Volume 12 — Delaware Reports

<p> 'Title to land—Ejectment. </p> <p>The vendor in a written contract.for the sale of land may bid at the Sheriff’s sale of the vendee’s equity therein without being thereby estopped from claiming title thereto.</p> <p>An equitable title to land will not maintain an action of ejectment.</p>

<p> Statute of Limitations—Absent Debtor’s Return into State-Plaintiff’s Diligence. </p> <p>The plea of the statute of limitations is a bar to the action, upon proof of the elapsed time, unless the plaintiff replies specially that before the cause of action accrued, or that after the cause of action accrued, and within three years thereafter, the defendant left the State and never afterwards, up till the time of bringing the suit, returned into the State so that by reasonable diligence he could be served with process.</p> <p>Reasonable diligence in the case of a debtor absent from the State, requires a plaintiff, at least, to take some steps from time to time to ascertain whether his debtor can be reached with process. Where a debtor, or one of them, if there be more than one, resides in the State at the time the cause of action accrues, and after-wards removes therefrom, the plaintiff need not keep a suit pending against him. But where he, or one of them, if there be more than one, has afterwards come into the State in such manner that, by reasonable diligence, he may be served with process, the act commences to run again from the time of such return and never stops afterwards.</p>

Replevin. Charles H. Benn, of the town of Dover, being the owner of store goods of the value of $200, sold the same to Mrs. Grover Smith, his sister, and George Benn, his brother, the consideration being the payment of his note for $75.00, upon which they were endorsers. The following day the defendant, with an execution upon a judgment at the suit of Louis Bremer’s Sons against Charles H. Benn, levied upon the said goods as the property of Charles H. Benn.

Action on the case for injuries to plaintiff by the biting of a dog belonging to defendant. On July 14, 1883, plaintiff went to the house of defendant to buy milk, as he was wont to do, and was coming away when the dog attacked him and bit him in the calf of his leg. The bite was a very severe one, as was testified to by plaintiff and other witnesses. Plaintiff testified that defendant on seeing the wound had said he would not have taken that bite for a thousand dollars.

<p> Written contract—Proof of Execution—iraud. </p> <p>Weight of testimony does not necessarily lie with the side which produces the most witnesses to prove a fact, but rather with that where the facts sworn to are most consistent with the probability of truth.</p> <p>A written instrument must be duly proven to have been executed by the person sought to be charged with it. This may be done by the subscribing witness proving his own handwriting only. Such proof is prima fade evidence of its due exetion, and thereafter the burden of disproving the same is upon the defendant.</p> <p>In order to bind an illiterate man by a written instrument, it must have been honestly and fairly read or explained to him, and be of such a nature that such a man could understand what it means. It need not be shown that he did understand it.</p> <p>A person having signed á paper which was read to him is presumed to have understood it, and he may not aver against it unless he can show that it was falsely and fraudulently obtained.</p>

The allegations of the Bill, not denied by the answers and established by the proof in the cause, are as follows: On the 2d day of June, A. D. 1873, the complainant, together with Robert E. Robinson, late of the City of Wilmington, deceased, purchased at public sale, for the sum of $1050, a lot of land situated in Wilmington, New Castle County aforesaid. The property was bid off by Robinson, and complainant paid him one-half the purchase money.

<p>Error to the Superior Court in and for New Castle County.</p> <p>Information in the nature of quo warranto.</p> <p>Statement of facts appear in Opinion of Court on page 84.</p>

William McCaulley died on - or about the twenty-second day ' of September, 1883, leaving a last will and testament, which was duly admitted to probate by the Register of Wills for New Castle county. The testator devised a certain proportion of his estate, which largely consisted of realty, for the benefit of the respondent.

Mandamus. This was an application by David M. Richardson, the relator, a resident of Michigan and a stockholder in the Diamond Match Company, a corporation of Connecticut, owning property in this State, for a mandamus to compel William H. Swift, a resident of this State, its president, who had possession of certain books and papers belonging to the company, to allow relator to make copies thereof.

<p> Guarantee—Original Undertaking. </p> <p>A note written to the plaintiffs by the defendant, requesting them to let a third person have what goods he requires and oblige the writer, is not a guarantee, but an original undertaking, and the goods thereupon furnished may properly be charged to and recovered from the defendant.</p> <p>Nevertheless, if the plaintiffs looked for payment primarily to the person receiving the goods, and only secondarily to the person making the request, the writing then becomes a guarantee, and the plaintiffs cannot recover against the defendant without having notified her of the acceptance of the guarantee.</p>

<p> Equity—Subrogation—Attorney’s Lien. </p> <p>The lands of A were sold by the sheriff and the proceeds applied in part to the payment of a judgment against him in which he was surety for B.</p> <p>The lands of B were afterwards sold and the proceeds applied to judgments in which he was surety for A.</p> <p>The amount thus paid by B as surety for A was greater than the amount paid by A for B.</p> <p>A is not entitled to subrogation in the judgment thus paid as surety for B without first paying the whole amount which B paid for him; and A’s assignee can take no greater interest than he himself had. " '</p> <p>An attorney losses his lien upon a fund by talcing an assignment of the fund itself.</p> <p>An attorney has no lien upon a fund which he was not instrumental in creating, and which never came to his hands.</p>

Castle county. Dismissed. By deed dated Oct. 15, 1881, but acknowledged and delivered on Oct. 24, 1881, the-,New .Castle Iron and Steel Company duly assigned, transferred and set over unto Alfrecj.

<p>Upon demurrer to the plea of the statute of limitations in an action of assumpsit against the administrator for a distributive share of the estate the plea of the statute held to be a complete bar to the action.</p>

Ejectment for interest of heir at law in dower land. This ejectment is brought for one-third of the one-fourth of this tract of land, equal to one-twelfth. The land contains about two hundred acres and lies in Kenton hundred. Originally it belonged to Samuel Patterson, who died in 1825, leaving a widow and four children. Mary Patterson, the widow, to whom this land was assigned as dower in July, 1829, married Nathan Smith in 1827.

Trespass oh the Case against the defendant, Sheriff of Kent County, who seized certain personal property, claimed by the plaintiff to be hers, upon executions issued to him against James Kirkley, husband of the plaintiff. The plaintiff testified that she was engaged in business and her husband, James Kirkley, acted as her agent. The personal property, consisting of salt hay, taken by the defendant, was her property, bought with her money.

Action on the Case for injury to real estate by removing the lateral support to a house upon it. The circumstances upon which the action is based is as follows : The plaintiff is the owner of a lot and house at No. 820 Jefferson Street in the city of Wilmington, the latter being built on natural ground elevated about five feet above the street grade.

Heard before Saulsbury, Ch., and Houston and Whiteley, J. J. A writ of summons in assumpsit, against the plaintiff in error, was issued at the instance of the plaintiff below on February 23, 1881, returnable to the following May Term of the Superior Court in and for New Castle County.

<p>Devise—Trust Estate—Limitation to Children—Life Estate— Dower to Mortgage.</p> <p>A trust estate cannqt be supported where no active duty is to be performed by the trustee, and the whole management of the property is in the hands of the cestui que trust.</p> <p>The testator devised a certain farm to his executor in trust for certain uses, etc., and then directs as follows:</p> <p>“To permit and suffer my son Clarence to use, occupy, and rent, and to receive the rents, issues, and profits of the said Capelle farm during the term of his natural life, for his proper use and benefit, and in case of the death of the said Clarence, leaving a child or children, or the issue of such, remainder to such child or children or the issue of such, their heirs and assigns, free and discharged from the aforesaid trust.” “In case of the death of any of my said sons * * * without leaving child or children, or the issue of such, the share of the one so dying shall go to the survivor or survivors, or the issue of such, as may be deceased, subject to the same conditions, etc., as their own property.”</p> <p>The rule in Shelly’s Case has no application. The limitation to the child or children of Clarence, who had none at the time, and to the issue of such of them as should be dead at the time of his death, leaving issue, is to the children as a class in remainder; and Clarence takes an estate for life and hot an estate tail.</p> <p>The will of the testator containing no authority to mortgage the premises to raise money for the maintenance of the sons, the Court of Chancery has no power to authorize the same, and no title can be acquired by the sale by the sheriff in execution of the m rtgage upon the said premises.</p> <p>Houston, J., dissents.</p>

Petition for application of proceeds of sheriff’s sale. It has long been the practice in all the counties of this State for the sheriff to levy writs of fieri facias on the goods and chattels of the defendants in them soon after they come to hand, by endorsing on the writ the words levied on the goods and chattels, and annexing to it an inventory and appraisement of them, prepared or adopted by the sheriff himself, and when there is no actual seizure of the goods by him…

<p> Mandamus—Foreign Corporation. </p> <p>A foreign corporation, by its charter limited in its operations to the State of its creation, is not entitled to the writ of mandamus against another foreign corporation.</p> <p>The rights, privileges and immunities in the several States secured by the Federal Constitution to citizens of other States, does not apply to corporations.</p>

<p> Devise of Personal Property—Rule in Shelley’s Case. </p> <p>The testator directed his real estate to be sold and the income of six hundred dollars to be paid annually to the plaintiff during her natural life and at her death the principal sum to be paid to her heir or heirs in equal proportions. Held that the plaintiff was entitled to the income only and not to the principal.</p> <p>The rule in Shelley’s Case has no applicability in the disposition of personal prpperty.</p>

Action of Covenant. The defendant demurred to the declaration of the plaintiff, upon which the case came before the Court for argument.

<p> Sale of Personal Property—Fraudulent Representations of Purchaser—Rescinding Sale—Subsequent Execution Iden—Replevin. </p> <p>In a sale of personal property to be paid for after delivery by note with approved security, the property and title passes to the purchaser immediately upon the delivery of the goods, and the property cannot be repossessed by the seller should the purchaser fail to give the promised note.</p> <p>Where goods are sold to a person upon his false representation as to his solvency or ability to pay, the seller may rescind the 'contract of sale and retake the goods if they have been delivered to the buyer.</p> <p>After possession has been obtained by the purchaser under a fraudulent representation as to his solvency, an execution issuing at the suit of a bona, fide judgment creditor, having no notice or knowledge of such representation, the lien of the .levy thereby made will sold good against the defrauded seller.</p> <p>Mere insolvency ol the buyer, well known to himself and concealed from the seller, does not, in itself, furnish sufficient ground for rescinding the contract of sale.</p> <p>The fraudulent purchasing and obtaining of goods with an intention of never paying for them, will not, of itself, render the sale absolutely void, but voidable only at the election of the seller. This election cannot be used against an innocent purchaser for value or a bona fide execution creditor having a levy thereon.</p> <p>In an action of replevin for goods sold and delivered, and the sale for proper cause afterwards being rescinded by the seller, the defendant is entitled to a verdict for the value of any goods taken, other than those received from the plaintiff in the rescinded sale.</p>

Action of Assumpsit upon a policy of insurance for loss by fire of certain property which was insured against the same by the defendant company. The narr contained two counts, one stating the substance and effect of the policy of insurances, and the other setting out the policy in haee verbis. The defendant pleaded specially and the plaintiff joined issue on several pleas and demurred to the other pleas. The case is before the court on the demurrer.

Trespass quare clausum fregit. The defendant had entered the locus in quo then in possession of the plaintiff and took and carried away the rails of a fence therefrom. B. F. Wayaman, a surveyor, was sworn and exhibited and explained a plot of the pretension of the plaintiff. James B. Coffin, plaintiff, was born and lived on the land claimed by him until two years ago.

<p> Replevin—Venue—Demand—Additions to Contract—Remedies in a Conditional Sale. </p> <p>In an action of replevin the place not being “material or traversable” the venue need not be averred or proven.</p> <p>Where the taking was wrongful in the first instance, no previous demand is necessary for the maintenance of the action of replevin; but where the original taking was lawful but further detention of the property is unlawful, there must be a demand by the plaintiff upon the defendant and a refusal by him to comply therewith. No specific words need be used, but any language which is understood to be a demand on the part of the plaintiff and reply that was understood to be a refusal will be sufficient.</p> <p>A new stipulation, added to a closed contract, made in the proper manner, before the separation of the parties, and intended to form part of the contract, will be so treated. It is a contemporaneous writing about the same subject matter, and when so intended is part of the original.</p> <p>A person having sold personal property upon conditional sale, taking judgment notes for the price thereof, must make his election between his two remedies, and if he rely upon the notes for the purchase price, he thereby abandons his right to retake the property as secured by the contract of sale.</p>

This was an application by David M. Richardson, the relator, a resident of Michigan and a stockholder in the Diamond Match Company, a corporation of Connecticut, owning property in this State, for a mandamus to compel William H. Swift, a resident of this State, its president, who had possession of certain books and papers belonging to the company, to allow relator to make copies thereof.

This was an appeal from the decision of a Justice of the Peace, before whom the action was brought to recover the amount due for some pine piling sold and delivered by Greenly to Goldsmith. The plaintiff below testified that he was to receive one dollar and fifty cents each tor piling thirty feet long, and one dollar and seventy-five cents each for piles fifty feet in length.

Assumpsit for the board of Benjamin Kent, deceased, and his wife, on the express promise to pay out of his estate for the same. The plaintiff’s wife was a daughter of the deceased. The promise was to pay in his lifetime if he was able, and if not, out of his estate after his death if he left enough to pay it. Anna B. White, testified, am a daughter of the plaintiff by his first wife. Benjamin Kent and wife lived at my father’s house during the years 1877, 1878 and 1879.

Replevin for one hub lathe, one spoke lathe and one tenon machine and fixtures of the value of four hundred dollars, Pleas non cepit; and that the said goods were the goods of Forbes and Banks, and not of the said Samuel D. Forbes. Samuel D. Forbes, plaintiff, testified „* Seven years ago I was in the business here of manufacturing spokes and wheels, and owned and used the said lathes and machinery in that business.

Action of Debt on an arbitration bond. n After the plaintiff rested counsel for the defendant moved a m-suit on the following grounds: First, because by the terms of the agreement to submit their differences to the said arbitration, the plaintiff agreed to discontinue the suit he had already instituted in this Court against the defendant which he has not done. Second, that the arbitrators were within twenty days after the hearing to report in writing.

Action of Ejectment for a tract of land situated in Dagsboro hundred. The lessees of the plaintiff claim title as the heirs-at-law of Robert Mumford.

Action on the Case to recover for the loss of a mare while in the stable attached to the defendant’s inn. The facts fully appear from the charge of the Court.

<p> Municipal Corporation—Care of Streets—Diligence. </p> <p>It is the duty of an incorporated city to keep its streets in a good and safe passable condition; and in regard to the work in relation to said streets the same degree of diligence is required as a good business man would show under like circumstances.</p>

Action of Assumpsit for nursing the testatrix, sum demanded sixteen hundred and twelve dollars with interest from Sept. 3, 1885. The testatrix boarded with plaintiff for many years and since eighteen hundred and eighty she had been afflicted with chronic erysipelas which caused an ulceration of one of her limbs between the knee and ankle and also with chronic diarrhea and she had often told the plaintiff that she should be paid for her trouble.

Action of Assumpsit. Narr with common indebitatus count and a count on a special and express promise to the following effect: That the defendant agreed at the request of the plaintiff to purchase the stock and farming utensils and other goods sold at a constable’s sale of her husband’s property and to sell the property purchased to her at the price paid at said sale, the plaintiff and her husband to become the tenants of the defendant, who was to lease the farm then occupied…

<p>Appeal from a decree of the Court of Chancery, in favor of complainant in a bill in equity to restrain the collection of taxes assessed against complainant.</p>

<p> Bank Stock—Attachment—Sheriff ordered to Sell. </p> <p>Where certain bank stock had been attached upon fi.fa. attachment in the hands oi the sheriff, the Court ordered the same, or a sufficient portion thereof to be sold in satisfaction of said writ, notwithstanding the cashier of said bank had been notified that said stock had been sold, but it not appearing to whom it had been sold and no transfer of the same having been made on the books of the bank.</p>

<p> Master and Servant—Duties—Damages. </p> <p>The jury must render their verdict according to the law and the evidence in the case.</p> <p>The master must provide the servant with safe and proper implements with which to work and a safe place in which to work, and must keep him, while at work, from exposure to danger from any cause or source within the control of the master, and not incident to the employment or trade of the servant. A violation of these duties will entitle the servant to an action for damages against his master.</p> <p>When a servant voluntarily undertakes a perilous service for his master, and the peril is as well known to the former as the latter, or by the exercise of prudent care on the part of the former (and which it was his duty to take) he might become acquainted with it, he will have no right to an action against his master if he be injured while in the performance of such service.</p> <p>If the injury is caused by a distinct part of the general work done, by other servants, the duty of prudent caution, or circumspection, did not rest with the same weight upon the injured servant as if occasioned by defective work or material within his own particular line of labor, unless the danger was so obvious as to fasten the servant with knowledge of it.</p> <p>The plaintiff being employed as a carpenter to work upon the roof a building which was being erected by defendant, the walls being completed and part of the roof being on before the beginning of such service, was not bound to inspect the walls of the building to ascertain its safety before going upon the roof; and he is entitled to damages sustained by the falling of said walls, while he was thus engaged.</p> <p>It having been suggested to defendant that the walls of the building were inadequate in thickness and not in accordance with the requirements of the ordinances of the city in regard to the thickness of walls of buildings, he became liable to any damage sustained by the workman on account of such defect.</p> <p>If the building would have resisted any usual storm in the latitude, the same as other buildings of large proportions and well built, and if the storm that overthrew it was extraordinary, and such as builders do not provide against or contemplate in planning their architecture, then the defendant is not liable.</p> <p>If the verdict be for the plaintiff, he is entitled to damages for the expenses incurred . in being treated and attended; for his bodily pain and suffering; for hindrance from pursuing his employment, and loss of wages from his disability by reason of its permanency.</p> <p>In such a case exemplary damages should not be awarded.</p>

Narr in Assumpsit on premium, note of defendants to the Company.

Debt on a Guardian bond as guardian of the plaintiff then a minor. The bond dated June 6, 1861, penalty eight hundred dollars. Plea, statute of limitations. The plaintiff came of age in 1877, and relied on an admission of the debt appearing on defendant’s last account passed as guardian, and on file in the Register of Wills office, showing an amount due the plaintiff of one hundred and seventy-four dollars. The action was brought to the October term 1885.

Scire Facias sur le Mechanic’s Lien. Statement of the claim for lumber furnished to Hampton, contractor, and John F. Ruth, owner or reputed owner, for building three three-story brick houses, on southerly side of Linden street, near Franklin street, Wilmington. Joseph Bellah, testified. Is treasurer of the company, it furnished the lumber for them and as delivered it was charged for on the books of the company. Its book of original entries was produced' and proved by witness.

Ejectment. Case stated. Questions of law reserved by the Superior Court of Kent County to be heard before the Court in bank. Richard Cooper, the testator, in the 2d, 3d, 4th, 5th and 6th Items of his will, devised to each of his five children, by name, certain portions of his real estate, in severalty, for life only, remainder to the children of each, in tail, in the parts so devised, in part as follows: Items 2.

This was an *action of assumpsit in the Superior Court for New Castle county, to the November Term, 1875, at the suit of Anthony Reybold v. George A. Parker, Samuel M. Felton, Samuel Harlan, Jr., and Jesse Lane. The summons was issued November 9, 1875, and was returned “Summoned personally, November 22, 1875.” All of the said defendants appeared by their attorneys.

, in an action on the case for personal injuries received from the fall of a building. This was an action on the case brought in the Superior Court in and for New Castle County, at its September term, 1885, by Ferris Giles, the defendant in error, against the Diamond State Iron Company, the plaintiff in error, to recover for injuries suffered by the said Giles, by reason, as is alleged, of the negligence of the company.

Writ of Error to Superior Court, Kent County.* At the trial of this cause, at the April Term, A. D. 1886, it was proved by Samuel P. Truax that William H. Grasley, some time prior to the 18th day of April, A. D. 1884, informed him, the said Truax, that he wanted to buy of him a certan horse, and that he, the said Truax, informed him that he would take one hundred and fifty dollars for the said horse.