Volume 11 — Delaware Reports

On a writ of error to the Superior Court in and for Sussex County, heard before Saulsbury, Chancellor, and Wooten and Houston, Judges.

<p>There is no principle of equity better settled than this, that where one creditor has two funds to either of which he may resort for the payment of his lien on them, and another creditor has a lien on one of them only, he shall be required in the first instance to resort to the fund on which the other has no lien, or if there be a creditor by lien on divers tracts of land, and another by lien on one or more of them only, the former shall exhaust his remedy against those not covered by the lien of the latter before resorting to them to satisfy any deficiency.</p> <p>It is also a principle of equity that a bona fide purchaser of land shall not have it subjected to the payment of liens upon it, until the other lands held by the vendor at the time of the purchase, or afterwards acquired by him, shall have been made liable to such payment and found to be deficient for that purpose.</p> <p>The doctrine of vendor’s lien for purchase money, as it is stated in the courts, has not yet been recognized in this State.</p> <p>B. H. sold a tract of one hundred acres of land to S. H. subject to three several judgments before recovered against, and received the money for it without applying any part of it to the judgments. Afterward B. H. purchased a tract of fifty acres in the same county of J. T. L. after which H. W. L., as the assignee of J. T. L. recovered a judgment against B. H., and still later E. W. O., and Gr. W. C. also recovered a judgment against B. H. and which two last judgments were liens only on the fifty-acres tract. Afterwards execution with clause of attachment was issued on the last mentioned judgment against him, and laid in the hands of S. H. against whom B. H. had since recovered a judgment, and which was also levied on the tract of fifty acres, and which was afterwards sold on a venditioni exponas thereon by the sheriff) and the proceeds of the sale retained in his hands subject to the question to be heard before the Court of Chancery between the parties to this suit whether the same was to be applied, so far as necessary, to the payment of the three judgments first mentioned to the entire exclusion of the two judgments last mentioned, as contended for by the appellees, or only so much thereof as shall be required for that purpose after a resort to and a sale had of the one hundred-acre tract which was alone covered by the liens of the three judgments first above mentioned, as contended for by the appellants. The Court held that the question involved in the case was not simply between creditors merely of a common debtor, as S. H. was a bona fide purchaser and had paid for the one hundred acre tract. But there were two equities involved, that of S. H. as such purchaser, and that of the two junior judgment creditors, which to say the least of them were equal under all the facts and circumstances disclosed in the case, and where the question is determined by the well-known maxim in eqvali jure melior est condition defendentis</p>

<p>A special contract to purchase a specified number of railroad cross-ties of standard quality and dimensions at a stipulated price per tie, afterwards to be delivered, if they are tiren made, and are capable of being seen and examined by him, is binding on the purchaser, but, if not, then he is not bound to accept them, or any part of them, unless they are standard and merchantable ties worth the price stipulated to be paid for them.</p>

Action of replevin for a horse with the usual pleas and plea of property in Russell, one of the defendants, severally, and also in both of the defendants jointly.

<p>Actios of replevin for a general stock of store goods purchased by the plaintiff from Jacob Hickman at Sandtown, in Murderkill hundred, Kent County, on the 21st day of February, 1878, for eight hundred and sixty-seven dollars and twenty-three cents, their full value, which were afterwards, on the 29th day of April following, seized and taken in execution by the defendant on several judgments recovered before a justice of the peace, one at the suit of Jordan and Fox for fifty-three dollars and costs, and one at the suit of Woodruff and Catts for forty-one dollars and thirty-five cents and costs, and another at the suit of Thompson and Bevins for one hundred dollars and costs, against Hickman, as his goods, and were replevied by the plaintiff.</p> <p>The defence was that the goods were never delivered by Hickman to Groff, the plaintiff, or if so, they were, immediately after-wards returned by him to Hickman, and that the pretended sale of them was fraudulent and void against the above-named creditors of Hickman.</p> <p>The plaintiff proved that he had held since 1875 Hickman’s promissory note for four hundred dollars for money loaned him, and eight or ten days before the sale he applied to him for the payment of it, when he informed him that it was impossible for him to pay him the money, and then proposed to him to sell him his stock of goods in his store, to which he replied that he did not know about it, but would consider the matter, and in two or three days afterwards saw him again and inquired what goods there were in his stock and what he considered them to be fairly worth, and he told him about the amount which he afterwards agreed to pay him for them. But he went over again in a few days and inquired what there was against the goods, when he informed him that in addition to his own note of four hundred dollars, he was indebted to George W. Porter in a judgment in this court for the sum of three hundred and twelve dollars and sixty cents, and also to William Sapp in another judgment in it for the sum of one hundred and four dollars and twenty cents, and he found on going to Dover and inquiring about them in the office of the prothonotary that it was as he stated, and he after that told him he would prefer to pay himself all claims against them, and would not be willing to pay to him the debts due to Porter and Sapp, but would pay them himself as part of the price to be paid for the goods by him. That a bargain was agreed upon between them on those terms, and the price to be paid for the stock of goods was to be determined by their cost price less five per cent, to be deducted from it. That Hickman measured and invoiced the goods at the price which they cost him, that the plaintiff pursuant to the bargain paid the amounts of the judgments to Porter and Sapp respectively, and that on the 21st day of February in that year an account of the stock of goods was taken by the plaintiff and Hickman in the storehouse at Sandtown, and the latter then sold and delivered the stock of goods to the plaintiff at the price and upon the terms agreed on in the bargain, and the plaintiff receipted to him for the judgments of Porter and Sapp and for his own note, and surrendered it to him, and after deducting the aggregate amount of the debts from the price of the goods he paid the balance in money to him, and Hickman then delivered the key of the storehouse to the plaintiff who locked the door with it and put it in his pocket, but Hickman continued the tenant of the dwelling-house which was on the same premises but was separate from the storehouse. That the plaintiff was from that time the owner of the goods and merchandise in the storehouse and the tenant of it, and as such, continued the business of selling goods in it, and he then took out a State retailer’s license and a United States revenue license for the purpose. And that the judgments before the justice of the peace upon which the executions had been issued and levied on the goods by the defendants in this action, and under which he had seized and taken them into his actual custody and possession and removed them to Camden, had been recovered against Hickman at the suit of the creditors mentioned after the sale of the stock of goods by him to the plaintiff. And that Hickman the next day and for a few days afterwards, acted as clerk in the store for the plaintiff, until the arrival of another person whom the plaintiff had employed in that capacity, and whom he had afterwards assisted in his employment in the store when occasion required it.</p> <p>On the contrary, the defendant proved that the value of the stock of goods at the time of the alleged sale was much less than the price the plaintiff was to pay for them, and was but little more than five hundred dollars, and that Hickman was in the store behind the counter and selling goods the next day, and afterwards, as before, with little or no apparent change in the conduct or management of the business, except that Wooders, the new clerk, came in a few days after the sale and was also engaged with him in that business, but seemed to consider him as his principal and director in it, and that the plaintiff was more in the store after than before the sale.</p>

Action on the case for words which were laid in the three counts of the narr. as follows; “ Kennedy, you picked up the five-dollar bill, and I can swear to it.” “I saw you pick it up, and I will swear to it.” “ You got that money, and I will swear to it.” The evidence was, that the defendant called in the evening of the 8th day of June, 1877, at the store of Messrs.

Action for libel alleged to have been published by the defendant in two newspapers in the city of Wilmington, the Delaware Republican and the Delaware Gazette, on the 27th day of November, 1878, and which was set out in full in the first count in the declaration as follows: “To the Public. “ In consequence of repeated and persistent attacks upon the Delaware State Fire and Marine Insurance Company and its officers, by the Every Evening and Commercial, through its editor,…

<p>This was an action on the case by the plaintiff, William T. Croasdale, against Joseph R. Tantum for the same libel sued on in the preceding case of Croasdale v. Bright, p. 52. The declaration set forth the libel in the same words, the only plea was not guilty, and the proof was that the defendant, Tantum, both wrote and published it in the Delaware Republican and the Delaware Gazette, as it appeared in each of those newspapers, and that the plaintiff was then the editor of the newspaper named the Every Evening, published in Wilmington. The defendant produced no evidence.</p>

Writ of error to the Superior Court in and for New Castle county, heard before Saulsbury, Chancellor, and Houston and Wales, Judges.

This case came up in the Court of Errors and Appeals on a writ of error to the Superior Court for New Castle County, and bill of exceptions, filed, vide, George H. Hollis v. Isaac W. Vandergrift (5 Houst. Rep., 597), and was heard in this Court before Saulsbury, Chancellor, and Wootten and Wales, Judges.

<p>On appeal from a decree of the chancellor, sitting in and for New Castle county, dismissing the bill of complaint, which was for an injunction to restrain the respondents below from collecting an assessment laid on real estate belonging to the complainants below, on Monroe street, in the city of Wilmington, for the construction of a city sewer, on the ground that the respondents, their officers and agents had proceeded without authority in law both in the construction of it and in the mode and manner required for laying the assessment on the lands of the complainants to pay in part the expenses of its construction, and that the assessment was consequently illegal and void. It was constructed for the purpose of diverting a small natural watercourse through that part of the city, and a portion of the lands since assessed and referred to in the bill of complaint, and which it was alleged in it that the city had not the power then to divert from its natural course for such a purpose without an express grant of it from the State, and then only on the condition of paying just compensation to the riparian owners for loss or injury entailed on them by the diversion of it. The further facts and circumstances involved and established by the proof in the case will appear in the argument of the counsel and the opinion of the court.</p>

<p>If, at a sale of goods on judgment and execution, the plaintiff purchases them, and the judgment is afterwards reversed on certiorari, the defendant will, thereupon, be entitled to the restitution of the goods in specie.</p>

On motion for a rule on Edmund 0. Knight and George W. Kennedy, Sr., the defendants, to show cause wherefore a writ of mandamus should not issue out of this court commanding them, the first named, as the presiding officer, and the second as a judge of the late election of assessor and inspector for the ninth ward of the fourteenth district of the city of Wilmington, held therein on Tuesday, the fifth day of the present month of October, to make, sign and deliver to him, Ziba…

Clemson, late Martha Smith, deceased. The depositions taken on the hearing of the caveat before the register were sent up with the appeal, and proved that she was a single woman and had never been married when she made and executed the instrument in question as and for her last will and testament on the 24th day of March, 1874, and was afterwards married to the said John B. Clemson, the caveator and respondent, on the 27th day of February, 1878, and that she died on the 14th…

<p>What is a libel is a question of law simply and is anything written or printed, or expressed by sign, caricatures or pictures against a natural person, or artificial body, or corporation, imputing to him or it something which lias a tendency to injure Ms or its reputation, disgrace or degrade him or it in Society, lower him or it in the opinion of the world, or bring him or it into public hatred, contempt or ridicule, if it is done maliciously, is a libel.</p> <p>The publication of a libel is giving it circulation, and this is done as well by composing or writing it that it may be published, if publication follows, as by circulating it afterwards.</p> <p>Where it clearly appears in evidence that a series of editorial articles alleged to be libellous were written for publication in the editorial department or columns of a daily newspaper, and were so published in it from time to time, but no direct evidence can be produced to prove who wrote them, the Court will in an action against the editor-in-chief of it and who generally wrote the editorials published in it for writing them, leave it to the jury to determine from all the proof in the case whether he wrote them.</p> <p>The owner or controller of a printing press has no more right to print or publish a libel than any one else, nor is he under any obligation to the public that the law recognizes, to publish current or common reports for the information and protection of persons interested in anything.</p> <p>But if the publication be true, the truth of it may be pleaded in justification of it, both in a civil action and on an indictment for it as a libel, if it was published without any malicious or mischievous motive; but otherwise the truth of it will not justify it.</p>

This case came up from the Superior Court in and for New Castle County on a case stated and question of law reserved for a hearing before all the judges in the Court of Errors and Appeals. The case stated was as follows : Scattergood Allen died June 8, 1873. By his will dated May 30, 1873, he devised to his sister Laura Evans, the plaintiff, in fee simple an undivided interest in the house and lot of land, No. 914 West street, Wilmington, Delaware.

This was a case stated from the Superior Court sitting in and for ¡New Castle County, with questions of law, reserved for a •hearing before all the judges in the Court of Errors and Appeals.

This case came up on a bill of exceptions and a writ of error to the Superior Court sitting in and for Sussex County. At the trial of the cause in the court below which was an action of replevin at the suit of the plaintiff against the defendant for the recovery of a horse which had been sold at constable’s sale under execution process on a judgment recovered by the plaintiff against Robert R.

<p>If an information be filed in the Court of Chancery in the name of the attorney general on the relation of a person to set aside a deed made to two of his children on the alleged ground of imbecility and undue influence, the chancellor will refuse to hear the case in that form, but he may in his discretion give leave to amend the information by converting it into a bill of complaint and filing it on behalf of such person in the name of his next friend.</p>

This was a case stated, with the question of law reserved to be heard before all the judges in the Court of Errors and Appeals, on the construction of the last will and testament of Nehemiah Davis, deceased, which was made a part of the case stated, and which was founded on an action brought by the plaintiff against the defendant upon a written agreement between them by which the said Ratie E. Rickards, late Ratie E. Davis, one of the daughters and devisees of the testator…

<p>Although a land agent in negotiating a contract for the sale of land between a vendor and purchaser is the agent of the vendor, he may become the agent of the purchaser in paying for it, if money be placed by him in his hands for that purpose, and the facts and circumstances proved in the case satisfactorily show it.</p> <p>If in a suit in chancery between the vendor and purchaser in relation to a portion of the purchase-money after the sale and conveyance of the land, which by the terms of the contract was to be retained by the purchaser to be applied to the extinguishment of all liens and incumbrances then existing against the land, and the same with his judgment bond for the balance of the purchase-money was handed by the purchaser to the agent to be delivered to the vendor with directions not to pay him any part of the money until all the said liens and incumbrances were satisfied, the vendor alleges in- his bill that the agent was the agent of the purchaser, and not his agent in regard to that matter, but it is expressly and unequivocally denied, and on the contrary, is alleged in the answer of the purchaser that he was the agent of the vendor in it, as the answer was responsive to the bill, proof to countervail it must be that of two witnesses, or of one with corroborative facts or circumstances. The purchaser produced no witness to'sustain the allegation in his answer, but the vendor produced at least two to sustain the allegation in his bill, the agent and another, and it was held sufficient to prove that he was the agent of the purchaser for the payment of the part of the purchase-money retained and placed in his hands to whomsoever it was respectively due.</p> <p>There is no law in a court of equity allowing a set-off of an equitable debt against a legal one, unless special circumstances exist of which a court of equity only can take notice. In such a case, our statute of set-off allows no deduction of the one from the other, and a court of equity follows the law in refusing it, unless there be some mutual understanding between the parties with respect to such a deduction ; and it seems to make no difference that the party seeking the deduction can show the insolvency of his creditor; he will lose the debt assigned to him unless the set-off of it be allowed him.</p>

<p>On a writ of error to the Superior Court in and for Sussex County, heard before Saulsbury, chancellor, Comegys, chief justice, and Wootten and Wales, judges, Houston, J., absent.</p>

The plaintiff John S. Moreland, as garnishee of George D. Fleming, defendant below, appellant, v. Every Evening Publishing Company, plaintiff below, respondent, appealed from a judgment so recovered against him before a justice of the peace of the county. In March, 1880, he bought goods of said Fleming to the amount of about one hundred and fifty dollars on credit, and afterwards paid the greater part of it to him.

<p>This was an action of trover for the value of a certain certificate of stock in the Delaware State Fire and Marine Insurance Company, which was alleged in the declaration had been lost by the plaintiff and had been found and converted to his own use by the defendant. It was for two hundred shares of stock in the company.</p> <p>The first witness proved that he resided in Baltimore, was an original stockholder in the company, and that the plaintiff, Henry G. Stewart, was the vice-president of it; that they were at the meeting for the reorganization of the company at Wilmington, and the defendant was also there. There was a block of two hundred shares of the company offered for sale at five per cent, on the par value of it, which was twenty-five dollars per share, and the offer was accepted by the plaintiff, but not having the money with him to pay for it, the defendant told him he would lend him the amount and hold the certificate of stock until he had paid for it, which certificate he (the witness) held at the time for another person (naming him) with authority from him to sell it, and it was thereupon arranged and agreed between them that the defendant should draw his check to the order of him (the witness) for the amount, two hundred and fifty dollars, the five per cent, on the two hundred shares of stock, which the defendant did, and gave the check to him (the witness) and on his return with the plaintiff to Baltimore the plaintiff paid him the amount of the check, and he delivered it to him with his indorsement upon the back of it. The sworn statement of the officers of the company made to the Insurance Commissioner of Maryland, in 1877 and 1878, was then put in evidence to prove •the then value of the stock. The next proof was of the demand of the plaintiff upon the defendant for the certificate of stock in question, and his refusal to deliver it.</p> <p>Eor the defendant it was proved that at a previous meeting of the company it was decided to call in all the old stock at five per cent, of its par value, the like amount of new stock to be issued to the holder of the old stock upon the surrender of it and paying to the company fifty per cent, of the par value of it, and that Mr. Durant, the principal witness, who had just been examined for the plaintiff, had been appointed at that meeting an agent of the company to buy up the stock of the company for it, and that the plaintiff had concurred and agreed in the conclusion of the company to buy in all the old stock of it at five per cent, of its par value, and had agreed to surrender any old stock he might hold or buy, and accept new stock, and pay fifty per cent, additional for it, and further agreed, at the reorganization meeting, when the defendant gave Mr. Durant his check for the two hundred and fifty dollars, that he would execute and deliver to the company a mortgage on a farm owned by him in Virginia, to secure the payment of the additional fifty per cent, upon the new stock; but he afterwards wrote to the company that he could not give the mortgage, and never has given it. No new stock had been issued in any case since that agreement was entered into, without the holder’s paying, or securing the payment of, the fifty per cent, additional charged for it. That had been concluded and agreed upon by all present at the previous meeting, and among them was the,plaintiff. The defendant, Mr. Bright, paid for the stock, and was to hold it until all the old stock should be bought in and the payment of the fifty per cent, additional on it had been paid or secured to be paid to the consolidated company. The new stock was to be distributed on the payment for it of five per cent, in cash and upon fifty per cent, of its par value being paid in good landed securities. '</p>

<p>On appeal from a justice of the peace proncir in assumpsit upon a promissory note for seventy-five dollars, by payee against the maker of it, with the usual pleas and issues, and on the list for trial at this term, and when called Spruance, for the defendant below, informed the court that the case had been settled the day before between the parties themselves, out of court, by the defendant’s paying the plaintiff sixty dollars and taking his receipt for that amount, and in full of the promissory note which he produced ; but nothing was said in the receipt, nor agreed upon between them, as to the costs of the suit thus concluded and ended by them. The question then arose between him and J. II. Rodney, for the plaintiff below, which of the parties, under the circumstances was liable for the costs of the suit.</p> <p>Spruance contended that the defendant was entitled to a judgment for his costs in the suit on the receipt and admission of the plaintiff that he had been paid by the defendant in full of the note yesterday ; and further said that, although, with the understanding that the case had been settled, the witnesses had been discharged yesterday from any further attendance upon the court if there was any doubt about the defendant’s being entitled, under the circumstances, to a judgment for his costs of suit up to that time, he could and would at once proceed to a trial before a jury to be immediately empannelled for the purpose, and upon payment of the note in full before them, the defendant would be entitled to a verdict, and upon that he would be entitled to the judgment of the court against the plaintiff for his costs.</p>

Scire Facias on a mechanic’s lien by James Mulrine against Washington Lodge, No. 5, Independent Order of Odd Fellows, owners or reputed owners of the building or structure known as Odd Fellows’ Hall in the city of New Castle, and Harry Lape, contractor, and Benjamin F. Perkins, sub-contractor, on a claim of two hundred and seventy dollars and ten cents for stone for the building furnished on its credit in the erection of it, with interest thereon from October. 1st, 1879.

<p>The rental share of a crop of wheat sown by an outgoing tenant the fall before his tenancy terminated, on a sale of the demised premises upon a judgment against the landlord in the meanwhile and the purchase of them by another, is apportionable under the statute.</p>

This case was tried before Comegys, C. J., and Houston, J., Wootten, J., absent, and was on an information in the nature of a writ of quo warranto filed by the Attorney-General in the name of the State, at the relation of Joseph S. Dunlap, Peter Kline,' Arthur Colburn, Charles G. Ash, George F. Brady, Charles Corbit, Andrew B. Mitchell, and Nicholas G. Price, against Kensey John Stewart, Henry W. Bigger, Everett Von Gulin, Clayton Von Gulin, Isaac Hunter, and Mark M. Kirby,…

This was a case stated from the Superior Court in and for Kent County with the question of law reserved for a hearing before all the judges of the Court of Errors and Appeals, and was heard before Saulsbury, chancellor, and Wootten, Houston and Wales, judges, Comegys, C. J., having been of counsel in the case. The case stated which was in an action of ejectment was as follows: John Rash, now deceased, was a resident of Kent County, State of Delaware.

<p>The following reservation of rent in the lease of a farm " also the one-tliird part of the net proceeds of the dairy according to the number of cows on the farm by reports to be made once a month, and the share of the dairy produce as often paid to the said lessor,” will not allow the tenant for the expense of making and preparing the butter in the dairy for market, but will allow him his necessary expenses in transporting it to market and disposing of it there.</p>

<p>Assumpsit on the common counts only and the usual pleas with a further special plea of recoupement to the following effect: that the plaintiff is indebted to the defendants in this action in a larger sum of money than the amount due and owing from them to the plaintiff, to wit, in the sum of five hundred dollars, because the defendants had theretofore bargained with the plaintiff to buy of him and he had sold to them a large quantity of goods, to wit, from forty to sixty thousand bushels of charcoal to be delivered to them during the then coming season at their charcoal house in Wilmington, from time to time as they might require it, of a certain stipulated quality, at the price of ten and one-half cents per bushel, but which he neglected and refused to do to the damage to the defendants to the amount of five hundred dollars. To this plea the plaintiff demurred generally, and upon the joinder of the defendants in the demurrer, two questions were raised in the argument of it, first, whether the subject-matter of recoupement as alleged -in the plea would be admissible in evidence against the claim of the plaintiff in the action on the trial of it before the court and jury on the issues of facts joined in it • and if it should be so considered by the court, secondly, can it be properly pleaded as a legal defence to the action.</p>

This was an action of assumpsit, and in a few days after it was brought the defendant paid to the plaintiff the amount of his demand due when it was commenced, and took his receipt for it.

<p>A judgment entered in the Superior Court by warrant of attorney in the name of the obligee in the judgment-bond several terms after his death, will be set aside on motion and rule laid for the purpose; and judgment may thereupon be properly entered again on the warrant of attorney in the name of his administrator.</p>

<p>Assumpsit on a contract by the defendant to sell to the plain- . tiffs twenty-five hundred to three thousand bushels of good, dry, yellow corn of that season’s growth, to be delivered at their mills on the Brandywine by the 16th and 17th of November, 1880, for fifty-one cents per bushel. Defendant said to them he had a vessel ready, and would deliver the first load the first of the next week, and would then go on and deliver the rest of it as fast as the vessel could return and reload with it. He after-wards sold the corn to another purchaser for fifty-two cents per bushel.</p>

This was an action of trespass for an assault and battery committed upon the plaintiff by the defendant on Market Street, in the city of Wilmington, and, according to the evidence, was commenced by the wife of the defendant by striking at him with a leather strap, who had caught hold of it, and was trying to take it from her, when the defendant took hold of him and held him for a while, telling his wife to lay on and give it to the old rascal, when she struck him several…

Robinson, Esquire, Chancellor ad litem, sitting in lieu of Saulsbury, Chancellor, who had been of counsel in the case previous to his appointment, in and for Sussex county.

<p>Action of ejectment for a tract of land in Indian River hundred, containing fifty acres more or less. The chain of title to the premises, adduced on behalf of the lessors of the plaintiff, began with the ownership in fee of them by William Walls, Sr., who died 'on or about the 17th day of November, 1806, after having made his last will and testament, dated the 22d day of January, A.D. 1797, and after his death duly probated and allowed before the register of wills in and for Sussex County, by which he devised as follows:</p> <p>“ Item 1st. I give and bequeath to my well-beloved sons, William Walls and James Walls, all my lands which I have deeded to them and their heirs and assigns forever, it being their part of my estate and all I intend for them.</p> <p>“ Item 2d. I give and bequeath to my well-beloved wife, Sarah Walls, all my moveable estate that I am possessed with during her natural life and at her decease:</p> <p>“Item 3d. I give to my well-beloved daughter, Bilinda Joseph, one cow.</p> <p>“ Item 4th. I also give and bequeath the residue of my estate at my wife’s decease to my four grandchildren, that is to say, Nancy and Betsy Joseph, daughters of Bilinda Joseph, and also Bilinda and Frances Joseph, daughters of Rebecca Joseph, to be equally divided between the four.”</p> <p>William Walls, the devisee named in the will afterwards died intestate seized of the lands devised to him in it and left issue four children, viz., William Walls, Hugh Walls, Benjamin Walls and Sallie Walls. William, Hugh and Sallie died intestate and without issue, and Benjamin, the survivor of them, removed to the west when a young man, and neither he nor any descendant of his has been heard from since and are therefore legally presumed to be dead.</p> <p>The lineal descendants of the said William Walls, the devisee aforesaid, having become extinct, the land descended to and became the property of his collateral kin, who were his brothers and sisters, viz., Charles Walls, James Walls, Bilinda Walls and Rebecca Walls. The said Charles Walls and James Walls died intestate and without issue, or if they left issue, it was never known. Bilinda Walls intermarried with and became the wife of Jonathan Joseph and afterwards died intestate leaving issue two daughters, viz., Nancy Joseph and Betsy Joseph. The latter, Betsy Joseph, died intestate and without issue after becoming the wife of Zaccariah Tam. Nancy Joseph intermarried with, and became the wife of William Wilson and afterwards died intestate leaving issue one child, viz., Jonathan I. Wilson, who afterwards married and died intestate as to these lands, and left issue, George F. Wilson, Nathaniel H. Wilson, Elias R. Wilson, Kendal B. Wilson and William Wilson, of the parties plaintiffs in this suit.</p> <p>Rebecca Walls, the other sister of the said William Walls, the devisee named in said last will and testament, intermarried with and became the wife of Isaac Joseph and afterwards died intestate, leaving issue two daughters, viz., Bilinda Joseph and Frances Joseph. Frances died intestate and without issue. Bilinda intermarried with, and became the wife of Jacob Hurdle, and afterwards died intestate and left issue four children, viz., Joseph Hurdle, William Hurdle, Jacob F. Hurdle and Eliza A. Hurdle, the other party plaintiffs in this suit.</p> <p>It appeared in the testimony of the witnesses that Benjamin Walls, one of the sons of William Walls named with his brother, James Walls, as the devisee of the land in the will, had married before he left the State and took with him three children when he removed to the west, but neither he or they, or either of them, had been heard from for forty-five or fifty years.</p> <p>The defendant was called and examined as a witness and stated that the only title which he claimed to the land in question was a mere possession of it by him for the last four years. He had known it for several years past, but as vacant and unenclosed land without any apparent owner or any one claiming to own it, until after he had taken possession of it; and does not know that any one else has ever had possession of it.</p>

Assumpsit on a promissory note for two hundred and fifty-six dollars and sixty-nine cents, made by the defendant to the order of D. F. Sipperly, December 1, 1874, payable eight months after date at the Middletown Bank, and by him endorsed.

<p>The parties to a suit being made competent witnesses for themselves by a general statute, a direct contradiction in their testimony as to a material fact in the trial of a case will be left to the jury to be determined like a conflict in the testimony of competent witnesses not parties to the suit..</p>

<p>This was an action of trespass for taking and carrying away the goods of the plaintiff, consisting of an Alderney bull and heifer, a Durham heifer and a sow and six pigs, from a farm belonging to him in Kenton hundred, Kent County, but who resided at the time in the State of Connecticut. The only plea was not guilty, and it was tried before Wootten and Houston, Judges, Comegys, C. J., having been of counsel for the plaintiff. It appeared in evidence that John R. Wilson, a citizen of the county, had been an agent of the plaintiff and overseer of the farm and the stock on it for him, and it was contended, on behalf of the defendants, that he was still his agent up to the time when the goods were taken; but George II. Thomas, another citizen of the county, testified that he was living on the farm at that time as agent and overseer of it for the plaintiff, and had possession of the stock in question as the plaintiff’s property, as he always understood it. He went on the farm by agreement with Wilson, and looked on him as controlling the personal property on it, but not as owning it. On cross-examination, he could not say whether the agreement was a lease, or he was living at that time as a tenant on the premises of the plaintiff or not. It also appeared, from the statement of the counsel for the defendants in his opening, that a man by the name of Cook was employed by Wilson to work on the farm of the plaintiff, and he failed to pay him his wages, for which he sued him, as agent of the plaintiff, before a justice of the peace, and recovered judgment, from which he appealed to the superior /court j and that the court dismissed the appeal, with the consent of his counsel. An execution was subsequently issued on the judgment by the justice to the said Thomas English, one of the defendants, a constable of the county, who afterwards levied it upon the goods in question, and advertised and sold them on the farm, no persons being present at the sale but the defendants, some of whom became purchasers, while others assisted them in taking the goods away, with the exception of George H. Thomas, who read a written notice to them before the sale commenced, from the counsel for the plaintiff, protesting against it and asserting that they were the property of the plaintiff, and not of John R. Wilson or any other person.</p> <p>On the trial of the case the counsel for the defendants offered in evidence the record of the judgment recovered before the justice of the peace by Cook against Wilson as agent of the plaintiff, with the execution, levy and sale thereon, which was objected to by the counsel for the plaintiff because the only plea filed and the only issue joined in the case, was that of not guilty.</p>

<p>It is necessary to the validity of sales of personal property that the goods sold shall be delivered as soon as conveniently may be.</p> <p>Another device resorted to to defeat creditors was by means of a judgment and execution whereby a certain serious formality was given to an act of collusion and guile, and the goods of the covinous debtor were seized and held under the lien thus acquired, but for the debtor’s benefit. This device was only another form of a fraudulent bill of sale and of no more value, for the retention by the debtor of goods levied on was treated by the law as fraudulent and void; and under the law as administered in England, any leaving of the goods purchased by a creditor at a sale by him of his debtor’s property in the custody of the debtor beyond a reasonable time, was evidence of fraud in the execution under which they were sold, but it has so long been the practice in this State to leave goods levied on in the possession of the execution debtor, that no intendment or conclusion of fraud can he made of such usage. The mere fact, therefore, the goods levied on were left in the possession of the defendant in the execution by the direction of the plaintiff in it, would justify the jury in inferring fraud, but other circumstances would have to concur for that purpose. But when the rights of other creditors are involved, to allow an execution debtor to act and deal with the property levied on as his own unqualified property, as by selling and disposing of it for his own use, would be a strong circumstance to show collusion between them, and the apparent indebtedness a feigned and covinons one.</p>

<p>Assumpsit on a promissory note for three hundred and four dollars and ten cents between the parties to it. It was put in evidence.</p>

<p>A garnishee against whom a judgment is recovered upon an execution attachment before a justice of the peace, cannot appeal from it without requiring him in the hearing of the case to enter on his docket such a plea or pleas as the act of assembly in that behalf prescribes. Rev. Code, 619, 620.</p>

This case was on a rule to show cause why an information in the nature of a writ of quo warrauto should not be filed against James Martin for usurping the office of sheriff of New Castle County, which was granted upon the petition of Purnal J. Lynch, supported by the affidavit of Thomas Toy, hereafter referred to, stating that at the general election held in New Castle County on the 7th day of November, A.D. 1882, James Martin, the respondent, George J. Pennington and the…

This was an appeal from a decree in the Court of Chancery in and for Sussex County, heard before Edward Ridgeley, Esquire, chancellor ad litem, Saulsbury, chancellor, having been of counsel for George W. Willin in the case prior to his appointment as chancellor. It was argued twice in this court, first at the January term preceding, and again at this term by the request of Mr. Bayard, one of the counsel for George W. Willin.

This case came up on a demurrer. The declaration was in assumpsit for the hire of a steamboat, to which the defendants pleaded the statute of limitations and to which the plaintiff replied, preoludi non, etc., because the several causes of action in the declaration mentioned accrued against the said defendants jointly; that the said George A. Parker before and at the time when the same and each and every of them accrued to the said plaintiff, was out of the State, to wit, at…

<p>Action of trespass de bonis asportatis. Russel Coe, the plaintiff, resided in Connecticut, but -owned a farm and the goods in question, consisting of live stock upon it, in this State and county, under the direction and management of an agent, by the name of John R. Wilson, residing in the town of Smyrna, who became indebted as such, on account of the farm, to Samuel Cook, who sued him, as the agent of Russel Coe, for the amount of it before a justice of the peace, and obtained judgment for it, upon which execution was issued and levied on the goods of the plaintiff, which were afterwards advertised and sold at public sale by the constable, and bought and taken away by the defendants, the plaintiff having given notice at the commencement of it, in their presence, that the goods were his property, and not Wilson’s, and that he would contest the legal validity of the sale. It also appeared that an appeal was taken in the case to the superior court, and was dismissed by the court.</p>

Action of trespass quare clausum fregit. In opening the trial of the case the counsel for the plaintiff, after proving a written agreement between the plaintiff and defendant, dated March 28, 1864, to refer to three referees—naming them—to settle disputed land boundaries between the parties to it, and who had made their report and award under it on the 15th day of April following, fixing a boundary line between their lands pursuant thereto, and then offered the same in…

Scire facias sur mechanic lien claim. The account for materials furnished on the credit of the buildings stated had been duly filed with their affidavit by the plaintiffs in the office of the prothonotary, and had been met at the term with an affidavit of defence filed by the defendant. A portion of the account as it had been kept and stated by them from their book of accounts had been paid by the defendant to them, and released by them to him.

Action of debt and declaration in the usual form on a single bill which was as follows: $1000. Wilmington, Delaware. Six months after my death I do order and direct my administrator to pay Mary F. Kirkpatrick, or order, one thousand dollars, without defalcation for value received. Witness my hand and seal this twenty-eighth day of May, A.D., 1873. Martha Kirkpatrick, [seal] Witnesses present, Wm. H. Grubb, L. P. Bush.

The action was trespass quare dausem fregit, and the only plea was not guilty.