Volume 1 — Delaware Chancery

<p>Bill for specific performance.—The complainant, Dale, by a written article of agreement, dated the 26th of September, 1812, contracted to sell and convey to the defendants, Terrapin and Smith, a tract of land in Hew Castle County; the written agreement being as follows, viz:L</p> <p>“ Articles of Agreement,made and concluded on this 26th “ day of September 1812, between Richard C. Dale of the “ State of Delaware, of the one part, and Joseph Terrapin “ of the State of Hew Jersey, and Rowland Smith, of the “ State of Pennsylvania, of the other part, witness, that the “ said Richard C. Dale, for the valuable consideration of “ the sum of seven thousand dollars, does bargain and sell “ to Joseph Terrapin and Rowland Smith a tract of land, “situated in Appoquinimink Hundred, containing by deed “ two hundred acres, be the same more or less ; for which he “ binds himself to give a general warranty deed, upon the “ said Terrapin and Smith making their first payment on “ the 25th of December next ensuing the date thereof. It “ is further understood and agreed between the parties, that “ the present year’s rent belongs to Richard C. Dale, who “ promises to give the said Terrapin and Smith immediate “ possession and use of the looodland generally, and of all the “ wood now cut and corded in the woods, and quiet and peace- “ able possession of the buildings and premises on the 25th “ of March next ensuing the date hereof. All which condi- “ tians on my part I pledge and obligate myself to comply “ with. As witness my hand and seal this 26th of Sep- “ tember, 1812.</p> <p>“ (Signed), Richard C. Dale.</p> <p> Witness present, </p> <p>“ William C. Hancock.”</p> <p>The deed referred to in the articles was an indenture of bargain and sale from Henry Drinker and wife to Bridget Colgate, who was the complainant’s grandmother dated 7th September, 1771.</p> <p>No survey of the premises was made prior to the date of the agreement, in order to ascertain the quantity of land contained within the lines of the old deed referred to. Pending the negotiation, the parties,while together,looked at the deed and calculated the quantity at 215 acres,2 roods, 20 perches. The complainant then offered to throw in the excess beyond two hundred acres to the extent of two hundred and fifteen acres. Sometime after the written agreement had been executed the complainant caused a survey to be made, at which, on two occasions, first one and then the other of the defendants was present. This survey ascertained the contents of the tract to be three hundred and fourteen acres, being one hundred and fourteen more than the number of acres called for in the deed referred to in the agreement. Thereupon, the complainant, claiming the right to reserve the excess of one hundred and fourteen acres, tendered a deed for two hundred and fifteen acres, which deed the defendants refused to accept, insisting upon a conveyance of the whole tract. The defendants, having under the agreement received immediate possession of the woodland, (which embraced mainly the one hundred and fourteen acres found to be in excess) proceeded to cut. off the wood. This bill in equity was filed to restrain the defendants from committing further waste upon the one hundred and fourteen acres; also to compel them to accept a conveyance of two hundred and fifteen acres, and to perform the agreement on their part.</p> <p>The defendants, by their answer, admitted the treaty for the purchase of the land; also the written contract in the terms set forth in the bill, and the giving of security by bond for the purchase money; but they alleged that pending the negotiation and while the defendants, together with the complainant, were examining the land, the latter stated that the quantity would overrun the two hundred acres called for by the deed under which complainant held title; that they refused to purchase by the acre on survey, but made their offer of $7000 for the whole tract, according to the metes and bounds shown to them; and that the purchase was made with the understanding on their part' that it should embrace the whole tract. The answer denied any agreement or understanding that the defendants were to pay for any surplus which might be ascertained upon a survey.</p> <p>Issues wer.e joined and depositions taken on both sides. The evidence consisted chiefly of acts and declarations, on the part of both parties, bearing upon the question what they respectively understood to be the meaning of the contract, whether it was a contract for the whole tract, more or less, covered by the old deed, or whether only for the two hundred and fifteen acres which was the estimated quantity pending the negotiation for sale. This evidence consisted mainly of declarations by both Terrapin and Smith to the effect that they had purchased two hundred acres for $7000, and that the complainant had given in fourteen or fifteen acres. On the other hand, it was proved that the complainant had frequently spoken of the sale in terms implying that it embraced the entire tract; that he once called it “ his farm,” at another time, “ the old place,” and at another, the “ tract of land which came by his grandmother,” who was the grantee in the old deed ; and that on no occasion had the complainant spoken of having reserved any part of the tract; farther, that he had, after the sale, spoken of his being left without fire wood from this tract, all the wood being on the one hundred and fourteen acres in dispute. It was also proved that, in showing the tract for sale, the complainant rode over the whole of it; also,that some years previously he had been informed by a surveyor that the tract contained one hundred acres more than the quantity called for in the deed.</p> <p>The cause came before the Chancellor at the August Term,1814, for hearing upon the bill, answer, exhibits and depositions.</p>

Petition eor a Re-hearing.—This is the same cause next before reported. After it had been argued, and the opinion of the Chancellor announced, directing a decree for a dismissal of the bill, but before such decree was entered, to wit, at the August T. 1815, the complainant preferred his petition, under oath, for a re-hearing.' The ground of the application was the discovery of new and material evidence, since the hearing.

<p>Injunction Bill.—The complainants were the owners of a mill site on the South side of the Brandywine Creek, on which they were about to erect a mill, above a mill site owned by the defendants. The bill charged, among other things, that the defendants had by a new dam constructed across the creek, below the mill site of the complainants, penned the water back upon the complainants to the height of two feet and three quarters of an inch above its usual and proper level, thereby depriving the complainants, of a suffi cient fall of water for their contemplated mill, and preventing the erection of it. The prayer was for an injunction, to restrain the defendants from using or drawing off the water from the dam for the use of their mill, until it should be reduced two feet and three quarters of an inch to its proper level, so as not to interfere with the water rights of the complainants.</p> <p>The Chancellor refused to order an injunction upon an ex parte application, and directed notice to be served upon the defendants, with sufficient time to appear and answer. 'Accordingly, the defendants appeared and filed their answer. The answer denied that the defendants had, by their dam, penned the water back upon the complainants’ land to the height of two feet and three quarters of an inch, as in the bill was alleged, or that the water was raised above the ordinary and usual level; and the defendants claimed the right to hold and use the dam in its then present condition. The answer denied at large the equity of the bill. It is not material to the points decided, to set forth the title of the respective parties, as alleged in the bill and answer respectively.</p> <p>At the hearing of the motion for a preliminary injunction upon the bill and answer (August 26,1816), McLane, for the complainants, offered to read, in support of the bill, certain affidavits taken ex parte before Justices of the Peace, and, upon objection made, he insisted upon the regularity of such a course, on the ground that the application here made was in order to prevent irreparable injury. Gibbs vs. Cole, 3 P. W. 255. Isaac vs. Humpage: 1 Ves. Jr. 427 : 3 Bro. Ch. Rep. 463. In Robinson vs. Lord Byron, 1 Bro. Ch. Rep. 588, where the bill was to restrain Lord Byron from letting an unusual quantity of water flow upon the complainant’s mill, affidavits were read against the answer. In Strathmore vs. Bowes, 2 Bro. Ch. Rep. 89, affidavits in a case of waste were read in reply to an answer.</p>

Motion eor an order oe sale.—A decree had been made by this Court, and affirmed on appeal; in favor of the complainants against, the defendant for the payment of $1310.57. An attachment for the non-performance of this decree was issued and returned non est inventus.

Attachment eob Contempt.—This proceeding arose out of the case of Charles Tatem and James Can by vs. Joshua Gilpin and Thomas Gilpin,reported antep. 13. After a writ of injunction had been awarded in that case, in accordance with the order of the High Court of Errors and Appeals, an attachment for contempt against the defendants was granted, founded upon an affidavit charging them with a breach of the injunction.

Bill in equity for an account, &c.—Upon the affidavit of James Clayton, one of the complainants, it was moved that a writ of ne exeat república issue against the defendant.'. The substance of the affidavit is set forth in the opinion of the Chancellor.

Bill in equity eor the execution oe a trust—John Little deceased being indebted to several persons, judgments were recovered against him at law, and after his decease other judgments were recovered against his executor, Nicholas Little, in the years 1785, 1786 and 1787.

Bill in Equity against Admr’s oe a Deceased Partner. —Jonathan Allee, dec’d, and George P. Daines were partners, as merchants, in 1810-1811. They became indebted to John Warner, and at the death of Allee, in 1811, there was a balance due Warner of $1,507.38. This balance was, after Allee’s death, reduced by Daines, the surviving partner, to $638.15, the balance due at the filing of this bill.

Bill for the performance of an award.—The complainant’s interest in certain real estate was sold under execution process, issued out of the Supreme Court for Kent County,' returnable to the Oct. T. 1809 ; and was purchased by the defendant for $105.65. At the return of the execution some dispute arose as to what interest the complainant held in the real estate.

Petition fob an Injunction.—This was an application ex parte, in vacation, for an injunction to stay waste, founded upon a petition of Allan Thompson, setting forth, that certain lands had been sold by the Sheriff of Hew Castle County, under a writ of Levari Facias, Ho. 8, to March T. 1819, in execution of a judgmentin Scire Facias on a mortgage recovered in the Supreme Court for Kent county, by George Latimer and others, against William Pryce; that the premises were…

<p>Attachment eor contempt.—An injunction to stay waste had been issued and served. Upon an affidavit of service and of a breach of the injunction, an attachment for contempt issued, under which the defendant was brought into court. Being examined on interrogatories, he denied the contempt, unequiv oeally negativing every interrogatory.</p>

Bill in Equity—Objection to competency oe a witness.—At the hearing of this cause before the Chancellor the deposition of Evan Webster, a witness for the complainant, being offered in evidence was objected to, upon the ground that the witness was the surety in an injunction bond which had been taken in a cause between the same parties, wherein the present defendants were the complainants seeking to restrain the collection of a judgment held against them by the present…

Bill in Equity.—Motion for leave to take further TESTIMONY AFTER DEPOSITIONS RETURNED AND PUBLISHED. This cause was at issue and depositions had been taken on both sides under commissions returnable to the March Term, 1819. The depositions were returned and published, within six days next before the Term. The Chancellor, in consequence of sickness, did not attend at that Term, and the cause was continued to the ensuing July Term.

<p>Bill in Equity. Exceptions to admissibility oe a deposition.—At the hearing of this cause the deposition of Powell Garretson, a witness for the complainant, being offered in evidence, was objected to, on two grounds, viz : 1st., on the ground of interest in the witness, with respect to which exceptions had been filed, as required by the rule of court : and 2nd, because the witness had not subscribed his name to his answers to the interrogatories in chief; nor was there any certificate by the commissioner, appended to the answers to said interrogatories, that the witness had been sworn to such interrogatories : but following the answers to the cross interrogatories was the signature of the witness and the certificate of the commissioner in the usual form.</p>

Bill in Equity.—At the hearing of this cause before the Chancellor, the deposition of James Harper, a witness for the complainant, being offered in evidence, objection was made to reading such parts of it as were designed to prove that certain promissory notes had been indorsed by the defendants.

Bill eor dissolution oe a partnership and eor an account.—The complainant and the defendants had been partners in the business of manufacturing gun powder, under certain articles of association, entered into 21st April, 1801.

Bill in Equity. Motion for order to revive for WANT OF ANSWER TO BILL OF REVIVOR. PETITION FOR rehearing.—This was a bill of revivor. The original bill was heard at the August Term, 1817, in the lifetime of Levi Staats, the present defendant’s testator, and a decree was then made against Staats for the payment of £92.7.6. Under the bill of revivor, the defendant appeared at the April Term, 1819, by if.

<p>Bill in equity, to enforce a trust of real estate.— The defendant, Kensey Johns, as the administrator of Nicholas Van Dyke, deceased, sold, in execution of an order of the Orphans’ Court of New Castle County, certain real estate of the decedent, for the payment of his debts. The order for the sale was granted by the Orphans’ Court on the 21st July, 1789, upon the petition of the defendant as administrator, in the usual form, setting forth the insufficiency of the personal estate of the decedent to discharge his debts and praying an order for the sale of his real estate pursuant to the statute in that behalf. The premises were exposed to sale, in several parcels, on the 3rd October next following, and the whole were struck off to George Monro, he being the highest and best bidder •therefor, at the gross sum of £1,617. There were written conditions of sale in the usual form, specifying the terms and mode of payment of the purchase money and the time for the delivery of possession of the premises. The right to purchase at the sale, either directly or by a third person, was not granted to the administrator by the Court, nor reserved in the conditions of sale, nor was any such purpose publicly announced at the sale. The administrator made due return of the sale to the Orphans’ Court on the 6th October, 1789 ; and, no one appearing to object, the same was confirmed by the Court. On the 12th October, 1789, the defendant, as administrator of Vichólas Van Dyke, dec’d, executed and delivered to George Monro, as the purchaser, a deed conveying to him the interest and estate of the decedent in the premises sold, and on the next day, the 13th October, George Monro re-conveyed the same premises to the defendant, his heirs and assigns. The administrator, in an administration account passed the 6th April, 1790, duly charged himself with the amount of the purchase money, to wit, the sum of £1,617.</p> <p>The present bill was filed on the 29th August, 1817, by the complainants, as children and heirs at law of the decedent, Vichólas Vari Dyke. All the surviving children joined in the bill except Vichólas Van Dyke, the oldest son, and Ann, the wife of the defendant, who was a daughter of the decedent. It set forth the facts already stated, touching the decease of Vichólas Van Dyke, the grant of administration of his estate to the defendant, the application by him for an order of the Orphans’ Court to sell the decedent’s real estate, the granting of the said order, the sale of the premises, the return and confirmation of said sale, the conveyance of the premises to George Monro as the purchaser, and the re-conveyance of the same to the defendant. The bill then charged, that George Monro bid at said sale on behalf of the administrator and at his request; that Monro was only a nominal purchaser, whose name was used as the mere medium for conveying title to the administrator ; and that the defendant represented to Monro,. as well as to other persons present at the sale, that his object in seeking to buy in the real estate was to benefit the heirs of the decedent and not for his own advantage. The bill insisted that “ the administrator acting as a trustee in rela- “ tian to said real estate and the sale thereof, no purchase “ made by said administrator to enure to his own benefit “ could be valid, or could be supported on any principle of “ equity; it being an equitable rule that he who undertakes “ to act for another in any matter, shall not, in the same “ matter, act for himself; from which is evidently deduci- “ ble the natural inference that a trustee to sell shall not “ gain any advantage by becoming himself the purchaser.” The complainants, therefore, claimed that in equity a trust of the lands purchased was, by the very nature of the transaction, implied for the benefit of those whose interests were entrusted to the defendant. The prayer of the bill was, that the defendant might be decreed to be a trustee of the lands and premises purchased by him; that he should hold the same in trust for the benefit of the complainants ; and that he should account to them for the rents, issues and profits thereof; and for general relief.*</p> <p>The answer of the defendant admitted the general facts set forth in the statement of the case above given, as they occurred from the decease of Nicholas Van Dyke, until the sale of his real estate by the defendant as his administrator. The answer was very voluminous in its statements, many of which did not prove to be material to the questions decided by the Chancellor. The main issue of fact,upon which the controversy ultimately turned, was upon the defendant’s denial of the allegation made in the bill, touching the object for which he had purchased the premises in dispute. The defendant positively denied that he made said purchase for the benefit of the heirs at law oí the decedent, Mcholas Van Dyke, or that at the sale of the premises he represented to George Monro, or to any other person or persons, that he was seeking to buy in the premises for the decedent’s heirs at law. And the defendant alleged that he bought the premises in good faith on his own account, and had raised the means of paying the purchase money by the sale of his own real estate previously held. The answer further alleged that the sale of the premises in controversy was conducted fairly ; that many persons attended ; that there was a competition in bidding, chiefly ' among creditors ; that an agent attended for the purpose of securing some particular debt; that a certain Mary Laroux, a wealthy creditor, was present and active in bidding; and that the premises sold for as much as could prudently have been given tor them, under the circumstances, one farm being encumbered with a dower, and the whole being in bad repair without means to improve them ; that it was certain the amount of sales was at least one half more than it would have been if the defendant had not interfered, but had left the estate to be sold by the sheriff; that no objection had been made, on the return of the sale, by any creditor or other person; that the value of the lands was better known then than it is now.</p> <p>The answer further set forth, at great length, a history of the Van Dyke family, of the decedent’s insolvency, of the defendant’s transactions with the family and his efforts to aid them, of his negotiations with the creditors to save the estate from sacrifice, of the circumstances under which he consented to become the administrator, the mode in which he raised the purchase money of the real estate in controversy, and other matters which, as they do not bear upon the questions treated in the opinion of the Chancellor, are not here set forth.</p> <p>Besides the defence upon the merits before stated, the answer insisted upon several other grounds of defence, as follows : 1. That the widow and all the heirs of the decedent had always recognized his title to the real estate, and had ratified and confirmed the same by sundry acts, which were in the answer particularly set forth. 2. That the heirs had, for a long series of years, silently and without any notice of their pretended claim, permitted the defendant to expend large sums of money continuously in the repair and improvement of the real estate. 3. That the complainant had a remedy at law. 4. That the remedy of the complainants (if any) was extinguished by lapse of time; and the defendant claimed the benefit of the several acts of limitation of the State of Delaware.</p> <p>Issues were joined and depositions taken by both parties. The only evidence material to the issues of fact raised and considered by the Chancellor, was that of George Monro, the bidder at the sale. His testimony is fully set forth in the opinion of the Chancellor.</p> <p>The cause came before the Chancellor, at the April Term, 1819, for a hearing upon the bill, answer, exhibits and depositions. After the reading of the record the case was submitted to the Chancellor upon written arguments by counsel.*</p>

Petition for Partition.—This was a petition for the partition of certain real estate held by the petitioner and other persons as tenants in common. The prayer of the. petition was that a decree for partition be entered, and that a commission be issued, pursuant to the Statute in that behalf.

Bill eor ab Acooubt.—In this case there had been a decree for an account, with an interlocutory order for the filing of an account by the defendants, on or before a certain day. An appeal was taken, in which the High Court of Errors and Appeals, being equally divided upon the question of affirming the decree of the Chancellor, entered the following judgment, viz: “ June 19, 1819. This cause was argued by the counsel “ on both sides and held under curia advisare vult.

Bill in Equity.—The complainants sold to the defendant a tract of land, taking his bond for the purchase money, $1548.00. On the 5th of January, 1818, the defendant paid one half the debt in specie and in bank notes, which were current at par;—on the 1st of July,1818, he paid the residue in notes of the Farmers’ Bank, at Snow Hill, and took up the bond.

Fxceptions to accounts oe trustee eor a Lunatic.— Joseph Betts had in the lifetime of George Vinson,, a lunatic, acted as.attorney in fact for the trustee, George H. Vinson. He had the management of the person and estate of the lunatic, and passed all the accounts. Upon the death of the lunatic, Betts took letters of administration upon his estate.

Bill in Equity—Election oe remedies.—The complainant, Caty West, and Mary Turner, deceased, were residuary legatees under the will of their father, Riley Ake. Eli Evans, the defendant’s intestate, was executor of the will, and also was guardian of the legatees, Caty West and Mary Turner, deceased. Prior to the filing of this bill a suit atlawhad been brought by Lemuel West and Caty his wife on the guardian bond given by Evans on his appointmentfor her.

Bill in Equity.—William Frazier was indebted to the complainant, Alex. McFarlan, upon a judgment recovered on the 23d October, 1806 ; the same being originally for £720.

Bill in Equity—Exhibits.—At the hearing of this cause, the complainant offered in evidence a guardian account, which had been passed by the defendant as the guardian of a certain Hester McMillen. The account had not been included in the list of exhibits, and its admission was objected to on that ground.

Bill in Equity to recover a legacy.—Alexander Smith, by his will, bequeathed a legacy to Robert S. Kirk-wood. The bill was filed by the legatee against the defendant as the administrator de bonis non of John Mitchell, dec’d, who in his lifetime was the surviving executor of Alexander Smith, the testator. At the July Term, 1819, a demurrer to the bill was filed, and the following causes of demurrer assigned, viz : 1.

Bill to perpetuate testimony.—This bill alleged that the defendant had conveyed to the complainant, by defed of bargain and. sale, dated the 7th day of April, A. D., 1812, a tract of land in Sussex County ; that the deed was signed, sealed and delivered in the presence of two attesting witnesses; that the complainant had gone into possession and had made improvements; that, nevertheless, the defendant had refused to acknowledge the deed, claiming that the complainant took no…

<p>Case stated in Equity—Apportionment of Interest.— This was a case stated in equity, by consent of parties, in lieu of a bill and answer. The case stated was as follows, viz :</p> <p>“ William Walters, the testator, by his last will and testament, dated the 31st day of the 3rd month, 1807, among other things, devised in the words following to wit: “Item, I order the tavern house and land where my “ son-in-law, George Matson, now dwells, to be sold to the “ highest bidder as soon as convenient after my decease, “ hereby empowering either of my executors to execute a “ full and clear deed of conveyance for the same ; and one “ half of the purchase money arising from such sale, I “ give to my daughter, Beulah Palmer, and the yearly “ interest of the other half I give to my daughter Betty “ Matson during her natural life,” as by the same will may appear; and the testator appointed the said William Walters and John Palmer executors thereof. The tavern, house and land mentioned in the devise were sold by the said executors to Samuel Pennell for the sum of $2,515, on the 25th of March, 1808. And the said William Walters, one of the executors, duly paid to George Mat-son, husband of said Betty Matson, the interest of one half of said purchase up to the 25th day of March, A. D. 1817. Betty Matson died the 23d day of December, in the last mentioned year, and letters of administration upon her estate have been duly granted to her late husband, George Matson.</p> <p>George Matson, as administrator of said Betty Matson, claims interest on the said one half of the before mentioned purchase money, from the 25th day of March, 1817, to the said 23d day of December in the same year, the day of the said Betty’s death ; ‘and the said executors refuse to pay the same, alleging that the said administrator is not entitled to the said interest.</p> <p>The above statement of facts, together with the will of Wm. Walters, deceased, is by consent substituted in lieu of a bill and answer ; and it is agreed that the said case be entered on the docket of the Court of Chancery of Hew Castle County, as of the present Term, and be submitted to His Honor the Chancellor, for his opinion and decision touching the said claim of interest. And it is agreed that the Chancellor may decree between the said parties touching the same matter, as to him shall seem proper.</p> <p>The case as above stated was signed by the solicitors of the parties respectively.</p>

Injunction Bill.—This was a motion ex parte for an injunction, under the following circumstances, set forth in the bill: In th About the year 1808, Joseph Singleton returned, and went to Philadelphia to see his wife ; but she refused to cohabit with him, as the complainant had been informed. Singleton then went off to Kentucky.

Bill for specific performance.—This bill was for the specific performance of a written contract for the sale of lands, which was in the words following, viz : “ Articles of agreement, between Elisha Evans of the “one part, and John Wilkins o.f the other part, witness, “ that the said Evans doth agree, for his part, to let said “ Wilkins have a plantation that he bought of Mr. Gonoway “ of Wm., for the term of six years from the first day of “ last January ; and said Wilkins…

Bill for an Account.—This bill was filed against the defendant, William Polk, late cashier of the Farmers’ and Mechanics’ Bank of Delaware, and the other defendants as the sureties of the cashier in his official bond.

Bill eor an Injunction.—The case made by this bill was as follows : The complainant and the defendant, Pennington, having been partners in the business of retailing goods, at Staunton, prior to the year 1816, under the firm of Otho Pennington & Co., dissolved the partnership by mutual consent in April of that year, and undertook to make a final settlement of the partnership transactions.

<p>Bill in equity for a legacy—Security.—This was a bill filed on behalf of the complainants to recover from the defendant, as executor of the last will and testament of Benjamin Downs dec’d, a legacy of $50.00 bequeathed to each of the complainants by the testator, to be paid in one year after his decease.</p> <p>The defendant filed the following plea, viz : “ That no “ offer hath been made to the said defendant by the com- “ plainants, or either of them, of any surety, nor hath any “ surety been given to him, that if any part or the whole “ of the said legacies shall, at any time hereafter, appear to 11 be wanting to discharge any debt or debts, legacy or “ legacies, which he this defendant, executor as aforesaid, “ shall not have other assets to pay, that then the said leg- “ atees respectively will return their said legacies, or such “ part thereof as shall be necessary for the payment of “ said debts, or for the payment of a proportional part of “ said legacies, nor any surety whatever of like purport or “ effect; all which matters the said defendant doth aver and “ plead in bar of the complainants’ said bill of complaint j “ and he prays to be hence dismissed, with his reasonable “ costs!”</p> <p>The cause came before the Chancellor upon the plea.</p>

Bill in Equity eob an Injunction.—This bill was filed on behalf of the complainant, Frances L. Cochran,a married woman, by her next friend, to restrain the defendants, who were judgment creditors of her husband, Joseph W. Cochran, from further proceeding in an execution which had been levied by them upon certain goods and chattels to which she claimed to be entitled as her separate estate under an anti-nuptial contract.

Bill eor an injunction to restrain Waste.—This was a motion ex parte for an injunction to restrain waste by the over-tilling of land. Held: under which it was found, and so returned, that the lands taken in execution would rent for a sufficient sum, clear of all reprizes, to pay the liens against them within seven years. Thereupon, writs of elegit were issued.

Attachment eor non-perpormance op a Decree.—A final decree had been made in this cause on the 2d of September, 1820, whereby the defendant, Byland, was decreed to pay to the complainants, Cornelius Dushane and Agnes his wife, $297.12.

Petition for Partition—Dower in an undivided Share.—This was a petition for partition among tenants in common of certain real estate, situated in ¡New Castle county, devised by the last will and testament of John Hook deceased, to his two children, Henry Hook and Agnes Hook. Henry Hook, one of the original tenants in common, died intestate, leaving to survive him a widow, named Ann, who afterwards intermarried with James Hanson ; also leaving two children, his heirs at law.

Bill in Equity for an Account.—David Hall, in the year 1784, died intestate, leaving to survive him a widow and seven children, viz : Joseph Hall, David Hall, Jr., Simon Hall, Nathaniel Hall, Peter Hall, the complainant, Jane Hall and Mary Hall. The intestate left considerable real and personal estate.

Bill for an Injunction.—This was a bill for an injunction to restrain the collection oftwo single bills, or obligations under seal, which had been given by the complainant,—one being dated the 11th of July, 1815, for the payment of $90.00, on the first of December, 1815, to Otis Paine, now deceased, and the other being of the same date and for the payment of the like sum on the 1st of March, 1816, to Robert Parkenson, now deceased.

<p>Bill in Equity.—This bill was filed against the defendants to recover the amount of a single bill or obligation, under seal, made by Cornelius Carey, bearing date the 25th of March, 1815, for the sum of $400.00, payable, with interest, on demand, to Samuel Cade, one of the defendants. Cade, on the'3d of July, 1816, assigned the bill, for value received, to the other defendant, Edward Ross, who, on the 19th of ¡November, 1818, assigned it to the complainant, to secure him in a debt of Ross, for which the complainant was surety, and which he was afterwards obliged to pay. About the time of the assignment by Ross to Robinson, to wit, in the year 1818, Carey, the maker of the note, became insolvent and left the State. He died-in May, 1819. The complainant brought an action in the Court of Common Pleas, against the administrators of Ross, and on the 24th of March, 1820, recovered a judgment for $275.25,—some payments having been made upon the single bill by Carey in his lifetime. A writ of fieri facias was issued upon the judgment, on which there was a return of nulla bona. Thereupon, this bill of complaint was filed, to recover the amount of the judgment, being the balance due on the single bill.</p> <p>The complainant by his bill set forth the facts above stated, and further alleged that after the assignment to him of the said single bill he had been induced to forbear proceeding to collect the same from Carey, the maker, in his lifetime, at the request of the defendant Cade, and upon his promise that he would see the same paid at or before the time when the money should be required to indemnify the complainant in his suretyship for the defendant, Ross, for which purpose he had taken from Ross an assignment of the said bill. The bill prayed that the defendants, or one of them, should be decreed to pay to him the judgment recovered for the balance due on said single bill.</p> <p>The defendant,Cade, by his answer admitted the execution of the single bill, the several assignments thereof, and the considerations for said assignments, as the same were in the bill set forth, He denied that the forbearance of the complainant to collect the said bill was at his, the defendant’s, request. He further alleged that while the bill was held by Ross sundry payments had been made by Carey, which were not credited, and that, for the balance justly due upon it Carey was solvent, while the bill was held by Ross, and for sometime after it had been assigned to the complainant. That, in fact, Carey was able to pay until the time of his death, which occurred by shipwreck sometime after the month of February, 1819. This defendant insisted upon these circumstances as an equitable defence, and additionally he claimed the benefit of the Act of Limitations. The defendant, Ross, by his answer, admitted at large the facts set forth in the bill and alleged no ground of defence.</p> <p>Issues were joined and depositions taken by both parties. The evidence adduced went mainly to prove the insolvency of Cornelius Carey, by whom the single bill was made; which insolvency was shown to have commenced in the year 1818. Carey appeared to have been previously in good credit.</p> <p>The cause came before the Chancellor, at the March Term, 1823, for a hearing on the bill, answers, exhibits and depositions.</p>

Bill in Equity against a guardian.—The complainant’s wife, Elizabeth Davis, now deceased, was in her lifetime a daughter, and one of the heirs at law, of Thomas Davis, deceased, who died intestate, in May, 1811; and she was entitled to a share of his real and personal estate.

Distribution of Funds in Equity.—Survivency of Joint Judgment.—A decree had been made at the April Term, 1823, in a suit in equity between Joseph Wollaston and Thomas Phillips, for the payment by Phillips of the sum of $811.19. After several ineffectual proceedings for its collection, an order was made at the August Term, 1823, for the sale of certain real estate of Phillips to satisfy the decree.

<p>Motion eor sequestration and order oe sale.—A final decree had been made between the parties to this cause for the payment by the defendant to the complainant of $811.19, with costs, within two months, or that an attachment issue. On the 27th of June, 1823, the two months having expired without performance of the decree, an attachment was issued and returned non est inventus. Thereupon, Rogers and Black, for the complainant, moved, on the foundation of the sheriff’s return to the attachment, for a commission of sequestration, to be directed to the sheriff, commanding him to sequester the goods, chattels, effects, moneys and personal estate of the defendant, Thomas Phillips, in ifew Castle county, and all moneys and debts due and owing to the said Phillips, from all and every person whatsoever, until the said Phillips should perform the decree and clear his contempt, &c. The motion was also for an order to sell the real estate of said Thomas Phillips.</p>

Bill to set aside a conveyance for fraud on creditors.—This bill was filed under the following circumstances.

Bill for a Legacy.—Nuncupative Will.—The complainant was a religious society, duly incorporated under the laws of the State of Delaware, by the name of “ St. James’ Church,” and had the legal capacity to take by gift, devise, bequest, &c. Samuel Walker, a member of the congregation, residing in Chester County in the State of Pennsylvania, on the 7th of November, 1821, made a nuncupative will, in the presence of three witnesses, and thereby bequeathed to the complainant a…

<p>Petition for a writ of ne exeat.—In this ease a bill in equity had been filed by the complainant, (an infant, by Greenberry Blades and Prenda his wife, guardian of the complainant) praying a writ of injunction to restrain the defendant from further digging and raising iron ore and mineral earth out of certain lands, of which the defendant then held possession, but the title to which the complainant claimed to be in himself. The bill also prayed that the defendant might be decreed to account for the value of the ore which he had already raised and taken away from the land. A preliminary injunction was ordered, according to the prayer of the bill, pending which a petition on behalf of the complainant was presented to the Chancellor, praying that a writ of ne exeat should issue against the defendant.</p> <p>The petition set forth the substance of the bill, the order for an injunction and the service thereof, as well as the service of a subpoena to answer; and then proceeded to allege as follows, viz: “ that the defendant, Judge, as “ this petitioner has been informed and doth believe, hath “ not, since the service on him of said writ of injunction, “ taken away any ore from said land. But the said Thomas “ L. Judge has lately made over, sold, and conveyed away “ all his store goods, teams and other property, in Sussex “ county; and the said Thomas L. Judge, in order to “ defeat your petitioner of the sum due to him on account “ of the ore before raised and taken away by the defendant “ from your petitioner’s land as aforesaid, for an account “ of which your petitioner has prayed in his bill aforesaid, “ and in order to defeat your petitioner in said suit in “ Chancery, and of the costs therein, he the said Thomas “ L. Judge, threatens and intends to quit and leave the “ State of Delaware, and to withdraw himself out of the “jurisdiction of this Honorable Court. And your peti- “ tioner and the aforesaid Greenberry Blades do believe “ that the sum due from said Thomas L. Judge to your “ petitioner, for and on account of the ore by him taken “ away as aforesaid,doth amount to three thousand dollars “ and upwards. Therefore he prays a writ of ne exeat “ república, &c.”</p> <p>The petition was signed, “ Ezekiel W. Clowes,by Green- “ berry Blades and Prenda his wife, late Preuda Clowes, “ guardian.” It was sworn to by Blades and wife.</p>

Bill for sale of real estate in execution of a trust.—This hill was filed under the following circumstances.

Petition for an Injunction.—This was a petition of John hTewbold for an injunction, accompanied by an affidavit of the petitioner, setting forth, as the ground of the petition, the following facts, viz : The petitioner, on the 27th of August, 1823, executed a mortgage of certain real estate, in Delaware County, Pennsylvania, to the Farmers’ and Mechanics’ Bank in the City of Philadelphia, one of the defendants, to secure the debtof $15,400, payable with interest, on or…

Bill in Equity eor the assignment of dower.—The case made by this bill was as follows: James Dick, deceased, the husband of the complainant, was in his lifetime seised in fee simple of a certain tract of land, situate in Hew Castle county. About the 21st, of April 1803, he sold and conveyed the same to David L. Reece, the complainant being before and at the time of the sale and conveyance the lawful wife of the grantor, the said James Dick.

Bill in Equity for a legacy.—This bill was filed to recover a legacy of £100 bequeathed to the complainant by the last will and testament of her father, Reuben Gilder, dated March 17th, 1775. The testator bequeathed sundry legacies, among which was a legacy to the complainant of £100, to be paid ‘‘ on her arrival to lawful age or day of “ marriage.” The real estate of the testator was devised to his two sons, Henry Gilder and John Gilder, whom he appointed executors.

Bill in Equity for raising a legacy out of real estate. —John Way, by his last will and testament,dated August 15th,1807, bequeathed sundry pecuniary legacies;-—among others, a legacy of $866.66 to his daughter Martha, and a legacy of $1000.00 to his daughter Lydia.

This was an executor’s bill filed for instructions touching the construction of the will. The testator, Henry Peterson, a resident of England, devised certain lands situate in Hew Castle county, Delaware, to his nephew, Andrew Jacob Peterson, his. heirs and assigns, charged with the payment to his executors of £500, with interest from January 1st, 1797,—tobe paid at the expiration of two years after the testator’s death should be known in America, and his will produced there.

Bill for an account of waste.—William Hughlett, in the years 1807 and 1808, sold and conveyed to Bichard S. Harris, two tracts of land, situated in Kent county, one for the sum of $1,600.00, and the other for $4,154.50, taking for the purchase money two judgment bonds payable in long instalments. Judgments were entered oh both bonds.

Bill in Equity.—The complainants were children of Cornelius Burton, dec’d, and as his legal representatives were entitled to certain real and personal estate. Their mother > Sarah Burton, became the administrator of the decedent and guardian of the children. There came to her hands, as guardian, certain funds of her wards, composed of rents of their real estate and their share of the deceased father’s personal estate.

Bill for an account and a decree for purchase money. —The complainant, Luke Lofland, by written articles, dated July 1st, 1823, contracted to convey to the defendant, Joseph Maull, certain real estate for the consideration of $2500,00, to be paid in five annual instalments of $500,00 each, the first payment to be made January 1st, 1823. The articles contained no stipulation as to the time when a conveyance should be executed, or when possession should be delivered.

Case stated in the nature oe a bill for an injunction.—This was a case stated, entered under an agreement that it should stand as a substitute for a bill and answer.

Bill in Equity to enforce a trust of real estate.— Jacob Broom, deceased, being in his lifetime seised of real and personal estate, by Ms will dated April 10th, 1810, directed that the residue of his real estate should be sold, and the proceeds thereof, together with the unappropriated balance of his personal estate, be disposed of as follows, viz: $10,000 to be kept invested during the lifetime of Ms widow, for her benefit, and the residue of the fund tobe distributed…

Bill eor an injunction.—George B. Massey, deceased, was, in his lifetime, seised and possessed of certain real and personal estate, among which was a term for 999 years held by him in a house and seven acres of land. The Farmers’ Bank, holding a judgment in the Supreme Court for New Castle county against Massey for $2,528.00, caused a writ of fieri facias to be issued and delivered to Francis Haughey, then sheriff, to be executed.

Bill in equity eor arrears oe an annuity.—The complainant, the widow of Thomas Cartmell, deceased, became entitled under his will, in 1804, to an annuity of $40 bequeathed to her in lieu of dower, and charged (in part) upon certain real estate devised by the testator to Joseph Cartmell. The real estate was afterwards sold and conveyed to Parker Askew.

Bill in equity against trustees under an assignment for the benefit of creditors.—Joseph Robinson, being indebted to sundry persons and unable to pay his debts, executed an assignment, bearing date August 30th, 1822, to the defendants, conveying and assigning to them, their heirs and assigns, all his estate, real and personal, in trust to convert the same by sale into money, and the proceeds thereof to apply, in the first place, to the payment of á certain preferred debt of…

Bill in Equity for a specific performance.—This was a bill for the specific performance of a paroi contract for the sale of lands.

Bill to obtain the benefit oe a set pee.—This bill was filed under the circumstances following: A bill in equity had been filed in the Court of Chancery for Kent county, at the suit of James Clayton, Samuel Lockwood and Armwell Long, three members of the firm of Mitchell, Lockwood & Co., against John Mitchell, the remaining member of the firm, the object of which bill, was. to obtain a settlement of the affairs of the partnership by Mitchell, who had been the active partner.

Petition for Dower.—Joseph Farrow, by his will, dated Sept. 20, 1821, devised all his real estate to his children, the respondents above named. He devised no portion of his estate, real or personal, to his widow. The personal estate proved to be greatly insufficient to pay the testator’s debts.

<p>William S. Douglass, the intestate, a citizen of the State of Delaware, became bound by his bill obligatory, dated the 6th of March, 1813, in the sum of $320, to he paid to Robert Stephens, a citizen of the State of Maryland. William S. Douglass was also indebted at the time of his death, to Walter Douglass, his administrator, a citizen of this State, the plaintiff in this Court, in a large sum of money, on a book account. Stephens brought a suit in the Court of Common Pleas on this bill, against Douglass, the administrator. To this action the defendant below pleaded debts of prior and su. perior dignity, and insisted that, the Act of Assembly directing the the priority of payment of debts within this government (1 Vol. Del. Laws, 81) entitled him to retain his debt, in preference to Stephens, a creditor residing out of this State.</p> <p>The Act of Assembly upon which he relied provides as follows, viz.: S! that where any debts are due, by any person whatsoever, to “ any of the inhabitants of this Government, in all courts within the “ same, priority of judgment' and execution for debts due from any “ person whatsoever shall be allowed to the inhabitants of this “ Government, and that no foreign debt shall be paid by any executor “ or administrator, till the debts due to the inhabitants of this “ Government be first secured and paid, on penalty to pay the credia tors of this Government, as far as the assets in such executors’ or “ administrators’ hands would reach,before such foreign debts were “ paid; Provided, that the demand be made within six months after “ the death of such debtor; any law, act, custom or usage to the “ contrary hereof, in anywise notwithstanding.”</p> <p>The plaintiff below, Stephens, on the other hand, relied upon the provision in the second section of the same Act of Assembly, and on the second section, of Article IY, of the Constitution of the United States, as entitling him to a recovery of his debt, in preference to the inhabitants of this State whose debts are of an inferior order The Act prescribes the payment of debts of a deceased person by an executor or administrator as follows : (1.) Funeral expenses. (2.) Debts due the crown and to the proprietary; now to the State. (3.)'Debts due by judgment obtained in the lifetime of the party deceased. (4.) Debts due by recognizance and for rent. (5.) Debts due by obligation. (6.) Debts due by bill. (7.) Servants' and workmens’ wages. (8.) Accounts of merchants and others. The Section of the Constitution, referred to, ordains that “ the citi- “ zens of each State shall be entitled to all privileges and immuni- “ ties of citizens in the several States.” The sixth Article of the Constitution declares, that the Constitution, and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, any thing in the Constitution or laws of any State to the contrary notwithstanding.</p> <p>The Court of Common Pleas rendered a judgment in favor of Stephens. To reverse that judgment was the object of this writ of error.</p>