</p> <p>The said will was dated November 9, A. D. 1821, and William Hemphill, the testator, died February 10, 1823. William Hemphill, Jr., the devisee named in the item first above set forth, was born November 12, 1817, and died during the year 1836 without issue, leaving to survive him, at the time of his decease, the following brothers and sisters, viz.: Ellen, wife of John A. Girard (who are the tenants in possession), Stephen G. Hemphill, Elizabeth Hemp-hill, Maria Antoinette Hemphill, Virginia Hemphill, and Caroline, wife of Thomas R. Ingram; the said Virginia and Thomas R. Ingram and wife being the lessors of the plaintiff. The surviving brothers and sisters were born respectively a.t the dates following, viz.: Ellen, on the 19th of January, 1814; Stephen, on the 11th of January, 1819; Elizabeth, on the 4th of February, 1821; Maria Antoinette, on the 26th of September, 1826; Virginia, on -the 23d of August, 1828, and Caroline, on the 2d oí June,'1831.</p> <p>The aforesaid testator was at the .date of his will, and thence until and at his decease, seized in his demesne as of fee of the premises devised in the item first above set forth to William Hemphill, Jr., which premises are the same for which the defendants defend the possession.</p> <p>It is agreed that upon the above statement of facts the Court shall consider whether the lessees of the plaintiff, at the time of the demise, or either of them, were seized of or eñtitled to any estate or share, in or of the said premises, and that judgment shall be entered according to its opinion in the premises.</p>

<p>Harr in trespass for false imprisonment, to which the defendant pleaded a justification, that under a judgment in the Superior Court for New Castle County in favor of Rathmell Wilson for the use of the defendant, against Fromberger and two others, a writ of copias ad satisfaciendum, was issued to the sheriff of the county, by virtue of which Fromberger, one of the joint defendants in the judgment and writ, who was a non-resident, was arrested and detained as alleged in the narr. The replication to the plea was that at the time of the issuing of the ca. sa. Samuel Higgins, one of the defendants against whom it issued, was a free white citizen of the State, resident therein, and that no affidavit was made before issiiing the writ as required by law; to which the defendant entered a general demurrer.</p>

This was an appeal from a justice of the peace. The action was for rent. After the appeal was taken, and the transcript of the record below had been filed,in this Court, and citation had been issued, but before it was served upon the defendant below, he died, and it was returned mortuus est. The appeal was entered to May Term, 1855, and the defendant died in the month of April preceding.

<p>A foreign corporation is not liable to a foreign attachment under the statute in regard to such attachments. A corporation cannot put in special bail to the action, or be surrendered to bail when it appears, if its appearance could be compelled in this mode; and the Legislature having made no provision by which this can be done, the remedy of the writ does not apply to a foreign corporation.</p>

Naur in trespass for false imprisonment. Pleas, not guilty and justification.

<p>Imbecility of mind is not a sufficient ground of divorce, unless it amounts to idiocy or insanity. Nor will intoxication at the time of the marriage, accompanied with circumstances of fraud, combination, or circumvention on the part of the father and friends of the wife, to induce the petitioner to marry his daughter, give the Court jurisdiction to decree a divorce, unless the petitioner was insane, within the meaning of the act.</p>

This was an action of ejectment to recover a house and lot in Lewes, formerly the property of Isaac Turner, against whom Caleb Bodney held two judgments, one recovered on the 27th of April, 1809, and the other at the April Term, 1835, on a bond executed September 15th, 1802, on which the premises were sold by virtue of execution process, as the property of Isaac Turner, and were bought by Caleb Bodney at sheriff’s sale in 1836.

<p>A statement in writing made by a person, though hot on oath, admitted to contradict his deposition.</p>

<p>A natural guardian account no evidence The mother allowed for maintenance of her child, out of his distributive share of his father’s estate</p> <p>Summons debt. Pleas, performance; payment; set-off; plene administravit, and the act of limitations. Replication, infancy.</p> <p>This was an action-on an administration bond against a surety for the distributive balance of David Cannon in the estate of his father, William N. Cannon. The plff. was entitled to one-third of two-thirds bf $306 47, or about $34 05 at two years old.</p> <p>The defts. offered in evidence an account passed before the register of this county by Sally Cannon, the mother and natural guardian of the plff., for necessary food and clothing furnished him during his infancy. Objected to.</p>

Trespass quare clausum fregit “and threw divers dead geese into the well of said plff. and choked and filled up the same, and destroyed the water thereof, and prevented the plff. from having the use and benefit thereof in as ample manner,” &c. &c. The locus in quo was stated to be a certain close in Dover hundred, Kent county.

<p>Infancy must be specially replied to a plea of the statute of limitations.</p>

The facts in this case were returned and submitted on a special report of referees on a rule of reference, for the opinion and judgment of the Court, by the agreement of the parties. .

<p>Attachmemt. Plea nulla bona.</p>

<p>If a bailee surrenders the pledge to bailor bis lien is gone.</p> <p>An agent, if he has authority, may transfer the right of his principal without declaring his agency.</p>

<p>Variance in the date of an instrument declared on is fatal; the date being matter of description.</p> <p>Where a note is made payable at a certain place demand at the place must be proved»</p> <p>Demand must be on the last day of grace</p> <p>The indorsement of the notary taken as evidence of the time of demand, though the protest bore a different date, on a proof of his usage.</p> <p>If the holder of a note takes a higher security from the drawer it discharges the indorser, though time be not given.</p>

<p>This was an action of trespass for driving away a cow belonging to the plaintiff. The defendant was the owner of a drove of cattle driven on the highway to market, and in passing near the plaintiff’s .residence, a cow of his by accident fell into the drove and was driven along with it. The defendant, then being in the rear, rejoined the drove several miles above the plaintiff’s residence, when one of his drivers called his attention to the cow, and inquired of him if she belonged to the drove and was one of his cows; to which he replied that she was, and stated when and where he had bought her. She was much like other cows in the drove, which was then driven on and sold in. New Castle County, where the plaintiff afterwards identified and recovered his property, which was returned to him by the purchaser, and the action was brought to recover his expenses in regaining the possession of her.</p> <p>For the defendant it was insisted, that it should be shown that the taking was tortious and wrongful, and that he refused to restore the property on demand made for it.</p>

<p>Debt on a single bill given by John Lockwood and Thomas Green for @343 94, dated 1 Jan. 1814, with sundry credits up to 1822. . Pleas, non est factum; payment, discount.</p> <p>Defts. counsel asked a witness if he had not heard the plaintiff say he had made arrangements with Thomas Green for the payment of this note and was to look to him alone. Objected to.</p>

<p>This was an action of debt by the executor of Susannah Pettyjohn against Levin Pettyjohn, on his bond as the administrator of Ebenezer Pettyjohn, deceased, for one-third of the residue of his personal estate. Susannah Pettyjohn was the wife of Ebenezer Pettyjohn, and survived him only a few days. The evidence of witnesses who were present at the marriage was, that they were married, about a year before Ebenezer Pettyjohn’s death, by Jonas Pusey, who passed for a Methodist preacher. Other witnesses testified that they had known him as a regularly ordained minister of the Gospel, and that he was received as such by the members of the Methodist church at Georgetown, to which he was sent by the Philadelphia Conference, and where he administered the sacrament and other ordinances of the church for two years, and then removed to another circuit. A printed copy, in pamphlet form, of the minutes of the Conference, was then offered in evidence, but without any authentication or proof of its having been issued by authority of the body, to prove his appointment and ministerial functions, and was objected to.</p> <p>The Court, the Chief Justice dissenting, rejected the evidence.</p>

Capias case. This was an action of slander. The declaration charged the speaking these words concerning the plff.: “He (innuendo Tatlow) stole wheat from his (Jaquett’s) barn; and he (Tatlow) stole plank from the Wilmington Bridge to mend his (Tatlow’s) barn floor; and he (Jaquett) could prove it; and he (Jaquett) could prove more than that,” in the presence and hearing of Lewis Ashton, Robert M‘Farlane and others. Second.

<p>This was an action of ejectment to recover a portion of a tract of land, comprising four hundred and three acres, in Dpgsborough Hundred, devised by Edward Short to his sons John andlsaac Short. So much of the will as is material to the case was in the following words: “ 3d. My will and desire is, that my son Isaac should have my negro Frank, and to him and his brother John Short should have four hundred acres and three, to be equally divided between them, agreeably to men;- only I wish my son John Short to have my house and orchard where I now live. 4th. To my son Leonard Short, all the lands bought of John Johnson, in Dogsborough Hundred. 5th. My desire is that, after all the legacies are paid, the remainder of my estate should be equally divided between Isaac, and Leonard, and John, and Haney, to them and their heirs.” John Short, the son, died intestate, leaving seven heirs; among them, Manaen Short and Hiram S. Short, lessors of the plaintiff; and Aaron B. Marvell, the husband of Julia A., a daughter of John Short, another of his heirs, and also a lessor of the plaintiff. After the death of John Short, Isaac Short, the other devisee named in the third item of the will, on the 12th of February, 1835, sold and conveyed all his interest in the premises to Hannah Piper, in fee, for the consideration stated in the deed, that she should comfortably clothe, lodge, and board him during his life. After-wards, at the ensuing fall term of the Court of Chancery, the heirs-at-law of John Short, including Aaron B. Marvell and wife, in her right, presented a petition in the usual form, setting forth the will of Edward Short, and the sale and conveyance by Isaac Short of his interest in the premises to Hannah Piper, and praying for a partition of the same between them and the said Hannah Piper; which was afterwards duly decreed between them, in fee simple, by the Chancellor. The lessors of the plaintiff afterwards, by two - deeds of bargain and sale, executed in 1854, purchased and acquired all the right and title of the remaining heirs of John Short in the premises, and also of five of the heirs of Leonard Short, the devisee named in the residuary item, of the will, who died intestate, leaving in all six children-as his heirs-at-law to. survive him. And thereupon this action was.commenced, to recover the undivided shares and interest of these several heirs, claimed by the lessors of the plaintiff in the four hundred-and three acres, by virtue of these conveyances, the two deeds to them, before mentioned.</p> <p>The first ground of objection taken by the defendants’ counsel, on opening his case to the jury, to the right of the plaintiffs to recover,, after they had closed their evidence, was that they could claim and recover no part of the premises by virtue of the two deeds executed to them by the heirs of John Short and Leonard Short, in 1854; because the demise laid in the declaration was prior to that year, which, according to their own showing, was before their title under those deeds accrued; upon which the cpunsel for the plaintiffs asked leave to amend, so as to lay the demise in the narr subsequent to the date of the last deed. The counsel for the defendants resisted the application, on the ground that it was too late, particularly as the plaintiffs had closed their testimony in the case, and he was now opening the defence to the jury. -</p>

Trespass before Justice Cornwell removed to this court on a plea of freehold. Narr. Pleas. First. That the record upon which the action is founded does not contain any statement of the plff.’s demand before the justice, and is therefore imperfect and defective. Big. 360. Second. Not guilty. The court directed the jury to be sworn on the second plea, reserving the first for their own decision on inspection of the record.

<p>Words are not actionable in themselves unless they imputea legal crime.</p>

<p>Appeal. Trespass for shooting a cow.</p> <p>An action of trespass was instituted by Richardson against the defts.’s testator, John Washington, before a justice of the peace. The trespass complained of was the shooting plff. ’s cow. Plff. had a report and judgment in his favor before the justice, and deft, appealed. After judgment, deft, died, and letters testamentary were duly granted to Elizabeth Washington, his executrix.</p>

Replevin. The deft., Rudolph, made cognizance as bailiff for Susanna Stilley, who avows the taking as a distress for rent in arrear. Pleas—First, a release; second, rien in arrear. Replication to the plea of release, non est factum and issue. Issue also on the other plea.

<p>Case. Trover by one tenant in common of a vessel against his co-tenant.</p>

<p>Ejectment. Case stated.</p> <p>The case stated set forth; that James Broom, late of Newcastle county, being seized of certain lands, &c., in said county, duly made and executed his last will and testament, in writing, in and by which, among other things, he devised and bequeathed as follows:</p> <p>“Also I give and devise all the residue and remainder of my lg.nds, houses, tenements, rents, hereditaments and real estate whatsoever, unto James Broom, Hetty Willis Broom, Eliza Broom, Harriet Rumsey Broom and all the other children of my said son, Abraham Broom, that shall hereafter be born, the said four children being the son and daughters of my said son Abraham, and their heirs forever, equally to be divided, to be held by them and their heirs forever, as tenants in common. Also, all the rest and residue of my personal estate, I give and devise to the said James, Hetty Willis, Eliza and Harriet Rumsey Broom, daughters and son of my said son Abraham, and all the future children of my said son Abraham, forever; and it is my will and pleasure, and I do direct and devise, that my said son Abraham Broom, take into his possession all the real and personal estate devised to his said children, and out of the rents and profits thereof, educate and maintain his said children, and also any future children he may have, and the same so keep until the youngest child he now hath, and hereafter shall have, shall arrive and come to the age of twenty-one years. And I do nominate and appoint the said Abraham. Broom guardian to all his children aforesaid, begotten or to be begotten, until they all, respectively, arrive to the age of twenty-one years; and if my said son, Abraham Broom, should die leaving my daughter-in-law, Elizabeth Broom, and before the youngest of said children shall come of the age aforesaid, then it is my will and pleasure, and I do devise that my said daughter-in-law, Elizabeth Broom, take into her possession the real and personal estate herein devised unto the children of Abraham Broom, and out of the rents and profits thereof, educate and maintain the said children and all future children by him, until the youngest child they now have or hereafter shall have, respectively, arrive to the age of twenty-one years; and I do also, in such case, nominate and appoint the said Elizabeth Broom guardian to the said children, until they arrive to the age of twenty-one years. ” James Broom left to survive him the said Abraham Broom the lessee of plff., and also his wife Elizabeth Broom and all the said children mentioned in the will. He has since had other children by the said wife, some of whom are deceased, but all of whom were or would have been of age at the commencement of this suit. The said Elizabeth is now dead. Defts. are in possession under the children of Abraham Broom the devisees.</p>

<p>Case.</p> <p>Narr. Common counts, goods sold, &c. &c. Pleas, non assumpsit, act of limitations and set off. Replications and issues.</p> <p>This was an action for lottery tickets sold to the deft, by plff. who is a lottery broker. The plff. produced and proved his books, which were objected to on the ground that lottery tickets are not matters properly chargeable in account.</p>

Scire facias on a recognizance in the Orphans’ Court, upon the appraisement and acceptance by Wilson Messick of the intestate real estate of Jacob Messick, deceased.

<p>Rule to show cause why the sale of deft.’s lands should not be set aside.</p> <p>The objection was to the regularity of the proceedings. A fi. fa. had issued and was returned levied on goods per inventory, and also on lands: Inquiry held and not, sufficient. A venditioni exponas then issued for the sale of the goods, and afterwards an alias venditioni exponas, upon which these lands were sold.</p>

<p>A petitioner cannot have the benefit of the insolvent laws unless he be actually in prison.</p> <p>If the sheriff permit a voluntary escape, he cannot retake the prisoner.</p>

<p>A lunatic may defend by next friend without having a commission.</p> <p>Lunacy may be set up against a note at least as between the original parties or against the first indorser.</p>

Attachment case. Case stated. Bowers & Glasby, merchants of the city of Philadelphia, being in insolvent circumstances, and in contemplation of insolvency, executed an assignment of all their goods and chattels, rights and credits, to John 6.

Replevin for a negro slave, bequeathed by Spencer Phillips to his wife, TJnicy Phillips, in the following clause of his will: “ I give and bequeath to my beloved wife, TJnicy Phillips, during her widowhood, one-half of the farm my father gave me, with one-half of the orchard, and one-half of the buildings thereon; to have her choice; also one negro, Hetty. Further, I will unto her the privilege of getting firewood and rail timber upon any of my lands.

<p>An execution binds the goods of the defendant from the time it comes to the hands of the sheriff, hut a writ of foreign attachment only from the taking of them by the officer. An actual taking into his exclusive possession, however, is not necessary ; the making of an inventory with a view to the appraisement of the goods under the latter writ will constitute a taking in law, and being then in the legal custody and possession of a constable so inventorying them under a writ of foreign attachment, it will have preference over executions afterwards coming to the hands of the sheriff on the same day.</p>

<p>If a person buys goods and pays for them, but allows another ,to take them and sell them, retaining the entire profits over and above the original cost of them, for his own benefit, they are the property of the purchaser, and are not liable to execution process against the party receiving and selling them.</p>

Assumpsit for work and labor, with the usual pleas. The proved account of the plaintiff against the deceased was for work and labor, as a domestic servant in his household, for a period of twenty-seven years, four months, and twenty days, commencing in' 1828, and continuing up to the time of his death, at $3 per week, amounting to $4272, subject to a credit of $750; and she proved that she had performed service as such in his family during the whple of that period, and that…

<p>Record. In the case of the return of partition and valuation of the real estate of Abraham Short, deceased. July term, 1830. Decree in relation to costs. Appeal prayed and granted. 25th September, 1832. Decree approving and confirming the return of freeholders. Appeal prayed and granted. In superior court, November term, 1832. Appeal from the aforesaid decrees received and filed. “And now, to wit, this eleventh day of December, 1832, upon opening the above cases to the court, it appearing to the court that no instrument in the nature of a bill of exceptions presenting fairly and fully the point or points decided, for which said exceptions were taken, had been signed and sealed by the said orphans’ court, or one of the judges thereof: It is ordered by the court that the appeals be therefore dismissed without prejudice, and the record remanded to the court below.” In the orphans court, March 7, 1833. “And now, to wit, this first day of March. A. D. 1833, an appeal is prayed by Alexander Crawford, in right of his wife, Rebecca, and by Jacob Moore, in right of his wife, Margaret, from the order and decree of this court of September 25th, 1832, approving and confirming the return in this cause, which is refused by the said court; and the said parties so appealing also pray the said court to sign and seal an instrument in the nature of a bill of exceptions, presenting fairly and fully the points decided for which the said parties except to the said order and decree, which is refused by the said court, on the ground that a former appeal has been taken in the cause and dismissed by the superior court.”</p>

<p>This was a motion to set aside a judgment and an inquisition thereon, because it did not appear by the return of the sheriff that the defendants had been duly summoned, as the time and manner of the service of the writ were not stated in the return. The suit was instituted to May Term, 1856, by a writ of summons in debt, to which the sheriff made return of summoned merely, on which the plaintiffs filed their narr to that term, and obtained judgment by default for want of appearance of the defendants, and after-wards sued out a writ of inquiry during vacation to ascertain the amount.</p>

<p>Rule to show cause why an award should not be set aside for want of notice.</p> <p>Notice of the meeting of the arbitrators had been given to the deft.’s counsel, but not to the deft, himself.</p>

<p>Case. Narr.</p> <p>Pleas, non assumpsit, payment, set-off and act of limitations. Issues.</p> <p>Theplff. counted on the following note:</p> <p>“Philadelphia, February 18th, 1832.</p> <p>“$425 33-100.</p> <p>“Three months after date we promise to pay to the order of John Hartwell, four hundred and twenty-five 32-100 dollars, without defalcation, for value received.</p> <p>(Signed) Wi. H. McBeth,</p> <p>Alex. McBeth.”</p> <p>The note, when produced, had the following indorsements: “J. Hartwell, T. R. Hartwell, H. Wright, W. Van Amringe.”</p>

<p>Foreign attachment case and motion to quash the writ, because the defendant, although his residence was in Hew Jersey, was in this State at the time it was issued. The proof showed that the defendant resided in Hew Jersey, but was in Hew Castle County on the day, and for several days before and after, the writ was issued.</p>

<p>Debt on administration bond.</p> <p>Narr, suggesting a devastavit. Pleas, nil debet, plene administravit, debts outstanding of superior dignity, and no assets ultra.</p>

This was an action of ejectment, which came up from the Superior Court for Kent County, upon a case stated, by consent of counsel, and on questions of law reserved for hearing before the Court in bank, which were as follows : Richard Cooper, late of Kent County, deceased, was, at the time of making his last will and testament hereinafter mentioned, and at the time of his decease, seized of an estate in fee simple, in possession, in the lands and premises in his said last…

<p>Case.</p> <p>This was an action on a promissory note made by Mitchell & Quinn in favor of Edward Marshall, and endorsed by him to the plff. Robinson. The note was payable on demand.</p>

Certiorari. Record. “Action for tolls. Demand, @31 81|. November 5, 1828. The deft, appears and confesses judgment for debt, thirty-one 81-100 dues and costs. @31 81.” Exception. That the justice had no power to record a confession of judgment without process.

<p>A discharge under the insolvent laws of New York prevents the arrest of the deft.’s ' person here, if the debt arose there.</p> <p>Special bail relieved in such a case.</p>

<p>Action on a bail bond.</p> <p>Judgment by default. Rule to show cause why the judgment should not be set aside and the deft, let in to defend the original action.</p>

The bill stated: That Thomas McDowell made a promissory note, dated 6th October, 1817, for #500, in favor of complainant, which was indorsed by him and discounted by the bank, for the accommodation of the maker. This note was afterwards protested for nonpayment, and put in suit and judgment obtained against the indorser on the 7th April, 1819, for #541 16. No suit was instituted against Thomas McDowell, the maker.

Before Gilpin, C. J., and Milligan, Wootten, and Houston, Justices.

(Judge Black did not sit having been of counsel below.) This was a bill for dower and for arears of dower. John and Barzillai Newbold were seized of a tract of land in Newcastle county as tenants in common, in equal undivided moieties. Barzillki New-bold died in February, 1815, leaving to survive him the complainant below Euphemia Newbold his widow and seven children.

<p>Chancery has jurisdiction to inquire into awards though made on a reference in a court of law, on the ground of fraud on the referees discovered after judgment on the award.</p> <p>Judgments on awards are as obligatory as judgments after verdict.</p> <p>Where two courts have concurrent jurisdiction and one of them is in possession of the cause, it ousts the other.</p> <p>Whether interest on arrears of an annuity is not allowable in certain cases. Severe?</p>

This was an action of ejectment from the Superior Court in Kent County, and came up on a case stated and questions of law reserved for a hearing before all the judges in bank.

Mr. Black did not sit having been of counsel below. The bill was filed in 1826 by Job S. Dodd, for an account of partnership transactions between him and Philip Reybold in the business of buying and butchering cattle, sheep and other stock for sale.

This was an action of ejectment, brought by George M. Davis, the plaintiff, to recover the one undivided fourth part of four hundred acres of land, situate in Northwest Fork Hundred.

New-Castle County. The case, as presented by the complainant’s bill, was: That about the year 1811 the complainant, David Carlisle, resided with his father Samuel Carlisle, on a farm lying partly in this state and partly in •Pennsylvania, containing about 190 acres, and of which the said Samuel Carlisle was the legal owner in fee; that the said David Car-lisle being of full age was desirous to establish himself as a farmer on his own account, but the father, being a person…

<p>This was a rule, obtained by George W. Hickman & Co., assignees of William E. Torbert & Co., to show cause wherefore a judgment entered by confession, and an execution issued thereon, at the suit of Samuel Branson against the late firm of William E. Torbert & Co., should not be set aside. It appeared by the affidavit and evidence for the plaintiffs in the rule, that the bond and warrant of attorney on which the judgment was entered, was executed in the name of the late firm of William E. Torbert-and William L. Torbert by William, JE. Torbert, but that he had no authority to sign and execute the same so as to bind the firm, or William L. Torbert, the other member of it, as he had no authority from the latter to sign and execute the bond, or to confess the judgment against him individually, or against the late firm of William E. Torbert & Co., which had been previously dissolved on the 10th of March, 1857, and William E. Torbert, as the duly constituted successor of the firm, having made a bona fide assignment of the debts due it, on the 26th of the same month, to the firm of George W. Hickman & Co., the latter engaging to collect the debts due to and pay the debts due from the late firm of William E. Torbert & Co., of which they were also creditors at the time of the assignment made to them. For the defendant in the rule, it was proved that the assignment in question was made in consideration of the relinquishment of the claims of such of the creditors of the late firm of William. E. Torbert & Co. as were then ' present, but that the defendant, who was a creditor of the firm, was not present at the meeting, and that William L. Torbert had stated, since the dissolution of the firm, that William E. Torbert had authority from him to sign the bond and warrant of' attorney to the defendant, hut without saying what was the nature of his authority. Also, that certain creditors of the firm were preferred, and had been paid in full, in consideration of which they had assented to the assignment, and others under it were to he paid unequal dividends, some amounting as high as to ninety per cent, of their demands.</p> <p>For the plaintiffs, it was argued that; an individual member of a firm cannot bind it by deed, unless authorized to do so by deed, and as the successor of the firm of William •E. Torbert & Co., William E. Torbert had full power and authority to make the assignment in question to the firm of George. W. Hickman & Co. Story on Partn., sec. 122; 5 Hill, 107.</p> <p>For the defendant, it Was denied that he had authority to make the assignment, but the same, it was contended, was fraudulent and void as to the defendant, who had not assented to it, because it preferred creditors, and debts not then due, as the claim of Hickman & Co., to the defendant’s debt, which was then due, and because it unjustly discriminated between the claims of creditors, and made an unfair and unequal distribution among them.</p>

<p>In an action upon a judgment recovered in another State, it is final and conclusive, not only as to the persons who were parties on the record to it there, hut also as to all persons who should have been parties to it there.</p> <p>A bond given by two members of a firm for debt and judgment confessed upon it by them, will discharge the original joint liability of a third partner for it, because it changes and extinguishes the original nature of the debt, and thereby becomes a new debt of a higher grade of the partners giving the bond and confessing the judgment; and if the other partner afterwards pays the amount of the judgment to the plaintiffs, and takes an indorsement of it to his own use and benefit, it cannot be pleaded as a payment, or defence to an action on the judgment for the use of such partner against the defendants.</p> <p>A person for whose use a judgment or suit is indorsed, is no party to it in a legal sense, and no plea addressed to his right merely to maintain the action is good.</p> <p>The payment of a judgment by a person not a party to it, is not a satisfaction or extinguishment of the judgment, unless it was so intended to be by the, person paying it; and if indorsed for his-use, it cannot be pleaded as a payment by the defendant in an action upon the judgment against him.</p>

Debt on bond. Narr., Rule, Plea, &c. “The deft, craves oyer of the writing obligatory and the condition afs’d., and of the said pretended assignment thereof.” Notice given and copy demanded.

<p>This was a case stated, involving the construction of the last will and testament of Thomas C. Horsey, deceased.</p> <p>The wife of the plaintiff', Samuel H. Horsey, was the widow .of the testator, Thomas C. Horsey, deceased, to whom he bequeathed by the said last will and testament as follows: “ And after my just debts and funeral expenses are paid, and my wife’s thirds are taken out, I give, devise and bequeath as follows: to my beloved wife, Ellen M. Horsey, my horse and four-wheel carriage, one bureau, one buffalo robe, one negro woman, named Emeline, until she shall arrive at the age of thirty-four years, which will be on the 25th day of August, 1850, and then to be free.” The testator then devised and bequeathed in the succeeding items of his will, to his daughter, Martha J. Horsey, certain portions of his real estate and a negro girl, named Mary, to serve to the age of twenty-eight, and then to be free, and to his son, Thomas Clayton Horsey, certain other portions of his real estate and a pecuniary legacy of one thousand dollars, payable without interest at the age of twenty-one years, also a negro boy, named John, to serve until the age of thirty years, and then to be free. “All the'.rest and residue of his estate, both real and personal, to be equally divided between his said son, Thomas Clayton Horsey, and his daughter, Martha J. Horsey, their heirs and assigns forever.”</p> <p>The residue of the personal estate of the testator, after the payment of his debts and funeral expenses and deducting the legacies bequeathed in the will, amounted to $7582.</p> <p>The questions submitted were, 1. Whether the plaintiffs, the said Samuel H. Horsey and wife, were entitled to demand and receive, in right of the said Ellen M. Horsey, the relict of the testator, from the defendants, his executors, the one-third part of his personal estate after the payment of his debts and funeral expenses ? and 2. If they were so entitled, whether that third was to be ascertained and paid without deducting from the amount of his personal estate the specific and pecuniary legacies above mentioned ?</p>

<p>Appeal from the orphans’ court.</p> <p>John Cordry, late of Sussex conty, dec’d. by his last will and testament, dated 17th July, 1816, divised and bequeathed as follows.</p> <p>“As it respects what God has been pleased to bless me with in this life, I give, devise and dispose of in the following manner and form; viz: Item—I give and bequeath to my daughter Milly Adams, one shilling, and no more. Item—I give and bequeath to my son Spencer Cordry, one shilling, and to have no more of my estate. Item —I give and bequeath to my son John Cordry, twenty-five acres of land adjoining a tract which I have deeded to be laid off, begining at the county road opposite the lane that leads to my house, &c. and running, &c. until it intersects with the line of the afsd. tract of land, already deeded to him, shall include twenty-five acres of land, to him and his heirs forever. Item—I give and bequeath to my daughter Unice Adams, one shilling, and no more. Item—I give and bequeath to my son Isaac Cordry, one shilling, and to have no more of my estate. Item—I give and bequeath to my son William Cordry one feather bed, one cow and calf, and one half part of the residue of my lands which I have not devised or deeded away. Item—I give and bequeath to my son Elijah Cordry ten acres of land adjoining a tract which I have deeded to him to be laid off, &c. also one feather bed and one cow and calf. Item—I give and bequeath to my son James Cordry one half part of the residue of all my lands which I have not already disposed by will or deed; but if James should die without issue it is my will and desire that my son William should have hi spart to him and his heirs forever. Item—I give to my four youngest children, Sally, Betsy, Nelly and James Cordry, all the residue of my personal property which is not before named or given in this my last will, to them and their heirs forever.”</p> <p>And the said testator appointed Spenser and John Cordry his executors, who proved the will.</p> <p>After the death of William Cordry, Isaac Adams and Unice his wife filed their petition in the Orphans’ court for a division of the lands devised to him on the ground that he took but a life estate under the will afsd. and that the said John Cordry, the father, died intestate as to the reversion of said lands; and on the coming in of the return, a rule was granted at the instance of the next friend of Lorenzo H. Cordry, son and heir of the said William Cordry, to show cause why the return and proceedings should not be set aside. The Orphans’ court, upon hearing, discharged this rule and affirmed the return “upon the ground that the said William Cordry took but a life estate under and by the said last will and testament of the said John Cordry; and thereupon the said Isaac Adams, in right of his wife the said ITnice, and the other children and legal representatives of the said testator mentioned in said petition, were entitled to such part and share of the reversionary interest in said lands and premises as is mentioned and set forth in said petition.” Whereupon an appeal was prayed and granted.</p>

<p>This was an action of trover to recover the value of certain swine 'of the plaintiff, killed by the defendant. The pleas were, not guilty, the act of limitations, and that the defendant took the swine damage-feasant. To the last plea the plaintiff replied specially, that the defendant’s fences and inclosures were defective and insufficient, by reason whereof, &e. The defendant rej pined, that the fence-viewers had pronounced his fence a lawful fence, and that he thereupon recovered a judgment before a justice of the peace for the damages assessed by them pursuant to the statute, for the' trespass and injury then and there committed by the swine. Surrejoinder by the plaintiff, that the defendant killed the swine, &e. Rebutter traversing the rejoinder of the plaintiff, and issue by the defendant.</p> <p>The proof was, that the plaintiff’s hogs had been trespassing on the premises of the defendant and that he impounded them, bu,t afterwards -turned them at large, but trespassing upon him again in a short time, he attacked them with sticks and ’dogs, and shot among them with his gun. Three or four of the swine soon afterwards died. It was also, proved-that the defendant had called out the fence-viewers to examine the fences on his premises, and that they had adjudged them to be lawful and pursuant to the statute, and had assessed damages in his favor for the trespass committed.</p> <p>For the plaintiff, it was insisted that this constituted no defence for killing the hogs.</p> <p>On behalf of the defendant, the objection was taken that the action for the injury complained of should have been trespass and not trover, as no conversion of the property by the defendant had even been attempted to be shown. For the plaintiff, it was replied that the distinction between case and trespass had recently been abolished by statute, Rev. Code, 379, sec. 11, and that such an objection no longer lay to the form of the action, and if trespass would lie, trover would lie also.</p>

Issues on a plea of nulla bona. Plff. gave in evidence a judgment at the suit of Benton Harris for the use of Eliza Ann Harris against John Fleetwood; and proved that. Jesse Green, jr. had married the said Eliza Ann Harris. The doubt which arose in the case was whether a chose in action belonging to a man in right of his wife could be attached before the husband had reduced it into possession. Neither the defendant Green nor Fleetwood the garnishee had counsel.

This was an action of debt, against Henry F. Rodney and Henry F. Hall, on the testamentary bond of the former, as the executor of Robert Burton, deceased, for one-fourth of the residue of his personal estate, bequeathed to Gideon Burton.

Action of debt to recover $650, the amount of cértain bills and notes given by deft, to plaintiff, and which had been destroyed. Pleas, non est factum; payment, discount and set-off as to the counts on the bills; and as to counts on the promissory notes nil debet, payment, set-off and act of limitations. There were twenty-four counts in the narr. The plff. called a witness to prove the contents of notes, &c.

Trespass quare clausum fregit, “and destroyed grass, corn, &c., and for “carrying away divers goods,” &c. The defts. pleaded not guilty and also justified, to wit: Harvey that he entered by virtue of his office as a constable and sold the goods on a certain judgment and execution at the suit of Stant against Minus, and also a judgment and execution at the suit of Jesse Read; and the deft. Stant justified as a plff. in the execution and a purchaser at the sale.

<p>Debt on administration bond for the use of Elizabeth C. Deputy against David Bloxom as the administrator of Nathaniel Deputy, deceased, and Philip C. Jones, his surety. There were sundry breaches assigned in the narr, as is usual in such cases, and among them that the administrator had not filed an inventory and appraisement of the</p> <p>goods and chattels of the deceased and a list of the debts due him, in the Register’s office", within six months after his decease; and in the next place, that he had not rendered a just and true account of his administration within one year from the date of his appointment as such administra-, tor. To all the breaches assigned the defendants filed sundry pleas, on which issues were joined; but at the ensuing term they obtained leave to amend, and the cause was continued, after which they entered the following additional pleas generally to the breaches assigned: 1. That since the issues above joined, David Bloxom had been removed from the administration of the said estate by the Orphans’ Court, and been ordered by the said Court without delay to pay and deliver all the nnadministered goods and chattels, rights and credits, moneys, securities, books and papers, belonging to the estate of said deceased, to William F. Jones, who was appointed receiver thereof by said Court; and, 2. That since the above issues were joined, the said William F. Jones had been duly appointed by the Register of the county, and was now the administrator de bonis non of the said Nathaniel Deputy, deceased, and was duly entitled to receive the same. To these latter pleas a general demurrer was entered by the plaintiff, and the only ques-' tian for the Court to consider was, whether these pleas were any answer to the breaches above specially set forth, and whether the plaintiff was not entitled to a judgment thereon for nominal damages at least.</p>

<p>Case. Narr. Pleas. Non assumpsit; payment; discount, and act of limitations. Issues.</p> <p>It was an action of assumpsit, and the narr. contained the usual money counts. The plff. proved her case by the production of the following receipt, and by evidence of several promises by the deft, to pay the money. “Received February 6, 1827, of Martha Guthrie by the hands of James Guthrie, $70,00; likewise received, December 26, 1827, of the said Martha Guthrie, $230,00; making together $300,00; which sum is put to interest for the benefit of the said Martha Guthrie.</p> <p>, Signed, John V. Hyatt.”</p>

<p>Prescriptive right of way presumed from twenty years enjoyment.</p> <p>Right of way from necessity—when.</p>

<p>Certiorari to John Wiley, Esq. a justice of the peace.</p> <p>Record. Summons issued July 14th, 1834, returnable on Monday July 31st, 1834, before John Wiley, at his office in Newcastle. Demand @3 71, on the following account:</p> <p>Doctor Henry Colesberry</p> <p>to Aaron Stoops Dr.</p> <p>1834, March 34.—To forty-one peach trees furnished according to your lease to me by J. Reeve, through Capt. James</p> <p>McCullough at six cents, $2 46</p> <p>To cash paid Capt. J. McCullough for trouble, 35</p> <p>As per the annexed bill and receipt,” $2 71</p> <p>Then followed a bill of the trees from S. Reece to James McCullough, and a receipt from McCullough to Stoops for $2 71.</p> <p>The summons was returned, “served personally, July 30th, 1834.” “July 31, 1834. The deft, appeared and craves further time until Saturday, July 36, 1834, which is granted. Saturday July 36, 1834. The plff. appears and the deft, not appearing, I enter judgment for the plff. for two dollars and seventy-one cents, with costs of suit, &c.”</p> <p>Exceptions. First. Because it appears that the action is founded on a covenant in a lease; and being an action sounding in damages is excludedfrom the jurisdiction of a justice of the peace. Second. Because the deft, below failing to appear pursuant to the adjournment of the cause, the justice gave judgment against the deft, in his absence ivilhout hearing the allegations and proofs of the plff.</p>

<p>Appeal from the judgment of John Conwell, Esq. a justice of the peace.</p> <p>This was an action againt a constable for neglecting to return an execution at the suit of Bailey against James Spencer, delivered to him to be executed. The plaintiff declared in debt on the statute and the deft demurred generally and specially. Dig. 341, sec. IS.</p>

Trespass. Narr. Pleas, not guilty, and justification under process of attachment from the superior court. This was an action of trespass against the sheriff for seizing two cargoes of Indian corn claimed to be the property of the plff.

<p>Action for an assault and battery. Joseph Heal assaulted Obier with a large stick, uplifted with both hands, and drawn back in a threatening manner. Obier seized a small one, but which he did not raise, but held in his hand by his side, when Heal struck- him a hard blow on the top of his head with his stick; and then Obier returned the blow with his stick, but with less violence, on the side of Heal’s head. They then dropped their sticks and closed with each other, when William Heal seized the plaintiff by the right arm, and while he thus held him, William H. Heal caught up the stick which Joseph Heal had dropped, and struck the plaintiff Obier a severe blow over the head with it. William H. Heal pleaded a justification of his assault and battery upon the plaintiff in defence of his ■ father, Joseph Heal; and upon this evidence the counsel on both sides invoked the charge of the Court as to the sufficiency of his plea of justification under the circumstances. -</p>

This was an action of covenant on a lease, the covenants of which were, that, during the term, the tenant, the defendant, should keep the buildings, houses, outhouses, and other tenements, and all hedges, fences, gates, &e., in good order and repair, using materials of good quality and fitting therefor; provided, however, that if the acting committee of said trustees shottld at any time, during the term, be of opinion that the roofs of the buildings on the premises could not…

<p>Constable’s return must show whether the service was personal, or by leaving a copy at delt.’s house.</p> <p>It need not state all the requisites, but if it shows that any of them were not observed, it will be bad.</p> <p>Service by leaving a copy at the deft.’s office is not a good service.</p>

<p>Certiorari to Justice McCaulley.</p> <p>Record. “Action on assumpsit—demand, $22 45, to wit: ‘Sep-</p> <p>tember 22, 1832. William McCaulley, Esq. Sir: I have no objections to enter as security for Luke Spenser to the amount of twenty dollars, as I understand you have a judgment against him to that amount. Your obedient servant,</p> <p>(Signed) George W. Moore.’ ”</p> <p>The action was upon the above assumption; the summons was regularly served and returned; and after verifying the service by the oath of the constable, the justice proceeded to hear the cause in the absence of the deft, and gave judgment against him by default.</p> <p>The exceptions were—First. That the record showed no cause of action. Second. That the justice had not jurisdiction of the case.</p>

<p>Replevin.</p> <p>The deft. McClay made cognizance as bailiff for McGrann, who avowed the taking as a distress for twelve dollars rent in arrear on the 25th September, 1833. Pleas, non tenuit, nil habuit in tenementis, no rent in arrear, and payment to ground landlord. Replications and issues.</p> <p>Charles Connel, being possessed of a small tenement, divided into two parts, on a ground lease of $8 00 per annum, demised the south end to Hugh Donely for one year from the 25th March, 1833, at $24 00 per year, payable quarterly. On the fourth of May following, Connel assigned all his interest in the premises to John Mc-Grann, one of the defts. By an arrangement between McGrann and Hugh Donely, the latter removed from the south to the north end of the building, at the same rent and on the same terms. On the sixth of May, 1833, an attachment was issued by a justice of the peace, at the suit of Robinson, Carr & Co. against Charles Connel as an absconding debtor, which was levied, on the seventh of May, on the said house, and an appraisement regularly made. Judgment was afterwards obtained on the attachment, and an execution issued on the tenth July, 1833, under which the house was sold to Robinson, Carr & Co. for $55. Donely afterwards attorned to Robinson, Carr & Co. and paid them the rent. He also paid the ground landlord and took receipts. He offered paroi evidence to prove the amount paid to the ground landlord, which was objected to, as it was shown there were receipts.</p>

<p>A mere possibility that a witness may gain or lose by the result of the suit, will not affect his competency.</p> <p>A sale of corn in the ear in the seller’s barn, afterwards to be got off ready for market by him, and to be taken away by the purchaser as soon as he could get ready to receive it, transfers the property to the purchaser from the time of the sale, and it cannot be taken on an execution against the seller levied before the delivery.</p>

<p>Issue from the register sent to try the question “-whether the paper writing purporting to be the last will and testament of Thoimas Chandler dec’d., is or is not the last will and testament .of Thomas Chandler dec’d.”</p> <p>The will in question bore date the 24th May, 1833, and was made when the testator was in his 73d year of age. It was in the hand writing of Benjamin Ferris, who was constituted an executor and trustee as hereafter mentioned. It contained a great number of small bequests, amounting in the whole to about seventeen thousand dollars, most of which were to the testator’s relatives; and it then disposed of the rest and residue of his estate, real, personal and mixed, in the following manner.</p> <p>“And whereas it hath frequently occurred to my mind that the African race or descendants of African natives in the United States, are in a deplorable degraded condition, and considering that neither the federal government nor any other institution has made adequate provision for their improvement in education, morals and industry I have thought that a great and permanent benefit might accrue, not only to that people but to the white population of our country, if a foundation could be laid, though in a small way, of a fund to be appropriated to the promotion of these importantends. With the hope therefore that benevolent individuals who may survive me, may be disposed to aid in this concern, and contribute towards its accomplishment, until a fund may be raised sufficient to commence an institution to carry into effect the views before expressed, so far at least as fio educate male children of the African race, so as to render them useful to themselves and the community by a course of instruction in morals, science and productive employment, agricultural, mechanical or otherwise; I do hereby give, devise and bequeath to John Clark, now of thei city of Wilmington, in the State of Delaware, Benjamin Ferris and Eli Hilles of the same place, David Wilson, of Hockessing, in the State aforesaid, Jacob Heakl and Haines Jackson, of the same place and Bennet Jefferis, of Christiana hundred in the State afs’d. all the rest and residue of my estate, real, personal andmixed or of whatever kind the same may be not herein otherwise disposed of in trust, nevertheless, that they the said John Clark, B. F., E. H., D. W., J. H., H. J. and B. Jefferis and the survivor of them and their successors appointed as herein after directed, shall faithfully appropriate and apply the said residue of my estate or the proceeds thereof, to the purpose afs’d. and 'to no other. And in order to carry into effect the object of this devise and bequest, I do hereby authorize and empower my executors herein after mentioned, to sell any real estate which I may own at the time of my decease, included"in the residue of my estate as afs’d., and by a good and sufficient deed or deeds of conveyance duly executed and acknowledged, to grant and confirm to the purchaser or purchasers thereof, all my estate, right, title and interest in the same, as fully and effectually as I myself could now do, and I do hereby direct my said executors to pay over to my trustees herein named, the net proceeds of all such sales to be by them appropriated as herein before directed.</p> <p>And.in order to prevent any failure of the trust committed to the Said John Clark, B. F. &c., I do hereby authorize and empower them and their successors and a majority of them and their successors forever, upon the death, removal out of the State, refusal to serve or total neglect of any one or more of the said trustees or of their successors to appoint another or others to fill his or their places, and the person or persons so appointed shall have and exercise all the power and authority which is hereby delegated to any one or an equal number of the trustees herein before particularly named.</p> <p>And it is my will and I do hereby direct that all the estate or proceeds of the estate hereby given in trust to my trustees herein before named and to their successors, shall be as far as practicable kept out upon interest or so invested as to be productive, and that all the interest or net proceeds arising from dividends on stocks or other investments shall be from time to time added to the estate hereby devised or bequeathed, during the space of seven years after my death, if the principal shall so long remain unappropriated in the manner aforesaid.</p> <p>And it is further my will and a condition of the afs’d. devise, and bequest to my trustees as afs’d. that the estate so given to them in trust shall be appropriated and applied to the uses and purposes afs’d. within seven years after my decease; and if within that time no such institution shall be established or commenced, and no other funds raised for the purposes of such establishment, then and in such case all the said residue of my estate shall go to and be equally divided among all the children of my nephews and nieces and their legal representatives, share and share alike, and I do hereby give and beqeath the same to them accordingly, to hold the same, to them and to their heirs and assigns forever. Excepting nevertheless out of such bequest the sum of five hundred dollars, part of the said residue, which I do hereby give and bequeath to the African school society of Wilmington, incorporated by the Legislature of the State of Delaware, for the purpose of instructing the descendants of the people, of Africa,—the same to be paid to the said'society on failure of the said institution and not otherwise.</p> <p>And as it. may be useful and proper that I should express my mind in relation to the plan of the institution proposed, I hereby add an outline of such plan as appears to me most likely to attain the object of mj'- concern.</p> <p>First. That a tract of land should be purchased sufficiently remote from any city, town or village, to prevent all improper intercourse between the resident pupils and every person connected with the institution.</p> <p>Second. That commodious and substantial buildings be erected thereon for the accommodation of the pupils and officers of the institution, and for workshops, barns, stables and for other purposes.</p> <p>Third. That children should be admitted at seven years of age and older, as pupils from any section of the United States, but those from the State of Delaware to have the preference in all cases when it may be necessary from the state of the school to make a chdice.</p> <p>Fourth. When pupils arrive at fourteen years of age, having had a competent share of learning to fit them for business, they should be permitted, if they so choose, to be apprenticed to suitable persons at the discretion of the managers, to learn trades, agriculture or other business, in which they may be useful to the community and of advantage to themselves—otherwise they may at the discretion of the managers, be kept on the farm or in the workshops únder the care of the institution, until they arrive at the age of twenty-one years,</p> <p>Fifth. The pupils should be maintained and educated without other charge or compensation than their own labor, and should be found in food and good plain clothing during their residence in the institution.</p> <p>Sixth. The course of instruction should include reading, writing, arithmetic and English grammar—and where inclination and capacity on the part of the pupils are manifest, the course of instruction should extend to the higher branches, particularly those that may be most useful in practice, such as navigation, surveying and the necessary preliminary acquirements.</p> <p>Seventh. The managers should have power of course to discourage all improper conduct on the part of the pupils, and to encourage them in their pursuits and for good behavior, by dismissal or punishment in the former case and by rewards or promotion in the latter.</p> <p>Eighth. The farm ought to be managed in the best manner, and according to the most approved system of agriculture, so as to be a proper model or pattern for others. All the labor should be performed by the students, which should be so regulated that each pupil should do his proper share of labor and have his fair proportion of literary instruction daily.</p> <p>Ninth. As the funds and resources of the institution may authorize, workshops should be built and mechanics employed to teach the pupils in their several branches, such as smiths, shoemakers, cabinetmakers, turners &e., seeing that the elevation of this class of people much depends on their usefulness as members of the community.</p> <p>Tenth. Each pupil on admission into the institution, should come under written obligations to remain under the government of the officers or superintendants of the establishment, and to comply with such instructions as may be given them. And it might be advantageous and proper to have legislative-authority to bind them out. under the age of twenty-one years, to such persons as might be suitable, in order to attain the objects in view as before expressed.</p> <p>And I desire that at no time more than two of the trustees in future to be appointed, should be resident in the city of Wilmington or any other town—at least five in number should always be inhabitants of the country.”</p> <p>And he appointed Amor Hollingsworth, Jesse Gregg and Benjamin Ferris, executors.</p> <p>The estate amounted to between thirty and forty thousand dollars.</p>

This was a rule to show cause wherefore the entry of the issue in this ease should not be corrected and reformed, so as to make the parties to the original judgment parties to the issue.

This was an appeal from an order of the Register of Wills of New Castle County, in the matter of the will of Samuel B. Davis, deceased, directing a certain portion of the costs of the proceedings on an issue awarded by him to test the validity of it, to be paid out of the estate of the deceased.

<p>Declaration in assum/psit. Plea, release. Replication that the release was obtained by fraud and misrepresentation. After the jury had been sworn and the plaintiffs had closed their testimony, and the defendants were proceeding with the examination of their witnesses, and had proved the execution of the release from the plaintiffs to the defendants, and its subsequent loss, but were unable to state from recollection the terms and conditions of it, the counsel for the plaintiffs asked the leave of the Court to withdraw and amend their replication to the plea of release, so as to traverse the plea generally, without replying per fraudem, &c.</p>

This was an action of assumpsit, with the usual pleas, for work, and labor, and materials furnished by the plaintiff in the construction of a machine for cutting standing corn, invented by the defendant.

<p>Ejectment.</p> <p>Suit brought ninth November, 1833. Demise laid on the tenth October, 1833.</p> <p>The plff. derived title to the lands in dispute under a sheriff’s sale on judgment and execution and deed executed conformable thereto. The judgment was recovered in a scire facias on a recognizance in the orphans’ court, and bore date tenth May, 1832. On this judgment a fieri facias issued, returnable to the November term, 1832, which was returned levied on the lands in question; inquiry held and not sufficient. Venditioni Exponas returnable to May term, 1833, upon which the sheriff returned that he had duly sold the said lands to William H. Crawford, the plff.’s lessor, on the -day of January, 1833, which sale and return were approved and confirmed by the court at the said May term, 1833, and the sheriff executed a deed to the said William H. Crawford, the purchaser, on the 2 5th of October, 1833.</p>

This was a fi. fa. attachment case, at the suit of Elizabeth Crawford against William B. Crawford, laid in the hands of James Elliott, garnishee. Plea nulla bona.

<p>Rule to show cause why judgment should not be set aside.</p> <p>The judgment was entered, without appearance or declaration, by the prothonotary of the late court of common pleas', under the provisions of the act of assembly of 1830. 8 vol. 3. The entry was in' the following words:</p> <p>“Maria Beeson vs. Joseph Beeson. D. S. B. $,2000. Judgment entered on a bond and warrant of attorney dated March 15th, 1830, in the penal sum of two thousand dollars, conditioned forthepaymeat of one thousand dollars in one year from the date, with lawful interest.</p> <p>March 15th, 1830. Judgment.</p> <p>Jos. Roberts, Pro.</p> <p>Real debt, $1,000. Interest from March 15th, 1830, at 5i per cent, per annum. March 15th, 1830, 4 o’clock, Pi M.”</p>

It appeared from the transcript that the suit below was instituted in the name of William A. Simpson by his wife, late Hannah A. Robinson, against Thomas McDowell, and that the suit was entered and docketed in this Court in the same manner, but the declaration was filed in the names of William A. Simpson and Hannah A. Simpson, his wife, against Thomas McDowell.

<p>This was an action on the case, tried before Wootten and Houston, Justices (Gilpin, Oh.’ J.1, not sitting, in consequence of his being a stockholder in the company), brought by John Minn against the Philadelphia, Wilmington, and Baltimore Railroad Company, to recover damages for personal injuries sustained by him on the night of the 18th of March, 1856, in a collision between two freight trains of the company, while he was on his passage in one of them from Baltimore to Philadelphia.</p> <p>The plaintiff resided in Wilmington, and was a drover and butcher, and was engaged in the business of buying and transporting sheep and cattle, over the road of the company, from Baltimore to Philadelphia. In the afternoon of the day mentioned he arrived at the depot of the company in Baltimore, with a flock of sheep, a short time before the hour of starting the regular freight train for Philadelphia, which was five o’clock; • and as he was anxious to get on with them that night to Philadelphia, he applied to the proper officer of the company for that'purpose, and obtained his consent to delay the departure of the train until he could get his sheep on board. After a detention of half an hour beyond the-usual time of leaving, the sheep were got on board and the train started, the plaintiff' taking passage in it with his stock for Philadelphia, for which he paid $73 freight, the usual rate charged when the owner accompanied his stock on the trains of the company, but without paying any fare for his own passage; as it was the custom and regulation of the company in such cases, to charge twenty-five per cent, less freight on the transportation of live stock when the owner or his agent went with them to take care of them, and in consideration of this fact, to ask no fare or additional pay for the passage of such owner, or his agent. It was also a further regulation and practice of the. company in such cases, to require of the owners of live stock transported over the road, a release to the company from any liability for the safety of it, and to issue to the owner a special ticket, entitled a “ drover’s ticket,” which stated on its face that it entitled the holder to pass from and to the points indicated in it, only on freight trains, for the purpose of taking care of his stock, and on the reverse of it was contained a printed notice to drovers, that no risk would be assumed by the company, nor would any damage be allowed, unless specially agreed to when the stock was taken for transportation, and an additional price of twenty-five per cent, on tariff rates paid; one driver free when accompanying the stock, to take care of it and paying the regular price, but in no case to be allowed to ride in passenger trains on such tickets; and no risk- would be assumed by the company for the safety of such person. But whether the plaintiff had executed such a release, or had such a ticket on the occasion in question, did not appear from the evidence. It was proved, however, that he had executed such releases to the company on previous occasions, when transporting stock over their road, and that he was aware of the conditions contained in the notice to drovers, as above stated.</p> <p>It was not the practice, but contrary to the instructions and regulations of the company to carry passengers generally, or any other persons than drovers, by their freight trains from Baltimore to Philadelphia, and without such a ticket, a drover would have no right, according to the regulation, to travel even on a freight train; and even then, he was not considered by the company a passenger, but only as a person on the train to take care of his stock, for the equal benefit of himself and the company.</p> <p>The train in which the plaintiff took passage with Ms stock was termed the regular or through freight train from Baltimore to Philadelphia, and consisted that evening entirely of stock and freight cars, with the exception of a common storage car, in which the men employed on the train sometimes rode when the weather was cold or inclement, and an emigrant car attached to the rear of the train on that occasion, for the purpose of being taken back to Philadelphia, and which was the only car in the train which had a stove or fire in it that evening.</p> <p>There were two other trains wMch left Baltimore the same evening for Philadelphia, after the departure of the regular freight train above mentioned. The mail train, which left at forty-five minutes after six o’clock, and an extra freight train, which left at half past seven o’clock; of the latter of which the conductor and engineer of the regular freight train had due notice before leaving Baltimore, and that it would follow them after the departure of the mail train, though the time of its starting was not stated to them.</p> <p>The weather was threatening, and snow began to fall before the first train left Baltimore'; it made, however, its usual time.to the customary turn-out, where it halted, for the next succeeding or mail train to pass it, and which soon afterwards passed, displaying a signal light, denoting that there was still another, or extra train, to follow it that evening in the same direction over the road. After the passage of the mail train, the regular freight train resumed the track and proceeded on its course, but owing to the increased fall of the snow and the force of the wind, which was ahead, it was retarded in its usual rate of speed, and was unable to make more than eight miles an hour over the ascending grades of the road; and whilst upon one of these grades it was overtaken and run into, thirty miles from Baltimore, by the extra freight train, which had followed it, but had not been impeded in its progress by the prevailing snow-storm, in about two hours after it had left that city.</p> <p>At the time of the collision, the foremost train had two lights set, one on the engine and another on the rear end of the hindmost car, but owing to the falling snow and the thickness of the atmosphere, the engineer of the extra train did not discover the regular train until he was within a hundred yards of it, when he immediately ordered down the brakes, but not in time to prevent the collision. The engineer of the forward train did not observe the other train, and had no intimation of its approach, until he felt the concussion produced by the collision. The plaintiff, together with the conductor and one of the brakesmen of the regular freight train, was at the time in the emigrant car attached to the rear; of that train, which was badly stove and crushed by the engine of the extra train, and by which the conductor and brakesman were instantly killed, and the plaintiff was severely injured. He was so severely scalded by the escape of steam from the engine of the rear train into the car in which he was seated, that he was now entirely blind, and was literally without eyes. In consequence of the intense scalding of his head and face, they had both been incurably injured internally, and in a short time the interior portions of them began to suppurate, and the entire balls had since flowed from their sockets. From the same cause the skin of his head had more than once sloughed off with both of his ears, and he was permanently injured in other portions of his body. He had also by the burning and scalding of his left hand been entirely bereft of the use of it for life; and it is perhaps allowable for the reporter to add, that it was still a marvel to all who even then beheld him that he had survived such a catastrophe and the injuries which he had suffered from it.</p> <p>Evidence was also adduced on 'behalf of the plaintiff* to prove his circumstances; his sober and industrious habits, the number and the expenses of his family, the profits of his business, and his strict attention to it, previous to the disability entailed upon him by this misfortune.</p> <p>During the examination of the testimony, the counsel for the plaintiff also offered in evidence the deposition of a witness taken out of the State on a commission issued for that purpose, which was objected to on the other side, because the witness was then in court for the purpose of being s^vorn and examined, and was ready to testify in the case in the regular and usual method, if his testimony was desired.</p>

<p>Ejectment.</p> <p>James Fergus, by will bearing date seventh February, 1797, devised as follows: give and bequeath to my beloved daughter, Eliza Fergus, all my real and personal estate, to her and her heirs forever—but if my beloved daughter Eliza Fergus should die before she arrives at lawful age, or has heirs lawfully begotten of her body, then my will and desire is that it goes to my brother Francis Fergus that was living in Rockbride county, New Virginia (when I heard from him last) to him, his heirs and assigns forever. ”</p> <p>Eliza Fergus married John Smith and died leaving one child, who died before John Smith and without issue.</p>

Ejectments. The cases were tried together, depending on the same devise in the will of Mary Fergus. The devise was as follows:— Fourthly.

<p>Certiorari to Justice Ponder.</p> <p>The exceptions were: First. That no regular or legal warrant was issued in the cause. Second. That no place of return is mentioned in said warrant. Third. That judgment was rendered by the justice by default against the said Joshua Layton without first having heard the allegations and proofs of the plff the said William V. Coulter, as by the act of assembly he ought to have done. Fourth. For that the execution was not lawful.</p>

<p>The justice’s record ought to show regular adjournments of the cause.</p>

<p>Notice of the execution of a rule of reference must be given to the opposite party and not to the attorney.</p>

<p>Service of a summons before a justice of the peace must be at least four days before" the return, exclusive of both the day of service and of return.</p>

<p>Debt on bond payable on demand.</p> <p>Cullen gave judgment for the plff. subject to the opinion of the court on the question whether the action could be sustained without proof of a special demand before action brought. And he referred to Mr. Justice Littledale’s opinion in Simpson vs. Routh, 9 Com. Law Rep. 331; f 3 Barn, and Cressw. 683;) where he says that in case of a bond with a penalty to pay a certain sum on demand, an express demand must be made before the action can be maintained.</p>

Scire facias on a recognizance in the orphans’ court. Demurrer to scire facias and joinder. The scire facias set forth that Robert Graham died intestate in the year 1813 seized in fee simple of lands in Kent county, and leaving to survive him six children, two of whom, Celia and Jane, were daughters. Celia married Jackson Lafferty in 1816, and died prior to 1820, leaving to survive her her said husband and also children who are now living.

Pluries venditioni Exponas, alias fi. fa.- for residue and attachment. Rule to show cause why this writ should not be set aside, for irregularity.

Capias case for slander. Narr; Pleas not guilty and justification. The plea of justification withdrawn. The slander alledged imputed perjury to the plaintiff.

<p>This was an action of traver by the plaintiffs to recover from the defendant the value of the unfinished hull of a sloop sold in the process of its construction under sundry executions levied upon it as the property of James H. Tubbs, the builder, and bought by the plaintiffs.</p> <p>The proof was, that Tubbs had entered into a contract with Hall, the defendant, on the 31st of August, 1854, to build the hull of the sloop for him, of certain dimensions, and find all materials, and deliver it complete in Philadelphia, by the 1st day of March, 1855, to pass the inspection of two persons, if required by Hall, at the rate of twenty-eight dollars per ton, one-third to be paid by him when the keel, stem, sternpost and floors were laid, one-third when the deck-frame and decks were laid, and the other third when it should be delivered in Philadelphia, all complete and according to contract. Tubbs proceeded under the contract to procure the materials and to build the sloop at Concord, in Sussex County, and whilst engaged upon the work and when the hull was about two-thirds finished, several executions were sued out on judgments against him by various parties, some of whom had obtained judgment for timber and material furnished him for the purpose, and were levied upon it, and by virtue of which it was afterwards sold at public sale and was bought by the plaintiffs as his property. At the time of the levy of the executions, Hall had paid to Tubbs, upon the work in the aggregate, $951.38, which exceeded the sum then due him by the contract one hundred dollars. On the levy of the executions upon the property as his, Tubbs notified Hall of the fact, and at once abandoned the contract and his work upon the vessel and did no more upon it. Hall was present at the sale, and gave notice to the bidders that he claimed the property at his own, by virtue of the contract and the payments he had made under it; and afterwards, on the formal demand of the plaintiffs as the purchasers, refused to deliver it to them. He then proceeded to procure materials and employ workmen, and to complete the hull at his own expense, and when finished had it taken to Philadelphia.</p>

<p>Construction of the terms lien and incumbrance in the dower law of 1816.</p> <p>Debts contracted prior to the act of 1816 not preferí ed to dower unless they are liens, &c.</p> <p>The decision in Brinckloe vs. Brinckloe, Digest, 168, n. considered and confined to the particular case.</p> <p>If land be sold by the sheriff on a judgment obtained after 1816, though for a debt contracted before, it is liable to dower.</p> <p>A sheriff’s sale cannot divest the claim to dower any more than a voluntary sale by the husband.</p>

<p>In a scire facias on a judgment against two defendants, one of them cannot plead that he is a surety and discharged by agreement giving time to his principal</p> <p>Oyer of the bond is not demandable after judgment,</p> <p>At law all the obligors in a bond are principals: the defence therefore that surety has been discharged by agreement between the creditor and principal debtor cannot be set up at law though available in equity.</p>

<p>Certiorari. The record contained an entry of the names of the plaintiff* and defendant in the usual form. It also contained, among others, the following entry: The referees appeared and were sworn, and after hearing the allegations and proofs of the parties, report in writing that they find John Vangeazel, the defendant, indebted to Robert Hillyard, the plaintiff, seventy-eight dollars and seven cents, whereupon I give judgment against John Vangeazel, the defendant, for $78.07 debt, and $1.90 costs of suit.</p> <p>The error assigned was that the judgment was a nullity, as the justice had not rendered judgment in favor of the plaintiff, nor entered the name of the party for whom it was given, as required by law.</p>

Rule to show cause wherefore two judgments, each for the real debt of $1250, confessed in the Superior Court for Hew Castle County, at the suit of Rachel Seal, a lunatic, by Mahlon Betts, her trustee, the one against Joshua T. Seal and Joseph Seal, lately trading in the name and firm of J. T. Seal & Co.; and the other against Joshua T. Seal alone, should not be vacated and set aside.

<p>A bet on the nomination election of candidates for the coroner’s office is illegal and void.</p> <p>A check deposited in the hands of a stakeholder cannot be recovered in an action for money had and received; he is liable for the deposit only as received.</p>

<p>The replication assigned as a breach, (under the act of assembly) that the said Allan Thompson had demised certain premises to one Plugh H. Reading; that a half year’s rent ($312 50) was growing due at the time of the taking of Reading’s goods, being upon said premises, by MTlay under process of attachment at the suit of one Ford, issued by justice M’Dowell on the 28th September, 1833. That Reading confessed judgment in said suit on the 15th October, 1833, and a fi. fa. was issued on the same day, under xvhich M‘Clay sold the goods (still being on the premises) for $135 11, which he has neglected and refused to pay over to Thompson in part payment of the rent afsd.</p> <p>The rejoinder xvas “That before the said rent became due, the said Allan Thompson, to wit: on the-day of-entered upon the premises so leased to the said Hugh H. Reading and took possession of the same, and ejected, expelled, put out and amoved the said Hugh H. Reading from the possession thereof, and kept and continued him the said Hugh H. Reading so ejected, expelled, put out and amoved from thence hitherto, to wit, &c.</p> <p>It appeared in evidence that Reading the tenant went off on the' night of the 24th of September, taking with him a considerable portion of his household furniture, but leaving property on the premises to the xralue of $135 11. He was accompanied by his family with the exception of a bar keeper who said that he was not authorized and would not take the responsibility of keeping the house open. It was a large tavern establishment in the city of Wilmington. On the 26th September Thompson, the landlord, levied a distress on the goods remaining upon the premises, locked up the house and took charge of the key; and afterxvards let the house to another tenant, his term to commence on the 25th of March, when Reading’s xvould expire. The succeeding tenant filled the ice house in January, and for this purpose got the key of Thompson. The goods were sold on a judgment recovered by Ford, the bar keeper of Reading on a foreign attachment, sued out on the 28th of September; and the constable paid the money over to the attaching creditor, without satisfying the landlord’s claim for rent. The only question was whether there had been an eviction by the landlord, and a consequent discharge or forfeiture of the rent.</p>

<p>In a demise of lands or tenements, whether the renting he for a year or a less time, or at will, the landlord cannot determine it without giving the tenant three months’ notice in writing to leave.</p> <p>If the unlawful eviction of the tenant from the demised premises by the landlord, be attended on his part by circumstances of aggravation and the trespass be gross, the jury may award the plaintiff exemplary damages. * _ x</p>

Trespass vi et armis. Plea not guilty. Issue. The declaration was in trespass for breaking and entering plff.’s close, and preventing him from threshing out and carrying away a crop of oats from the said close, the property of the plff and a part of the emblements belonging to him as the way-going tenant from the said close; and for converting the said crop of oats to his, the deft.’s own use.

This was an amicable action docketed between the parties and submitted to the Court on a case stated. The defendant, Eli B. Talley, was the executor of Christopher Lenderman, deceased, who left to survive him his widow, Sarah Lenderman, the plaintiff.

Ejectments. These ejectments were presented to the court on the following case stated: Mary James being seized in fee of the premises in question by her last will and testament, dated the thirtieth day of July, A. D. one thousand eight hundred and thirty-one, devised as follows: I Mary James of the borough of Wilmington in the county of Newcastle and state of Delaware, being considerably advanced in years and very infirm in body, but of a sound and disposing mind and memory,…

<p>Certiorari to Justice Silver. It appeared from the record, that the summons was issued returnable forthwith, on the “representation of the plaintiff, that he believed he would lose the benefit of the process by delay.” The process was served and returned the same day; the parties appeared, and being ready for trial, after hearing the evidence in the case, judgment was rendered for the plaintiff below.</p> <p>The error assigned was, that the summons had been issued returnable forthwith, on the representation merely of the plaintiff, that he believed that he would lose the benefit of the process by delay, without the oath or affirmation of the party, and without the justice being otherwise satisfied that such was the case.</p>

<p>This was an action of covenant on articles of agreement under seal, between Joseph Morrow and Ann Morrow Ms wife, of the one part, and Jacob Walters of. the other part, and came up oh appeal from the judgment of a justice of the peace, in which Joseph Morrow alone was plaintiff, and Walters was defendant. The counsel now made a case stated of it, and submitted the facts to the Court in the nature of a special verdict.</p> <p>The articles of agreement 'were as follows : ■ Ann Morrow had a son by her former husband, named Bichard Jackson, aged sixteen years on the 22d day of October, 1854, whom the said Joseph Morrow and Ann his wife placed with the said Jacob Walters, on the 1st day of April, 1855, to learn the art and trade of coachsmithing, after the manner of an apprentice. The said Richard to stay with the said Walters, and serve him faithfully after the manner of an apprentice, and not absent himself from said Walters’s employ without his consent, until he should arrive to the age of twenty-one years. Walters to pay Morrow and wife, whilst he so remained in his employment, thirty dollars per annum, payable quarterly, for clothing, &c. Walters to allow Morrow and wife, for his boarding, washing, and mending, two dollars and a quarter per week, during said term; the first year’s boarding to remain in the hands of Walters (say $117) until the end of said term, when if he served out his term until he should arrive to the age of twenty-one years, faithfully, as a good and dutiful apprentice ought to do, Walters was to pay to the said Joseph Morrow and Ann his wife, or to the survivor of them, or if neither of them should then be living, then to the said Richard himself, the said sum of $117, aforesaid; otherwise the same to be forfeited 'to the said Walters, and to be retained by him as liquidated damages therefor; and at the end,of the first year the said Walters agreed to give security for the said first year’s boarding, to be paid upon the fulfilment of the conditions aforesaid, at the end of said term. And it was further agreed between the said parties, that in case of the sickness of said Richard in the meanwhile, Walters should pay his board and yearly allowance, and the parties of the first part should pay for his nursing and his doctor’s bills. And the said Walters agreed to use the best of his endeavors to teach, or cause to be taught, said apprentice the art, trade and mystery of coachsmithing as aforesaid; the said Richard Jackson obeying all lawful commands of said Walters, and not' absenting himself from his employ without his permission.</p> <p>Under the said agreement, the said.Richard Jackson entered into the service of the said Walters on the 1st day of April, 1855, and continued to work for and serve Mm, according to the terms and conditions of it, until the 1st day of December, 1856, and was ready and willing to remain with and serve him until he should attain his majority; but on or about the time last mentioned, the said Walters removed his business out of the State to the city of Baltimore, in the State of Maryland. He offered, however, to take the said Richard with him to the latter place, to which he had removed his said business of coachsrpithing, and where he has ever since continued to carry on the same, of which the said Richard and the said Morrow had due notice; but the said Richard had refused to accompany and go with him to the city of Baltimore, although requested by him to do so; and that the said Walters, up to the said 1st day of December, 1856, had complied with all the covenants which by the terms of the said agreement were to be performed on his part, and has been ready find willing to perform, in the city of Baltimore, all the remaining stipulations thereof to be performed by him. And that the said Richard boarded and lodged with the said Morrow and his wife, from the 1st day of April, 1855, to the 1st day of December, 1856; but the said Walters had refused'to pay the said Morrow the sum agreed upon for his board and lodging, for the first year of his said service. If the Court should be of opinion that the pláintiff below was entitled to recover for the said board and lodging of the said Richard, for the first year of his said service, from the defendant below, then judgment to be entered for $82, with interest from the 8th day of December, 1856, and costs; otherwise judgment -to be rendered for the defendant below. ,</p>

<p>If an attachment clause be added to a fi. fa. on justice’s judgment, the gamisheesmust be summoned to appear at the return of the execution.</p>

<p>Certiorari to Justice Tatlow.</p>

<p>Certiorari to Justice Leonard.</p> <p>Record. Downey vs. Kizer. “Action of debt on account. Debt, $47 55. 1835, March 5th, copias issued. Same day deft: brought forward: plff. present; after a hearing, judgment for plff. for the above sum of $47 55. Michael Downey on his solemn oath says that he has good grounds to apprehend and does verily believe that if the stay of execution for six months be allowed, the sum due by the judgment will be lost, (signed) Michael Downey.” Whereupon an execution issued.</p>

<p>Payment of a substantial part of the purchase money is such a part perfoi manee of a paroi agreement for the sale of land as will take the case out of the statute of frauds; and a court of equity will decree a specific execution of the agreement.</p> <p>The payment must be clearly made and accepted in execution of the agreement.</p>

Writ of error to the Superior Court for Sussex County-. Before Harrington, Chancellor, Gilpin, Chief Justice, and Wootten, Justice. The case below was an action of assumpsit on a promisspry note from Nathaniel Ingram to Thomas Eobinson, the defendant below, dated August 8th, 1840, payable twelve months after date, for $500, and by Ingram indorsed to Woolsey Burton, the plaintiff below.

Writ of error to the Superior Court for Sussex County, before Harrington, Chancellor, Gilpin, Ch. J., and Wootten, J. The suit below was an action of trover, brought by the plaintiffs below, defendants in error, against the defendant below, plaintiff in error, to recover the value of an unfinished vessel, sold during the progress of its construction under sundry executions levied upon it as the property ot one James H. Tubbs, the builder, and purchased at the sale by the…

<p>Writ of error to the superior court—Sussex.</p> <p>Coram—Johns, Jr. chancellor, Black and Robinson.</p>

<p>Appeal from Chancery. Newcastle county.</p>

This was an action of debt on a testamentary bond, for the use of Rebecca A. Richardson, against Shadrach Raughley, who was the surviving executor of the last will and testament of Shadrach Raughley, deceased, and David Taylor, who was the .surviving surety in the hand, in the Superior Court for Kent County, and came up on a case stated and question of law reserved, for a hearing before all the Judges in this Court. The Chancellor and Judges' all sitting.

Capias case. The deft, pleads “nulla bona” and issue. Capias case. Same plea of nulla bona and issue.

This was an action of debt in the Superior Court for Hew Castle County, on a testamentary bond, in the name of the State, for the use of Peter A. Browne, executor and trustee under the will of Samuel B. Davis, deceased, against William H. Rogers, and came up on a case stated, and questions of law reserved for a hearing, before all the Judges in the Court of Errors and Appeals. Heard before Harrington, Chancellor, Gilpin, Ch. J., Milligan,Wootten, and Houston,- Justices.

Before Harrington, Chancellor (the case below having been before his predecessor, Johns, Chancellor), Gilpin, Ch. J., Milligan, Wootten, and Houston, Justices.

<p>Rule to show cause, &c. The defendant in the rule had recovered a judgment in the Superior Court for Sussex County, against Pettyjohn, the plaintiff in the rule, on which a writ of fieri fiadas had been regularly issued and levied on the goods of Pettyjohn to the amount of the debt and costs. Afterwards, but before the sale of the goods by the sheriff, Pettyjohn sued out a writ of error on the judgment, and gave security for the due prosecution of it, on which the case was removed to the Court of Errors and Appeals, and where the judgment in the Court below was afterwards affirmed and the record remanded. The judgment of affirmance in the Court above was duly certified and entered on the record of the case in the Court below, pursuant to the statute; and on this judgment- of affirmance entered in the Court below, the defendant in the rule, without proceeding any further with his previous execution and levy under the original judgment, sued out a writ of fieri facias, which was levied on the goods of Petty-john, and after one or more writs of venditioni exponas issued thereon, the same were sold by the sheriff, and the money returned at the last term of the Court; at which term this rule was obtained to show cause wherefore this latter fi. fa., sued out upon the judgment of affirmance, and the writs of venditioni exponas and the sale of the goods thereon, should not be set aside for irregularity.</p>

Action sine breve and case stated. The following were the facts of the case submitted to the Court.

<p>A partial payment made within twenty years on a judgment of longer standing, will rehut the legal presumption of its payment; hut if the parties have subsequent dealings within that time and the plaintiff falls in debt to the defendant on book account, he cannot indorse the amount on the record as a credit to the judgment, so as to rebut the presumption of its payment, unless it be further shown that they have had a settlement of their subsequent dealings, and it was so agreed between them.</p>

This was an action of replevin for a negro slave by John K. Windsor against James Boyce. The pleas were non eepit, property in the defendant, property in one John Windsor, and the act of limitations. The slave was in the possession t>f the defendant, but the only matter in dispute, so far as it was exhibited in the testimony to the court and jury, was, whether the slave was the property of John K. Windsor, the plaintiff, or of John Windsor.

This was an action of debt to recover the sum of $400, the consideration-money mentioned in a deed of bargain and sale for a tract of land, sold and conveyed by the plaintiff, John H. Callaway, to Kendal B. Hearn, the defendant.

Scire sacias on a judgment in this Court, at issue and ruled for trial this term. A writ of injunction from the Chancellor, however, had been issued during the term in the usual form, enjoining the plaintiff and his attorney from further prosecuting the aforesaid scire facias, &c., until, &c.