Volume 10 — Delaware Reports

Attachment fi. fa. on a judgment in this court at the suit of the plaintiffs against the defendant, and laid in the hands of Nathaniel P. Smithers, Esq., garnishee, to which he made, by-consent of counsel, the following special answer in writing: That the attachment was served upon him on the 16th day of April, 1873, and that he was then indebted to Denny, the defendant in it, to the amount of seventy-five dollars, but prior to the service of it, and about one week before…

This was an action of ejectment to recover a house and lot and premises situate in the town of Dover.

<p>In a sale of land by the sheriff on execution process, an advertisement of the sale must be delivered ten days at least before the day of sale to each plaintiff in the execution, and also to each plaintiff in any other execution or executions at the time in the hands of the sheriff.</p>

<p>Certiorari. The record stated the appearance of both the plaintiff and defendant, on the 15th day of September, 1873, the return day of the writ, and the defendant not being ready for trial claimed a postponement of the case until the 29th day of September, 1873, and that on that day the defendant appeared, but that the plaintiff did not appear and the case was continued until October 6th, 1873, when the defendant having failed to appear, after hearing the allegations and proofs of the plaintiff judgment was rendered by default against the defendant and in favor of the plaintiff for, etc.</p> <p>The exception was that the justice of the peace adjourned the hearing of the case on the 29th of September, 1873, without application of either party, and without any reason being assigned or appearing therefor of record.</p>

Scire facias sur mechanics’ lien. The pleas were first nil debit, and secondly, that Foulk, the contractor, after the work was finished gave the plaintiffs and they received his promissory note, payable three months after date, in payment of the amount due for it. The claim was for materials furnished in repairing the City Mill, which Foulk, who was a carpenter, had contracted with the mayor and council to repair and furnish the materials for the purpose.

<p>This was an action of covenant on a contract under seal by which the plaintiff agreed with the defendant, Nicholas Jenney, president of the Wilmington Rifle Club, that he would furnish the material and do all the plastering on the buildings of the club for a certain price per square yard, and which the latter agreed to pay him therefor. Although incorporated by an act of the legislature, the club had never had a corporate seal, but each of the parties had executed the contract by subscribing their names and affixing their respective seals to it in the form of scrolls made with a pen; the defendant, however, adding to his signature at the time of subscribing it the words, “President of the Wilmington Rifle Club.” The action upon it was not against the club, but against Jenney personally, and one of the pleas was that he never signed it, except in his- official capacity as president of the club, and it was therefore not his personal covenant which was traversed in the replication and on which issue had been taken before the jury. The act of incorporation and the deed of the club for the buildings and premises were put in evidence by the defendant.</p>

This was an action of debt at the suit of the plaintiffs against the defendants on a judgment recovered in the Superior Court of the State of Massachusetts, holden at Worcester, for the County of Worcester, at the September term, 1867, for six thousand nine hundred and nine dollars and four cents, on trustee process issued out of said court commanding the sheriff to attach the defendants, a firm doing business in the city of Philadelphia, in the State of Pennsylvania, and…

Action of replevin for the furniture of a hotel. The defense was a plea of property in the alleged firm of Deal & Horner, who had rented the hotel and purchased the furniture on credit of Mrs. Ann Jefferson, and had left the State without paying her for it, and a foreign attachment laid upon it at her suit by the defendant.

<p>This was an action of assumpsit by The Kent County Railroad Company against William Wilson for the balance remaining unpaid on his subscription to the stock of it amounting to twenty-three hundred and seventy-five dollars. The pleas were non assumpsit; the act of limitations; and that the defendant signed the alleged subscription to the stock of the company upon the express assurance given at the time by the agent of the company who took it, that the route of the railroad when located should pass through or near Warwick, in the State of Maryland, and terminate at Middletown, in the State of Delaware, but that it was not so located, etc. And on which issue had been taken as well as on the other pleas.</p>

This case came up in the Court of Errors and Appeals on a writ of error and bill of exceptions filed to the Superior Court for New Castle County, and was heard before Saulsbury, Chancellor, Gilpin, Chief Justice, Wootten, Houston, and Wales, Associate Judges, in which the case was tried before Wootten and Houston, Judges, in the absence of Gilpin, Chief Justice, in the court below.

This case came up ou a case stated from the Supreme Court in and for Sussex County, and was heard at this term before all the judges in the Court of Errors and Appeals, with the exception of Houston,.!., who declined to sit because he had been a stockholder in, and the president of the railroad company when the acts of assembly referred to in it were enacted, and the mortgage of the company to the State was executed under them.

<p>A special plea in an action on a policy of insurance that the plaintiffs permitted the building insured to be used for purposes which increased the risk of loss by fire, without stating what such purposes were, is deficient in particularity and demurrable.</p> <p>Since the repeal of the stamp acts of Congress deeds executed and delivered while they were in force, but without any United States internal revenue stamp upon them, must be recorded by the recorder of deeds for the county if tendered for that purpose, and there is no other objection to recording them.</p> <p>If neither the attorneys nor the members of the court are agreed as to what a witness said as to a material fact in the trial of a case, the court will leave it to the jury and decline to nonsuit the plaintiff for the want of sufficient proof as to the fact to which his statement referred.</p> <p>If at the time of the application and issuing of the policy the insured is in possession of the whole of the property as the lawful and rightful owner of it, and in his application represents himself to be the owner of the whole of it, the court will not nonsuit him in an action on the policy for the loss of it by fire, although it appears from the evidence that he had never had a deed but for one moiety of it, and that without any United States revenue stamp upon it as then required by the act of Congress up to the time of filing his application and the granting of the policy, either on the ground of misrepresentation in the application as to his ownership of the whole of the property, or on the ground that he had not then the legal title to any part .of it.</p> <p>The charter of a mutual fire insurance company provided that in case of an injury or loss by fire the insured should give immediate notice of it to the president or secretary at the office of the company, and that the company should be liable to a suit for any loss if it should not be paid within ninety days after notification of such loss. The plaintiff in the case gave notice of the loss to the president at the office of the company in four days after the fire and required the payment of the amount of the insurance by letter, and the secretary by the direction of the president replied to their letter declining to pay it. Hdd, that it was due notification of the loss, and that the reply of the president through the letter of the secretary was a refusal to pay it, which amounted to a waiver by the company of its exemption from liability to be sued for it under the charter until ninety days after the notification of the loss.</p> <p>The insurance on a stock of goods in a building after their removal from it may be transferred to the building by the secretary, with the knowledge and consent of the company express or implied, on the request of the insured, by a written indorsement under his hand on the face and in the body of the policy and above the signature of the president and the seal of the company after its execution and delivery, and without any alteration to the same effect being made in the written application of the insured on which the policy was issued. And such transfer of the insurance will not vary or affect the terms of the policy or the application in any respect beyond the mere fact of transferring the insurance from the goods to the building. And the extent and measure of the risk assumed by the company on the transfer being made was the measure and extent of the risk which it incurred in respect to the stock of goods originally insured, and is to be measured by the use or uses to which the building was originally appropriated under the policy, that is to say, the rate and degree of risk incident to a woolen factory in which wool and woolen goods are kept and manufactured in such a building as is described in the application and policy.</p> <p>In every contract or policy of insurance against fire there is an implied promise on the part of the insured that he will not after it is made alter or change the insm-ed premises, or alter or change the business then carried on, or to be carried on there, so as to increase the risk of loss by fire. And this is the rule of law, although there be no by-law of the company on the subject. And if the insured or his tenants so occupy or use the property insured at any time as to increase the risk of injury to, or loss of it by fire, the insured is not entitled to recover for it.</p> <p>The application for the insurance, and on which the policy is issued, enters into and constitutes part and parcel of the contract of insurance, and is made such by the express terms of the policy itself; and from the application and the policy must be ascertained and determined the degree or extent of risk which the company assumes and agrees to insure against.</p> <p>The origin of the fire or how it may have occurred is wholly immaterial, and is not a question to be considered in the case. If the insured or his tenants increase the risk of injury or loss to the insured premises from fire by any other use or uses to which it was at any time appropriated after the transfer of the insurance from the stock of wool, woolen goods, and materials which have before been removed from the building to the building itself, the contract of insurance is vitiated and avoided by it, and no action can be maintained upon it.</p>

Rule to show cause wherefore the sale of the plaintiff’s lands by the sheriff on several writs of levari facias at the suit of the bank against him should not be set aside.

<p>Appeal from the judgment of a justice of the peace in the city, imposing a fine on the appellant for selling mutton on the streets of the city contrary to an ordinance of it. The substance of the ordinance was that no person exercising the business of a butcher or shinner should sell or expose to sale any beef, mutton, lamb, veal, or pork at any place on the streets or sidewalks of the city under a penalty of not less than five nor more than ten dollars; provided, that it should not apply to stands or stalls within it for the exclusive use of butchers. And that any person occupying or using any land or building for the purpose of producing or preparing beef, mutton, lamb, veal, or pork for sale or market should be deemed a shinner or butcher within the true intent and meaning of the ordinance; provided, that nothing in it should be held to apply to any farmer, unless such farmer should exercise the business of farming for the purpose of producing or preparing beef, mutton, lamb, veal, or pork for sale or market.</p> <p>The appellant’s father, with whom he lived, was the owner of a very valuable farm in the county consisting of near three hundred acres, situated in the vicinity of Newark, and distant ten or twelve miles from the city, on which he resided and which he cultivated uniformly and quite largely in wheat, corn, oats, and hay, and other agricultural products grown on farms in that section of the country, and on which he usually kept a flock of about one hundred sheep of superior stock, and lambs, some of which he had several times sold at highly remunerative prices to other farmers and sheep-growers on account of their improved breed and strain. Some of his sheep, however, had from time to time, been slaughtered on the farm, and the appellant, his son, by his direction had on several occasions taken the mutton for sale to Wilmington and sold it on the streets and near the sidewalks of the city, and it was for such a sale the proceeding below had been instituted and the judgment in it had been rendered against him in the case.</p>

Bule to show cause wherefore a writ of foreign attachment issued at the suit of the Philadelphia, Wilmington and Baltimore Bailroad Company against The Kent County Bailroad Company, and laid in the hands of William Wilson, garnishee, should not be quashed.

<p>A general- demurrer to a count in a declaration in an action on the case alleging that the defendant, being the owner of a certain messuage with the premises, demised the same to the plaintiff for one year, with the exception of three rooms in it, which he retained for his own use and occupation, in pursuance of which the plaintiff with his family entered into possession thereof and continued to occupy the same for three months, but that from the time of his so entering into possession of them up to the time last mentioned he and his family and persons visiting them had been so much annoyed and disturbed by gaming, unseemly sports, uncouth noises, profane and obscene expressions in the portion of the house reserved and occupied by the defendant, often continued and kept up until a late hour of the night, that he was constrained and obliged to remove therefrom with his family at the time last mentioned, and was thereby subjected to great trouble, inconvenience, and expense in removing his family and furniture therefrom, and in procuring and renting another house, admits all the material facts alleged in the count, which as thus alleged in the count and admitted by the demurrer constitute in law a case of constructive eviction of the plaintiff from the demised premises, as the result of the wrongful acts and conduct of the defendant, and prima facie import an indirect injury for which the action on the case will lie.</p> <p>The facts alleged in other counts and also admitted by the demurrer, that the plaintiff could and would have sublet the demised premises for the same rent he was to pay for residue of the term but for the wrongful acts and prevention of it by the defendant in the manner stated in them, likewise import in law an indirect injury to the plaintiff by the defendant for which an action on the case will lie.</p> <p>Under the proceedings had, as alleged in them, by the defendant against the plaintiff to recover the rent, and by which he recovered the rent for the whole year, there was no way in which the plaintiff could avail himself of these matters as a defense against it except on the return of the attachment to this court; but the fact that he did not then attempt to avail himself of any of the matters of fact alleged in any of the counts in the narr, and particularly, as alleged in the first count, as a defense against the defendant’s demand for rent for the residue of the term after the plaintiff's wrongful eviction by him from the demised premises, will not bar his right to maintain this action.</p> <p>The ground of action on which the last count is based is an alleged false and malicious proceeding by the defendant without probable cause or good grounds to believe that the plaintiff intended to remove his effects from the county, or otherwise to dispose of the same, and would so remove or dispose of them before the rent would become due, so as to defeat a distress for it under the provisions of the statute for attachment and security of rent in such a case; but notwithstanding the matters of fact alleged in it was a resort to legal process and was prima, facie for a lawful and proper purpose, yet if the material allegations of the plaintiff in this count be admitted, as they also were by the general demurrer to it as well as to all the other counts, it was upon the principle which lies at the foundation of all actions for malicious suits and prosecutions without probable cause and malicious, viz., a malicious abuse and perversion of the process and proceeding provided for in the statute for which this action will lie.</p>

<p>In cases of contracts for the payment of money or the delivery of goods where no place is named in the agreement for the payment or delivery, or no • established usage prevails to the contrary, as in cases of promissory notes and bills of exchange, the party has the whole day at any place where he may meet the other party and have the proper means and opportunity so far as they are both concerned of making the tender, in which to make it, and he is bound to find the other party at his peril within the time limited if he is in the State, and he must do all that he can do, without the concurrence of the other party, to make the payment or delivery, and that at a convenient time before midnight, such time varying according to the quantum of the payment to be made or the nature of the goods to be delivered and received.</p>

<p>Attachment fi. fa. and plea of nulla bona. Edward Mclntire, the plaintiff, had an execution levied by the sheriff on the goods of Henry B. Mclntire, the defendant in it, who was a tenant and lessee of the garnishees named of certain premises for a year at a rent of nine hundred and sixty dollars per annum, payable quarterly in equal sums of two hundred and forty dollars from the 25th of March, 1874, to the 25th of March, 1875. At the sale by the sheriff on the execution James and Samuel Barkley, the lessors of Henry B. Mclntire, the defendant in it, and garnishees of the same in this suit, bought the unexpired term of their lease to him of the premises for three hundred and five dollars, and on the return of the execution and sale they received as the landlords of the premises from the sheriff out of the sale their one year’s rent of nine hundred and sixty dollars.</p> <p>The claim of the plaintiff in the attachment _/?. fa., Edward Mclntire, was for the amount of eight months of the rent of the premises from July 25th, 1874, to March 25th, 1875.</p> <p>The sheriff’s sale on the execution was returned as made to James Barkley, and not to James Barkley & Co., which firm consisted of James and Samuel Barkley, the garnishees in this case.</p>

<p>A party properly notified to produce a. paper in his possession on the trial of a ease is required to produce it if demanded for the inspection of the coun'sel of the opposite party before the trial has commenced.' ’</p>

<p>These were cross-actions of assumpsit with the usual pleas between the parties named, and by consent of counsel were tried together before the same jury. The action first mentioned was on a written agreement between the parties dated April 21st, 1874, in which the firm of Walton & James agreed to buy and receive from James E. Black ten thousand tons of merchantable ice, properly packed on board, for a voyage to Wilmington, Delaware, from the State of Maine, the same to be shipped in equal parts during the months of May, June, and July, 1874, and to pay for it in accepted drafts due and payable in sixty days from the date of the signing of the bill of lading of each cargo of the above ice, properly drawn through the banks, as customary in such transactions, for which they agreed to pay four dollars and fifty cents per ton on board in the State of Maine.</p> <p>The first cargo, consisting of three hundred and five tons, was shipped to them in Wilmington, and on the 8th of May, 1874, Black drew a draft on them at sixty days for one thousand three hundred and seventy-two dollars and fifty cents, and forwarded it with a bill of lading of that date attached by mail to them but which they refused to pay at maturity, because, as they alleged, the ice was not merchantable and of such quality as the contract required. As to the quality of the ice, several witnesses were examined on each side, and the testimony was conflicting and contradictory in its character. Both actions were for the alleged breach of the agreement by the respective defendants.</p>

<p>Assumpsit on a promissory note for one hundred and eighty-six dollars and four cents at sixty days, dated June 17th, 1870, and payable to the order of the plaintiffs at the Farmers’ Bank at Dover, Delaware, which was offered in evidence.</p>

<p>The objéct of a writ of restitution under the provision of the statute in relation to the jurisdiction of justices of the peace in cases of forcible entry and detainer, and of holding over lands and tenements, Revised Code, chap. 101, p. 626, where a judgment has been recovered under it against the party committing the forcible entry and detainer, or against a tenant holding over after notice to quit, and the same has been executed and has afterward been reversed on certiorari in the Superior Court, is to order the proceeds of the sale on the execution to be paid to the defendant in it in the first case and to restore the removed tenant and defendant in it to the possession of his term in the second case.</p> <p>The Superior Court has special authority under the statute upon a writ of certiorari in cases of tenants holding over after notice to quit, to amend the record of the justice of the peace where the defects are purely formal and apparent on the face of the proceedings before Mm.</p>

This was an action of debt on a guardian bond in this court against the surety, and a case stated in which it was admitted that the bond was duly executed by the guardian and surety on the 27th day of September, 1870, in the penal sum of one thousand five hundred dollars, with condition for the faithful performance of his duties as such by the guardian pursuant to the statute in such case made and provided.

This case came up on demurrer and was heard before Comegys, C. J., and Houston, J., Wooten, J., absent.

<p>As well in actions for the non-payment of the price of goods sold and delivered under a contract as in actions for goods sold and delivered with warranty or in actions for work and labor done under a contract, the defendant may at his election either avail himself of any breach of the contract by the plaintiff causing damage to him in reduction of the damage claimed and sustained by the plaintiff from any breach of it by him, or he may sue the plaintiff for the same independently, and the former suit and recovery against him will be no bar to the latter unless in the former suit he had availed himself of his right and privilege to prove and claim such damage in reduction of the damage demanded in it by the plaintiff from him.</p>

<p>Neither the raw material furnished by another to the tenant of a woolen factory to be woven into flannel for him at a stipulated price per yard nor the fabric when made, on the demised premises, are subject to distress for rent due the landlord and in arrears for the past year, or to the landlord’s attachment for the rent growing due the current year ; but they both have a preference as to other goods on the premises belonging to the tenant over attachments against him for wages due the hands employed in the factory.</p> <p>In an action of replevin each party may be an actor. If the goods have been replevied and the plaintiff prevails in it he is entitled to nominal damages, and also his costs; but if the defendant prevails in it he is entitled to a return of the goods or to damages to the value of them and also his costs. If a verdict be found that a part of the goods replevied were the property of the plaintiff and a part were not, each party must be considered as prevailing to that extent respectively, and the verdict must so be in favor of each of them respectively; and as each party has judgment upon it for his damages, either nominal or substantial, he is so far a prevailing party and must also have his costs.</p>

<p>At this term the sheriff had obtained leave and deposited the sum of ninety-seven dollars in court, which by virtue of a certain writ of levari facias at the suit of James D. Rhoads v. George L. Garsed, issued out of this court to the present term, and upon which he had set up and sold on the 13th day of November instant to the plaintiff for the sum of twenty-five thousand dollars the real estate in the said writ mentioned, he had received as part of the said sum paid to him as sheriff, and which sale had been returned to this court at the present term. And that at the time and place of the said sale Archibald Given, Esq., County Tax Collector for the Northerly Collection District of the city of Wilmington, in which said real estate was situated, gave verbal notice to him as sheriff that he had a claim against said real estate for a county tax amounting to ninety-seven dollars assessed or imposed by the levy court of the county for. the present year of 1876 against the said George L. Garsed, the mortgagor and defendant in the said writ of levari facias ; but he, your petitioner, is not advised that any actual levy by attachment, sequestration, execution, or other process for making or securing the said tax was ever made upon the said real estate, or upon any part thereof. He further represents to the court that the mortgage under which it was sold at said sale was for the purchase-money, and bears date October 8th, 1870, and was recorded in the recorder’s office of this county on the 11th day of October, 1870. And having been notified by the attorney of James D. Rhoads, the mortgagee and plaintiff in said writ of levari facias, who is entitled to the whole of the fund in hand arising from said sale after deducting the charges to which the same is legally subject, not to retain the amount of tax so as aforesaid claimed by the said county tax collector out of the said proceeds of sale and not to pay the same to him or to any other person by reason of said claim, denying the validity thereof as against said mortgage debt, and claiming and demanding said amount as part of the proceeds of said sale to which said plaintiff is entitled by virtue of his said mortgage and the lien thereof upon said real estate and the proceeds of the said sale. The petitioner would further represent that the sum appearing by the said writ of levari facias and claimed by the said plaintiff to be due to him is thirty thousand dollars. And the petitioner, being advised that it would not be safe for him to pay it over under such circumstances, prays leave to pay the said amount of ninety-seven dollars into court, etc.</p> <p>This was followed by a petition from James D. Rhoads, the plaintiff, alleging the same facts substantially and submitting that he was entitled to have the said amount so paid into court paid out to him, and praying that it might be so ordered by the court, upon which a rule was laid on the said Archibald Given, Esq., County Tax Collector for the Northerly District of the city of Wilmington, to show cause wherefore the said amount should not be paid to the said James D. Rhoads, the said mortgagee and plaintiff in the said writ of levari facias.</p>

<p>Assumpsit upon a written agreement, but not under seal, by which the defendant, who alone signed it, rented from the plaintiff certain premises, consisting of a dwelling, candy shop, and bakery in Milford, for and during the term of five years from the 1st day of January, 1865, to the 1st day of January, 1870, and was to do all the repairs on the premises at his own expense, except to the bake-oven and pump, and for which he was to pay a rent of one hundred and seventy-five dollars per annum in three months’ installments, and to deliver at the expiration of said term the said premises with all the improvements and appurtenances thereunto belonging to the plaintiff. The defendant held the premises during the term or time limited in the agreement and then surrendered them after giving three months’ notice in writing of his intention to do so to the plaintiff. The action was commenced on the 28th day of December, 1872, and was for neglecting to keep the premises in repair. The declaration contained ten counts, and the first five of them respectively were for a breach of the agreement in that respect during each of the five years of the holding, and among other pleas the statute of limitations was pleaded. The testimony as to the repairs was very contradictory, and the counsel for the defendant contended that there was no evidence that they had been neglected during the last year of the holding.</p>

<p>Conditional sales of personal property are valid in this State; and where delivery of property is made upon agreement that no title shall pass until payment is made or some thing is done or occurs, no title passes to the party to whom it is delivered until such payment is made or such thing is done ' or occurs, and he can pass none to his vendee, no matter how ignorant of the contract such vendee may be.</p> <p>If such property consists of machinery and is placed by the purchaser permanently on his land, yet if its identity can be shown to be that of the property bargained for, the conditional vendor on failure of payment can enter on the premises and remove it and repossess himself of it, provided such be the bargain between the parties; and he can recover a reasonable compensation for the use thereof if such also be the bargain.</p> <p>Bargains and sales made by an agent of a manufacturing company within the scope of his authority bind the company, but if a special agency existed by which he was restricted to a certain mode of dealing, it would not bind the purchaser unless it was communicated to him before he erected the machinery on his freehold.</p> <p>Knowledge of any such special agency or conditional bargain and sale of machinery by the company to a purchaser who erects it on lands bound by a mortgage recorded before the machinery went upon the premises, on the part of the mortgagee, cannot affect the lien of his mortgage upon the machinery if it has thereby become a fixture of the premises bound by it, unless it can be shown that the mortgagee agreed that it should be exempted from it, or so conducted himself with respect to the matter as to mislead and deceive the company into the belief that it would not bind it, for in that case he would have been guilty of a fraud, which the law would not tolerate.</p>

Assumpsit on a promissory note for two hundred dollars at six months, dated September 27th, 1872, to the order of the plaintiff by the defendant, who was represented by the counsel for the plaintiff to have been at the date of it a married woman but living separate and apart from her husband, John H. Heritage, and not supported by him.

<p>A book or paper produced in court on notice from the other side, under the statute and the order of the court, proves itself without evidence if there be no subscribing witness to it, or if there be and both parties claim.or take title or interests under it; but if the party producing it claims or takes no title or interests under it, and there is a subscribing witness to it, he must be called to prove the execution of it, as in other cases.</p> <p>An action of indebitatus assumpsit will lie at the suit of a subscriber to the capital stock of an incorporated manufacturing company, against another who had paid his stock subscription in full, upon the substantial performance by him of a verbal agreement between them that the stock certificate of the former, when made out for him, should be delivered to the latter and hel¿ by him as trustee for the company until his subscription for the stock had been paid in full, on his paying in full for the same, notwithstanding they entered into a further agreement, under their hands and seals, that the former would sell and transfer the said certificate and the shares of stock therein mentioned immediately on his ceasing to be an employee of the company to the latter at its par value, and who thereby agreed to buy the same at * that rate, and which the latter transferred to the company itself eight days before the former ceased to be an employee of it. But the action would not lie on a part payment of the stock subscription by the former, however large, as it was not a substantial performance of either agreement prevented by the latter; and, besides, it could be of no benefit or advantage to the latter individually, whatever it might have been to the conipany to which it was paid.</p>

<p>This was an appeal from a decree in the Court of Chancery in and for New Castle County, on a petition for partition of certain real estate devised in the last will and testament of Samuel Bush, deceased, to his son, George Bush, also since deceased intestate, at the suit of the appellant, Margaret B. Bush, his widow, who claimed as such a right of dower therein under a devise to him by his father, from so much of the decree of the chancellor in the partition as disallowed her claim of dower in the real estate so devised to him.</p> <p>The devise in the will of Samuel Bush, to his son George Bush, her husband, was as follows :</p> <p>“ Item.—I give, devise, and bequeath unto my son, David Bush, his executors and administrators, the following real and personal property, to be held by him and them in trust during the natural life of my beloved daughter, Rebecca, the wife of Frederick Leonard, Esq., to wit : My house and lot on the southerly side of Hanover Street, between Walnut and Poplar Streets, be the contents thereof more or less, with the improvements and appurtenances, in the borough of Wilmington aforesaid; my house and lot on the westwardly side of Shipley Street, between Front and Second Streets, in the said borough, be the contents thereof more or less, with the improvements and appurtenances; my house and lot in the said borough on the west side of Orange Street, between ■ Front and Second Streets, adjoining lands of George Griffin, Peter Johnson, and others, be the contents thereof more or less, with the improvements and appurtenances; my lot of ground in said borough, bounded by Shipley and Water Streets, property late of Enoch Moore, and the Christiana Creek, with the improvements and appurtenances ; and also my lot of marsh in Holland’s Creek Marsh, in the hundred of New Castle and county aforesaid, be the contents thereof more or .less, with the improvements and appurtenances; also thirty shares of Wilmington and Kennett Turnpike stock, and also the sum of one thousand dollars to be paid by my son, George Bush, out of my plantation hereinbefore devised to him, subject to the payment thereof, and it is my mind and will that the said trustee, his executors and administrators, after deducting thereout the necessary moneys for repairs and. taxes, pay over regularly and half-yearly for the sole and separate use of my said daughter, Rebecca Leonard, during her natural life as a femme sole, without any control or direction whatever" of or by her said husband, Frederick Leonard, or the creditors of the said Frederick Leonard, the rents, interest, issues, profits, and incomes of the said real and personal estates so devised and bequeathed in trust as aforesaid, and that my said daughter Rebecca’s receipts, signed by her, shall be full discharges therefor. And I do give, devise, and bequeath unto the lawful issue of my said daughter Rebecca, that shall be living at her decease, all the said real and personal estate so given, devised, and bequeathed as aforesaid in trust for the separate benefit of her, my said daughter Rebecca, during her natural life, the real estate in fee simple ■ and principal of personal absolutely; but if my said daughter Rebecca shall die without issue to survive her, then and in such case it is my will that all said real and personal estates so devised and bequeathed for the sole benefit of my said daughter Rebecca during her natural life shall go to my two sons, David Bush and George Bush, and upon such event I do give, devise, and bequeath the same to them, my said two sons, David and George, their heirs and assigns forever.”</p> <p>And the codicil thereto, bearing date June 25th, 1830, which is as follows, viz.:</p> <p>. “Item.—And further, it is my will and desire that if my son George Bush shall die without issue, arriving at the age of twenty-one years, that then in such case I do hereby give, bequeath, and devise the estate given, bequeathed, and devised to him in my said last will and testament, to the children of my son David Bush, and to their heirs and assigns forever, subject to the right of dower of the wife of my said son George Bush.</p> <p>“ And lastly, it is my desire, that this, my present codicil, be annexed to and made a part of my last will and testament to all intents and purposes.”</p> <p>The facts of the case will appear from the opinion of the chancellor, delivered in the court below as follows :</p> <p>George Bush, one of the devisees named in the will, survived the testator for some years and died, leaving to survive him a widow, the said Margaret Bush, and several children as his heirs-at-law, who, or the heirs of whom, are parties to this proceeding. Rebecca Leonard, the daughter of the testator, survived both the testator and the said George Bush many years, but has very recently died, leaving no issue to survive her. George Bush never was in possession and was never entitled to the possession during his lifetime, of any of the lands which are the subject of these proceedings. Margaret Bush, his widow, claims dower in the undivided interest or share of the estate above devised, which would have passed, by the terms of the devise, to her husband, had he survived Rebecca Leonard. Her claim is based specially upon the supposed peculiar words of our act of assembly entitled, “ Intestates, Real Estate,” section 1 of which provides that “ when any person having title or right, legal or equitable, to any lands, tenements, or hereditaments in fee simple, shall die intestate as to the same, such lands, tenements, or hereditaments shall descend and pass in fee simple to his kindred in co-parcenary, according to the course or order therein mentioned.” Among the provisions of said section, is this: “If the intestate leave a widow, and also any child, or lawful issue of such child, said widow shall have one-third part of the real estate aforesaid for the term of her life as tenant in dower, etc.” Dower, at common law, exists where a man is seized of an estate of inheritance and dies in the lifetime of his wife. In that case she is, at common law, entitled to be endowed for her natural life of the third part of all the lands whereof her husband was seized, either in deed or in law, at any time during the coverture, and of which any issue which she might have had might, by possibility, have been heir. To the consummation of the title to dower three things are, accordingly, requisite—marriage, seizin of the husband, and his death. It is necessary that the husband shall be seized at the time of marriage or during coverture, either in fact or in law. The husband must be seized of a freehold in possession, and of an estate of immediate inheritanee in remainder or reversion, to create a title to dower. The freehold and the inheritance must be consolidated and be in the husband simul et semel during the marriage to render the wife dowable.</p> <p>If a freehold in a third person intervenes between the husband’s freehold for life and the inheritance limited to him after the determination of such intervening freehold, and such intervening freehold does not determine during the coverture, the widow will not be entitled to dower.</p> <p>If the testator, Samuel Bush, had devised these premises to his son, George Bush, for life, remainder to his son, David Bush, in trust, for his daughter, Rebecca Leonard, during her natural life, but in case the said Rebecca should die without issue to survive her, then to the said George in fee, and George had afterward died, leaving Rebecca to survive him, and she had subsequently died without issue to survive her, George’s heirs-at-law would have taken the estate, but his widow would not have been entitled to dower therein, for the reason that George never, at any time during the coverture, had a fee simple in the lands, and never had title or right, legal or equitable, thereto in fee simple. In such case he would have had a legal title and right to the freehold, but not to the immediate inheritance; and, upon the death of Rebecca, without leaving issue to survive her, his heirs would have been entitled to the inheritance under the terms of the will, but his widow would not have been entitled to dower because at no time during coverture would the freehold and the inheritance have been consolidated and been in him simul et semel.</p> <p>George Bush, the deceased husband, never had any freehold estate in the lands mentioned in these proceedings. That was outstanding in a trustee for the benefit of a cestui que trust, who survived George Bush many years. He never, during his lifetime, had any present interest in them, and neither he nor his heirs could, by virtue of any devise contained in the will of Samuel Bush, ever have any future interest therein except upon the contingency of Rebecca Leonard’s dying without issue to survive her. Neither the freehold nor the inheritance of these lands, under the terms of Samuel Bush’s will, was ever in George Bush, the husband, in his lifetime, only a possibility of becoming entitled to one-half of both by the death of Rebecca' without issue to survive her before his own death, which did not occur. Upon her death afterward without leaving issue the' lands passed in common to the heirs-at-law of the said George Bush and to David Bush by the express terms of the will of Samuel Bush, the testator.</p> <p>Under our intestate law, to entitle the widow to dower, the husband must have had title or right, legal or equitable, to lands, tenements, or hereditaments in fee simple. What is a fee simple in lands, tenements, or hereditaments ? It is (says Blackstone) “the highest and largest estate that is capable of being enjoyed.” “ He that is tenant in fee hath in him the whole of the estate.” In illustration of the doctrine of remainders he says : “ If a man seized in fee simple granteth lands to A for twenty years, and after the determination of the said term, then to B and his heirs forever, here A is tenant for years, remainder to B in fee. In the first place, an estate for years is created or carved out of the fee and given to A, and the residue or remainder of it is given to B. But both these interests are, in fact, only one estate, the present term of years and the remainder afterward, when added together, being equal only to one estate in fee. They are, indeed, different parts, but they constitute only one whole; they are carved out of one and the same inheritance; they are both created, and they both subsist together, the one in possession, the other in expectancy. So if land be granted to A for twenty years, and after the determination of said term to B for life, and after the determination of B’s estate for life, it be limited to C and his heirs forever, this makes A •tenant for years, with remainder to B for life, remainder over to C in fee. Now here the estate of inheritance undergoes a division into three portions; there is, first, A’s estate for years, carved out of it, and after that B’s estate for life, and then the whole that remains is limited to C and his heirs.</p> <p>“And here, also, the first estate, and both the remainders for life and in fee, are one estate only, being nothing but parts or portions of one entire inheritance, and if there were a hundred remainders it would still be the same thing, upon a principle grounded in mathematical truth, that all the parts are equal and no more than equal to the whole.”</p> <p>“ Again,” he says, “ a particular estate, with all the remainders expectant thereon, is only one fee simple, as forty pounds is part of one hundred pounds, and sixty pounds is the remainder of it; wherefore after a fee simple once vested there can no more be a remainder limited thereon than after the whole hundred pounds is appropriated there can be any residue subsisting.”</p> <p>The testator, Samuel Bush, devised the real estate mentioned in these proceedings to David Bush, his executors and administrators, for his daughter, Rebecca Leonard, in trust during her natural life. This was a devise of the property for life. He then devised the property after the death of his daughter to such of her issue as might be living at her death in fee simple. He thus disposes, for the present, of his whole estate in the premises; the freehold to David Bush in trust for Rebecca Leonard, and the remainder in fee; the freehold and remainder though being separate parts of, yet constituting together the whole estate, or the fee simple thereof. The testator, however, provides for a possible contingency, that of there being no issue of his daughter living at the time of her death, and in that event, and only upon the happening of that contingency, he devises the said real estate to his two sons, David Bush and George Bush, their heirs and assigns, forever.</p> <p>Such a contingent or executory interest has none of the dis-r guishing qualities of a title or right in fee simple. It is what is denominated a possibility; and, although all contingent estates of inheritance, as well as springing and executory uses and possibilities, coupled with an interest, where the person to take is certain, are transmissible by descent and devisible and assignable, it has never been held that any such interest constitutes title and right to land in fee simple. When the contingent estate of inheritance becomes a vested estate in fee simple in possession, the right to dower, then and then only, becomes possible. Before the contingent interest or possibility in this case, under the will of Samuel Bush, became vested in possession, George Bush died. It could not so vest in him but vested in his heirs, free from any claim or right to dower by his widow therein.</p> <p>The act relating to intestates’ real estate has been on the statute book • for forty-nine years, during which time it has never received the construction now sought to be given to it. The design of the act, so far as it relates to right of dower, was to remedy what was by many, if not generally, considered an unjust discrimination in favor of the husband by allowing a right to courtesy in equitable estates, and against the wife by denying a right to dower in such estates. The act, therefore, gave a right to dower to the wife in every species of estates in which the husband might be entitled to an estate by the courtesy. It was not designed by passing that act, and such is not the legal effect of the act, to destroy any of the previous requisites to an estate in dower, except that which confined it to a legal estate. For these reasons I decide that Margaret Bush, widow of George Bush, is not entitled to any right of dower in the real estate subject to partition in these proceedings, nor to interest on any of the' money which may arise from a sale of the same under a decree in this cause.</p>

This was an appeal from the decree of the chancellor sitting in and for New Castle County, and was heard before Comegys, C. J., and Wootten, Houston, and Wales, Judges, at the last and held under advisement until the present term of this court.

<p>This was an action of trover by the plaintiff, as sheriff of Kent County, against the defendant for the undivided half part of a crop of wheat, the share of John W. Hubbard, as tenant, already harvested on the premises rented by him, and levied on by the sheriff under a fi.fa. execution in his hands against him, and carried away and converted to his use by Pressly Ford, the defendant in the suit, before the day advertised for the sale under the process with the privity and consent of the defendant in it.</p> <p>The execution was issued on the 9th day of July, 1872, and the first entry indorsed on the back of it in the handwriting of the sheriff’s deputy was, “ An inventory and appraisement of the goods and chattels of John W. Hubbard, seized and taken in execution by virtue of the annexed writ at the suit of Alexander Peterson’s executor, this 9th day of July, A. D. 1872, by Samuel Hargadine, Sheriff.” Then followed a schedule of the same with their respective valuations set opposite in figures, amounting in the aggegate to two thousand one hundred and forty-three dollars, in which was included “lot of wheat in stock, crop of 1872, valued at three hundred dollars,” and which was followed with the signatures of the appraisers at said prices, dated August 31st, 1872; and this was followed by the sheriff’s return indorsed on the execution, “ Levied on goods and chattels as per inventory and appraisement annexed, and on the 18th day of September, A. D. 1872, after due notice given as by law required, the said goods and chattels sold for the sum of eight hundred and seventy-three dollars and thirty-five Gents.”</p> <p>John Mustard, the first witness called for the plaintiff, was asked by the counsel for the defendant if he was not one of the sureties in Sheriff Hargadine’s official recognizance taken on the 23d day of April, 1872, and before this suit was brought, which had been pending for several terms, and on his answering the question that he was, he objected to his competency as a witness on that ground, for which he referred to the general rule of evidence which renders any one incompetent to testify who is interested in or may gain or lose by the result of the case.</p> <p>The Court, however, overruled the objection, after argument by counsel on both sides.</p> <p>The counsel for the plaintiff was then proceeding to prove by the witness the carrying away of the wheat from the premises after the issuing of the execution and it had been levied on by the sheriff, when</p>

<p>In an action of replevin for a mule and a cow, in which the mule hut not the cow was replevied and delivered to the plaintiff, who suffered a judgment of npn pros, by failing to file a declaration in it, on which the defendant took an assignment of the replevin bond, and sued him and recovered judgment upon it, the record of neither action is evidence to support a plea of former recovery in a subsequent action of replevin by the plaintiff against the defendant for the cow only.</p>

Assumpsit for the price of a horse sold by the plaintiff to the defendant for ninety dollars. The defense relied on was under the plea of fraud and covin. The sale was admitted, and that the defendant promised the plaintiff on the day of-the sale that he would give him his judgment note for the amount.

<p>The words, “ the said constable,” contained in the statement of the cause of action, will supply the omission to state that he was a constable in the entry of the names of the parties on the margin of the docket in a suit by a constable against a purchaser for goods sold at an official sale by him.</p>

<p>This was an action on the case for false and fraudulent misrepresentations made by the defendant to the plaintiff in renting a farm to him in the State of Wisconsin.</p> <p>The parties were residing in this State at the time, the plaintiff in the employ, at good wages, of the Du Pont Company on the Brandywine, and the defendant in this city. The first witness examined on behalf of the plaintiff stated that he went with the plaintiff to the defendant’s house before the renting to hear what he had to say about the farm, and he said that there were from thirty to thirty-five acres of it cleared, and another portion of it that had been cleared some years ago and which it would not cost much to clear up again, and that there was .a five or six-room dwelling-house upon it and a live fence around it. He afterward, in the year 1875, by the request of the plaintiff, went with him and his family, which included his wife and three children, to Wisconsin, and found the farm and a patch of cleared ground on it of from twelve to fourteen acres. There was no dwelling-house on it; there had been a log house on it but it had rotted and tumbled down. There was no fence around the cleared patch mentioned. The defendant said on the occasion before referred to that he thought there was a live fence around the farm. He also said on that occasion that he had never been to Wisconsin. It took a week for them to make the journey to Wisconsin when they went out, but the expenses of their journey back were greater than in going out. After further proof of the expenses incurred by the plaintiff and his family to Wisconsin and back, and the wages he was receiving per month on the Brandywine when he left his employment there for the farm rented to him by the defendant in that State, and proving and putting in evidence his lease for it, the counsel for the plaintiff rested his case.</p>

Levari facias on a mortgage at the suit of the defendants in the rule, the mortgagees, against the plaintiff in the rule, the surviving mortgagor, and sale thereon, and return by the sheriff to this term of the court, and rule to show cause why the sale should not be set aside.

Assumpsit for goods sold and delivered by the plaintiffs, who were merchants in Philadelphia, to the defendant, who resided in Dover.

<p>Action of replevin for certain live stock, household and kitchen furniture, farming utensils, etc. The plaintiff had recovered a judgment before a justice of the peace against Minos Hitchens, his step-father, for ninety-five dollars and eighty-seven cents and costs, on which an execution had been issued and levied on the goods in question, and on which they had been sold and bought by the plaintiff on the "4th day of December, 1875, who took a bill of sale for them from the constable who made the sale, but without taking them out of the possession of the defendant in the execution and which afterward came into the possession of the defendants in the action, and on the 10th day of January, 1876, a formal demand was made on them by the plaintiff for the possession of them and they refused to deliver them.</p> <p>On the offer of the record of the justice of the peace in evidence to prove the judgment before mentioned, it appeared to have been entered on a warrant authorizing any justice of the peace to enter judgment on the obligation given for the debt without process. The counsel for the defendants objected to the admissibility of the record in evidence without the production of the warrant also in evidence, and cited Pennington v. Chandler, 5 Harr. 394.</p> <p>But the Court overruled the objection, and it was admitted in evidence without the production of the warrant.</p> <p>The judgment and the execution thereon, with the levy, inventory, sale, and return of the constable, were then offered in evidence, when the counsel for the defendants objected to the admissibility of the inventory on the ground of its insufficiency and uncertainty in the designation and description of the goods or various articles of personal property referred to in it.</p> <p>But the Court overruled the objections, and the same were also admitted in evidence.</p> <p>The constable who had sold the goods under the execution was then called by the counsel for the plaintiff and proved the bill of sale which he had executed and delivered to the plaintiff for the goods in question and purchased by him at the constable’s sale, for which he was the highest bidder at the aggregate sum of forty-seven dollars and forty-seven cents. On cross-examination he stated that he did not see the horse or anything mentioned in the levy when it was made by him. He also stated that neither the levy nor the bill of sale designated the number of plows and harrows levied on and sold. After further proving the execution and delivery of the bill of sale by the subscribing witness to it and putting it in evidence and proving the formal demand of the plaintiff on the defendants for the goods and their refusal to deliver them, they proceeded and proved by the testimony of several witnesses that the aggregate value of the goods sold at the constable’s sale to the plaintiff was not less than three hundred dollars, on which they claimed interest for the detention of them from the time of the taking by the defendants in their argument of the case before the court and jury.</p> <p>The counsel for the defendants asked the court to charge the jury that no levy on plows and harrows, or any other kinds of goods in the lump, without designating, at least, the number of them, was a good and valid levy in law, or could confer any legal right or title to them on a purchaser of them at a sale under the execution. 2 Tidd’s Pr. 1044. Also that interest could not be allowed the plaintiff in case he was entitled to recover in the action on the value of the goods for the detention of them from the time of the taking by the defendant by the jury in enhancement -of the damages claimed by him. Donety v. McGraun & McClay, 1 Harr. 453; Truitt v. Pevill, 4 Harr. 71; Pennington v. Chandler, 5 Harr. 394; 6 Law Libr. 47. It was also a suspicious circumstance in the case that, notwithstanding a formal bill of sale was taken for the goods by the plaintiff from the constable immediately after the sale of them under the execution, they were never in fact delivered to him, but remained as before in the use and possession of the defendant in it until they came into the possession of the defendants in this action; and as the plaintiff stood in the relation of step-son to the defendant in the execution, it naturally suggested the inquiry and a doubt whether the sale under it was a bona fide sale in payment of a real debt honestly due from the step-father to the step-son, or the whole thing, the entry of the judgment without process or contest between them, the issuing of the execution, the gross imperfections and irregularities in the levy of it upon the goods, and which was made without the constable’s having seen any of them, and the sale of the whole of them to plaintiff himself for the paltry sum of forty-seven dollars and forty-seven cents, was not all contrived between the two by such an apparently legal and judicial sale to cover the property merely for the benefit of the step-father, who was to retain the use and possession and practically the ownership of it as before, so as to shield it from his actual and bona fide creditors. If such was the scheme and design and the bad faith with which the sale was made, then it-was fraudulent and void in law, notwithstanding it was characterized by all the legal forms and formalities which a public and judicial sale of the kind can have in any case, and the plaintiff could not recover. Pennington v. Chandler, 5 Harr. 395.</p> <p>The reply of the counsel for the plaintiff on the law and the facts proved in the case are sufficiently disclosed in the charge of the court to the jury, which was substantially in accordance with it.</p>

This case came up on a writ of error to the Superior Court in and for New Castle County, and was heard before Saulsbury, Chancellor, and Wootten and Wales, Judges. For a statement of the case in the court below see ante, p. 163.

<p>Rule to show cause wherefore the sale of the lands of James R. C. Oldham by the sheriff and returned to this term of the court should not be set aside on the ground that in his official advertisement of the sale of them under the writ and in his description therein contained of the principal improvements thereon, he omitted to mention or notice a large and good barn on the premises, and for gross inadequacy of price also.</p> <p>On the production of the writ and the proof it appeared that the lands consisted of three separate tracts, and were so advertised, described, and sold by the sheriff as lots number one, two, and three, and that the first contained three acres and had a good large barn on it, which was not noticed or mentioned in the sheriff’s advertisement of the sale and description of the principal improvements upon it; that the second contained twenty acres, was worth eighteen dollars per acre, and sold for one hundred and seventy dollars, and that the third contained ten acres, was worth thirty-five dollars per acre, and sold for three hundred and five dollars.</p>

The case involved the question of devisavit vel tian as to the paper writing purporting to be the last will and testament of George Dougherty, deceased, and came up at the preceding May term of this court on appeal from the Register of Wills in and for New Castle County, and was so entered upon the docket of the court and on the trial list of that term, but without any such issue or any other issue whatever framed and sent up with it by the register.

<p>An action at law will lie against a lodge of the Knights of Pythias for benefits due to a member of it at his death, who had paid his dues to it up to that time.</p>

<p>The plaintiff had obtained a rule of court on the defendant to show cause wherefore the judgment No. 773, November term, 1877, of this court, of the said William Daniel against him, the said William Nailor, for nine hundred and thirty-five dollars— real debt four hundred and sixty-seven dollars and fifty cents—■ with interest from the first day of January, 1877, should not be set aside on the ground of usury, and underwhich the following issues of fact were framed to be tried before a jury at the bar of the court, which were heard before Wootten and Houston, Judges, Comegys, C. J., absent.</p> <p>First. Whether the promissory note of William Nailor, to the order of Hamilton & Cummins, for four hundred and sixty-seven dollars and fifty cents, dated Smyrna, Del., February 1st, 1877, a copy of which is set forth in the plaintiff's affidavit, was an accommodation note.</p> <p>Second. Whether William Daniel discounted said note for Hamilton & Cummins by way of loan at a discount greater than six per cent.</p> <p>Third. Whether the writing obligatory, to wit: the bond and warrant of attorney upon which a judgment No. 773, November term, 1877, in the Superior Court of New Castle County, for nine hundred and thirty-five dollars, real debt four hundred and sixty-seven dollars and fifty cents, with interst from January 1st, 1877, was given by the said Nailor in lieu of said note. (This issue was admitted by counsel on both sides.)</p> <p>Fourth. Whether it was agreed between the said William Daniel and Isaac D. Hamilton that the maker of said note should have no notice or information that the said Daniel had discounted said note, or that at the maturity of said note the said Hamilton & Cummins were to pay the full face of said note.</p> <p>Issac D. Hamilton was called to the stand as a witness for the plaintiff in the rule, and was objected to by the counsel for the defendent as incompetent, because of his legal liability on the promissory note mentioned, but the counsel for the plaintiff produced the certificate of his discharge in bankruptcy, subsequent to the date of it, and he was admitted and sworn as a witness. He testified that he was a member of the late firm of Hamilton & Cummins, of Smyrna, now in bankruptcy; about February 1st we had some paper we wanted Dr. Daniel to discount; he was in our store at the time; he did not like the paper offered and suggested that we should get some of William Nailor’s paper and he would discount that; a few days after I saw William Nailor and borrowed his note for four hundred and sixty-seven dollars and fifty cents; after we got Mr. Nailor’s note I told Dr. Daniel we had it and asked him what he would charge me to discount it, and he told me he would do it for fifteen per cent, in excess of six per cent, interest; I told him that was too high a rate for such paper; we owed Dr. Daniel a balance on two notes at the time; a day or two afterward he wrote me that he wanted the balance on these two notes; I went to him, and after consultation I gave him Nailor’s note on his terms—fifteen per cent, off and six per cent, interest after that— and he gave me in payment the two notes he held and the balance in money; I then asked him not to notify Nailor, the maker of the note, when it became due, but to look to our firm for payment, to which he agreed, saying he would look to us to see the note paid at maturity; there was nothing said about selling the note, but it was discounted in the way I have stated.</p> <p>Cross-examined: I got three hundred and eighty-eight dollars for the note after the seventy-nine dollars and forty-seven cents discount and interest was deducted (the note was drawn for four months) ; out of this three hundred and eighty-eight dollars was deducted, the balance due on the two notes which he held, and the residue I received from Dr. Daniel in money; I cannot recollect how much money was coming to me; Mr. Nailor gave me the note on the day it was dated, February 1st, 1877; our firm failed about March 15th.</p> <p>On the testimony of this witness the counsel for the plaintiff rested his case.</p> <p>The counsel for the defendant then called George Harris as a witness, who was sworn and testified that about the beginning of the year 1877 Hamilton & Cummins held a note of his for about eighty-five dollars, and afterward Dr. Daniel told him he held a note of his given to Hamilton & Cummins for one hundred and seventy-three dollars. He then spoke to Mr. Hamilton about it, and he told him that if it was so he had forgotten it, but he would see about it. He got the note after that from Mr. Hamilton.</p> <p>Charles H. Dooling was next sworn, and testified that he gave Hamilton & Cummins a note, and Dr. Daniel told him he had held a note of his for one hundred and sixty-five dollars. Afterward Mr. Hamilton told him he had it, and took it out of his pocket and showed it to him and asked him if that was his note. After he had taken it into his hands and looked at it, he told him that he never signed that note. Mr. Hamilton then said to him if it was not his note he would like for him to give it back to him, but which he declined to do, and kept it.</p> <p>Before examining the two preceding witnesses, the counsel for the defendant had formally proved and put in evidence a letter from J. D. Hamilton to Dr. Daniel of the following tenor:</p> <p>Smyrna, Feb. 6th, ’77.</p> <p>Doct.: I see a chance to make something, and if you will send me the two notes and one hundred and thirty dollars, why you please keep the note inclosed. Will you please send it by Walter Johnson, as I want to use it right away, and oblige yours,</p> <p>J. D. Hamilton.</p>

Action of replevin for goods and chattels taken by the defendant, as sheriff of the county, on an attachment for rent at the suit of William Ware against John H. Roberts, the plaintiff, payable quarterly, three quarters then being due and amounting to one hundred and twelve dollars and fifty cents. In his plea the defendant justified the taking of the goods under the attachment. Heard before Wootten and Houston, Judges, Comegys, C. J., absent.

<p>A purchaser of personal property at a sale made by a public officer of whatever kind under process of law, has the right to enter upon the premises of the defendant in the execution in a peaceable and orderly manner without obtaining any permission from him, and to take and carry them away.</p> <p>If the issue to be tried before the jury be whether the proceedings and acts of the constable in levying upon and selling such property were fraudulent and contrary to the provisions of the act of assembly in such case made and provided, and they should be so found by the jury, and that they were committed with the knowledge and consent of the plaintiff in the process, who purchased them, then he mil be liable to the defendant in it in an action of I trespass guare daus\m fregit for entering his premises and taking and carrying away the personal property purchased by him under such process in damages to the value of it.</p> <p>To constitute fraud on the part of a public officer in the execution of legal process it must be shown that he designedly and willfully acted with respect to the defendant in such a covenous, deceitful, treacherous, and dishonest manner as to deprive him of some right or benefit to which he was entitled or subject him to some damage or injury; and if done with the knowledge and consent of the plaintiff in the process, it would be fraudulent in both of them, and in either case the sale made would be treated in the tribunal out of which the process issued as utterly void, and the plaintiff would not be allowed to derive any benefit from it. So also, if a mere purchaser at such ' a sale should conspire with the officer to commit the fraud, he could not he allowed to retain any property bought by him at such fraudulent sale.</p> <p>But although the doings of an officer with or under his process may be irregular, yet, if they are honest, they are so far valid as not to affect the rights of parties taking title under him. Because in that case the validity of the sale cannot be collaterally controverted or inquired into in a proceeding before another tribunal; and in case of a sale by a constable voidable for a mistake or irregularity committed by either the justice or the constable, it is to be objected to before the justice who issued the process on the return of it.</p>

This was an action of ejectment for a tract of eighty or ninety acres of land in Nantieoke Hundred, commenced on the 30th day of March, 1878.

This case came up on the return of the sheriff of the county to a sale on a scire facias upon a recognizance in the Orphans’ Court entered into by David W. Bennett, purchaser of the. lands and tenements of his father, George Bennett, deceased, who died intestate, at the trustee’s sale on the confirmation of it in the proceedings for the assignment of dower therein to the widow, and the partition of the residue thereof among the heirs-at-law of said deceased, in the said…

Rule to show cause wherefore a writ of habere faeias possessionem should not issue granted on the petition and affidavit of the plaintiff in the rule, which stated that by virtue of a writ of alias levari facias, Ho. 59, to this term of the court, the sheriff of the county had sold on the 17th day of January last at public sale, all that certain lot, piece, and parcel of land situate on Commerce Street, in the town of Smyrna, etc., containing forty-four thousand nine hundred…

<p>Scire facias on a claim filed under the mechanics’ lien law, Rex. Code 668, on the 25th day of January, 1875, for supplying and putting in the academy of the defendant, incorporated under the foregoing name, a heating apparatus under an express contract between the parties. There were sundry pleas entered, to which the plaintiffs had demurred both generally and specially, and after the argument had proceded upon them and the counsel for the defendant had closed his reply, hut before the court had announced any opinion upon the question presented in it, which was whether the plaintiffs had filed their claim within the proper time limited therefor by the statute, the counsel for the plaintiffs asked leave to withdraw the demurrers and for a continuance of the case with leave to amend by substituting an action of assumpsit at common law in lieu of the present action or proceeding by scire facias under the statute for the amount of the claim which they alleged was justly due to the plaintiffs and amounted to a large sum of money, on paying the costs up to that time, and cited 5 Harr. 390.</p> <p>The counsel for the defendant said that as this action was by scire facias under the statute to obtain a judgment for the amount of the claim with a specific lien on the academy instituted on the 25th day of January, 1875, and a sufficient time had since elapsed to bar by limitation an action of assumpsit upon it, or any other action that could now be instituted upon it, and as the sole object of the application was thus to escape the bar of the statute of limitations, he would most earnestly object to it. The motion was reargued at the next term and is embraced in this report.</p>

<p>On the filing of a plea of set-off of one thousand dollars for so much money had and received by the plaintiff to and for the use of the defendant, drawn at full length according to the form prescribed for such a plea, the counsel for the plaintiff gave notice to the counsel for the defendant to state the matters of set-off referred to in it with greater certainty, which was not done, and he therefore declined to reply to the plea and at the term the court upon his application ordered it to be done.</p> <p>1ST abb in assumpsit with a plea of set-off of one thousand dollars for so much money had and received by the said Theophilus T. Deringer in his lifetime, to and for the use of the said Bronough M. Deringer in his lifetime, drawn in .full and according to the regular form of such a special plea of set-off when set out at length, upon the filing of which the counsel for the plaintiff had given notice to the counsel for the defendant to state the matters of set-off referred to in the plea with reasonable certainty under the thirty-third rule of this court, and had declined to reply to it until that requirement should be complied with.</p>

Action of assumpsit on two promissory notes for one thousand dollars each, made on the 1st day of January, 1877, one at twelve and the other at fourteen months, by John A. Vandergrift, Isaac W. Vandergrift, and Leonard G. Vandergrift to the order of George H. Hollis, the plaintiff. There were several credits indorsed on the back of the note first referred to.

<p>The making of a prohate against the estate of a deceased person hy the treasurer of an incorporated company appointed administrator of the deceased creditor in another State under an act of incorporation chartering it for such purposes is not warranted hy the provisions of our statute in regard to prohates.</p>

<p>This was an action on the case brought by Daniel Magarity, who was the owner and occupant of a house in the city of Wilmington, against the municipal .corporation of it, for consequential damages resulting to him from the flooding of the cellar and the surrounding premises of it with water, in consequence of changes made in the grading and draining of the public streets in the vicinity, made since the erection of it by the order and direction of the city corporation, and which he alleged had been so improperly, inadequately, and insufficiently planned and constructed as to occasion the injury complained of by him.</p> <p>The evidence in the case showed that his property in question had been very seriously injured and damaged by being flooded with water since the changes had been made. in the grade and sewers of the streets referred to, and the main if not the only question involved in the case was whether the city was liable for it.</p>

This was an appeal from, the decree of the chancellor sitting in and for Hew Castle County, and was heard before Comegys, C. J., and Wootten, Houston, and Wales, Judges, at the last, and was held under advisement until this term of the court.

<p>In an action of scire facias on a judgment when the only plea is payment, the defendant is entitled to the opening and conclusion.</p>

<p>Assumpsit on a promissory note made by the defendants payable to the order of the plaintiff for three hundred and eleven dollars and ninety-one cents with interest at ten per cent, from the date of it, and dated Westport, Missouri, November 16th, 1877.</p>

<p>Assumpsit for goods sold and delivered, consisting of schoolroom furniture, such as chairs, desks, and blackboards, ordered by and furnished to the principal of the school in the academy and put into and used in it, of which, under his contract with the trustees of the institution and incorporation, he was to have all the receipts without any remuneration to them.</p>

<p>This case came up on an issue awarded at the preceding term to ascertain and determine by the verdict of a jury whether any, and if so what, amount is due on a judgment in this court in favor of the administrators of William Temple, deceased, against William A. Cloud, jSTo. 351, to April term, 1868, for the real debt of one hundred and fifty dollars, with interest from June 5th, 1851, entered by confession on bond and warrant of attorney, October 23d, 1868, with the following credits indorsed on the bond: October 13th, 1853, forty-eight dollars, and January 7th, 1856, twenty-four dollars and twenty-eight cents. The bond was dated June 5th, 1851, and was payable in fifteen equal annual installments. The record likewise showed that a writ of fieri faeias had been issued on it to April term, 1859, and returned levied on goods to the amount of the debt, and that a writ of venditioni exponas had afterward been issued on it to April term, 1872, but there was no return of it, and the ex-sheriff then in office testified that it never was in his hands; that he heard about it but it never came to his hands. William Temple died in 1863 and William A. Cloud in 1875. In addition to the foregoing set-offs the defendants admitted the plaintiff was entitled to a further credit of sixteen dollars on March 13th, 1853, while the defendants also claimed the amount of a book account from March 10th to September 15th, 1862, one hundred and twenty-two dollars and seventy-nine cents.</p>

This was an action of assumpsit by George H. Hollis against Isaac W. Vandergrift severally upon two promissory notes for one thousand dollars each, made the same day, January 1st, 1877, one payable in twelve and the other in fourteen months, by John A. Vandergrift,Isaac W. Vandergrift, and Leonard G. Vandergrift, to the plaintiff, and was heard for the first time at the last May term of the court, but the jury, being unable to agree upon a verdict, were discharged, and it…

This was an action on the case for consequential damages by the plaintiff against the defendant for injuries to his person, his horse, carriage, and harness resulting from an accident in driving over the crossing of the railroad of the company at Fourth Street in the city of Wilmington, and which public crossing and street adjacent to it the company was at the time and had been for two weeks engaged in thoroughly and substantially relaying in the best and most improved…