Volume 2 — Delaware Reports

<p>A sale of a crop of corn growing, though within the statute of frauds, not being reduced to writing, may be taken out by a part execution, as the taking of the com by the vendee and converting it into money.</p> <p>And though in such case the count for goods sold and delivered would be bad, the plaintiff may recover as for money had and received to his use»</p>

<p>Under circumstances the Court will direct a set-off of judgments in cross actions between the same parties, even after an assignment made with a view to defeat the right of set-off.</p>

<p>A receipt in full, though strong prima facie evidence of entire payment, is not conclusive. .</p>

<p>Debt on an administration bond, by an heir at law. Narr suggesting breaches. Pleas, Rep. Issue.</p> <p>The only question was whether the administrator and his surety were liable on his bond for rents received after the death of the intestate.</p> <p>Mr. Wootten thought the act of assembly not so plain as to preclude argument on this point. He thought the construction should be, that the bond of an administrator did not compel him to receive the rents, but should extend to cases where he did receive them.</p>

<p>Certiorari to Justice Hearn. Record returned, to wit:</p> <p>Gideon Ralph and wife vs. James R. Hearn. Account, demanded $49 37$. Summons issued 19th August 1834, to Constable J. W. Moore, returnable 30th August. Summons returned. Parties appear, and refer the case to Cyrus C. Windsor, John Polk and Thomas W. Ricords; after being duly summoned and sworn by Nathaniel Hearn, do report on this 27th day of September 1834, and say, that the defendant is justly indebted to the plaintiff, in the sum of $25 00 with costs of suit; and further, if the said James R. Hearn will give up to the said Ralph and wife, one bed and stead, all the carpenter’s tools, and all the bed clothes, and all the turkeys and chickens, or as many as the said James R. Hearn got of thorn, then this, judgment shall be fully satisfied: — therefore judgment is for the plaintiff, 27th day of September 1834, for debt $25 00, and costs, &c. March 9th 1835, Mary Ralph appears and makes oath in due form of law that she was in danger of losing her debt. March 9th 1835, execution issued to Constable Ricords, returnable 1st. June next.</p> <p>Exceptions. 1st. That the account or cause of action was not set forth. 2d. That it did not appear at whose instance the trial was referred, nor that the justice appointed the freeholders. 3d. That there were not proper parties to the action. 4th. That the judgment was not'absolute but only conditional, and it does not appear that the condition has not been performed. 5th. That the execution was irregular “ for that Mary Ralph could not make or take the oath required” by the act of assembly.</p>

<p>Scire Facias on a judgment.</p> <p>The Commercial Bank obtained from the Legislature of Delaware in 1812, a charter which was to continue till 1st. September 1822. In February '1822, the charter was extended until 1st. March 1824, to enable the directors to close the concerns of the bank. In January 1834, it was further extended until the 1st, of March 1827, for the same object. In January 1827, it was further continued by an act óf the legislature until March 1, 1830, to enable it fully to close its concerns, and authority was given it to sell at public auction, all debts due it. This supplement declared that the corporation should continue until the 1st. day of March 1830, and no longer. The first day of March 1830, passed without any further extension of the charter, and the corporation became of course dissolved. In this condition it remained until the 4th day of February 1832, when the Legislature passed an act “ reviving, renewing, continuing and extending the corporation from the first day of March, which was in the year 1830, until the first day of March 1835,” and “reviving, renewing, granting, continuing and extending the powers, privileges, rights and immunities” theretofore granted the said corporation, for the same period, to be used only for settling and closing the concerns of the corporation. The transactions and doings of the bank and of the individuals composing or representing it, and of third persons against it, or those composing and representing it, which had been transacted since the 1st of March 1830, were declared by that act to be as valid in every respect, as if they had been done while the corporation was in existence. In February 1835, the corporation was by a further supplement continued until 1839, for the sole purpose of closing its concerns.</p> <p>A judgment was entered by and in the name of the corporation, against Samuel Lockwood, on the 28th of May 1827, and the present action was one by scire facias to revive that judgment. No proceedings were had on the judgment between March 1, 1830, and February 4, 1832.</p> <p>The pleas were: — 1st. Nul tiel record. 2d. Payment by Samuel Lockwood, in his life time. 3d. Payment by his administrator, this defendant. 4. Pie ne administravit. 5th. Plene administravit praster. 6>h. A special plea, stating that the act of incorporation of the bank limited its existence to the 1st September 1822; that the same was extended by several supplements until the 1st. of March 1830, and no longer. That the judgment in the scire facias mentioned, was recovered by the said corporation on the 28th May 1827; “ that the several days and times in the aforesaid several acts of the said General Assembly mentioned, during and within which the existence, duration and continuance of the said corporation or body politic were confined, circumscribed and limited as aforesaid having fully elapsed, transpired and become completely ended, to wit: on the 2d March 1830, the said corporation or body politic thereupon and thereby ceased to exist, and became and was extinct and dissolved; whereby the judgment aforesaid and the debt, damages, costs and charges aforesaid became and were extinguished and discharged, to wit: on the day and year last aforesaid, at the county aforesaid.”</p> <p>The plaintiff replied generally to the first five pleas, and in the replication to the sixth plea, set out the act of assembly passed 4th. February 1832, reviving, continuing and extending the act of incorporation until the 1st March 1835; and also another act passed 3d February 1835, continuing the same until 1st March 1839. To this replication there was a demurrer.</p> <p>contended, that the expiration of the charter on 1st March 1830, worked a civil death to the corporation; it became dissolved, extinct and gone — and that it was not in the power of the legislature, by a subsequent act to reanimate this dead body. That by the civil death of a corporation, every debt due to or from it ceases to exist, is discharged or extinguished; and that it was not competent to the legislature again to give efficacy or obligation to any such debt or contract. He cited 1 Black. Com. 484; 2 Kent Com. 307-9; 3 Term 199; Hobart 10; 1 Salk. 302; 1 Kent Com. 554.</p> <p>argued that in relation to matters of legislation not especially restricted by the constitution, our legislature is as omnipotent as the British parliament; and he undertook to show that parliament, or even the king’s letters patent had been held sufficient to revive a corporation that had been dissolved by efflux of time, a failure to elect officers, &c. 3 Term Rep. 199, 242 ; 3 Burr. Rep, 1866; 1 Kent Com„ 448, If there be no constitutional objection to a statute, it is as absolute as in any government. The legislature has an omnipotent power to do right. And our legislature has passed retrospective laws, such as acts legalizing unlawful marriages; dissolving marriages; declaratory of the existing law; repealing repealing acts; for the limitation of actions, &c. &c. 16 Mass. Rep. 245, 270. The legislature passed a general law extending all corporations for three years. The Essex Bank did not accept it, but dissolved themselves. Held, that they still existed under the general act and might be sued. And if after the charter expires they may be sued, they may also sue. 4 Wheat. 435, 122.</p> <p>In the case from 16 Mass. Rep., the debt had never been extinguished. The action of the legislature was only on the remedy, and is similar to an act of limitation. Both debt and remedy are here gone. A corporation may become virtually, though not actually extinct or dead, as on a failure to elect officers, and in such case either parliament or the king may renovate a dormant, or suspended existence, but not create anew one that is absolutely dead. This is the extent of the eases cited.</p> <p>Curia advisare vult,</p>

Debt on an administration bond. Case stated. The statement of facts agreed on in this case set forth : That John Wiltbank, late of Kent county, dec’d., by his last will, &c., devised and bequeathed as follows: — “ I give and bequeath unto my beloved wife Elizabeth, all the rents and profits of all the real estate wherewith I am possessed, to be paid to her by my executor hereinafter named, during the term of her natural life; and after the decease of my said wife, my desire…

Case on a guarantee. Narr. Pleas, non-assumpsit; payment; set-off, and the act of limitations. Bancroft only was taken, but Mr. Wales marked his appearance generally. Plaintiff declared against both as partners, and Mr. Wales pleaded to the declaration. He now asked to restrict his appearance to Bancroft alone, and so to mark it on the record.

Case. Pleas, non assumpsit; payment, and act of limitations. This was an action for the violation of a contract in relation to carrying the mail. The defendant had a contract with the postmaster general, to carry the mail from New Castle to Georgetown, from 1st January 1832, to 31st December 1835. The plaintiff took a subcontract to carry it a part of this distance, (from Camden to Milford,) from 1st April 1832, for the residue of Porter’s term.

<p>On the guarantee of a bond, the party guarantied is bound to use due diligence.</p> <p>He should bring suit to the first term after the bond falls due, unless the defendant is insolvent.</p>

<p>An infant cannot sue by guardian, unless a guardian has been actually appointed by the Orphans’ Court.</p> <p>But an infant may sue by next friend, and in that case the admission to sue thus ought to be averred in the narr.</p> <p>A guardian need not aver a special admission to sue.</p> <p>On the general issue pleaded, the appointment of plaintiff as guardian must be proved.</p>

Ejectment. One of the defences set up in this case, was the previous award of arbitrators selected by the parties in reference to the same matter, and the judgment of the court thereupon.

<p>Case. Narr on the following bill of exchange, drawn by plaintiff and accepted by defendant:—</p> <p>Richmond, Va., May 11, 1833.</p> <p>$340 20. Four mobths after date pay to the order of William M'Kervis, Esq. $340 20, for value received, without further advice.</p> <p>Your most obedient servant,</p> <p>NICHOLAS MILLS.</p> <p>Mr. R. B. Gilpin, Wilmington.</p> <p>This bill was regularly accepted by defendant and protested at maturity for non-payment. The pleas were non assumpsit; payment,discount, and the act of limitations. It appeared on the evidence, that Gilpin had ordered a cargo of coal of the best quality, to be forwarded by Mills, from his residence in Virginia, to defendant in Wilmington ; and, on being advised of its shipment, had accepted, as was his custom, this bill of exchange for the amount. When the coal arrived it was taken into the defendant’s yard, and he paid the freight amounting to $140; but when it came to be tested, it was found to be of such indifferent quality that the smith’s would not use it. It was therefore unsaleable, and a large portion of it still remained on the defendant’s hands. This was the matter of defence ; and the defendant contended, that as coal had been sent of a quality entirely different from that ordered, he was not bound to pay for it at all, though he had accepted a bill for the amount; or that he at most, was not bound to pay more than the actual value of the article.</p> <p>On the shipment of the coal at Richmond, and signing the bills of lading, the property in the coal vested in Gilpin; it was at his risk ; he was the owner, and he so conducted himself; he received it into his yard ; sold a part of it: still retains the balance; and has not accounted either for what was sold, or for what remains on hand. These acts of ownership make him the proprietor and liable for the amount. A partial failure of consideration cannot be set up as a defence to an action on the bill, where such failure and the extent of it is unascertained. It may be the subject of a cross action, but not of defence in this action. 1 Camp. Rep. 40, Morgan vs. Richardson; 2 do. 346; 7 East. 479, 483; 14 East. 486; 16 do. 206; 1 Starh. Rep. 51. I agree, that if fraud is proved it would vitiate the whole transaction; but no such thing here.</p> <p>The defendant is not bound to pay any thing in this case, because there has been a total failure of the consideration ; the coal not being worth even the amount of freight paid by him. 2d. But if the coal is not considered as entirely worthless, the jury can give a verdict only to the amount of its actual value.</p> <p>In opposition to this, the plaintiff has set up the technical rule, that such a defence cannot be made to an action on the bill of exchange, but must be the subject of a cross action. I shall contend, that this rule, so much at variance with justice, is not the doctrine of the courts at the present day.</p> <p>It is a fundamental rule of law, that every contract must have a consideration. True, in certain cases of sealed instruments, the consideration cannot be inquired into in a court of law, because of the difficulty of getting at the original foundation of the instrument; but there is no more reason for concluding the defendant in such a case as this, from objecting to the consideration of his acceptance, than if it were an open account. The case in 1 Camp, does not appear to be a case of warranty ; nor that the defendant had not the opportunity of examining the articles, and thus being under the rule of caveat emptor. 2 Camp, proceeds on an exploded distinction between the failure and the want of a consideration. 14 East, cannot apply, for it is not the case of a contract of sale of personal property. I cite Peake's nisi prius Cases 61, Barber vs. Backhouse, et. al. Idem 216, Ledger vs. Euer.</p> <p>The present case presents all the features of the several classes of warranty cases, sales by sample; sales without inspecting bulk, &c. &c. 4 Camp. 144, Gardner vs. Gray; 4 Bairn, and Cress 115; 5 Bingham 533; 1 Stark. Rep. 107, (51) 2 Har. and Johns. 350. If the article sent be different from the article ordered, the vendee may store it, give notice to the vendor, and recover back the purchase money. And there is no reason why he should not set this up as a defence to an action for'the purchase money. 9 Barn, and Cress. 259 ; 5 Carr, and Payne 343; 7 East 440, n. If one thing be ordered and a different article be sent, there is no contract, and can be no recovery. 2 Kent's Com. 364-5, 369, 374-5; 3 John. 534. And wherever there is a warranty, express or implied, the defendant may set up a partial failure of the consideration as a defence to an action for the consideration. And if the jury believe that Mills knew the quality of this coal when he shipped it and forwarded the bill for acceptance, it is a case of legal fraud.</p> <p>The defence of a partial failure of the consideration cannot be set up in any case where the defendant has used or disposed of a part of the article, without accounting for the proceeds and paying the amount into court. Mr. Gilpin has sold a large amount of this coal.</p> <p>But the policy of the law does not allow such defence to be made at all, in an action on the bill. And this distinguishes the present, from the case in 1 Stark. Rep. 107; which was not on the bill. Let the bill be paid according to defendant’s undertaking, and then if ihe quality of the coal is inferior to that ordered, let him bring his action, against Mills, for a failure of the implied warranty.</p>

Assumpsit for goods, wares, &c., and for lottery tickets sold and: delivered, &c. Bleas non-assumpsit -r payment; set off, and the act of limitations.. The plaintiff was a lottery broker, and kept a duly licensed office in the city of Wilmington. He claimed 0229 05 balance on account for lottery tickets sold to defendant in lotteries authorized by the states of Virginia, New York, North Carolina and Delaware.

Debt on a bond. Rule to show cause why the proceedings should not be staid upon the defendant’s bringing into court the amount of the bond on which this action is founded. The bond was for $100; conditioned for the payment of an annui-. ty of $20, during the life of Rebecca Beeson.

<p>Belief in the existence of a Deity and a future state of rewards and punishments, necessary to qualify a man to bo a witness.</p>

Petition for divorce. The libel in this case was for a divorce per causa adulterii, and it specified the time and place.

<p>Capias Debt on an administration bond. Narr, suggesting a devastavit. Pleas, nul tiel record ; payment, &e.; reps, and issues.</p> <p>The defendants were administrators of one Marcus Magee, against whom, in his life time, Prettyman recovered a judgment for $750 00.</p> <p>The narr averred assets; and, inter alia, a certain judgment due to Magee from Turpin, Jacob, and Charles Wright, which ought to have been collected by defendants, as administrators of said Magee, and applied to plaintiff’s judgment.</p> <p>The pleas were — 1st. Nul tiel record, as to Prettyman’s judgment. 2d. Payment specially by execution sued out on said judgment. 3d. Payment generally. 4th. That defendants, as administrators of Ma-gee, had no knowledge of the debt due him from the Wrights.</p> <p>Under the plea of nul tiel record, the variance insisted on was, that the record of the judgment stated sums and dates in figures, and the narr set them out in letters; but the court overruled the objection.</p> <p>then asked leave to amend the pleadings by denying assets sufficient to pay the plaintiff’s demand; but</p> <p>The Court refused the motion, the jury having been sworn and the defendants having in fact gone to trial on one of the issues in the cause. They remarked also, that the amendment would entirely change the other issues and take.the plaintiff by surprise, putting him to prove that assets sufficient had come to the defendants’ hands, which was denied by the pleadings.</p> <p>Defendants then offered, under the plea of payment, a receipt from plaintiff for part of bis judgment. Objected to.</p> <p>The judgment is for $750: with interest and costs. Nothing less than that sum will discharge or pay the judgment. Payment of a smaller sum cannot be held a payment ofthe greater; and as this evidence does not tend to establish a payment of the whole debt, it is not admissible under a plea of such payment. To suit such evidence the plea should have been set-off or discount, perhaps the latter. 9 Johns. Rep. 332; 5 ditto 391; 13 ditto 353; Chitty’s Pleadings, for form of plea.</p>

<p>The hirer of a horse is only bound to treat him with ordinary care, and use him with ordinary prudence.</p> <p>If he be injured in the course of such use and treatment, the hirer is not responsible.</p>

<p>Capias Case.</p> <p>The plaintiff declared on an undertaking by the defendant to carry for hire and deliver to him certain goods, &c., to wit: one hogshead of molasses of the value of fifty dollars, which said hogshead of molasses was not delivered according to his said undertaking, but for want of proper care and attention was lost and destroyed. Plea,- not guilty.</p> <p>The proof established that defendant was in the habit of hauling for hire, goods landed at Milton, belonging to merchants in Georgetown; but one of these merchants testified, that the defendant had refused to carry molasses for him on account of its bulk and weight, and that he had never known him to carry molasses. The hogshead in question was brought from Philadelphia, for Tunnel and Short, by captain Parker, and delivered on the wharf at Milton ; when, defendant’s cart being there, it was placed by Parker’s hands and defendant’s servant in his cart. While placing it, the hogshead rolled and fell from the cart, and the contents were spilled upon the ground and lost.</p> <p>moved a nonsuit—</p> <p>1st. Because it was not proved that the defendant was a common carrier, at least of this kind of goods, nor was there any special undertaking, as the act of the servant in assisting to place the hogshead in the cart, being out of his usual course of employment, would not bind the master; and</p> <p>2d. That there was no proof of a delivery to the defendant. His liability would not ^mrnence until there was a complete delivery to him, and the articjg was here lost and destroy ed whilst in thé act of delivery.^ ^</p>

<p>moved for leave to enter judgment at the suit of Turpin Wright, against Isaac Bradley and Eliza Ann his wife, on a bond and warrant of attorney to confess judgment given by the said Eliza Ann, before her marriage with the said Isaac. He founded his motion on an affidavit of the marriage, and that the bond (which he produced) was still due and unpaid.</p> <p>The application is reasonable in principle, and sustained by precedent. Without it injustice would be done to the creditor. He cannot reach the husband’s property' by a judgment against the wife, yet by force of the marriage, her property has become his, and if she were to die, the creditor’s remedy is gone. Yet the law makes the husband liable for the wife’s debts; and justly, for he has her property, and he should take her cum onere. 3 Burr. Rep. 1460. Leave granted to enter judgment for husband and wife, on bond with warrant given to wife before marriage. 2 Chitty Rep. 114; 18 Com. Law. Rep. 269. Judgment allowed to be entered up against husband and wife, on a warrant of attorney given by the wife dum sola. 1 Shower 91; 3 Harr. Digest 568; Tide! 570.</p>

Debt on a guardian bond, for a distributive balance. Narr. Plea denying the marriage of plaintiffs; or that it was lawful. The plaintiffs married within the degrees prohibited by the act of assembly (Digest 400.) The legislature by a special act passed before bringing this action, confirmed the marriage.

<p>Accessaries -furnished to an in infant may be set-off against a claim by the infant, but cannot be given in evidence under the plea of payment.</p>

Case for use and occupation. Pleas, non assumpsit; payment; discount, and the act of limitations. stated the claim to be for one half the rents of a farm since January 1828. The farm in question was owned by John Whaley, sen’r., who devised it to his wife for life, with remainder in fee to his two sons, James and Daniel. His widow had possession until 1828, when she died and defendant took possession, having administered on her estate.

Case. Pleas, non-assumpsit; payment; discount and the act of limitations. This was an action of assumpsit by an heir at law, to recover his distributive balance of personal estate. The facts agreed on, were these: Joseph Booth, father of plaintiff died, leaving two children, of whom plaintiff is one.

Ejectment. Case stated. The lessors of the plaintiff are the heirs at IdJ of William Walter, deceased. Held: that this only gave her a power to leave it by will, and that a disposition of it by feoffment in her life time was void. 10 East, 438 ; Doe ex dem.

<p>A retailer’s license is not evidence for the party taking it out, of his interest in the store.</p> <p>To constitute a partnership there must be an agreement both for profit and loss.</p> <p>A dormant partner need not be joined as a party plaintiff, if there be no privity of con-, tract between him and the defendant.</p>

<p>In' a scire facias on an old judgment, where the nan', could not be found, the court permitted a narr. to be filed nunc pro tunc.</p>

<p>Case. Narr. for negligently running against plaintiff’s carriage.Plea, non cul. Issue.</p> <p>This was an action on the case for an injury by one John Lytle, a servant of the Rockland Manufacturing Company, in running against the gig of plaintiff, and grievously injuring her. It appeared in evidence that the plaintiff, being a lady in delicate health, was invited by her physician to take a ride in Ms gig for the benefit of her health. She was driven by her brother up the “ Wilmington and Kennet Turnpike road,” and being on the right hand side of the road, they were met by Lytle, who was in the employ of defendants, and at the time driving a one horse wagon belonging to defendants. The Wilmington and Kennet road has three tracks; the centre, which is turnpike, and a summer road on each side. Lytle was on the left hand summer road travelling at a moderate pace, and when 'very near to plaintiff, attempted to turn up on the turnpike; but, being too late, the carriages came into collision, plaintiff’s horse ran off, tore the gig to pieces, and very seriously injured her. Plaintiff could not have turned out to the right, there being a ditch on that side of the road.</p> <p>In the course of the evidence a physician described the injury done to the plaintiff by this accident, and was then asked his opinion as a medical man, of its future consequences upon her health. This was objected to.</p> <p>In this action the recovery can be only for the damage that has already been sustained, and not for remote consequences.</p> <p>The question is of injury done: if that injury is incurable and to last through plaintiff’s life, we have a right to prove it by the physician, and to recover damages on account of it.</p> <p>The Court said that the plaintiff might prove the extent of the injury at' the time, and if that include an injury for life, it may be given in evidence by the physician, and considered by the jury in assessing damages.</p> <p>Several questions were raised in the course of the cause. 1st. As to the liability of defendants for the tortious act of their servant. 2d. As to the proof of his being their servant. 3d. The law of the road, and 4th. The extent and measure of damages.</p> <p>An individual is liable for the negligence of his servant, and there is no reason why a corporation should not be equally so. 4 Serg. Sj- Rawle, 6. Servants of a corporation, like other servants, may subject their employers to answer for acts done in the course of their employment; and the action on the case is the proper remedy. 4 Term Rep., 689, Green vs. The New River Company; 16 East Rep., Yarborough vs. The Bank of England.</p> <p>Lytle did not give half the summer road, and he was bound to give all. He was in the wrong by being on the summer road to his left of the turnpike; and if the accident occurred by the mutual negligence of both parties, he would be liable. In other words, Wilson was not bound to turn to the right or give any part of that track to Lytle. The turnpike itself is the centre; on each side there is a track for carriages, the whole of which is for travellers keeping to the right; and if any one unlawfully takes the left road, he puts himself in the way of others, and is liable for any accident occurring even though the immediate collision should not have been wholly attributable to his negligence. 5 Esp. Rep. 273; 3 Com. Law. Rep. 283. This is so not only by the general law of the road, but by the express provisions of the Wilmington and Kennet turnpike law. 4 Del. Laws, 367, Sec. 20. “ All drivers of carriages, whether of burden or pleasure, using the said road, shall keep on the right hand side of the said road, leaving the other side free and clear for other carriages to pass and repass.”</p> <p>I admit the responsibility of corporations for the acts of their servants ; but the point which I wish to present is, that a corporation is not liable for the torts of its servant, unless it is shown that the servant was authorized to do the act in the course of which the tort arose; and such authorization must be by the seal of the company. 16 East Rep. 6. Brooke’s Abridgement.</p> <p>As to the law of the road; I deny that a traveller is bound at all times at his peril to keep on the right hand side. He is entitled to travel on any part of the road, and may choose his track, provided he leaves room for others, and uses ordinary care to avoid accidents. 5 Bsp. Rep. 44, Clay vs. Wood; 16 Eng. Com. Law Rep. 84. And if there be negligence or want of care on both sides, the plaintiff cannot recover. The accident must be the result entirely of the negligence of defendant. 22 Com. Law Rep. 208; 25 Ibid. 261; 24 Ibid. 368-9.</p> <p>In an action on the case for negligent driving, the law of the road is not the criterion ; or, at least, the only criterion, of deciding the culpability. An accident may happen by the fault of a person on the right side of the road running against one who, at the time, is on the wrong side, and where the latter would be the injured party. And if the jury in this case believe that this accident would not have occurred had Wilson been a skilful driver, or not guilty of any ■negligence, the plaintiff ought not to recover.</p> <p>No damages recoverable for the gig. It did not belong to plaintiff. She has not paid for the repairs, and she is not liable to the owner for the damage, if it happened, as she contends, without any negligence on her part. The damages are to be compensatory merely, and ought to be reasonable. 25 Com. Law Rep. 512.</p> <p>was about to discuss the question whether it was necessary to show the appointment of the servant under the corporate seal, in order to charge the company for his acts; but</p> <p>The Court stopped him, and said that a corporation was answerable for the acts of its servant, whose appointment need not be by deed or under seal. Salk. 191; 7 Cranch, 305. It is now settled, that assumpsit will lie against a corporation; and that is a much stronger case; for with prudence a man might get the seal of the corporation to their contracts with him; but in case of a tort, the party injured, not being able to prove the appointment of the servant under seal, would be without remedy.</p> <p>resumed:</p> <p>The law of this road is settled by the charter incorporating the' "Wilmington and Kennet Turnpike Company. 4 Del. Law-s, 367. It requires all persons to keep on the right hand side, leaving the other side dear and free for all passengers. The same is the custom of travelling, or law of all roads in this state; you must keep to the right. And when twro travellers meet on the same side of the road, one of them must necessarily be out of place, and it becomes his duty to turn out in ample time, and so as to give ample room for the other to pass; and if a collision takes place for want of such room, he whose duty it was to turn out, is liable for the consequences. The presumption of the law is, that the accident arises from his negligence. For the law will not permit him to try experiments, without making him responsible for consequences. 5 Esp. Rep. 273.</p> <p>Damages, and the measure of damage. In all cases of torts to persons, there is no measure but the conscience of the jury, as in other torts where the measure is the pecuniary or other loss. Damages are discretionary,- and ultimate consequences may be considered in estimating them. Ld. Raymd., 692; 2 Wils. 215; Idem.!. 244.</p>

<p>Trover. Plea, not guilty.</p> <p>Hawthorn borrowed a dearborn wagon and harness of Maguyer, and in the use of it his horse ran off and broke it. He sent the wagon to a carriage maker’s to be mended; paid the bill, and gave Maguyer an order for it; which, however, being informal and not including the harness, was never presented. The carriage was mended ; and no person sending for it, it was wheeled into the road, where it stood for a long time and became injured by the weather and by accident.</p> <p>On this state of facts Rodney, for defendant, moved a nonsuit, for want of evidence of a conversion.</p> <p>The case is one of lending. So stated, and so proved. The original taking, therefore, was lawful In order to create a conversion of an article delivered on loan, or in any case where the possession of defendant is lawful, there must be a demand and refusal, A tortious taking is itself a conversion ; but not so of a lawful possession. There is in this case, no proof of a demand and refusal to give the wagon up; on the contrary, Hawthorn sent plaintiff an order for it, which he refused to use because of some alledged informality,</p>

<p>The condition of a bond to indemnify an indorser of a note from any failure to pay it, and against any liability that might fall on him in consequence of his indorsement, held to extend to another note given and endorsed by the same parties on a renewal of the first note.</p> <p>A renewal of a note at bank is not a payment for the purposes of such indemnity.</p>

<p>Certiorari.</p> <p>Record. Summons issued returnable September 11, 1833. The defendant appeared and the case was adjourned until Sept. 14th, on which day the parties met, and adjourned until the 16th. The defendant pleads, &c. Plaintiff replies, &c. “ And now to wit, this 28th day of Sept., 1833, having considered the proofs and allegations of the parties, judgment is rendered for plaintiff.”</p>

<p>Judgment against husband and wife set aside, because confesssed on a warrant of attorney given by the wife after marriage.</p>

Writ of error to the Mayor’s Court of the city of Wilmington. This was an information filed by the attorney-general in the Mayor’s Court for the city of Wilmington against Welcome Gray, the plaintiff in error, for an assault and battery. The defendant pleaded non cul., and for trial put himself on the court, which found him guilty and fined him five dollars.

Writ of error to the Superior Court for Kent county. Coram Johns Jr., Chancellor, Harrington, and Layton, Justices of the Superior Court. This was an action of debt on a guardian bond.

<p>The interest of devisee over in an executory devise will pass by will, or descend upon the death of such devisee before the contingency happens. And upon the happening of such contingency, the estate goes to the heir of the person last entitled, without regard to the blood of the first devisee over: contrary in this respect to the English rule.</p> <p>Jn this state seisin is not necessary to make a stock of descent. Title, or any manner of right legal or equitable, is sufficient.</p> <p>In construing wills, technical words are to be taken in their technical sense unless a plain intention appear to the contrary.</p> <p>Whenever the devise is to children and grand-children, or to brothers and sisters and nephews and.nieces, to be equally divided between them, and the devisees are individually named, they take per capita and not per stirpes.</p> <p>The words equally to be divided, when used in a will, mean a division per capita, and' not per stirpes, whether the devisees be children and grand-children, brothers or sisters and nephews and nieces, or strangers in blood to the testator.</p>

Debt on bond. Pleas, non est factum; payment ad diem ; payment post diem; plene administravit, and performance. The bond was dated 20th April 1807, for #400 00, conditioned to pay #200 on or before the 1st of April 1811. The plaintiff resided in the State of Indiana since 1807. In February 1819, his agent here called on Evans, who admitted that there were unsettled claims or transactions between him and Durham. The conversation was about this bond.

Assumpsit for the price of a gig and harness, sold and delivered. Pleas, non-assumpsit; payment: set-off, and the act of limitation. The case was singularly circumstanced on the evidence. Admissions of the defendant that he had bought the gig were proved; and it was also proved that the plaintiff had repeatedly declared that he had not sold the gig to defendant, but had hired it to him.

<p>Replevin. Pleas, non cepit and property. Trial and verdict for plaintiff; and motion in arrest of judgment.</p> <p>This cause was tried at the fall term, 1832, and the argument and result of the motion is reported in 1 Harr. Rep. 76; but the grounds of the decision are not given; and the judgment rendered appears to be contrary to the principles reported to have been decided. The following opinion of the court, drawn up by Judge Black, was accidentally omitted in the former report.</p>

<p>A certiorari is a writ of error, and cannot Re brought after five years from, the date of the judgment.</p>

Judgment d. s. b. On the application of the sureties of Whitaker, a rule was obtained in this case to show cause why the judgment confessed against them should not be set aside.

<p>Scire facias on a judgment. The defendant appeared by attorney,, and filed pleas to the action.</p> <p>now confessed judgment, but insisted that the defendant was not liable for costs, on the ground that no probate had been made before suit brought, as required by law, {Digest, 227,) of which fact the defendant made affidavit; and that the defendant had not controverted the claim.</p>

<p>Certiorari to Justice Ringgold.</p> <p>The action below was in trespass. The summons stated the damages claimed to be twenty dollars. Referees reported in favor of plaintiff below twenty-five dollars, and judgment rendered by the jus* tice for -that sum.</p>

<p>Ejectment. The case stated, was—</p> <p>That Mary Lowber, the plaintiff, was, in the lifetime of a certain Jonathan Lowber, now deceased, his wife, and is now his widow. That the said Jonathan Lowber died about the day of 1833. That during the coverture of the said Mary Lowber, the said Jonathan Lowber was seised in his demesne as of fee, and was the owner and possessor of the lands and premises sought to be recovered in this action. That before the death of the said Jonathan Lowber, to wit, on the second day of March, 1831, he made and executed an indenture purporting to be a deed of bargain arid sale from Jonathan Lowber and Mary his wife, (but signed and sealed, and delivered and duly acknowledged by the said Jonathan Lowber only, prout the record of the same,) to Caesar Beauchamp, the defendant in this action for the lands and premises aforesaid. That after the death of the said Jonathan Lowber, to wit, at the October term, 1834, of the Orphans’ Court for Kent county, the said Mary Lowber preferred her petition to the Orphans’ Court, praying to have her dower in the lands and premises, which belonged and was possessed by the said Jonathan Lowber during her coverture, laid off and assigned to her; which said petition was heard, and the prayer thereof granted; and in pursuance thereof her dower was laid off and assigned, and the assignment thereof confirmed by the said Orphans’ Court at the September term, 1835, thereafter, and that the lands and premises sought to be recovered in this action were and are a part of said dower so assigned and confirmed as aforesaid. That the said Caesar Beauchamp, by his attorney, appeared in the Orphans’ Court, and offered to contest the confirmation of the said dower, as a purchaser of part of the same as aforesaid; but the said Orphans’ Court refused to hear him, inasmuch as it did not appear that he was a- party to the proceedings instituted and carried on in the said court for the assignment of dower as aforesaid, those proceedings having reference to the heirs at law of the said Jonathan Lowber. And it was admitted that the said Caesar Beau-champ was not a party to said proceedings in the said Orphans’ Court in the said assignment of dower.</p> <p>It was contended by</p> <p>that the decree of the Orphans’ Court was final until appealed from against all the world, being a proceeding in rem; and that the dowress entered into the land assigned to her by the Orphans’ Court, not only as against the heirs of Jonathan Lowber, the intestate, but as against all persons whatever.</p> <p>admitting that the decision of the Orphans’ Court was conclusive as to all the rights it professed to pass upon, contended, that as this defendant was no party to that proceeding, and the court would not permit him to become a party, his rights could not be concluded by that decision. The record shows that the Orphans’ Court refused to pass judgment on his rights, or allow him there to controvert the plaintiff’s claim of dower, regarding that as a proceeding solely between the widow and heirs at law.</p>

<p>On a decree of divorce for the adultery of the husband, the court allowed the wife oue^ third of his lands for life; and appointed commissioners to assign it.</p> <p>The Court also gave to the wife the custody of her daughters, and made her an annual allowance for their support.</p> <p>Writ of habere facias possessionem issued to put the complainant in possession.</p>

<p>A surplus in the hands of the late sheriff, arising from the sale of lands after payment of all executions, may he attached.</p>

<p>The writ of certiorari limited to Jive years after judgment.</p>

<p>A return of “ served by copy, left at a house said to be the boarding house of defendant,” is not sufficient to authorize a judgment by default.</p>

<p>An instrumentaiy -witness having proved his own signature to the deed, but being unable to identify the party executing it, (not knowing him,) proof of the obligor’s hand-writing was admitted as sufficient.</p> <p>One partner cannot bind the firm by deed.</p> <p>If one partner execute an instrument under seal in the name of the firm, it will bind him as his separate act; and the instrument should be declared on accordingly.</p>

<p>Assumpsit. Narr., pleas, non assumpsit, payment, discount, and the act of limitation.</p> <p>This was an action of assumpsit for a bill of store goods bought by defendant of plaintiff; and the defence was that the goods in fact belonged to one Bostick, for whom Stille acted as a clerk or agent; and the amount of this bill had been attached in defendant’s hands as the garnishee of Bostick. The attachment was on a judgment of Samuel G. Wright & Co. vs. John H. Bostick; and, after it was laid in defendant’s hands, he pleaded nulla bona, and then entered into a reference with the attaching creditor, which resulted in a judgment against him for the value of these goods.</p> <p>The record of this judgment was offered, and objected to, as not being between the same parties, nor having any relation to this case.</p> <p>We intend to follow up the judgment with proof of the execution, attachment and judgment against defendant; and connect with this the proof that Bostick was the owner of these goods.</p> <p>It appears now to be the case of an attempt by the purchaser of goods to dispute the title of his vendor in an action for the price, even while he retains the goods. This cannot be done.</p> <p>Per curiam. — Under non assumpsit you may give in evidence that another person owns the goods sold; the plea puts in issue the title. It does not follow that because one man sells goods to another he can recover the price, unless he be the owner of the goods. The defendant may go on and show title to these goods in Bostick, if he can. And it is not worth while to dispute about the order of producing the testimony. The judgment offered will avail nothing unless followed up by evidence to show that these goods were Bostick’s. If that be shown, it is relevant and admissible evidence.</p> <p>In the course of the evidence,</p> <p>offered certain depositions taken in the suit of Samuel G. Wright & Co. vs. John H. Bostick, the judgment in which suit had already been admitted. They were objected to.</p> <p>We were no parties to that cause. These depositions were taken on Bostick’s commission, to which we could not file cross interrogatories; and it does not appear to have been in relation to the same matter.</p> <p>It is substantially the same case ; the object in both actions being the same, to establish the title to these goods; by the former, in Bostick; by this, in Stille.</p> <p>Per curiam. The case is clear. You cannot give depositions in evidence, unless the party against whom they are offered, had an opportunity to cross examine, which here he had not. They were taken in a cause in which the present defendant was no party, nor had any authority to move in it. There is a manifest distinction between the judgment as a matter of evidence, and these depositions. A judgment is always evidence to prove its existence and legal consequences; but the depositions stand on different grounds; they are res inter alios acta, and cannot be evidence against Layton.</p>

<p>Debt on an administration bond. Case stated.</p> <p>The case stated set forth, that Arthur West died in the year 1831, having duly made his last will and testament, wherein, after sundry legacies, he directed that all his lands, and all the residue of his personal estate, should be sold within six months after his decease, at public vendue for cash; and, after all his just debts should be fully-satisfied, that the residue or balance of the money shall be equally divided between the three Methodist churches, namely: Antioch, Salem and the Head of the Sound church. And he appointed the said Ebe Walter his executor. That after payment of debts there remained for distribution under the residuary clause, the sum of $501-03. The cestuis que use are the heirs at law of Arthur West.</p> <p>The question stated was “ is the residuary bequest of the balance of the money of the estate of the testator, composed as that balance is, entirely of the proceeds of the sale of the real estate of the testator’s land, to the three churches of Antioch, Salem, and the Head of the Sound, a void bequest. And if so, does that balance go to the heirs at law of the testator? If the court are of opinion that the bequest is void, and that the balance should go over to the heirs at law of the testator, then judgment to be entered for plaintiff; but if the court should be of opinion that the said bequest is valid, then judgment to be entered for defendant.</p>

<p>Debt on administration bond.</p> <p>This was an action of debt in the name of the state, for the use of the administrators of Samuel Ratcliffe, deceased, on an administration bond, executed by James B. Jester, administrator of William E. Jester, and by these defendants as his sureties. The plaintiff had recovered a judgment against the estate of William E. Jester, for the non-payment of which the present action was brought.</p> <p>The declaration set out the bond and condition, and assigned several breaches thereof; to which the defendant pleaded “ performance, set-off, and the act of limitation,” general replications, and issues.</p> <p>The plaintiffs proved the execution of the bond, and the recovery of a judgment on an award, at the suit of John R. Draper, administrator, in right of his wife Rachel, of Samuel Ratcliffe, deceased, against Susannah Jester, and James B. Jester, administrators of William E. Jester, deceased, for the sum of #420 97. The reference was entered into on the 8th June, 1835, award made 20th June, and judgment rendered the 14th of October of the same year. The plaintiff then exhibited an administration account on the estate of William E. Jester, passed on the 11th August, 1836, showing a balance due from the administrators of #811 27. And he here closed his case.</p> <p>On the 8th of June, 1835, there were five amicable actions entered into by the administrators of Jester with sundry persons, amongst whom was the plaintiff; but he stood the last in the order of the entry on the docket. The same set of referees was agreed upon for all the cases. The report was made in all the cases at the same time, (20th June,) and they were read and judgment rendered by the court on the same day, (14th October,) in the order in which they were docketted. The aggregate amount of the first four judgments was #641 95.</p> <p>The defendant now offered these four judgments in evidence, as debts of prior dignity, and having a preference to the above judgment, at the suit of plaintiffs. They were objected to.</p> <p>The evidence is not admissible under the pleadings in the cause. There is no plea of outstanding debts, or of debts of prior or superior dignity. Had these judgments been pleaded, we might have controverted them, and perhaps shown that some of them were fraudulently obtained, or were paid. The evidence offered is at best an excuse for the non-performance of their bond, when their plea is performance.</p> <p>The only question in the caüse is, as to the application of the assets of this estate. We insist that the evidence offered is strictly admissible. It is a matter that goes to show performance; which plea puts in issue every matter denying the plaintiff’s right to recover. The narr. must alledge that there are assets in hand applicable to the plaintiff’s claim ; the evidence now offered, goes to deny this averment, because it shows that these assets are applicable to prior judgments. This is not a suit against the administrator as such, seeking to charge him personally, and in which the plea would be plene administravit, or plene administravit prater debts outstanding; but this is a casein which the plaintiff undertakes to show that there are assets in the administrator’s hands applicable to his judgment. The evidence offered bears directly on this point. T.he action also is against sureties. What are they to show ? That they have performed their bond; that the administrator has paid all that is applicable to plaintiff’s claim, and the existence of these judgments goes to show it. Suppose the plea of “ performance,” which is put in in short, was drawn oat, would it not set out all these judgments 1 And if not under performance, under what plea could they be brought in? There can be no more general denial of the .plaintiff’s cause of action. If there are judgments enough of an older date than plaintiff’s, to consume all the assets, how can the defendant be said to have broken his bond by not paying this? The plaintiff has not demurred to the general plea of performance; and under it we have the right to show any thing that negatives a breach of the condition of the bond.</p> <p>cited Roscoe Evid. 470, 471; Bull. JV. P. 141; 1 Saund. 333, («,) to show that under a plea of plene administravit, the defendant could not give in evidence outstanding debts of a higher nature; and he argued that the plea of performance could not be more extensive than plene administravit.</p>

<p>Plaintiff having left the state after suit brought, ordered to give security for costs.</p>

Summons in waste. moved for a view and for a continuance of the cause to give time. objected. The motion for a view is not a motion of course, but in the discretion of the court. The practice in England is under the statute of Ann, which has not been held to extend to this state. 2 Tidd 846. Our own act of assembly (Digest 117,) does not affect the granting of a view, but only regulates the mode of conducting it when granted. So of the rule of court.

<p>Appeal. Judgment rendered 28th December 1836 ; appeal prayed and security given and signed by the surety; record certified thus: “ I certify the above to be a true copy from my docket, as it stands stated; as witness my hand, this 4th day of January 1837.</p> <p>Nathaniel Hearn.”</p> <p>moved the court to dismiss the appeal, because a duly certified copy of the record was not filed in the prothonotary’s office. “ A true transcript of all docket entries, &c.” is required by the law to be “ certified under the hand and seal of the justice.” Dig. 353, sec. 40.</p> <p>It is the duty of the party appealing to get a copy of the record duly certified ; to file it, and prosecute his appeal. It is the constant practice of the court to dismiss appeals, if the record do not show that security has been given and signed. The record cannot show this, unless it is so certified as to make it evidence; and this cannot be unless the record is certified as directed by law, i. e. under hand and seal. If the justice has neglected his duty in this respect, he is liable to the party.</p> <p>who had just been spoken to by the appellant, desired time to look into the record, which was granted.</p> <p>The question is, whether the law requires the record to be sent up under the justice’s seal. The law says it shall be duly certified ; and the practice has been, to certify under the hand only.</p> <p>What makes a transcript of a justice evidence? The act of assembly; which requires that the seal shall be used to authenticate it. A justice of the peace can only speak by his seal. His statements under hand, are no more evidence than the statement of any other man; but when certified in such a manner as to make them evidence, they are then duly certified.</p>

<p>Where a record is the ground of action the narr., must refer to it with a prout patet per recordum ; hut not so if it be merely inducement.</p> <p>Quere. Is a guardian account a record 1</p> <p>Two breaches of the same stipulation cannot be assigned in the same count.</p> <p>The court will not presume infancy ; nor need a plaintiff negative such a disability ; it is for the defendant to alledge it.</p>

<p>Assumpsit. Pleas, non assumpsit, payment, &c.</p> <p>The question in the case was as to the application of a payment made on account.</p> <p>The plaintiff was a ship-chandler, and furnished articles for defendant’s vessels. One of the vessels, the “ Hermit,” belonged to defendant alone; another, the “ Rachel and Sally,” belonged to “ Boone & Brown,” and a third, the “ Eclipse,” belonged to “ Boone, Brown & Tomlinson.” Articles furnished for these vessels were charged to them separately; and payments made, if general, were entered to such account as the plaintiff saw tit. One of the credits to the account of the “ Eclipse,” was of “ cash received of Jacob Boone, by draft on Neall & Barratt, $47 87,” which the defendant contended should be credited to the “ Hermit,” which was Boone’s vessel; the payment appearing to have been made by Boone.</p> <p>To which it was replied, that all the accounts stood in the name • of Boone “ for the several vesselsthat on a general payment made by him without instructious, the plaintiff had the right to apply it to which account he pleased; and that the sum of $47 87 being at the time the precise balance due on account of the “ Eclipse,” showed that, the payment was meant for that account.</p>

Appeals from the judgment of Justice Stevenson, in actions of trespass. Plea, justification under a search warrant. The two cases, depending on the same testimony, were tried together. The plaintiffs below brought these actions of trespass, vi et armis, quare clausum fregit, against Reed, who had obtained warrants to search for stolen goods, and entered plaintiff’s houses with the officer for that purpose.

<p>An agent is liable to refund money paid to him by a mistake in fact, he being notified of the mistake before he paid the money over to his principal.</p>

Case. Narr. in assumpsit. Pleas, non-assumpsit; payment; discount, and the act of limitation. The count relied on was for money had and received to the plaintiff’s use. The defendant was an auctioneer in the city of Wilmington, and the money came into his hands as such, under the following circumstances.

Covenant on articles of apprenticeship. Plea, non est factum. Issue. This was an action of covenant on an indenture of apprenticeship, brought by the apprentice against the master. The declaration assigned the following breaches of the master’s covenants: 1st. That he did not teach him his trade. 2d. That he did not procure and provide him with sufficient meat, drink, lodging and washing. 3d. That he did not well support and clothe him.

<p>A surety in the official bond of an officer whose appointment is annual, is not liable beyond the year, though the officer continues by law until a successor is appointed.</p> <p>A surety is never bound beyond the principal; and the liability is governed by the terms of the bond and the understanding of the parties at the time of entering into it.</p> <p>The liability of a surety is to be taken strictly.</p>

<p>Libel for divorce. Summons issued and returned “ non est inventus;” alias summons issues and returned “non est inventus.”</p> <p>The defendant was a resident of the county, but kept out of the way of the sheriff He had brought a suit to the present term against the administrator of his wife’s father, to recover her distributive share of his estate.</p> <p>now moved the court to stay proceedings in that suit until he appeared to this libel.</p> <p>who admitted that he had notice of the libel suit. The sheriff proved the use of extraordinary diligence to serve the summons; but had not been able to find Baldwin, though he knew of his having been in the county.</p>

<p>A deed signed and sealed with the usual formalities, and also duly acknowledged (but not recorded) is not evidence, without proof of delivery.</p>

<p>moved for an order to stay proceedings in this case until the plaintiff gave security for costs ; on an affidavit setting forth that he did not reside in the state, and that the defendant had a just defence to the action.</p> <p>objected to the granting the order, on the ground that the application for it was too late. The defendant has appeared and pleaded; gone to issue; the witnesses are summoned and the case stands for trial at the present term. The effect of the order would be to continue the case and accumulate costs. He might have applied for it at the last term.</p>

<p>Certiorari to Justice Elliott.</p> <p>Action for two years’ dower, demand $20 00. After hearing and trial by referees, report and judgment for plaintiff for “ ten dollars annuity due to the plaintiff up to 16th October, 1835.”</p> <p>The record showed that the cause of action was “ a demand of the plaintiff below of ten dollars per year, against the defendant below, as an annuity payable to her yearly in lieu of dower in a tract of land which belonged to her husband, Thomas Cartmel, deceased; and which tract was conveyed by deed to said defendant below, subject to the payment of said annuity.” a</p> <p>The error assigned was, that the cause of action was not within the jurisdiction of a justice of the peace.</p>

<p>Count upon an account stated necessary to meet evidence of a promise to pay a mere balance without proof of items.</p>

Assumpsit. Pleas, non-assumpsit; payment; discount, and the act of limitation. The action was on a book account of long standing, for a boot and shoe bill. The book of original entries was very irregular; sometimes in ledger form ; sometimes in day book entries; sometimes balances ; sometimes items, and frequently scratched and erased. It was objected to on this account. The Court said, they must act with caution in rejecting books of account altogether.

Trespass quare clausum fregit. Plea, not guilty ; and, by consent, leave to give in evidence under the general issue any matter of defence by way of justification.

Coram — J. M. Clayton, chief justice; Black and Harrington, justices, of the Superior Court. The bill in this case was filed by the complainants as judgment creditors of Evan F. Morgan, a merchant in this state, to avoid a conveyance of real estate in Sussex county, and to obtain payment of their judgment out of the proceeds of that estate.

Action of assumpsit, for money had and received to plaintiff’s use. Plea, non-assumpsit. Questions reserved by order of the Superior Court for New Castle county, at the May term 1837, to be heard on a case stated in the Court of Errors and Appeals. The case was tried before Johns, jr. chancellor, and Black, Harrington and Layton justices of the Superior Court.

<p>Appeal from the decree of the Orphans’ Court of Sussex county.</p> <p>Exceptions were filed in the Orphans’ Court by “ Rachel Johnson, guardian of the persons and estates of Elizabeth .Johnson, Rhoda Ann Johnson, Mary Jane Johnson, and Margaret Johnson,” to the administration accounts passed by the defendant, Manlove Johnson, on the estate of William Johnson, deceased. The exceptions were heard by the chancellor, sitting alone, and he made a decree correcting the accounts in several particulars, and ordered the respondent to pay costs; whereupon he appealed, and the chancellor certified to this court the following points as decided by him. (8 Del. Laws, 92.)</p> <p>In the Orphans’ Court of Sussex county:</p> <p>The respondent moved to dismiss the exceptions to his administration accounts on the estate of William Johnson, 1st, because the appeal before the register was taken and the exceptions filed by and in the name of “ Rachel Johnson, guardian of the said Elizabeth, Rhoda Ann, Mary Jane, and Margaret Johnson,” whereas the same should have been taken, filed and entered in the names of the said minors by their said guardian. 2d. for that it did not and doth not appear in and by said exceptions, that the said Elizabeth, Rhoda Ann? Mary Jane and Margaret Johnson, and Rachel Johnson their said guardian, any or either of them, had any interest or right to file the exceptions to the said administration accounts, either as creditors of the said William Johnson deceased, as children, legatees or heirs at law of said deceased, or otherwise entitled to any distributive share or portion of his personal estate; without which, or some other interest in the same appearing in and upon said exceptions, the party has no right to the appeal, and the same ought to be dismissed. But the Orphans’ Court refused the motion ; deciding that the guardian could except in form aforesaid, and that the exceptions were right and proper in form and substance. And the court proceeded to hear and decree in the cause; upon which an appeal was taken to the Superior Court.</p> <p>A guardian cannot bring suit in his own name; the suit must be in the name of the ward. 1 Chitty Pr. 292; 2 ibid 42; 3 Bac. Ah. <316; 2 Saund. Rep. 117. Has this law been altered by our act of assembly? Digest, 424. “The guardian shall be admitted to sue or defend for his ward,” which is the same thing as saying, according to the rule of pleading before practised, that the minor may except by his guardian.</p> <p>2d. To entitle a party to appeal from an administration account his interest must appear and be shown by the record. Who are entitled to except? Const., Art. 6, Sec. 21. “Exceptions may be made by persons concerned.” The concern or interest, therefore, must appear on the record. It is traversable, ought to be both alledged and proved, and unless it appears the court has no jurisdiction to try the exceptions.</p> <p>The Orphans’ Court, in jurisdiction and practice, is the creature of statute law. Dig. 126. It has power to make rules of practice, and all rules necessary for the bringing forward and expediting causes. And in fact it is known that its rules of practice are not technical, and do not profess to follow the rules of the common law practice. For instance, proof of limitation may'be made without pleading the statute. Have these exceptions then been properly brought forward according to the rules and practice of the Orphans’ Court? That court has so determined by receiving and acting on them. But again, the form of proceeding is strictly correct, being authorized by the express terms of the act of assembly. It defines the powers of a guardian, authorizes him to sue for his ward, and distinguishes, in this respect, between guardian and prochein amy.</p> <p>On the other point, the constitution secures the right to appeal or except to all persons concerned, not merely privies in interest ejther of blood or estate, but to any one any way concerned. This interest or concern is susceptible of proof at the hearing of the exceptions, and must necessarily have been proved or the appeal would have been dismissed. It was not necessary that it should be stated; if proved, it was sufficient. As to the interest or concern of the guardian, he is concerned for his ward, for he has the custody and care of his person and estate. He is, therefore, a proper party to except to accounts in which the ward is interested.</p>

Scire Facias on a recognizance in the Orphans’ Court, on the acceptance of lands. Sheriff returned “ summoned Barkley Townsend the defendant, and Michael Stewart and Robert Houston terre-tenants.” At the appearance term Mr. Ridgely marked his appearance generally and pleaded payment, on which issue was taken and the cause set down for trial at this term.

Record. William Russel vs. Elisha Carey. Amicable action before Matthew Rench, Esq. The parties went voluntarily before the justice, and agreed in writing to refer all matters in variance between them to two referees chosen by themselves, who were sworn, arid made report in favor of the plaintiff for $25 75, on which the magistrate entered judgment for that amount with costs. The exception was, that justices of the peace have no jurisdiction to try amicable actions.

<p>Action of waste. Nan. Pleas, nullum vastatum, and the act of limitation. Issues.</p> <p>View granted on motion of plaintiff’s attorney.</p> <p>The nan. set out that Woolsey Waples, father of plaintiffs and defendant, died seised of a tract of land in Sussex county, which descended under the intestate laws of this state to plaintiffs and defendant, his children, in coparcenary; and that defendant committed waste on said land by cutting and selling trees, &c.,to the disinheriting of the plaintiffs. It was as follows:</p> <p>“ Sussex cornty, ss., October Term, A. D. 1836.</p> <p>“ And thereupon the said Burton W. Waples, James W. Waples, and Elizabeth H. Waples, by Charles G. Ridgely, their attorney, and the said Ann W. Waples and Louisa E. Waples, by Ann W. Waples, who is admitted by the court here to prosecute for the said Ann W. and Louisa E., who are infants within the age of twenty-one years, as the next friend of the said Ann W. and Louisa E., complain that, whereas, heretofore to wit, on the 24th day of April, A. D. 1828, at Sussex county aforesaid, the said Woolsey Waples, the father, being seised in his demesne as of fee of, in and to, divers tracts, pieces or parcels of lands, tenements, hereditaments and premises, with their appurtenances, situate, lying and being in Sussex county aforesaid, he, the said Woolsey Waples, the father, afterwards, to wit, on the 25th day of April, in the year last aforesaid, at Sussex county aforesaid, died, so as aforesaid, seised of, in and to, the said lands, tenements, hereditaments, and premises, with their appurtenances as aforesaid, intestate; after whose death the said lands, tenements, hereditaments and premises, with their appurtenances, then and there descended and came to the said Burton W., James W., Elizabeth H., Ann W., Louisa E., and the said David H., and a certain Charles K. Waples, as children of the said Woolsey Waples, deceased, in fee simple, in coparcenary; and thereby they, the said Burton W., James W., Elizabeth H., Ann W., Louisa E., David H., and Charles K., then and there became and wére seised of the said lands, tenements, hereditaments and premises, with their appurtenances, in fee simple in coparcenary: and whereas, afterwards, to wit, on the 26th day of April, in the year last aforesaid, at Sussex county aforesaid, the said Charles K. Waples, being so seised as parcener as aforesaid, of his undivided share of the said lands, tenements, hereditaments and premises, with their appurtenances, to wit, of the one undivided seventh part thereof, afterwards, to wit, on the day and year last aforesaid, at Sussex county aforesaid, died, so seised as aforesaid, intestate, leaving to survive him no child, nor lawful issue of any child, whereupon and whereby, and by force of the statute in such case made and provided, the proper share of him, the said Charles K., to wit, the one undivided seventh part of the said lands, tenements, hereditaments and premises, with the appurtenances, descended and came to the said Burton W., James W., Elizabeth H., Ann W., Louisa E., and David H.,-in fee simple, in coparcenary ; they, the said Burton W., James W., Elizabeth H., Ann W., Louisa E., and David H., being the brothers and sisters of the said Charles K., of the whole blood; and thereby they, the said Burton W., James W., Elizabeth H., Ann W., Louisa E., and David H., then and there became and were seised of the said lands, tenements, hereditaments and premises, with their appurtenances, in fee simple, in coparcenary: and the said Burton W., James W., Elizabeth EL, Ann W.. Louisa E., and David H., being so seised as aforesaid of the said lands, tenements, hereditaments and premises, with the appurtenances, situate, lying and being as aforesaid, in Sussex county aforesaid, he, the said David EL, did make waste, sale and destruction, in the said lands and premises, with their appurtenances, that is to say, by felling, cutting down, prostrating, selling and burning, and causing and procuring to be felled, cut down, prostrated, sold and burnt, one thousand oaks, each of them of the price of two dollars; one thousand other oaks, each of them of the price of one dollar and fifty cents; one thousand hickories, each of them of the price of two dollars; one thousand other hickories, each of them of the price of one dollar and fifty cents; one thousand gums, each of them of the price of fifty cents; one thousand maples, each of them of the price of one dollar; one thousand ashes, each of them of the price of one dollar; one thousand chesnuts, each of them of the price of three dollars; one thousand pines, each of them of the price of five dollars; one thousand other pines, each of them of the price of two dollars; one thousand other pines, each of them of the price of one dollar; one thousand walnuts, each of them of the price of three dollars, and one thousand cedars, each of them of the price of fifty cents; in a certain tract of woodland, parcel of the said premises, and lately growing promiscuously, here and there, within the limits of the said woodland, to the disinheriting of the said Burton W., James W., Elizabeth H., Ann .W., and Louisa E., and against the form of the statute in such case made and provided. Wherefore the said Burton W., James W.s and Elizabeth H.; and the said Ann W. Wapies, who sues as aforesaid for the said Ann W. and Louisa E., say that they, the said Burton W., James W., Elizabeth H., Ann W., and Louisa E., are injured, and have damage to the value of five thousand dollars, and therefore they bring suit. &c.”</p> <p>It appeared in the course of the evidence, that a part of the land opon which waste had been committed, was sold by the sheriff of Sussex county for the payment of Woolsey Wapies’ debts, after the cutting but before this action brought. Testimony as to this waste was objected to and ruled out by the court on the ground that the inheritance not being in plaintiffs they could not recover for waste as to that land. Coke Litt. 53, b. “ No person shall have an action of wast unlesse he bath the immediate state of inheritance.” Bac. Abridgt., Waste I Digest. 167.</p> <p>The defendant offered to prove that some of the trees cut were used for rail timber on the farm; and it was objected that under the plea of “ no waste,” he could not justify a cutting for necessary repairs of fences, for firewood, &c.</p> <p>insisted that it was proper evidence in an action between coparceners or tenants in common; though not by reversioner against particular tenant. 3 Term Rep. 145.</p> <p>A coparcener is a part owner, and has the right to take not only reasonable fire and fence bote, but is entitled to cut ripe trees for repairs, building or any other purpose proper for an owner of the land. If a tenant in common misuse this privilege, he is liable to an action for damages. The use, therefore, _ of the timber cut is material, to determine whether the waste is committed, and such being the rights of coparceners, this enters materially into the general issue, and is evidence under the general issue, without being specially pleaded.</p> <p>The authority cited from 1 erm Reports is an action on the case in the nature of waste, and cannot apply to this statutory action of waste. That is a common law action; the plea is, not guilty, and damages only can be recovered. 5 Com. Dig. 816, Pleader, (3 O. 7.) “ No waste” is no plea for justification or excuse. The excuse of repairs of fences, &c., is a justification or excuse and must be pleaded.</p> <p>Court. — You may go on and show the quality of the timber cut — ■ if it was ripe and fit to be cut; and our inclination is, that the cutting such timber, if for the advantage, or not to the disadvantage, of the estate would not be waste. If also a coparcener cut timber for necessary repairs, it is an excuse or justification; but he must plead it on the record to give the other party notice of his defence. As to what trees are fit to be cut, it can only be judged of by reference to the allegation in all actions of waste, that the cutting is to the disinherison of the heir. If the trees are thrifty and such as would improve, or remain to the benefit of the heir, it may be waste to cut them ; if they are ripe or decaying, it may be otherwise. Bull. N. P. 120.</p> <p>It was now objected that plaintiff could not prove that these were timber trees, as he had no where alledged in his narr. that timber trees were cut.</p> <p>The Court said the allegation was, that trees were cut to the disinherison of the heir; any thing which goes to prove this is evidence; and in proving it, plaintiff must prove the quality of the trees cut, whether thrifty, growing and sound timber, or old and decayed trees.</p> <p>Evidence admitted.</p>

<p>On an application to continue a cause for the absence of a material witness, if injustice be likely to result from the delay, the court will require the party to disclose what he expects to prove hy the absent witness, in order that the other party may admit it if he choose.</p>

<p>Certiorari to Justice Harper.</p> <p>The first exception to the l’ecord in this case was, “ that no warrant or summons was issued and served on the said Stringer L. Tinley according to the act of assembly in such case made and provided.”</p> <p>The summons was in proper form, and concluded as usual, “ witness the hand and seal of the said justice,” &c., but the seal was omitted after the justice’s name. This error ivas pointed out; but</p>

Record. “Justus Lowery, collector of school district, No. 44, Kent county, vs. James Cullen. Summons on account of taxes. Sum demanded, $3 51. Summons issued to C. W., constable, 24th February, 1837, returnable 4thMarch, 1837.” Appearance; and, after several adjournments, trial; and judgment for plaintiff for $3 51, and $2 26 costs; 18th March, 1837. Exceptions.

<p>If after notice by a tenant of his intention to quit, he continue in possession beyond his term, he forfeits double rent; but any subsequent contract by which the tenancy is extended, is a waiver of the forfeiture.</p> <p>A tenancy without limitation as to time is a tenancy for a year, and the tenant is liable for a year’s rent though he remains in possession only part of the year.</p> <p>The plea of tender will not save the defendant from costs if the sum tendered be not the full amount recovered, however small the deficiency.</p>

<p>On a certiorari to a judgment by default founded on a return of served by leaving a copy at the defendant's place of abode, the court permitted proof to be given that the defendant did not reside in the state.</p>

Case on the statute for not satisfying a judgment. {Dig. 485.) At the May term, 1833, the defendant recovered a verdict and judgment against the plaintiff and others in an action of trespass. (1 Harr.

<p>Motion for a continuance.</p> <p>The defendant made affidavit of the absence of a material witness in the State of Maryland, and another in Pennsylvania, both of whom he expected to be here at this time. He knew of their residence out of the jurisdiction of the court.</p> <p>suggested that it would be very inconvenient in practice to require commissions in all cases to be taken out in time for depositions at the first trial term. The parties seldom know what course to take as to absent witnesses, and it is not usual for them to see counsel as to the preparation of causes until after the publication of the trial list.</p> <p>The issue in this case was not joined until the third rule day, (1st of October,) and this is the first trial term.</p>

<p>Foreign attachment. Case.</p> <p>Returned attachment laid in the hands of James Canby, Esq., President of the Wilmington and Susquehanna Rail Road Company. Rule to show cause why the service of the attachment on James Canby, Esq., President of the Wilmington and Susquehanna Rail Road Company, should not be set aside, and the attachment dissolved.</p> <p>contended that the corporation was not liable to be summoned as a garnishee. The president has no authority to admit a debt due from it. He cannot bind the company by such admission; nor can he be compelled to swear. He is not indeed, supposed to know their liabilities, and has not in fact in his custody the effects of their creditors. And if the president refuses to answer, whom would the court attach ? I dont doubt but that a corporation might be made liable under proper legislative provisions, pointing out what officer or person should for this purpose represent the corporation: but how is it to be done in the absence of such provisions.</p> <p>Whatever acts a corporation may do for its own benefit, a court of law, as well as a court of equity, will compel it to do as to others. Courts regard corporations in many respects as individuals. A corporation may prove a debt under a commission of bankruptcy, by the oath of a person authorized under seal. 1 Swanston, 10.</p> <p>The objection is, that a corporation cannot make an oath. Now, if they can make an oath for their benefit, why should not they be compelled to swear to charge themselves when a third person is interested. Why should they have the benefit of an individual, and not be subject to the same liabilities? And if the company will not provide an officer to do this duty, with power to charge them, the court will direct what officer shall be sworn. The court will compel the officers of a company to make a discovery to a bill in chancery. 1 Pern. 117; 3 P. Wms. 310. Sooner than suffer the ends of justice to be defeated by the refusal of this company to appoint an officer who may answer what it owes to these defendants, the court will direct what officer shall make the answer.</p>

<p>The remedy under section 20 of the attachment law, though given in terms to the inhabitants of this government, extends to citizens of other statos.</p> <p>Quere. Whether the order for further security provided by that section is not unconstitutional.</p>

<p>Action on the case for a libel. Pleas, not guilty and justification. The narr. laid, with different inuendoes, the following paper, which was proved to have been posted by the defendant at the market house in Wilmington.</p> <p>“ The public are hereby cautioned against receiving from Washington Rice, or John Agnes, a black man, any papers relating to my business, as sundry papers hath been purloined from my store and fell into the hands of the said W. Rice, who hath endeavored to put some of them in claim against me, viz: bills and receipts for grain I had bought and paid for, which was returned to me by the holders when their crop was delivered and’I paid for it.</p> <p>July 22, 183(5. - (Signed,) George Simmons.”</p> <p>The question whether this amounted to a libel was much debated at the bar, and was reserved, on the application of the plaintiff’s counsel, for hearing in the Court of Appeals. (See post, June Term, 1838.)</p> <p>In this argument the plaintiff’s counsel contended that a libel was not merely such a publication as tended to bring a man into public hatred, contempt or ridicule; but that any paper published of another which is calculated to lower him in the estimation of his fellow-men, is a libel. And they cited Johns. Dig. 305; Swift’s Dig. 488; 2 Selw. JV. P. 239, n; 3 Johns. Rep. 56; 4 Mass, Rep. 168 ; CrosireWs Case, Hamilton’s definition, 4 Eloq. U. S.; 2 Saund. PI. 4" Ev. 325; 4 Esp. JV. P. Cases, 191, Delany vs. Jones-, 3 Eng. Com. Law Rep. 353, Brown vs. Croome, (questions Delany vs. Jones;) 7 Com. Law Rep. 220; 14 Ibid, 245; lb. 491. And as to damages, 3 Johns. Rep. 66; 2 Wils. 206; 3 Wils. 18; 1 Harr. 333; Tatlow vs. Jaquett, Ibid. 3, 503.</p> <p>For the defendant it was said, that though the tendency of a publication might be to injure another, it was not libellous unless malicious ; nor if made oii a proper occasion, with a view to protect the publisher against loss; that the damages were merely compensatory; and that the court must determine, and not the jury, whether the publication is a libel. 2 Selw. JV. P. 241; Chitty’s Geni. Prac. 43, 44; 4 Taunt. 354, 1horley vs. Lord Kerry; 3 Wils. 186; 1 Price Exch. Rep. 10, 11; 4 Esp. JV. P. 191, Delany vs. Jones; 1 Campb. Rep. 207,</p> <p>The case went on before the jury.</p> <p>A witness was called by the defendant to prove his declarations at the time of writing and publishing the alledged libel; and this was objected to because it would be permitting the party to make evidence for himself. To this it was answered, that these declarations were admissible to show the quo animo, which is the test of the action. They are admissible also as apart of the res gestee. The bills and receipts alluded to in the publication had been lost. The defendant had been informed that they were in the hands of Rice, placed there by Agnew. They were evidences of debt which he had discharged and taken up, and he had a right to caution the public against taking them. Under these circumstances the question is, with what motive did he make the publication, and his declarations at the time are eonnnected with it, and go to show the quo animo.</p> <p>Per Curiam. — It is to be remarked, first, that the paper relied on as a libel is to be controlled by the circumstances around it. The force of the terms used may be explained by the attending circumstances which show the imputations meant to be conveyed by it, and the quo animo with which it was published. We have already admitted the declarations of the defendant against him for this purpose, and, on this ground, as well as a part of the transaction itself, they are evidence for him. If made under suspicious circumstances, or manufactured for the occasion, they will have no weight with the jury. 1 Stark. Ev.301; 2 Ibid. 462; 5 Term Rep. 512; 2 Stark. Ev. 740.</p> <p>Evidence admitted.</p> <p>cited 14 Johns. Rep. 112, Ruggles vs. Hall; 3 Taunt. 484; 7 Johns. Rep. 306; Tidd’s Pr. 814; 1 Price Rep. 201; 2 Anstr. 517.</p> <p>cited 2 Tidd’s Pr. 816; 2 JVew York Dig.; 7 Mod. 156; and insisted that both the materiality of the witness, and the fact that the party was surprised by his absence, ought to be presented b.y affidavit. That the court could not notice the facts now stated by the witness whilst purging himself of the contempt, to make out this application for a new trial.</p>

Record. Debt, demand $47 50. Summons issued March 1st to 11th, 1837, Saturday.

Record. William Rowan & Co. vs. Joseph Roberts, Esq. Summons issued I5th of June, 1836, returnable June 21st, 1836. Cause of action. For bill of store goods, (stating items,) $13 60. Summons returned “ served.personally,” and service proved.

Record. William Boyd vs. Wilmington and Kennet Turnpike Company. Proceeding under sec. 14 of the charter of this company (4 Del. Laws,' 362) for neglecting to keep the road in good order and repair. Complaint made in writing and on oath.

<p>Nark, in assumpsit. Application to amend the pleadings.</p> <p>The plaintiff sued and declared in the above name; defendant appeared and pleaded to the suit. Issue was joined, and the case set down for trial.</p> <p>now moved to amend the narr. by substituting Wolf Benjamin for William Benjamin, and thus make the suit stand Hannah Benjamin, executrix of Wolf Benjamin vs. Andrew Boyce.</p> <p>The amendment was resisted. It was said by Mr. Bayard, as amicus curies, that chief justice Taney, in the last circuit court for the Delaware district, had decided that this was not a cause of non-suit, but the objection could only be taken on a plea in abatement. The case he referred to was SheireU Sy Shewed vs. McCabe. See Saund. PI. ¿y Ev. Abatement, Misnomer; 2 Brod. Sy Bingh. 34; 6 Serj. ¿y Lowb. 9 ; 10 Mass. Rep. 252 ; 1 Chitty Plead. 440.</p>

Amicable action entered into in vacation and referred by agreement of parties. On motion of Mr. Rogers, of counsel for the heirs at law of Samuel Carlisle, and affidavit filed, rule to show cause why the report should not be set aside, the reference stricken out, and the party let into a trial at bar.

<p>Plea of nvlla Iona. Attachment laid 5th March, 1836. Plea pleaded 30th May, 1836-.</p> <p>To establish the indebtedness of the garnishee to Temple, the book of original entries was produced and Temple called to prove it.</p> <p>objected; and raised the question whether, in an action against a garnishee, the defendant in the original judgment can prove his books in the same manner as if he were a party.</p> <p>The act of assembly (Digest 89) introduces a new rule of evidence. It goes beyond the common law; but it does not come up to this case. It furnishes a rule of evidence only for the party to the suit. It declares that, as- to articles properly chargeable in an account, “ the oath or affirmation of the plaintiff, together with a book regularly and fairly kept, shall be allowed in all cases to be given in evidence, in. order to charge the defendant.” The act, therefore, does not extend to a case where- the person offered to prove books is not a party. And there is reason why it should not. If Temple was a party here and proved this book of account, we might read his letters in evidence to contradict him;. but not being a party he may here prove his books without making such letters evidence.</p>

Ejectment. James Glenn died seised of the land in question, in November 1796, leaving to survive him a wife and four children, to wit: Mary, William, John and Sarah, to whom the lands descended. Mary Glenn married Jesse Devou and had issue two children ,to wit: Louisa, who married Luke Townsend; and Mary; the lessors of the plaintiff. Mary Glenn, the wife of Jesse Devou, died in 1805.

<p>Verdict set aside on the motion of plaintiff, because the defendant conversed with the jurors after they were sworn; the conversation being unexplained, and the verdict being against the evidence.</p>

The first suit stood on a return of “ cepi corpus and bail bond.” The second was an action of debt on the bail bond. The action against Camp was an action on the case in which Barker became his 16 appearance bail,” or bail to the sheriff.

Capias case. Rule to show cause “ why the defendant should not be discharged on common bail.” Read’s administrator filed an affidavit, “ that John Randel, Jr., is justly and truly indebted to this deponent as administrator as aforesaid, as this deponent verily believes, in the sum of twenty-two thousand six hundred and eighty-eight dollars and fifty-nine cents, for professional services rendered and done by the said George Read, Jr., in his life time, for the said John…

<p>Dower is a right under our acts of assembly and not at common law.</p> <p>Dower may be assigned in one tract for the whole.</p> <p>In genera], this is the mode of assignment in cases of intestacy and against the heir.</p> <p>In general, dower is to be assigned in the separate parcels, as against devisees or purchasers fiom the husband.</p> <p>An assignment against a devisee wholly in the tract devised sustained against a purchaser with notice, the devisee not objecting.</p>

Capias case. Narr. in trover for a negro boy, Jerry. Pleas, not guilty; and the act of limitation. Robert Hopkins, by his will in 1807, bequeathed the mother of this slave to his daughter, Nancy Short, wife of Wingate Short, for life ; and to her daughters, Betsy and Sally, after her death. Joshua Phillips married Betsy, one of these daughters; and Colonel Waples was the assignee of James Truitt, who married Sally, the other daughter.

<p>Debt on a constable’s bond. Narr. Oyer. Plea, “ performance.” Replication suggesting breaches. The breach assigned was, that defendant refused to pay the proceeds of goods sold by him to plaintiff’s execution, which had a prior lien.</p> <p>The plaintiff, after proving his judgment, offered the original levy and inventory without producing the execution. Thé judgment docket stated that an execution had issued.</p>

<p>Ibtdeb. assumpsit. Narr. Pleas. Issues. Trial and verdict for plaintiff.</p> <p>moved that the court disallow to the plaintiff the costs of six witnesses, summoned by him and not sworn.</p> <p>objected.</p>

The record showed that this action was on a book account, a copy of which, as well as of the defendant’s account against plaintiff, was sent up. The defendant not appearing, the justice gave judgment against him by default. He afterwards appeared and claimed a new trial by referees, which was granted, and the trial had.

<p>Capias case. Narr. Pleas. Issue.</p> <p>moved a continuance of the cause, on the ground that it was an action on a book account, embracing several years’ dealings, and that it was necessary for defendant to have a bill of particulars to prepare for his defence ; that he had applied to plaintiffs for such bill of particulars, on the first day of this term (a week now past,) and it had not yet been delivered. This was the first trial term. The motion was resisted, on the ground that the application for the bill of particulars was too late, and the account was so long that the plaintiffs had not had time to furnish it. They now tendered a copy of the account.</p>

<p>Debt on a constable’s bond.</p>

<p>Neither an administrator nor a debtor of the estate can be garnisheed; because it disturbs the proper administration of the estate.</p>

Indeb. assumpsit for money had and received to plaintiff’s use. Plea, general issue. The action was brought to recover from defendant money received under the following circumstances : The lands of William Richards were bound by two judgments, one at the suit of William Rose, which was the elder judgment, and the other at the suit of the defendants.

<p>Continuances are in the discretion of the court, and will not be granted to the prejudice of the other party, unless due diligence has been used.</p> <p>On issues from chancery, rules to lay down pretensions may be moved for there, or taken in the Superior Court, in vacation.</p>

<p>It is the practice to admit sworn copies of book entries where plaintiff resides out of the state, instead of the books themselves.</p> <p>If either party intend to require production of the books, he should give notice to the other.</p>

<p>It seems that the usual acknowledgement in deeds of the receipt of the consideration, may be contradicted by parol in an action for the purchase money.</p> <p>Adjudged that the written admissions, of the grantee that the purchase money had not been paid could be given in evidence, though the deed contained an acknowledgment of the grantor to the contrary.</p> <p>A distributive share of an intestate’s estate may be recovered in general indebitatus assumpsit.</p> <p>In an action against an administrator it is not necessary under the general issue for plaintiff to prove the grant of letters.</p>

<p>Certiorari to Justice Windsor.</p> <p>Record. Judgment and execution. Jeremiah F. Kinney vs. John B. Adams. Execution returned served on John Short as garnishee, and plaintiff refuses to take the answer of the garnishee. “ And now to wit, 5th of January, 1838, the parties appeared and plaintiff puts defendant to plead and refers the case to referees, who report no cause of action.” And judgment on this report. Plaintiff claims a new trial, and the case is again referred to referees who reported as follows: “We, the referees, being summoned and sworn to adjust and settle all matters in dispute between Jeremiah F. Kinney, plaintiff, and John Short, garnishee of John B. Adams, defendant, and after hearing the proofs and allegations on both sides, do report and say, that the defendant is justly due the plaintiff the sum of eleven dollars and seventy three cents. As witness our hands,” &c. Judgment for $1173 debt, and $19 costs, 2d March, 1838. “March 10th, 1838, defendant files affidavit stating unfairness in trial or illegal evidence taken, and prays a rule for said plaintiff to show cause why the report and judgment should not be set aside.” Rule made and plaintiff notified, the case being ruled for trial on Friday, the 16th inst. Continued on the application of plaintiff until the 24th, when “ the parties appear, and after hearing the parties, their proofs, &c., submitted upon the trial, it is considered and adjudged, that the report of the referees be confirmed, and that plaintiff in this action pay costs.”</p> <p>The exceptions were, as to the second trial, that it was had by referees without the same being asked for by either party, and with, out notice to the defendant: and that it did not appear by any certificate of the justice that the referees were sworn. 2d, That the subsequent proceedings were illegal.</p>

<p>Certiorari to Justice Hammersley,</p> <p>Record. Watson, administrator of Markley vs. Lockwood, Summons on account. Demand, $26, Appearance; trial by re^ ferees, “ who, being sworn and affirmed, after.hearing the proofs and allegations of the parties, do report in favor of the plaintiffin the sum of twenty-six dollars, Judgment rendered in favor of plaintiff for the above $26, and cost of suit.” The record then set out a copy of the summons, and of the execution process, with this certificate : “ I do hereby certify the above to be a true copy of the warrant, and also of the execution issued by me in the above case. As witness my hand and seal this 19th day of October, 1837,</p> <p>(Signed,) Thomas R. Hammersley.”</p> <p>The exception was, that the report of the referees was not sent up; and for this cause;</p> <p>The Court, of their own motion, directed a further return, though this was the second term. The certificate does not show that a full copy of all the record and proceedings has been sent up; if it did, we would not now allow diminution to be alledged. But it may be, consistently with the certificate, that there was a written report by the referees; we, therefore, do not contradict the return by ordering, as we do, a further return upon causes of diminution, which both parties have leave to suggest.</p> <p>Diminution was alledged in behalf of the defendant in error, and a.further return sent up, corresponding with the first return in all particulars except the certificate, which verified it as a “full and true copy of the entire record and proceedings,”</p> <p>To this record the following causes of error were assigned:</p> <p>1st. That it does not appear that the referees were sworn or affirmed according to law.</p> <p>2d. Nor that they heard the proofs and allegations of the parties.</p> <p>3d. Because the referees did not make a report and return the same to the justice as required by law.</p>

<p>Payments by an executor or administrator towards a judgment recovered against the decedent, and existing as a lien at the time of his death, will prevent the prosump, tion of payment arising from lapse of time.</p> <p>Lands bound by judgment against the decedent, are bound in the hands of the heir or devisee by a judgment on a sci.fa. against the executor or administrator.</p> <p>And there is no necessity of making the heir, devisee or terre tenant, a party in such sci. fa.</p>

<p>Action on the statute for not entering satisfaction on a judgment. Narr. Demurrer.</p> <p>November Term, 1837.</p> <p> New Castle County, ss. </p> <p>George Rhodes was attached to answer William Silver, of a plea of trespass on the case. And thereupon, the said William Silver, by George B. Rodney his attorney complains, for that whereas, the said George Rhodes heretofore, to wit: on the day of in the year of our Lord, one thousand eight hundred and thirty-one, at New Castle county, caused and procured to be sued and prosecuted out of the Court of Common Pleas of the State of Delaware, in and for New Castle county, a certain writ of capias ad respondendum, number 76 of the December term of the said court, in the year aforesaid, at the suit of the said George Rhodes, against the said William Silver and John L. Deputy, Samuel Laws, William Jami-son and Jeffry Hull; and afterwards, to wit: on the thirteenth day of May, A. D. 1833, at New Castle county aforesaid, by the confession of the said William Silver, one of the said defendants, he the said George Rhodes did take and recover against the said William Silver in that suit, a judgment for the sum of one hundred dollars with costs. And whereas, afterwards, the said George Rhodes did cause a writ of scire facias to be issued, to wit: at New Castle county aforesaid, upon the judgment so as aforesaid obtained against the said William Silver, the said writ being numbered 175, to the November term of the said Superior Court, in the year 1835, upon which said suit the said George Rhodes did recover judgment on the sixteenth day of May, 1836. And the said William Silver, in fact says, that he the said George Rhodes, after the recovery of the said judgment for one hundred dollars with costs, and the judgment obtained on the said scire facias, to wit: on the thirteenth day of August, in the year 1836, at New Castle county aforesaid, received satisfaction of the sum due to him the said George Rhodes, on the said judgment so as aforesaid obtained against the said William Silver, for one hundred dollars with costs, and also for the sum due to him on the said judgment obtained in the said scire facias. And although it was the duty of the said George Rhodes, within sixty days after such satisfaction received as aforesaid, to have caused such satisfaction to be entered upon the record of the said judgment so as aforesaid obtained against the said William Silver for “one hundred dollars with costs,” according to the force and form of the statute in such case made and provided: nevertheless, the said George Rhodes, not regarding the said statute in such case made and provided, nor his duty in that behalf, but contriving and wrongfully intending unjustly to aggrieve and oppress the said William Silver in this behalf, contrary to the statute aforesaid and the laws of the land, did not, within sixty days after satisfaction received as aforesaid on the judgment last aforesaid, cause satisfaction to be entered upon the record of the said judgment; but altogether neglected and refused so to do, and still doth neglect and refuse ; by means whereof the said William Silver hath been seriously injured in his credit, and otherwise very much prejudiced and oppressed; to the damage of the said William Silver; of one hundred dollars; and therefore he brings suit.</p> <p>Demurrer.</p> <p>And the said George Rhodes, by J. Rogers, his attorney, comes and defends the wrong and injury when, &c., and says that the said declaration and the matters therein contained, in manner and form as the same are above stated and- set forth, are not sufficient in law for the said William Silver to have or maintain his aforesaid action against the said George Rhodes and that he the said George Rhodes ; is not bound by the law of the land to answer the same; and this he is ready to verify. Wherefore, for want of a sufficient declaration in this behalf, the said George Rhodes prays judgment, and that the said William Silver may be barred from having or maintaining his aforesaid action against him, &c. And the said George Rhodes, according to the form of the statute in such case made and provided, states and shows to the court here the following causes of demurrer to the said declaration; that is to say : that no day or time is alledged in the said declaration at which the said writ of capias ad respondendum is supposed to have been issued ; that no judgment for costs is set out, nor is the amount of said costs specified ; that no judgment in the said writ of scire facias is set forth, nor is there any allegation of the nature of the said judgment; that it does noi appear by which of the judgments mentioned in the said declaration the sum therein stated was due; that it is not distinctly alledged which of the said judgments was actually satisfied; that the breach of the said decíaration does not declare as to which of the said judgments satisfaction was not entered on the record ; that it is not alledged that the said George Rhodes received satisfaction without any writ of execution having been issued; and that the said declaration is in other respects uncertain, informal and insufficient.</p> <p>The party plaintiff is bound to show by his narr. that he comes within the provisions of the statute: that the defendant is liable to its penalty. (Digest, 485.) The act makes it obligatory on a person receiving satisfaction of a judgment, to enter satisfaction on the re» cord ; but it provides that the penalty shall not attach or apply to a case where the money is received on execution process. It is not enough, therefore, that the defendant i-eceived satisfaction of his judgment against the plaintiff to make him liable to this action, but he must have received it otherwise than on execution process. And although the rule is generally against averring a negative, it is universal, that where an exception is contained in the act or clause giving a penalty, it must be negatived. (Dwarris on Stat. 666; 1 Term. Rep. 144.)</p> <p>The act is general in its terms. Wherever a person to whom a sum of money is due by judgment receives payment, he shall enter satisfaction of such judgment on the record : then follows the proviso excluding from the operation and penalty of the act, the case of a payment on execution process; which, whether it be a qualification, exception or restriction of the general application of the enacting clause, must be negatived, and the defendant shown not to be sheltered under it; otherwise the plaintiff has not made out his case. The allegation is, that satisfaction was received; but satisfaction might have been received through the sheriff; and, if so, the plaintiff is not entitled to the penalty. Must not he negative the exception!</p> <p>On the special grounds. The narr. sets out two judgments, and it is difficult to say which of them it is complained that the defendant did not satisfy. The confusion in the manner of stating these judgments will vitiate. Even if the averments would apply to both judgments, it may be that they are distinct; and a failure to satisfy both would create distinct causes of action.</p> <p>The judgment on the scire facias is not set forth so as to show what kind of a judgment it was; and the original judgment is badly pleaded for uncertainty as to the costs. The original writ is badly pleaded without showing its date.</p> <p>The writ is well described by its number and term.</p> <p>The allegation of the original judgment is precisely in the words of that judgment, for one hundred dollars and costs.</p> <p>It was not necessary to set out any judgment on the scire facias. The original judgment was the one by which the money was recovered and due; and that was the judgment to be satisfied.</p> <p>As to the general demurrer. This is not a proviso or exception to the enacting clause; but a limitation. The act does not extend to the case of money paid in a particular way. If the recovery is on execution process, it is beyond the range of the statute ; but this is matter of defence and need not be stated and denied in the plaintiff’s pleading. “ The case shall not be within this sectionthat is, the law is limited and restricted so as not to extend to or cover this case. (8 Term. Rep. 294.)</p>

<p>Issue from the register for the probate of wills, and granting letters of administration in and for New Castle county, to try the question, “ whether the paper writing purporting to be the last will and testament of John L. Morris, deceased, is or is not the last will and testament of the said John L. Morris, deceased.”</p> <p>Trial before Harrington and Layton, justices, and a special jury. The chief justice did not sit, having been of counsel. (And he did not sit again this term, on account of indisposition.)</p> <p>The executor propounded the will, and proved the factum.</p> <p>The will bore date 8th November, 1836. By it the testator devised one-half his real estate, or its proceeds, to his sister, Mrs. Duffield, and the other half to his cousin John Lewden Robeson, in fee; and all his personal property, (except specific legacies,) and an annuity of $200, for five years, out of his land to his aunt, Elizabeth L. Kean. He directed the immediate payment of all his debts, and authorized the executors to sell his real estate. He also directed that his body should be buried in an erect posture, at a particular place on a rising ground in one of his fields, with his face looking to the south; and he desired that no external marks of mourning for his death should be worn by any of his relatives, and that but few persons, to be selected by his executors in and about Newport, should attend his interment.</p> <p>The subscribing witnesses testified strongly to the sanity of Doctor Morris. They had never heard a doubt expressed with regard to the soundness of his mind until after his death. He had been intemperate whilst living at Newport, but had recently removed to Wilmington ; lived in J. L. Robeson’s family, and had reformed. J. L. Robeson was the cousin of Doctor Morris, and Robeson’s father was Morris’s guardian. Mrs. Kean was his aunt, and raised him. Mrs. Duffield was an. only sister, and resided out of this state. Doctor Morris had a strong affection for all of these relatives.</p> <p>On the 7th November, 1836, Doct. Morris came to Mr. Thompson’s store in company with J. L. Robeson, and executed a will. It was in Robeson’s hand-writing. On this account, and because of some informality in the draft, Mr. Thompson advised Doct. Morris to take it to a scrivener and have it put in better form. He did so. Robeson was not present, either at the execution, or when this advice was given. About 11 o’clock, A. M., of the 8th, Doct. Morris again returned with the will copied by a scrivener; said he had got it all right now, and executed it in due form. The next morning he committed suicide in the most deliberate manner. The will was found in his bureau with directions not to be opened until Doctor Duffield arrived. There was also a memorandum in his own handwriting, without date, referring to his “ expected dissolution,” and giving certain directions.</p> <p>The will was oppposed on the ground of insanity and weakness of mind, arising from habits of intemperance ; and also, on the ground of improper influence exercised over the testator by some of the devisees.</p> <p>A great many witnesses for the caveator proved acts of extravagant and unreasonable conduct on the part of Doctor Morris at sundry times; excessive intemperance, irritability, habits of seclusion from society, anxiety of mind, melancholy and great despondency of spirits. These were occasional and not uniform; but they were so frequent or so violent that many of the witnesses believed him to be u out of his right mind” for several years before his death; others, that he was absolutely insane.</p> <p>On the other hand, many witnesses of equal respectability, who had been in constant habits of intimacy with Doct. Morris up to the day of his death, had never suspected or heard it intimated that he was not of sound mind; and testified moreover to a considerable degree of shrewdness and intelligence in the management of his affairs. He was for several years intemperate, and lived in a secluded manner at his farm near Newport; and shunned his early associates from a consciousness of his own degradation, He had reformed a few months before his death, and removed to Wilmington, at the solicitation of his friends there, and lived with J. Lewden Robeson, who was his cousin, and whom he regarded as a younger brother, having himself been raised by Robeson’s father, and by his aunt, Mrs. Kean, who was Robeson’s mother. His attachment to his sister, Mrs. Duffield, was also strong, and to her’ husband, Doctor Duffield.</p> <p>in argument before the jury in behalf of the caveator contended — •</p> <p>1. That suicide was prima facie evidence of insanity ; and a reasonable ground from which to infer insanity.</p> <p>2. That the will itself contained strong internal evidence of insanity.</p> <p>3. That actual insanity at times had been proved, from which the law would infer its continuance, and throw the burden of proof on the other side, of a lucid interval.</p> <p>4. That the purpose of suicide fixed in the testator’s mind at the time of making his will, was evidence of such a state of unsoundness of mind as should vitiate the will.</p> <p>5. That, at the least, Dr. Morris’ mind was proved to have been much weakened and impaired by intemperance, rendering him liable to improper influences; and that thei’e were circumstances of suspicion which ought to throw it upon the other side to show conclusive evidence of instructions, understanding and design, in making the will.</p> <p>They cited Rush on the Mind, 31; Beck's Med. Jurisprudence, 153 375 ; Abercrombie, 257-8 ; Shelford on Lunacy,xxxvni, xlvi, 274, 175 ; 2 Stark. Ev. 930; Cooper's Med. Juris. 395; 1 Ecc. Rep. 70, 72, 273; 3 ib. 172; 5 ib. 342.</p> <p>1. That general sanity was to be presumed.</p> <p>2. That though this general presumption may be rebutted, and thrown on the other side by proof of general insanity,' yet in case of temporary or partial insanity produced by intemperance, the legal presumption of sanity is not rebutted, nor proof of a lucid interval necessary.</p> <p>3. That insanity is not to be presumed from the act of suicide.</p> <p>4. That intemperance leads to mania a potu and death; seldom, if ever, produces settled insanity.</p> <p>5. That the will was rational in itself, and consistent with the testator’s natural affections.</p> <p>6. That there was proof of capacity, deliberation, instructions and design in making the will; and</p> <p>7. That there was no evidence of undue influence.</p> <p>He cited 4 Blac. Com. 189 ; Hawk. P. C. 132; 1 Hagg. Ecc. Rep. 109, 291, 273, 211 ; 3 ib. 370; 5 ib.; 1 Bow's Par. Rep. 148.</p>

<p>In a proceeding against a constable under the act of 1833, for neglect of duty, the process should not be generally to answer the plaintiff’s demand ,- but to show cause why execution should not issue against him for the amount of the original execution.</p> <p>It ought also to show for what neglect of duty the proceeding is taken.</p> <p>The judgment in such proceeding must be for the amount of the original execution and costs.</p>

Action on the case for words. Trial and verdict for the plaintiff, with $86 68 damages. On the rendering the verdict the jury was polled at the request of defendant’s counsel, and severally agreed to the verdict.

<p>Certiorari to Justice Weldon.</p> <p>Record.— Wright vs. Hays. Action on assumption for another’s tax. Demand $10 14. Summons issued September 16th 1837, returnable 23d inst., served ; appearance; defendant asks postponement, and cause adjourned to the 7th October, when the parties appeared, the defendant claimed a trial by referees, which was had in due form, report and judgment against the defendant for $10 14.</p> <p>Defendant claimed a new trial, which was granted October 18th; plaintiff notified and rule tria! 28th October, when the parties not appearing, cause continued to 4th November, when the parties appear and defendant pleads not ready for trial; claims three witnesses summoned; cause adjourned to the 11th November, when the parties appear, “ referees summoned and appear and are qualified ; and, on trial, judgment by report of referees November 11th, 1837, of nonsuit against the plaintiff for cost.” The report was “ that there is no cause of action.”</p> <p>The exceptions were, 1st, That the justice, on the new trial, adjourned the cause from 28th October to 4th November, without the same being applied for by either party. 2d, That he adjourned the cause from the 4th to the 11th of November, on the defendant’s application, without proof by his oath or affimation, or otherwise, that his want of preparation was not owing to design, or to his not using due diligence. 3d, Because the new trial was had by referees without the same being claimed by either party. 4th. The justice certified that he rendered a judgment of nonsuit against the plaintiff for cost, on the report of referees; when the award returned shows that it was for no cause of action.</p>

Case. Declaration on a promissory note. Plea, payment. Issue. This was an action on a note given by Thomas Conwell and John L. Morris, as his surety, to Derrickson, the plaintiff, for $180, dated 25th March, 1827, and payable in instalments, all of which fell due before 25th March, 1831. On the back of the note was credited $64 83 in full; and Conwell produced the following receipt: Received, 5th August, 1833, of Thomas Conwell, $64 83, in full of all demands up to this date.

<p>Debt on an administration bond. Breach, the non-payment to plaintiff of |2,567 96, being his distributive share of the estate of Samuei Harbeson ; he being one of the two children of James (or Jack) Harbeson, dec’d., who was a brother of Samuel Harbeson. Pleas— 1st. non est factum; 2d. That plaintiff is not entitled to a distributive share; 3d. That he is not one of the representatives of James (or Jack) Harbeson, &c., &c.</p> <p>The administration bond of defendant on the estate of Samuel Harbeson was offered in evidence and objected to, for a variance from the bond declared on.</p> <p>The condition of the bond was “ that if the above named George Jones, (during the absence of the next of kindred) as administrator of all and singular, the goods and chattels, rights and credits, of Samuel Harbeson, dec’d., shall cause a true and perfect inventory and just appraisement to be made of all and singular the goods and chattels, of said deceased, whereof the said George Jones shall have knowledge, and the same with a true and perfect list of all and singular, the debts and credits due, or belonging, to the said deceased, whereof the said George Jones shall have knowledge, to be delivered in the register’s office for New Castle county, in the State of Delaware, on or before the 15th day of June, next; and shall well and faithfully administer according to law, all and singular the goods and chattels, rights and credits of said deceased, u-hich have or shall come to the possession or knowledge of said George Jones; and shall render a just and true account of such administration on or before the 15th day of December next; and shall distribute and pay all the residue remaining of the said goods and chattels, rights and credits, after all just demands and charges to which the said goods and chattels, rights and credits, in the due course of the administration thereof, are subject, are deducted, to the person or persons respectively entitled to receive the same; and furthermore,” &c., &c.</p> <p>The declaration set out the bond as “ subject to a certain condition thereunder written, that the said George Jones, administrator of all and singular, the goods and chattels, rights and credits of Samuel Harbeson, deceased, should distribute and pay all the residue remaining of the said goods and chattels, rights and credits of the said Samuel Harbeson, deceased, after all just demands and charges to which the same goods and chattels, rights and credits, in the due course of the administration thereof are subject, are deducted, to the person or persons respectively entitled to receive the sameand then assigned a breach of this clause, that, &c.</p> <p>On this question defendant’s counsel cited 1 Harr. Rep. 231; 8 East 7, 8, 9, 10; 1 Chitty PI. 299, 300; 6 Erg. Com. Law Rep. 167; 4 Maulé Sf Sewl. 470 ,* 9 East, 188; 13 Com. Law. Rep. 225.</p> <p>For plaintiff was cited 1 Barn, ¿y Cresw. 358; 1 Barn Sy Aid. 57, 94.</p>

Debt on a replevin bond. Plea, non est factum. Issue. On a distress for rent arrear to Burnham and Wilson, John Fennimore, the tenant, replevied, and entered into a replevin bond to the sheriff, with William Hukill and Abraham Bratten, the defendant, as his sureties, conditioned in the usual form. Fennimore failed to prosecute his replevin, and judgment went against the sheriff. He now sued the bond.

Debt on sheriff’s recognizance. The narr. counted on the bond, set out the condition, and averred a judgment at the suit of John S. Adams vs. Joseph M’Coy, for $790.

Iw appeal from the Court of Chancery, in and for New Castle county.

Writ of error to the judges of the Superior Court, New Castle county. (See vol. 1, 523.) Record received and filed; respondent cited, and causes of appeal filed. June term, 1837; death of plaintiff in error suggested, and James Canby, his executor, made a party: same term, hearing and decree reversing the judgment below, with costs, and remanding the record.

Writ of error to the judges of the Superior Court, Kent county, (ante, p. 136.) Coram. — The Chancellor; J. M. Clayton Chief Justice, Black and. Harrington Judges. Held: that where a writ of error was brought by one of several defendants in a judgment, it was not amendable under Stat. 5 Geo., 1 ch. 13. And the writ was quashed. 2 Tidd’s Pr. 1094. Upon this statute (5 Geo., 1 ch. 13,) it is become the practice to amend the writ of error as a matter of course, without costs.

<p>Distinction between written and verbal slander.</p> <p>Any publication that tends to disgrace a man, or bring him into contempt or ridicule! is a libel.</p> <p>But a degrading imputation must appear on the face of the libel, or by necessary inferenee from it.</p> <p>Hence, mere scurrility and abuse, without point or specific imputation, is not actionable.</p> <p>Covert slander may be explained by inuendo capable of proof.</p>

<p>* Jb. slave illegally exported from this state, is entitled to freedom from the time of such exportation.</p> <p>And the issue of a female slave so exported, horn after exportation, are free, and their freedom may be decreed though the mother may not have obtained a decree declaring her free.</p> <p>On proof of exportation, it is for the claimant to show a license, which will not bo presumed.</p> <p>" The act of 1793, prohibiting the exportation of slaves, is constitutional.</p>

<p>Petition for freedom. The petitioner’s father, George Long, was a free negro, legally married to Phoebe, the mother of Isaac, who was the slave of a certain Conoway. Isaac was born while his mother was a slave ; and whilst an infant he was purchased by his father, George Long, of Conoway’s representatives. His father never manumitted him ; but, on the contrary, by will bequeathed him to Minos Tindal, until he should attain the age of twenty-five years. Minos Tindal took possession of Isaac; who, at the death of his master, was sold by the executor to Daniel Hudson.</p>

<p>An action on the case lies for carelessly carrying fire, whereby plaintiff’s stack-yard was destroyed; but not for an accidental burning; nor for a wilful burning.</p>

<p>Capias case. Action for an injury to the reversionary interest in land.</p> <p>after a continuance of the cause on legal grounds, moved for leave to amend his pleadings, which was resisted.</p> <p>The case stood at issue on a plea of not guilty, and the court required him to disclose to them the matter which he desired leave to plead ; when he stated that it was “ a special license from plaintiff;” and also the act of limitation.</p>

<p>Certiorari.</p> <p>This was an action against Jacobs, a constable, for the proceeds of the sale of goods sold on a younger execution in his hands, and which were, applicable to plaintiff’s execution in the hands of another constable.</p> <p>The exception was to the jurisdiction of the justice.</p> <p>The summons was for William Jacobs to appear on &c., at &c., s< to answer to Thomas Ross, touching a cause of action wherein $21 94 is demanded;” and the docket of the action was against William Jacobs, late constable, on account of the sale of James Hudson’s goods, that Thomas Ross had levied on by virtue of an execution, and the proceeds of the sale not applied to Thomas Ross’ execution; debt $21 94.</p>

Action on the case for words. The words laid in the declaration, imputed the crime of stealing a hog. The pleas were “Not guilty and justification.” On the trial, the defendant offered evidence to prove plaintiff’s general bad character, in reference to offences of this kind : which was objected to.

Issue from the Register of wills of Kent county to try the question “ whether the instrument of writing purporting to be the last will and testament of Joseph Rash, sen’r., is or is not the last will and testament of the said Joseph Rash, sen’r.l deceased.” The will bore date 7th March, 1836, and was signed by the testator’s mark, in the presence of Luke Lemar, William Pearson and James Brown.

<p>Certiorari.</p> <p>The record showed that it was an action by Lowery, as collector of school taxes against Cullen, for the amount of his school tax; but it did not set forth that the defendant had removed from the school district.</p> <p>The exception was, that the justice had no jurisdiction to entertain a suit by the collector for a school tax, unless in case of the removal of the taxable from the district which ought, therefore, to appear by the record. In all other cases, the collector can levy and collect the tax in a summary way and without suit.</p> <p>It was answered, that as the record showed a case which, under circumstances, was within the magistrate’s jurisdiction, the court would presume this matter in support of the jurisdiction; or would at least, allow proof to be taken in relation to it, as was done in Bai‘ ley vs. Luff, ante 292.</p>

The petitioner was imprisoned by an execution creditor on Monday the 22d of October, and filed his petition on the same day to be discharged under the insolvent laws; a summons issued for his creditors, returnable on Saturday the 27th; and, at the hearing, the question arose whether the prisoner was not already discharged by lapse of time and the operation of the act of 1832; and, if so, whether the court could now proceed to discharge him under the general insolvent law.

Trover for a crop of corn. Plea, “ non cul.” The defendant bought the corn in question at a constable’s sale, as the property of one Hand. He now defended as such purchaser, and produced the record of a judgment against Hand before justice Hammersley, and a fi. fa. and vend, exponas issued thereon.

<p>Debt on sheriff’s recognizance. Plea, performance. Special replication setting out a breach in the non-payment to plaintiff of the balance of the proceeds of sale of Gullet’s land remaining in the sheriff’s hands, after satisfying the judgment and execution on which it was sold, and all other liens. Rejoinder to this replication, and issue.</p> <p>The plaintiff proved the judgment and proceedings on which his intestate’s land was sold; the sale of the land for more than sufficient to pay that judgment, and his own representative capacity; and closed.</p> <p>The defendant set up other liens against the land of Alexander Gullet, and exhibited the office record of a recognizance in the Orphans’ Court entered into by Alexander Gullet on the acceptance of his father John Gullet’s land, in the penalty of $1,420 32, with condition to pay to the other children and heirs at law of John Gullet their proportionable shares of $710 16 and interest.</p> <p>The plaintiff offered the same record of the recognizance, on which was indorsed several receipts by the heirs at law of John Gullet, to prove satisfaction of their shares of the recognizance. This was objected to on the ground that these docket entries of satisfaction were not evidence in themselves, but required proof like any other receipt.</p>

<p>Debt without writ. Judgment confessed on bond and warrant of attorney. On application of the defendant and affidavit filed, judgment opened and issue directed to try what sum, if any, was due thereupon.</p> <p>At the trial the defendant offered evidence to show that the bond was given by him to Oliver, in part, for the amount of a note drawn by him and indorsed by Oliver, negotiated at the Bank of Smyrna, and which was then under protest; Oliver undertaking to pay the same. That Oliver died without paying the note, which had since been taken up by defendant.</p> <p>This judgment was assigned to Griffith by Oliver in his lifetime for a full consideration, without any credits indorsed or any notice of set-off, or any claim of abatement or deduction whatever.</p>

<p>General indebitatus assumpsit lies by the assignee vs. the assignor of a note ,* where the maker proves insolvent.</p> <p>The liability of such assignor is not that of an indorser ; it is a guaranty of the sob vency of the drawer.</p> <p>The assignee must use due diligence as against the maker, or he will lose his remedy against the assignor.</p> <p>Suit brought to the next term, and so prosecuted as to show an insolvency of the maker, is due diligence.</p> <p>After suit brought, a failure to hold the defendant to bail is not a discharge of the assignor, if the maker is shown to be insolvent.</p>

<p>Case. Narr Pleas. Issue.</p> <p>moved the court, on affidavit filed, to compel the plaintiff to elect whether he would proceed w’ith this cause, or in another action which he had commenced in the State of Maryland, for the same cause of action. He stated that this was done in Randel’s case, in the late Court of Common Pleas.</p>

Assumpsit. Narr. Pleas. Issue. Death of the defendant suggested, and his executor made a party of record. The action was upon a note of hand which plaintiff proved, and rested. moved a nonsuit for want of a probate. Probate is not necsssary. The action was brought before the death of Dutton, and the case at issue ; not, therefore, a case within the mischief of the act requiring probates before an executor shall pay demands against him as executor.

This was an action of debt on an administration bond, given by the defendant as administratrix, to the Orphans’ Court, on the granting of an order by that court for the sale of her intestate’s real estate for the payment of debts. The question in the case was, whether the administratrix had applied the proceeds of sale to the debts, according to their legal priority.

<p>Ejectment. The plaintiff claimed title under a sale by the sheriff on execution process against the defendant. He produced in evidence, the deed of Nathaniel Wolfe, sheriff, reciting a writ of fieri facias issued out of this court, at the suit of one Pearson against James Hambleton, directed to sheriff Vandever, commanding him to levy and make the sum oí fifty dollars and thirty-three cents, which Catharine Pearson had recovered against defendant before a justice of the peace; the sheriff’s return to that writ of “ nulla bon levied on land, inquiry held and not sufficientthe issuing of a venditioni ex-ponas, and sale of the land to plaintiff; the expiration of sheriff Vandever’s term of office; and the petition and order of court to sheriff Wolfe to make a deed. With this deed and proof of defendant’s possession, he closed his case.</p> <p>moved a nonsuit, because plaintiff had not exhibited the judgment on which these proceedings against Hambleton were founded.</p> <p>The Court ordered the nonsuit, saying that it was not necessary to decide whether the sheriff’s deed would not, in any case, be prima facie evidence, on which a purchaser could recover against the former owner of lands sold on judgment; though they had always seen the judgment produced, and all the proceedings subsequent thereto, in support of the sheriff’s deed. Such a deed is nothing without authority ; and though it might be possible, prima facie, to make out such authority by full and proper recitals in the deed itself, it would be safer and better to incept the plaintiff’s title by showing the judgment. But in this case the deed does not recite any judgment. It commences by setting out a fieri facias issued out of this court, to levy the amount of a judgment recovered before a justice of the peace; and it does not appear that such judgment has ever been entered on the records of this court, so as to make it a lien on the defendant’s land. The authority for issuing the fieri facias, and the subsequent sale does not appear; and it will not do to infer such authority to divest a title, without some proof of a judgment binding the land.</p> <p>This cause came up again at November term, 1839, when the plaintiff gave in evidence the transcript of a judgment recovered before a justice of the peace, at the suit of John Pearson against James Hambleton on the 29th May, 1326, for $48 28 and interest thereon; an execution issued on the same day returnable 1st Sept. 1826, which was never returned by the constable, but was brought back to justice Weldon, on whose docket the judgment stood on 2d Sept. 1835, by Pearson’s executrix, at whose instance an alias execution was issued in the name of the executrix, and returned by the constable Sept. 18, 1835, “ goods sold for $62 41 and $21 18 applied to this execution, and the balance to prior claims.” Transcript filed and judgment docketted in this court, and fieri facias issued to November term, 1835, and returned, “ nulla bona; levied on land per inquisition annexed; inquisition held 16th Nov. 1835, and not sufficient.” Venditioni exponas issued to May term, 1836, and returned “Land sold to Eldad Lore for $165 00.” Petition of the purchaser to the Superior Court for an order on the present sheriff to make a deed; the order thereupon and the deed of N. Wolfe, sheriff, dated May 22, 1837, to Eldad Lore for the premises. Plaintiff then proved the defendant’s possession and closed.</p> <p>contended that the entry in this court of the justice’s judgment was a nullity, and did not authorize the subsequent proceedings, nor give this court authority to award execution for the sale of defendant’s land.</p>

<p>Appeal. On jhe trial of the cause the defendant offered to read the deposition of Isaac M. Register, taken de bene esse, and to lay the ground, he produced a subpoena issued to the sheriff of New Castle county and returned non est inventus. It appeared that the witness resided in Kent county.</p> <p>objected to reading the deposition in evidence, because it appeared from the evidence, that Isaac M. Register resided in the county of Kent, over which county this court has jurisdiction ; and a return of non est by the sheriff of New Castle county was not sufficient to let in the deposition. Depositions taken de bene esse, are only to be read in case of departure of the witnesses out of the state, fyc. Sec. 16, Constitution.</p> <p>The usual course has been adopted in this case to order a subpoena for the witness and get a return of non est to it.</p>

This was an action on the case against stage proprietors for the negligence of their driver, in driving against plaintiff’s carriage whilst attempting to pass him on the road. The action was against Sharpe, Jefferson, Murdock and Tatman, stage proprietors. Two other owners, Raymond and Spruance, were included in the writ, but were not served with process.

Foreigh attachment case. Special bail entered and attachment dissolved. Narr. in assumpsit on a special contract for carrying the mail, and also with a quantum meruit count. Pleas, non-assumpsit, payment, &c. Depositions taken on a commission issued to John Gordon Esq., were offered in evidence and objected to, for want of a proper certificate of execution.

<p>The owner of both banks of a stream has a right to the stream, but may not divert it. Each riparian proprietor holds to the middle of the stream; one, therefore, cannot dam it without the others consent, or legislative grant.</p> <p>Such a grant is-a contract with the state, and its conditions must be complied with. The prior occupant of a mill seat established by riparian proprietorship, or legislative grant, has a right to the flowage of the water below in its natural course and descent. A riparian owner below has no right to divert the water from its natural bed.</p> <p>If such owner has, fifty years ago, diverted the waters from their natural course, and drawn them through an artificial canal, the riparian owners of the stream above acquire a right to the flowage through this canal by dedication and substitution, and the water cannot be again diverted even into its original channel.</p> <p>Twenty years uninterrupted enjoyment of such an easement gives a right to the mill owners above to vent their water by the same channel.</p> <p>If a man cut a canal through his own land, so that the tide ebbs and flows through it, and the public use it for twenty years for purposes of navigation, they acquire a right by dedication to the continued use of it, of which the owner of the land cannot deprive them, without legislative authority.</p>

<p>Trespass vi et armis, and assault and battery. Pleas, not guilty, and justification; to wit, by the defendant, Steel, as the sheriff’s officer, and the others as his posse, in executing a writ of replevin at the suit of John W. Dean against Elizabeth Prettyman, for two negro slaves.</p> <p>The plaintiff charged a violent entry of her house by defendants, and an aggravated assault and battery.</p> <p>When her first witness was called, on motion of defendant’s counsel, the other witnesses were sent out of the court-room during the examination, the court saying it was a motion of course.</p> <p>After the plaintiff had closed, the defendant’s counsel moved the eourt to direct the jury to acquit Waples in order that he might be made a witness, there being no evidence against him, and the sheriff and all with him having been made parties in this action, to prevent their giving testimony.</p>

<p>Petition for freedom.</p> <p>Rachel Marvel by will, dated 27th August, 1791, bequeathed the mother of petitioner, Hessy, to her daughter Ann Smith for life; and, after her decease, to her grand-daughter Nancy Smith, her heirs and assigns forever. And if the said negro Hessy should bear children, she gave to her grand-daughter, Sally Smith, “ the first child that she bears, to be hers and her heirs forever.”</p> <p>After the death of Rachel Marvel, the negro girl Hessy went into the possession of Ann Smith and bore children, the first of whom was either dead born or lived but a few minutes, about which the testimony was uncertain; and the second was the petitioner, Stephen. Stephen was held by Ann Smith, and sold by her to Sally Smith for a term of years, and manumitted in the bill of sale to be free after she attained thirty-one years of age. Sally Smith lived with Elisha Evans and died in his family, directing verbally in her last sickness that Evans should have the use of Stephen during the remainder of his term of servitude. On the death of Ann Smith, Hessy passed into the possession of Elisha Evans, who had married Nancy Smith, the legatee over. Jonathan Milman, the respon-' dent, was the administrator of Elisha Evans. Elisha Evans in his lifetime sometimes claimed Stephen as his slave for life, at others delared that he had no right to him ; and in 1816, by an instrument under seal, declared that he was free. Before that time, however, Evans became embarrassed in his circumstances, and Stephen was levied on by execution process as his property, and was sold by the creditors of Evans for a small sum to Thomas Robinson, Esq., who had never taken possession of him.</p> <p>contended — 1st. That the bequest in the will of Rachel Marvel to Sally Smith of the first child that Hessy bore, was satisfied by the birth of a dead-born child. 2d. That Stephen being the second born child belonged to Nancy Smith, afterwards the wife of Elisha Evans, upon the death of the testator’s daughter Ann Smith. 3d. That Ann Smith being but a tenant for life, had no right to manumit the negro Stephen. 4th. That as he belonged to Mrs. Evans he was liable to be seized for Evans’ debts, and that his manumission in 1836, could have no effect. 5th. Thai the sale of Stephen by Evans’ creditors did not change the title, as the administrator paid the sum for which he sold, (being but a nominal sum) and kept him in the estate.</p> <p>On the part of the petitioner, it was contended — 1st. That the proof was not satisfactory that the first child of Hessy was born alive, and that the bequest to Sally Smith was not satisfied by a dead born child. 2d. That supposing Stephen to have been the second child he belonged to Ann Smith, being born during her life estate, and was freed by her manumission, he having now attained thirty-one years of age. 3d. That Elisha Evans and wife never claimed Stephen as a slave for life, but uniformly admitted that he was but a slave for a term of years, and this before Evans was embarrassed in his circumstances. 4th. That if Stephen was the property of Evans he had been sold, and was now the property of Mr. Robinson.</p> <p>The Court directed attention to the point, whether the legatee for life or remainderman was entitled to the issue of a female slave, born during the continuance of the tenancy for life.</p>

<p>Assumpsit for compensation for professional services as a lawyer.</p>

<p>Assumpsit for counsel fees, on a special contract, and also on the quantum meruit.</p> <p>produced four papers, under a notice served on him by plaintiff.</p> <p>We called {or the written agreement between plaintiff and defendant. That paper is now produced, with three others which we did not call for, and do not want.</p> <p>The plaintiff called for the written agreement. We contend that it is contained in four papers, and not in one. They are the paper No. 1., together with three others explanatory thereof.</p> <p>Court. — The defendant is bound to produce the paper called for, or the other side may make parol proof of its contents. If he offer any other papers, the party calling is not bound to take .them unless he chooses. They do not become evidence without his inspection.</p> <p>After inspecting these papers, the plaintiff’s counsel said they satisfied them that they did not amount to a positive written agreement, but only proposals for one; and therefore, that they should go entirely on the general counts in the nan-.</p> <p>He then offered to read these papers to the jury, in proof of a parol agreement, and in support of the general counts; which was objected to because the plaintiff had sworn on a rule to show cause of bail that the action was founded on a written contract, (ante, 327.)</p>

Ti-iis was an action of ejectment by the lessors of the plaintiff, as two of the heirs at law of Isaac Jones, to recover certain lands in Brandywine hundred, of which, as the plaintiff contended, he died seized and intestate.

Scire facias on a judgment. Pleas. Replication. Demurrer. The judgment on which this scire facias issued was entered 4th May, 1833, at the suit of Susanna Poulson (now the wife of Porter,) against Doct. John L. Morris. On the 10th Sept. 1833, this judgment was indorsed on the record for the use of William Herdman, and by him indorsed 1st Mat', 1837, for the use of Jacob P. Herd-man. A scire facias was issued on this judgment in the name of Susanna Poulson vs. Doct.

Questions reserved by the Superior Court, New Castle county, for hearing before all the judges. The case came up to the Court of Appeals, on the questions reserved; and, there being a legal exception to the Chancellor and judges Clayton and Black, the court, on motion, certified this fact to the governor, who appointed and commissioned as judges ad litem, Martin W. Bates and Robert Frame, Esquires, of Kent county.

<p>A tenant is liable to indictment undei' the act of 1831, for cutting timber, if the landlord’s consent be disproved.</p> <p>And any one employed by the tenant is also liable.</p>