Volume 3 — Delaware Reports

Capias case, by one mill owner against another on the same stream, for damage done by discharging watqr without notice. Plea, not guilty.

<p>In an action before a magistrate for neglecting to satisfy a judgment, the record must show that the original judgment was before a magistrate; and the amount thereof.</p>

Replevin. “Goods replevied and delivered to plaintiff, and defendants summoned.” Narr. The defendant, Moore, made cognizance as the bailiff of Elliott, who avowed the taking “for one year's rent, to wit: one hundred dollars, due from Elias Taylor, the plaintiff, to Meshack Elliott, the avowant, as assignee of Nehemiah Redden, on a certain lease in writing dated June 10, 1830.” Pleas, non dimi'sit; and rien in arrear.

<p>Divorce a vinculo matfimonii for extreme cruelty.</p>

<p>Summons in waste. Narr. Pleas, not guilty and limitation. Replication, infancy, &c.</p> <p>This was an action of waste, brought by the plaintiffs as rever-sioners, against the defendant George K. Hall, a tenant for years, for waste and destruction in felling timber, áre. The declaration set out plaintiffs’ title to the land under a deed from George K. Hall and wife, dated 34th November, 1830, with, a particular description of the land by course and distance. This deed wras made by Hall to plaintiffs under-the following circumstances; ~</p> <p>At the May term, 1835, an action of ejectment was brought by the lessee of George K. Hall against David Greenly, John Windsor and Marvel Smith, for the land in question. A verdict was rendered for plaintiff, subject to the terms of a written agreement filed of record, viz: — 1. That a verdict be rendered for plaintiff and each party pay his own costs. 3. That. Hall should execute a deed to Elisha E. Greenly and John P. Greenly in fee, reserving to himself possession of said premises “for the term of twenty years, commencing on 1st January, 1837, without waste.” 8, That possession should be delivered to him on or before 1st January, 1837, 4, That David Greenly and Elisha Evans should execute a bond to Hall for the quiet enjoyment of the premises during the said term óf twenty years, and that no action should be commenced against him “for any rents, issues and profits of the said premises during said term.”</p> <p>The plaintiffs gave in evidence, subject to fufinp objection, the deed of George K. Hall and wife to John P. Greenly apd Elisha E. Greenly, dated 34th November, 183ff in pursuance of this agreement, 'conveying the land to John P. Greenly and Elisha E. Greenly in fee “excepting thereout and reserving to this grantor, George K. Hall, his heirs, executors, administrators and assigns, the use and possession of said lands and tenements with their appurtenances, and the rents, issues and profits thereof, for his and their own benefit and advantage, for the term of twenty years, fully to be complete and ended, without waste, and to commence on the first day of January next ensuing” the date of the deed. Also the bond of David Greenly and Elisha Evans to Hall, in pursuance of the fourth clause of the agreement aforesaid.</p> <p>Plaintiff then examined several witnesses to prove the waste committed, and closed.</p> <p>1. This is a suit on a penal statute. The plaintiff is bound to prove his whole case, and especially to prove his title exactly as it is laid. He sets out title under a deed from George K. Hall and wife to John P. and Elisha E. Greenly, and the deed offered in evidence varies from the deed pleaded in one of the lines, twenty perches instead of twelve perches; it therefore does not describe the same land. The pi’oof does not show that the injury was done on the lands to which the plaintiffs claim title; there being no other proof of the locus in quo than this deed, which is not for the same land. 2. The defendant has mistaken his own title in declaring as a reversioner, which he is not; but a remainderman. A reversion is never created by deed, but always arises by operation of law. (2 Cruise, 421.) If a man bring an action as a rever-sioner, he cannot recover on proof of a title as remainderman. In Waples vs. Waples, the plaintiffs counted as tenants in common and proved title as coparceners, and were nonsuited. (1 Harr. Rep. 474; Comyn Land. & Ten.-, 6 Law Lib. 278,493.) 3. The plaintiffs claim title under George Hall, and have not shown Mm entitled to any estate of inheritance in the land. He conveyed all his title to plaintiff, reserving twenty years; but it does not appear what his title was. 4. There is also a misjoinder of parties. If the plaintiffs have any right to the land they are tenants in common, who cannot jointly sue in an action of waste, but must bring several actions. Tenants in common cannot bring ejectment on a joint demise. So tenants in common qannot avow jointly. (Jlrclib. Civil PI. 49; 2 Mod. 61; 15 Johns. Rep. 479.) 5. These plaintiffs sue as infants by next friend, and have offered no proof of the infancy. This is put in issue by the plea. The defendants have pleaded the act of limitation and plaintiffs replied infancy; what then is the proof and where?</p> <p>1. In respect of the act being construed strictly, the principle is directly the contrary, that the action is always favored. (Bac. Ab. Tit. Waste.) 2. As to the variance, the title is mere inducement. The deed need not have been set out at all; and it is not set out in the second count, which covers the whole claim. It is for the jury to say whether we have proved waste done on land to which we have title. 3. As to the misdescription of the parties, whether reversioners or remaindermen, the deed being an indenture and not a deed poll is the deed of both parties, and gives the title to Hall for a term, with the reversion to plaintiffs. But it is not necessary for us to show ourselves as reversioners or remaindermen; only necessary to show ourselves entitled to the inheritance. 4. As to Hall’s interest, it is proved by the verdict in ejectment, and particularly by his deed in fee. He is estopped from denying the title conveyed by his own deed. 5. As to the misjoinder, the position taken is contradicted by the very authorities cited. In waste on a lease for years, tenants in common must join. (Archb. Civ. PL 49; 2 'Mod. 61; 1 Com. Dig. 15; Abatement E. 9-, 10; 1 ChitiyPL 56; 1 Ch. Gen.Pr. 271.) 6. No proof of the infancy is necessary. The state of the pleadings establishes their non age at the time the action was commenced. The suit is brought by persons professing to be infants, and the declaration states them to be infants, suing by next friend, admitted for that purpose by the court. By pleading to this declaration without objecting .to the character in which plaintiffs sued, the defendant has admitted that character; and though we might have demurred to his plea of limitation, the taking issue on it imposes the necessity of no further proof than that furnished by the record. But further — since this action brought, and pending the same, the record shows a suggestion admitted by the defendant, that one of these plaintiffs has come to the age of twenty-one years since the suit commenced. The character of the suit therefore, and the admission of both parties appearing by the record, establish the proof of the infancy of these plaintiffs, at the time of the suit commenced.</p>

<p>The court refused to decree a divorce on the groünd of abandonment, where both par. ties resided within the county.</p>

<p>SÉxeoutioil may be issued on judgments before a.justice of the peace at any time within three years, without scire facias.</p> <p>An alias execution may in the same manner issue within the three j'ears.</p> <p>If execution be begun ioühin the three yéafs and extended beyond that time, it may bd followed up by alias issued upon 'the day on Which the previous execution is returnable,</p> <p>If not so issued, no subsequent^?, fá. can isshe without a scire facias.</p>

<p>Scire facias on a recognizance in the Orphans’ Court, for the appraised value of intestate lands.</p> <p>The action was in the name of the State, for the use of a party entitled to a share of the recognizance who was a minor, and was marked for the use of Lewis West, a purchaser of the minor’s interest from his guardian. The defendant was a surety in the recognizance.</p> <p>and affidavit filed, the court laid a rule to show cause why the scire fa-cias should not be quashed and stricken from the record, or the second use stricken out; on the ground, that the guardian had not the power to transfer the real securities of his ward without the direction of the Orphans’ Court.</p> <p>The affidavit stated that Joseph S. Townsend was an infant under the age of twenty-one years; that on the 23d Sept. 1835, Alexander Campbell was appointed his guardian; that Lewis West sues as the purchaser of said Joseph’s share in the recognizance set out in the scire facias, claiming under an assignment made by the said guardian on 9th May, 1837, without any direction or authority of the Orphans’ Court; and that the guardian had since left the State.</p> <p>Houston, in support of the rule:</p> <p>The sum due the minor on this recognizance is his whole estate; as appears from the distributive account on the estate of his father, Thomas Townsend. The question is, whether the guardian has power -to transfer such real security, without the order of the Orphans’ Court.</p> <p>“Seo. 10. A guardian shall have the care of the person of the ward, and the possession and management of the real and personal property of the ward, and shall have authority to receive all debts, rents and things in action, due or belonging to the ward, and to sell the personal property of the ward of a perishable nature, and also, with the direction of the Orphans’ Court, to sell any other personal property of the ward; and the receipts, discharges and transfers of the guardian made in good faith in the exercise of this authority, shall be valid and effectual,” (Dig. 424.)</p> <p>The act authorizes the guardian to sell the minor’s property of a perishable natm’e; this is not such. We agree that it was competent to the guardian to reduce the recognizance into possession. But it is at least doubtful whether he can assign. If he cannot legally assign, then it would be no protection to this defendant, who is a surety in the recognizance to pay the amount even after judgment, and having no power t<? plead this matter to another scire facias on this recognizance, he resorts to this motion for his own protection. In an action at the suit of Townsend against this defendant, he could not plead to such an action a payment to Lewis West as assignee, unless such an assignment was authorized by the law.</p> <p>The facts are, that the recognizance has been assigned to Lewis West by xilexander Campbell, the guardian, who has left the State; that the guardian previously applied to the Orphans’ Court of this county for leave to expend on the ward more than the income of his estate, which was refused: that this recognizance is the whole estate of the ward; and that the ward is still a minor.</p> <p>The guardian, without reducing the sum due on the recognizance into possession, sold it to Lewis West, for whose use this suit has been brought; and the defendant, doubting the guardian’s right to sell this property of his ward, without authority from the Orphans’ Court, now raises the question for his own protection.</p> <p>Cullen.-^-.The act of assembly authorizes the guardian to assign such a security as this, It is implied and contained in the power to collect the sum due on the recognizance. The act gives him the power to collect and receive all the debts, &c., due his ward, and having the right to collect and receive, he necessarily has the right to assign. The surety in a debt has by law a right to make a payment, and to demand an assignment of the security as against the principal debtor to him. How then would a guardian be circumstanced, if he is unable to make this assignment? And by such assignment the ward is in no danger. It is a reducing of the recognizance into possession; the guardian with his sureties become responsible, and it is not denied here, that these are sufficient and solvent. Neither is there any allegation of fraud or want of good faith. But even if this transfer were illegal, the court would only strike out the use and not put an end to this suit; it would go on for the benefit of the'ward,</p> <p>Booth. — It is an unusual application to trike off a suit on any hearing in a summary way. But as to the.right to assign such a security, it is necessarily included in the power to collect the money due on it. And it would frequently be for the interest of the minor as well as for the convenience of the guardian to continue the security in favor of an assignee, who might advance the money instead of discharging it. I agree that fraud would vitiate such a transaction, but -nothing of the kind is alledged here; nor is it pretended that the rights or interests of this minor have been compromitted or jeopardized by this transfer. The act of assembly is merely in affirmance of the common law principle, substituting the Orphans’ Coui’t for the Court of Chancery. And even on the common law principle, if a guardian do an act not authorized, except under the direction of the Court of Chancery, such act is not void, but only voidable upon it being shown not to have been for the benefit of the ward. If it appear to be for his benefit it will stand good and be confirmed. The act authorizing directions to be given by the Orphans’ Court is as much for the guardian’s benefit as the minor’s; for his complete protection in doubtful cases, as in transfers of bank stock; and yet a transfer of bank stock even though subsequently disapproved of, would only charge the guardian with the loss, not impair the validity of the transfer. In this case, even if the transfer should not hereafter be recognized by the courts, the ward could not. be prejudiced, because the guardian and his sureties are liable,</p> <p>J. M. Clayton. — It is to be regretted that a question of such grave consequences should be presented on this side bar motion; and yet the interests of my client are vitally concerned in it. If this as-signee be permitted to recover, and the transfer to him beheld good, the defendant who is a surety in the recognizance, will have to pay this assignee (West) and run the risk when the minor comes of age of being sued by him again- And this is no slight risk; for I maintain, that when the ward attains his age he would at least have thg election to sue the recognizance on the guardian bond. A recognizance in the Orphans’ Court is the highest form of security for a minor’s property; as high as a mortgage or judgment. The powers of a guardian are all created by statute — given to him by the act. They must be construed for the benefit of the ward, and not for the benefit of the guardian. The power must then be apparent on the act. Where then is the authority to sell the ward’s property not perishable, without the direction of the Orphans’ Court? The counsel say that the power to receive the debt includes a power to sell it; then all the words of the act which follow are nugatory. There is a manifest distinction between selling property of a perishable nature, and other property. It may be necessary to invest the guardian with power to receive a debt when the debtor chooses to pay it; but it does not follow, that because the law has, perhaps of necessity, invested a guardian with that power, he has also the power to sell the real securities and debts due his ward, whether the debtor is paying them or not; and go off with the proceeds beyond the jurisdiction of the State. The argument confuses all property, perishable with imperishable; and, though the act makes a manifest distinction, gives the same power to a guardian to assign the most permanent and stable kind of property that a minor can have, just as if it were perishable property, without the direction of the Orphan’s Court. The act makes valid the transfers of the guardian madexmdcr such authority: that is, the transfers of perishable property by the guardian’s own authority; and the transfers of other property with the Orphans’ Court’s direction. Has this guardian obtained such direction? So far from it he applied for leave to exceed the income, and was refused.</p> <p>This question is not to be decided by reference to the powers of an English guardian, or a guardian in any sister State; it must be decided in reference to our own act of assembly, which gives to a guardian here all the powers he has. That act makes a distinction in reference to the power of a guardian to sell perishable property and other property. The former he can sell without, the latter with direction of the Orphans’ Court. What kind of property then is embraced within this latter kind, if the real securities of the ward, the highest and most permanent personal property he can have, is not embraced within it? Then, what relief have we but under this motion? What plea can we plead to this scire facias, so as to deny the right of this assignee. On the law side of the court, they will not even look upon this cestui que use, and he cannot be reached except by a motion here at side bar, on the equity side of the court, to stay proceedings.</p> <p>But it has been objected that this motion can extend properly no further than to strike out the use. Admit it; but that puts an.end to the suit, for being in the name of the State, it is of no avail without a cestui que use.</p> <p>Mr. Cullen now said, he was the counsel both .of the first and second cestui que use; both of the minor by his guardian and of Lewis West, the assignee; and if the second use were stricken out, the suit would still proceed.</p>

<p>It seems that a set-off of repairs cannot be pleaded to an avowry for rent in the action , of replevin. - '</p> <p>Bil't such plea ought to be objected to by demurrer.</p>

<p>Certiorari to Justice Grace.</p> <p>The suit below was an action of trespass by Harrington against Fountain for damage done to a hog. Amount of damages claimed twenty dollars.</p> <p>On a trial before freeholders, they reported “that the defendant, James Fountain, is indebted to the plaintiff, Samuel Harrington, in the sum of fifteen dollars; and he, Fountain, keep the hog.”</p>

<p>Capias trespass vi et armis and for an assault and battery. Narr. Pleas, not guilty, and son assault demesne.</p> <p>This was an action for an aggravated assault and battery.</p> <p>The defendant followed the plaintiff into the road with a declared intention of beating him; but it was doubtful on the proof which struck the first blow. One of the witnesses proved that he heard plaintiff admit, that he had to strike the defendant first.</p>

<p>Sale of land set aside because made at an improper place and the property 'sacrificed; though the sheriff has a discretion as to the place of sale.</p>

<p>The sheriff allowed at the- second terra to bring into court money levied on a sale of land, and to which there were conflicting claims.</p> <p>But the sheriff hold responsible for interest from the time the money was payable until paid into court.</p>

<p>The entry by a justice of the peace of “Judgment tor plaintiff” in a suit against an executor or administrator is necessarily a judgment of assets, and therefore a good entry.</p>

Action of debt on the .sheriff’s recognizance, against the principal and sureties. Tried before Judges Harrington and Layton, the Chief Justice having been of counsel in the cause.

<p>Dollarage disallowed on an execution levied for more than thirty days," but without notice to the defendant.</p>

The first of these cases was an alias plu. fi. fa., for $3,636, 28, issued Sept. 9, 1839, to-Nov. Term, 1839. The second a fi. fa., for $1,200; issued Sept. 19, 1869, to Nov. Term, 1839.

<p>Certiorari. Debt: demand $37 98: appearance: trial by referees and report of “no cause of action.” Judgment accordingly, and plaintiff for costs.</p> <p>Exception; (verified by affidavit.) — Because after the rendition of judgment the justice, on the application of the plaintiff, awarded a new trial and appointed other referees, to rehear the case, which new trial the justice afterwards refused to proceed in; whereby the plaintiff was deprived of his right of appeal by the lapse of time.</p> <p>The affidavit stated that upon the rendering of this judgment, he demanded a transcript within the fifteen days, with a view to an appeal: that the justice told him he had the right to a new trial, which he then demanded, and the justice named the second referees: that he afterwards, and the day after the fifteen days expired, informed the plaintiff that he had been mistaken about his right to a new trial, and refused to enter the application and grant of a new trial.</p>

<p>Quere_On an appeal by defendant from a justice’s judgment, bow is lie to procure a trial oí tile appeal, if the plaintiff below cannot be cited?</p>

<p>In ejectment the wiit of estrepement to stay waste is not a writ of course; but will be granted on motion, supported by affidavit.</p>

A petition was presented in the register’s court by Thomas B. Harker, son and heir-at-law of Charlotte Harker, for a review of the probate of her will, and for avoiding the grant of letters testamentary thereon to the respondent, Elliott, as her executor. On hearing this petition the register made a decree affirming the grant of letters, and ordering the costs to be paid out of the estate.

<p>This was an action of trespass on the case, founded on the statute of 1819, “for the preservation of mill property.” (Sec the act, ante pp. 1, 2.)</p> <p>The declaration charged in the first count a idlfuJ, and in the second an accidental discharge, of an unusual quantity of water by Horsey, the owner of an upper grist mill, upon the mill of Ross, next' below on the same stream, by which that mill was broken; and that defendant gave no notice of such discharge to the owner or possessor residing at the lowerj mill.</p> <p>Plaintiff proved himself to be the owner and possessor of the lower mill, which was a merchant mill for the manufacture of flour: that Horsey was the owner and possessor of the mill next above: that on the 13th September, 1838, during a violent storm, defendant cut his own dam when it was on the point of being broken, and discharged the water on plaintiff’s dam by which it was broken, and that he gave no notice to plaintiff or to his tenant residing near the lower mill.</p> <p>The defendant’s counsel moved a nonsuit on these grounds: 1st. Because in this penal action requiring great strictness, the plaintiff’s proof that his mill was a merchant mill and used for grinding his own grain exclusively for market, did not sufficiently meet his declaration describing it as a grist mill, which it was contended was understood legally, and by universal acceptation, to mean a mill grinding grain for grist or toll. 2d. That the declaration denying notice to plaintiff or any person residing at the lower mill, did not negative notice to a person residing near the mill; and 3d. That this action of trespass on the case was not the proper form of action, but should have been debt on the statute which gives the damages “to be recovered as debts of like amount are or may be recoverable by the laws of this State.”</p> <p>Per Curiam. — The Legislature has given an exposition of the meaning of the term “grist-mill,” by applying it to the mills on the Bran-dywine. (Digest 405.) It means any mill grinding grain, whether for toll or otherwise. As to the defect in the averment of want of notice to the person residing at or near the mill, it is not a question of variance to be decided on this motion, but whether the plaintiff has stated a case coming within the act of assembly, and this question may be raised at a future stage of the cause. The form of action is right. Trespass on the case will often lie upon a statute. This is an action for unascertained damages, and the quotation from the act itself, as to the mode of recovery, refers to the jurisdiction, and not to the form of action.</p> <p>Nonsuit refused.</p> <p>The defence set up was, that Horsey’s dam was swept away by a flood near midnight; that he had not time to send notice to Ross before Wm. Ross, the'son and agent of Caleb Ross, came and received notice.</p> <p>The defendant proved that there was a violent rain and storm on the 11th and 12th. of September, such as no one had recollection of before then; it rained incessantly all the 11th; broke Kinney’s mill-dam above Horsey’s,, and an old dam above his which had an open way in it, over which there was a bridge.</p> <p>Question of the witness. — From your knowledge of these streams and the storm, could any notice have saved the lower mills?</p> <p>This was objected to, and it was contended by plaintiff’s counsel, that as the law imposed the duty of giving the notice, no defence could be admitted, except that of showing notice. That the legal duty being omitted, the law necessarily implied the damage as arising from this neglect, and excluded any inquiry as to whether the notice would have been useful or not. The question was a collateral one; not whether the notice was given, but whether notice would have been useful. The admission of such an inquiry wnuld go far to repeal the law. Due notice is immediate notice.</p> <p>For the defendant, contra, it was urged that the act requiring notice to be given, and imposing a penalty for the neglect or omission to give notice, gives double the damages incurred from the neglect, and not from any other cause. If it can be shown that no damage arose for want of notice, but that the damages arose solely from the violence of the storm or flood, and could not have been remedied or avoided by any notice, however prompt, there could be no damage to be doubled, or visited on the upper miller for neglecting to give notice, as no damage could be said to result from want of notice.</p> <p>The Court ruled out the testimony; the Chief Justice saying — This act is a remedial statute, penal also to be sure, but remedial for the protection of mill property, which is of great value to the public as well as individuals. Its object is to compel a mill owner on the occurrence of such an accident as this, to give immediate notice to the mills below for their protection. The duty is a simple and easy one; and it is guarded by a penalty. That penalty is double the damages “which may be sustained by the owner of the lower mill:” — damages occasioned not by the neglect to give notice, which cannot properly be said to cause any damage, but by the discharge of water. The act does not refer it to the upper mill owner, nor to the jury, to say whether notice was necessary; it requires notice in all cases to be given, and imposes the penalty oí double all the damage which may arise from the discharge of the water, or the neglect to give notice. It is true, that if the breaking below should arise from any unsoundness of works or dam, and not from the discharge of water above, such would not be a case for damages under the law; for such damage would not arise from the occurrence in relation to which notice is required.</p>

<p>Certiorari to Justice Campbell.</p> <p>The record stated this to be a case of “trespass for damage sustained from defendant by his cattle trespassing on plaintiff, breaking down fences and destroying three acres of good corn there growing. Damages laid at forty dollars.” Summons issued to appear and answer “touching a cause of action wherein 'forty dollars is demanded:” appearance: reference: trial: report and judgment for plaintiff for twenty-five dollars.”</p> <p>Exceptions — 1st. That the summons was not signed by the justice. 2d. ,That it did not describe the injury according to the statement filed. 3d. That the justice had no jurisdiction of the cause, because the damages had not been ascertained and awarded by fence viewers.</p>

Action of trover to recover the value of ten white pine logs. The logs in question were found by plaintiff floating in the Delaware bay after a great freshet, were taken up and moored with ropes in the mouth of Mispillion creek. They were afterwards in the possession of defendants, who refused to give them up, alledging that they had found them adrift and floating up the creek. James Dennis was called for defendants and objected to.

<p>Amicable action. Reference “of all matters at variance between The parties to this suit, touching this cause of action.” Report that the defendant, Selby Hitchens, is indebted to the plaintiff William V. Coulter, f963 20; and “that each party is equally bound to pay for the rigging or any debts that are standing against the schooner v Pacific, in Philadelphia.”</p> <p>Motion to set aside the award, founded on an affidavit of Hitch-ens, that he was charged in Philadelphia with several debts incurred by him in rigging the Pacific; Coulter'not being known as the owner.</p> <p>The award is of matter against law. It supposes a joint liability for these debts in both these parties, whereas Elitchens alone is responsible for them. 2d. The report and award must be set aside for uncertainty. It does not ascertain what is due from the defendant. (Kidd on Awards. 130; Comyn’s Digest, Arbitr. E. F.; 2 Saund. Rep. 293, a. n. 1; Watson on Arbit. & Aicards 53; 11 Law Lib. 33.)</p> <p>Awards arc much favored by our courts. (1 Harr. Rep. 398; Watson on Arb.; Kyd on Awards 201. 242.) The matters in controversy submitted were the price of a vessel on the one part, and the payment or liability to pay certain debts in Philadelphia on her account, on the other part. The award settles both. It finds a certain sum due from Hutchins to Coulter, and that each party shall pay half of the debts in Philadelphia, on account of the vessel. This is sufficiently certain. The amount of these debts is unimportant, as each party is bound to pay half. This part of the award is in favor of the party now objecting to it.</p> <p>The award is uncertain in its meaning. It is doubtful whether it means that the parties shall contribute between themselves to the payment of all debts in Philadelphia, without intending to decide who is primarily liable; or whether it means to decide the question of law, as to the liability to pay these debts.</p>

This was an action of asspimpsit for goods sold and delivered, to which the defendant pleaded payment, and gave in evidence a receipt from Fitzgibbon, dated Sth May, 1837, for $350 00, and a receipt dated May 11th, 1837, for $150 00.

<p>A plea of the act of limitation is not a defence to the real merits, such as will be favored in granting leave to amend pleadings.</p> <p>The declaration need not recite the writ in the caption.' The recital is supposed, and may be supplied at any time.</p>

<p>Capias case for slander. Narr. Pleas, not guilty and a special justification.</p> <p>The declaration set out in various counts, with different averments, a charge of setting fire to the Pennsylvania hall, in Philadelphia, a building belonging to Daniel Neall and adjoining a dwelling house. It charged that whereas, before the uttering the words by defendant, to wit: on 17th May, 1838, “a certain building known as and called the Pennsylvania hall, being the house of a certain Daniel Neall, situate in the city of Philadelphia, in the Commonwealth of Pennsylvania, to wit: at Sussex county aforesaid, was set on fire and burned; which said building was a house then and there adjoining a dwelling house of a certain man called and known by the name of McCalla;” that Hosea intending to charge Kinney with, and cause it to be suspected and believed that he was guilty of the “offences and misconduct” hereinafter mentioned, “and to subject him to the pains and penalties by the laws of this State, and by the laws of the Commonwealth of Pennsylvania aforesaid, made and provided against and inflicted upon the persons guilty thereof, “did, &c., utter and publish, &c., these false, scandalous, malicious and defamatory words, namely: “you (meaning, &c.,) put fire to the Pennsylvania hall, or had a hand in it.”</p> <p>The plaintiff offered in evidence, to prove the law of Pennsylvania against arson, a printed -copy of Purdon’s digest of the Pennsylvania laws.</p> <p>This was objected to — 1st. Because there being no averment in the declaration that the burning of a house in Pennsylvania was an indictable offence, it could not be proved; and 2d. Because an act of assembly of another State is not proved by the printed laws.</p> <p>It was answered, that the court would take notice that arson was .a crime; that it was not necessary to aver the law; that the slander was averred in the narr., to have been designed to bring plaintiff in danger of the pains and penalties to bo inflicted by the laws of Pennsylvania for arson, and that Purdon’s digest was an authorised edition of the laws of Pennsylvania; and, therefore, sufficient evidence of the law of that State. (Stark. Stand. 19; 14 Johns. Rep. 223; 1 Phil. Ev. 288, 306.)</p>

The sheriff returned a sale of the partnership goods of James F. Allee and John P. Allee, to the amount of $872 71, which was claimed by Clark, on his prior execution against James F. Allee, one of the firm, and also by Bevan on his subsequent execution against the firm. The sheriff brought the money into court; and Mr. Frame, for Bevan, moved for leave to take it out in payment of his execution. The firm was admitted to be insolvent.

<p>Testatum capias case. This was an action of use and occupation for the rent of a farm. The defence was payment., and a discount for repairs and ditching.</p> <p>The defendant’s counsel, admitted that he must prove directions from the landlord to cut the ditches and. make the repairs, otherwise the tenant would not be entitled to deduct such repairs from the rent. This he failed to do.</p> <p>The plaintiff proved a lease by parol from March 1836, to March 1837, at a rent of $200: a settlement between the tenant and his agent in June,.1837, and an admission by the tenant that a balance of $53 was due, if he got no allowance for the ditching.</p> <p>The defendant’s counsel having given in evidence the record of a deed from Henry Stout to Isaac Short for this farm, conveying the premises in fee simple, without any reservation of rent, dated and acknowledged the 14th February, 1837, in Baltimore and recorded here, and a bond for the purchase money dated 2d March, 1837, moved a nonsuit on the ground that by the sale the whole right to the rent passed to the vendee, Short, and Stout could not by any form of action recover any part of it. Having parted with the reversion, and all his interest in the thing out of which the rent issued, he had no right to recover the rent by distress or otherwise.</p> <p>argued that on the proof that the deed was executed and acknowledged in Baltimore to a person here; and proof of a bond for the purchase money, dated 2d March, 1837, the jury might find that the deed, though dated 14th February, 1837, and having the formal attestation of “signed, sealed and delivered,” was not in point of fact delivered until 2d March, when the bond was given for the consideration money. He argued that, although in a distress or action of debt for the rent as such, the parting with the reversion before the rent fell due, would deprive the party of his remedy; yet that in assumpsit for use and occupation, the landlord might recover the rent, though he had parted with the reversion, especially on proof of an assumption to pay, 'on payment of part; the narr. containing the usual money counts.</p>

Mr. Clayton showed as error to the record, that the cause was tried by referees, when the defendant had not appeared; whereas the trial should have been by the justice. {Dig. 334.) Mr. Frame moved to quash the certiorari, because the defendant below had taken an appeal, which was still pending, before he issued his certiorari; and he said that a party could not have both remedies at one lime.

Sunimons issued and returned, and' judgment by default, for want of appearance of defendant on 9th May, 1839. Affidavit by the defendant below, stating that she did appear before the justice on the 9th May, 1839, and the cause was regularly adjourned to another day; when she again appeared, and the cause was adjourned several times, she always appearing.

<p>Petition for freedom.</p> <p>The defendant, Carls, made affidavit that the petitioner, Emory Potts, had absconded, and that the defendant, after diligent search, had been unable to find him; and on this affidavit moved the court for an order on the next friend, Thomas Potts, to enter into recognizance for the forthcoming of the petitioner, in case the petition should be decided against him.</p> <p>The motion was opposed, on the ground that the slave had a right to petition for his freedom whether in the actual custody of the master or not; and that there could be no security for costs, because the master is in all cases liable for the costs.</p>

<p>Judgment in debt without writ. Fi. fa. and ca. sa.</p> <p>A rule was obtained in this case to show cause why the defendant should not be discharged from imprisonment, the execution set aside, and the judgment stricken from the record, because it was confessed against the defendant alone, on a bond and warrant of attorney, given by himself and his wife jointly.</p> <p>Wales and Rogers now showed for cause that the bond and warrant being joint and several, and being absolutely void as to the wife, remained the several obligation of Springer, and authorized the confession of judgment against him alone. They cited Henchman vs. Roberts, 2 Harr. Rep. 74; 2 Sellons Prac. 35; 2 Rlac. Rep. 1133.</p> <p>argued that though the bond was joint and several, the warrant only authorized the entry of a joint judgment, which could not be. And as the power conferred by the warrant must be strictly executed, or not all, there could be no judgment confessed upon it.</p>

<p>Trespass quare clausum fregit.</p> <p>On the trial of this cause, James Leonard, the defendant’s survey-oi’, was called to explain the plots, and was asked the location of a certain willow tree, in reference to the boundary lines. This testimony was objected to, because the willow tree was not laid down on the plot.</p> <p>Rogers, and Wm. H. Rogers said that the practice of surveys and plots was introduced to remedy the inconvenience of views; the plot being substituted for a view. Such a plot becomes evidence per se of all things laid down upon it; but other evidence may be given of the existence of natural objects, as indeed the party might prove his whole case without using his plots.</p> <p>Booth and Bayard did not deny the party’s right to prove the existence of any natural object by a witness at the bar; but that he could use his plot either for illustrating such evidence, or the evidence for illustrating the plot, by now locating on it natural objects not laid down. That would be to amend or even make a plot at the trial, and would be extremely dangerous in practice. Each party might thus intentionally omit the location of important objects, and surprise the other party by an improper location of them at the trial.</p>

This was an action on the official bond of the cashier of the Bank of Wilmington and Brandywine, dated 4th May, 1833, to recover a deficit in the funds of the bank to the amount of $4,534 09.

<p>Bail may be required in an action of slander.</p> <p>After' affidavit filed on a rule to show cause of bail, the plaintiff may sue the bail bond; but at his peril if the sufficiency of the affidavit be successfully questioned.</p>

<p>A fraudulent grantor cannot be relieved in equity against his own fraud; neither can his heirs-at-law, who stand in no better condition.</p>

Ejectment. Question reserved by the Superior Court, New Castle county. Tried before Johns, Jr., Chancellor, and Judges Harrington, Lay-'ton and Milligan. Held: considered and enjoyed by the aforesaid coparce-ners, as and for a part of the estate, so as aforesaid held by them in coparcenary,” 0‘Flinn and his heirs were estopped from claiming under his original title, against his partition deed.

Justice; Harrington, Layton and Milligan, Judges. The case was, that Mary Oliver (complainant,) having a judgment against James Bradford for $2,191 41, assigned said judgment to Abraham Egbert (defendant,) in trust for Elizabeth C. Bradford, (the wife of James Bradford and sister of Mary Oliver,) for her separate use and for her children — the assignee to collect and apply the same to their separate use.

Writ of error to the Superior Court, New Castle county. Before John's, Jr., Chancellor; Bayard, Ch. Justice, and Milligan, Justice. The case below was replevin for a quantity of corn. The sheriff returned “Goods replevied, and delivered to plaintiff; and summoned defendant.” The defendant pleaded property in himself; and property in a stranger.

Before all the law judges. The bill stated that Samuel Comly, being a commission merchant in Philadelphia, and Waters, Láird & Ridpath, cotton manufacturers on the Brandywine, the complainant made large advances to said firm, who gave him a bond, dated 21st February, 1884, for $15,000, with interest, on which judgment was entered on 27th November, 1837, and execution issued to May term, 1838.

Writ of error to the Superior Court, New Castle county. moved to dismiss the writ of error for want of jurisdiction. The case below was a petition for divorce, under the act of 1832, “regulating divorces.” (8 Del. Laics. 148.) The Superior Court decreed a divorce, and appointed commissioners to lay off to the petitioner a portion of defendant’s land.

The bill stated that James A. Bayard was an attorney and coun-sellor at law, and Allen McLane the collector of the United States for the Delaware district, in April 1812, when the said collector “seized as forfeited under the laws of the United States the ship Good Friends, Robert Thompson, master, then lying at New Castle,, belonging to Stephen Girard, of Philadelphia.” That by a contract under seal, dated 21st of April, 1812, reciting the said seizure, it was. agreed…

Questions reserved by the Superior Court, New Castle county. [ Tried before all the judges. This was an action brought in the Superior Court for New Castle [county, on a judgment recovered in the District Court of the city [and county of Philadelphia.

Case. This was an action on the case for negligence in not securing a runaway slave, who had been arrested and committed to defendant’s custody for safe keeping. The defendant was a constable of Kent county, and had, together with plaintiff, arrested a runaway slave from Maryland, for which a reward of $00, was offered.

<p>Attachment Ft. fa. Sheriff returns “nulla bona,” and summoned as garnishee Philip Short, administrator of Peter Dolbee, the elder. Rule on the garnishee to answer. „</p> <p>A statement of facts was agreed on by the parties, which set forth that the defendants, Peter and Robert W. Dolbee, were indebted to the plaintiff, John S. Fitchott, in the sum of $392 50, with interest, &c.: that the said Philip Short administered upon the estate of Peter Dolbee, the elder, deceased; and as such administrator possessed himself of the goods and chattels of said deceased: that after passing a distributive account before the register for the probate of wills, &c., for Sussex county, there was a clear balance due to each of the five children and heirs-at-law of said deceased of $ ■ , with interest,</p> <p>&c., of whom the said Peter and Robert W. Dolbee were two: and their said distributive shares of the said balance of the estate of their said father, in the hands of his administrator as aforesaid, was the fund now attached.</p> <p>The question submitted was, whether Philip Short the administrator, was liable to be summoned as the garnishee of the said Peter and Robert W. Dolbee, in respect of the said fund so in his hands as administrator, and held for distribution as aforesaid.</p>

Replevin. Cognizance and avowry for rent arrear, due to Payn-ter Jefferson, for a house and lot. William Jefferson, by will bearing date in August, 1835, bequeathed to Paynter Jefferson one-third of the ground rents of certain lots, situate in the village of Washington, Sussex county. These lots were let out on perpetual ground rent leases, the rent due and payable on the 1st of January annually.

<p>Petition for freedom.</p>

<p>On an appeal by a plaintiff below from a judgment before a justice of the peace in favor of a defendant, the jury found a verdict for defendant for a sum exceeding fifty dollars, and the court gave judgment to the full amount of the verdict.</p> <p>Quere. — Can the plaintiff below recover more than $50 on appeal.</p>

<p>The title of a mortgagee out of possession cannot be set up by a third person as al defence in an action of ejectment, at the suit of a mortgagor. I</p> <p>A mortgagor in possession is the real owner of the land; the mortgage, though in form] a conveyance of the land, is a mere security for the payment of money; and the] mortgagee, beiore foreclosure, lias but a chattel interest. I</p> <p>Lands mortgaged may, before foreclosure, be sold on execution against the mortgagor J #and cannot be sold as the land of tho mortgagee. I</p> <p>It seems that the widow of cestui que trust is, in this State, entitled to dower, I</p>

<p>A certiorari is no supersedeas until served on the justice and allowed by him.</p> <p>Before such seivice and allowance the party may abandon his certiorari, and it is no breach of his recognizance to prosecute the same with effect.</p> <p>A judge’s allocatur to the certiorari is not necessary. It is a writ of course.</p>

<p>On a count on a promise to a testator, evidence of a promise to the executor is not admissible to take the case out of the act of limitation.</p>

This was an action'of trespass vi et armis, for entering plaintiff’s house and taking his goods. The defendant, Vandyke, was an officer and Records the plaintiff in an execution against Boggs, and they justified under this process.

I Scire facias on a judgment. Pleas payment; and that under a ¡writ of levari facias in favor of Joseph Sawyer, use of Samuel IfticDowell vs. Thomas Jaquett and others, William Herdman, then sheriff, sold lands upon which the judgment mentioned in the scire facias was a prior lien, and that out of the proceeds of said sale the fcank received payment and full satisfaction for the amount due on [aid judgment.

<p>Scire facias on a mortgage. Pleas payment, and that James Ocheltree, the mortgagor, had no interest or estate in the mortgaged I premises other than a life estate which has terminated by his death.</p> <p>Mr. Wales moved to strike out this last plea.</p>

<p>This was an action of replevin to try the right of property in a horse.</p> <p>Samuel Price was the tenant of William E.' Perry. His goods were sold by constable Sutton on execution process, and Perry bought the horse at the public vendue, and left it in Price’s possession. Constable Foster, subsequently levied on the horse as Price’s property on execution process.</p> <p>Price proved that Perry left the horse with him for a limited time, with authority to sell; promising to give him a part of what the horse should sell for.</p> <p>For the defendant it was contended that this was a collusive and fraudulent sale; and prohibited by our act of 14 Geo. 2. (Digest 75.) In every case of sale without .parting with the possession it is deemed fraudulent, as to subsequent creditors and purchasers, and therefore void.</p> <p>argued that our act of assembly has reference I to private transactions of sale, unaccompanied by possession. It has [been decided in reference to a public sale, that it was not within the \Stat. of Eliz.; nor is it within our statute.' There is no danger of [frauds from such sales. (10 Com. Law Rep. 442; 4 • Taunt. 823.) [One is not prohibited by law from purchasing goods of another [at a public sale and leaving them in his, possession. Such a trans[action is neither within the letter, spirit, or object of our act. In [Twyne’s case it was decided that a private purchase without possession was a badge of fraud; the Stat. 13 Eliz. ch. 5, made it actually Ifraudulent; and our act does no more. Yet, in England, neither the [common law nor the Stat. Eliz. extends to a purchase at public ven-lue.</p>

<p>The office of treasurer of a public corporation (such as the oily of Wilmington,) is not a “civil office in this State” within the meaning of the constitutional exclusion oí] the clergy from civil office. I</p> <p>In corporations aggregate, where the principle of election is not specified in the char-I ter, it requires a majority of the corporators voting to elect to office, contrary in this! respect to the plurality principle which governs in all elections in this State. I</p> <p>The Superior Court has power to issue a mandamus to the city council of the city oil Wilmington, commanding them to judge according to law in the admission of cor I poration officers, though they are the judges of the election returns and qualifiea-l lions of their officers. I</p>

<p>On presentment by a grand jury, and motion by the Attorney-general, the court, after hearing, issued a mandamus to compel the Wilmington Bridge Company to make a bridge over the Christiana river, conformable to their charter.</p>

This was an action of trespass. The record showed a trial by referees, and a report “that the defendant is indebted to the plaintiff I on the above complaint the sum of four dollars: and nine dollars and six cents cost of suit.” The entry of judgment was as follows: “judgment rendered the 26th of December, 1840. M. Tindal;” and the marginal note stated the amount of the judgment and of the costs to be the same as in the report.

Capias case. Narr in assumpsit. Pleas, non-assumpsit; payment; iscount; set-off and the act of limitations. Replications and issues. The plaintiff offered in evidence a deposition taken on a commis-¡ion to John Glenn, of Baltimore. It was objected to because the in-errogatories were leading and excepted to as such, at the issuing of he same, and written exceptions filed.

<p>An execution cannot be issued by a justice of the peace in one county on a transcrid of a judgment before a justice of another county. The proper proceeding is by scii] facias.</p>

<p>A negro insolvent may be adjudged to serve his creditors, though no fraud be proved against him. ,</p>

<p>Itch return sent back to the commissioners to be amended, so as to specify the depth of the ditch, and delineate an outline of the low-lands to be drained.</p>

<p>CeRtioraui to Justice Wilson.</p> <p>Record. Action on a note of hand under seal, dated June 27,1840, vith a power of attorney to any justice of the peace to enter judgment thereon, with stay of exécution till the 11th of November next, |or $5 00 with interest. Judgment entered November 17, 1840, by fm. B. Wilson, J. P.</p>

Case stated. Richard Howard in his lifetime owned a netd slave, Anthony, who was blind when his master died in 1822, and has ever since been a charge on the estate. Thomas Howard and L. West administered on Howard’s estate, and distributed it'to the heirs. His land was divided in the Orphans’ Court and assigned in thirds to Thomas Howard, Lewis West and wife, and to the children of Robert Howard.

<p>A capias ad respondendum in trespass on the case, &c., at the suit of the plaintiff against the defendant, was issued on Monday, the 26th bf April, 1841, the first day of the present term, a few hours before pie opening of the court, and placed in the hands of the sheriff of Kent county. The writ was made returnable the same day; the first pay of the term being the general return day of all process, although py the sixth rule of the Superior Court, the sheriff is not required to Inake an actual return of original process, until the fourth day of the lerm. The writ was tested as of the 30th of October, 1840, the last lay of the previous term, in the name of Richard H. Bayard, then Ihief justice, who resigned his commission in vacation. The commission .of the present chief justice was read in open court, on the Irst day of the present term, immediately after the court was opened. l>y virtue of the said capias ad respondendum, the sheriff arrested lie defendant, on the 26th of April, 1841, after the court was opened In that day, and returned “cepi corpus” to the writ, and detained lie defendant in custody.</p> <p>■ On the morning of the next day, Mr. John M. Clayton, of counsel ■>r the defendant, moved the court to set aside the writ for irregu-Brity, 1st. Because it ought to have been made returnable the first .y of the next term, namely, the fourth Monday of October, 1841. '. Because it ought to have been tested of the present term, in the ime of the present, and not of the late chief justice.</p> <p>Pie argued, that as the law does not regard fractions of a day, and as the present term commenced on Monday, the 20th of April, the whole of .that day must be considered as the first day of the term, and the last vacation as ending at twelve o’clock on Sunday night: that the writ therefore was issued in term time, and by the act of assembly (Digest 104, sec. 5,) should have been tested in the name of the present chief justice, and made returnable to the next term: that the writ being irregular and defective in these respects, it ought to be set aside and the defendant discharged.</p> <p>insisted, in opposition to the motion, that the issuing of the writ and the arrest under it, were sustained by the uniform practice existing since the first organization of the courts of this State: that the term does not commence until the court is opened on the day prescribed by law, as the first day of the term; and until the court is so opened, the vacation continues: that all writs issued in vacation are supposed, in contempla-] tion of law, to be issued in the preceding term, and therefore bear! teste as of the last day of that term, in the name of the chief justice! for the time being, as directed in the fifth section of the act in Dig.| 104, and are made returnable to the next court after the date, whicf is the teste-day: that independently of this, the pi’esent writ couk not have been tested in the name of the present chief justice, because the prothonotary had no official knowledge or notice of his appointment, until his commission was read in open court, the first day oj the present term: that although, as a general principle, the law doe] not regard fractions of a day, yet fictions of law never were intend! ed to defeat rights; and therefore courts will always inquire as U the real time of doing an act, wherever the purposes of justice rel quire it.</p>

<p>In assumpsit for use and occupation, the defendant may show that he was deprived of I the beneficial use of the premises by the neglect of the landlord to repair according I to contract/</p>

<p>Error in fact ahedged against the record that defendant had not appeared.</p>

<p>Exoneretur entered on a bail piece, on motion, the principal having been convicted of a felony, and imprisoned for that crime. •</p>

Action of covenant on a lease against an assignee of the lessee. In July, 1832, Wm.

Case by reversioner against tenant for years, for damage done to the estate. The action was against the assignee of a lessee of a farm and mill-seat, for cutting wood, saw-logs, &c. The lease contained a covenant by the tenant to keep up all the repairs of the mill. Plaintiff proved the cutting some saw-logs and oak and pine wood, and its delivery by defendant to market, several miles distant. The wood was worth $2 50 per cord at market and $1 75 on the farm.

This was an ejectment for four-sevenths of a large tract oí la in Sussex county, originally devised by John Tingle to his two children, John and Mary, in fee. John Tingle, jun., died intestate and without issue, and his half descended to his sister. Mary Tingle married (first) Woolsey Burton and had by him four children, the plaintiffs’ lessees; and (afterwards) Andrew M‘Crea, by whom she had three children, under whom the defendants were in possession.

<p>Objections to awards must be taken at the term to which they are returned.</p>

<p>Narr. in assumpsit, with a special count. Pleas; non-assumpsitJ payment; set-off and the act of limitation. Replication and issuesj Verdict for plaintiff, subject to the opinion of the court on the follow7-ing case stated.</p> <p>The plaintiff, Smith E. Davis, recovered against defendant as adj ministrator of Jonas Walker, judgment for $2,322 25, part of whicl remains unsatisfied. The defendant as administrator, on the 7th o| November, 1835, passed an administration account, charging himl self with the rents of the land of Walker since his death in 1828, amf on this account there was a balance due to the estate of said Walia er of $97 92^, with interest from the 7th of November, 1835. Th| intestate, Walker, left three heirs at law who claimed this balance the said Smith E. Davis being one of the heirs. Lot Rawlins, as at ministrator of Jonas E. Walker, gave bond according to law on till 13th of June, 1828. The question was, whether the plaintiff in th] form of action, and upon this declaration, was entitled to recover tl balance appearing on said administration account, being for the ren] aforesaid, against the defendant in his own right and as administra tor as aforesaid.</p> <p>Cullen. — An action of assumpsit will not lie against an administrj tor by a creditor for a debt due from the deceased. The remedy is on the bond. If the rents are assets in the hands of the administrator, the only form in which they can be recovered is by suit on the bond.</p>

The plaintiff, William Hazzard, in right of his wife Elexine, late Elexine Wilson, on the 18th of May, 1838, filed exceptions to the administration accounts of defendant, passed respectively on the 10th of March, 1837; 3d of June, 1829; 14th of July, 1830; 13th of July, 1833 and 19th of May, 1835.

This was an appeal from the judgment of a justice of the peaceJ in an action of debt for use and occupation. Harr. in debt. Pleasj nil debet; payment; discount; accord and satisfaction; set-off to the amount of f 49, balance of rent due from plaintiff to defendant. ReJ plication to the plea of set-off; non-dimisit; surrender of the term oil three month’s notice and eviction; and replications and issues as tef all the other pleas. Issue on the replication to the fifth plea.

Venditioni exponas. The sheriff returned that he sold the land on the 25thofMay, 1841, to Wm. Nickerson, for$460, subject to a judgment at the suit of J. M. Clayton vs. defendant,in the' Superior Court, entered on the 23d of August, 1838, and not sufficient.

Actiost on the case for words. I The narr. set out the slander.in numerous counts, all amounting, lowever, to a charge that Parke broke open a letter placed in his lands by defendant to deliver to another, and stole from it ten dollars. In some of the counts there was added a charge, that this was lot the first time he had been guilty of a like offence.

<p>a person continue to receiye a paper or periodical sent through the post-office, he is liable for the subscription price.</p> <p>subscription cannot be proved by the plaintiff’s book of original entries; but, the subscription being proved, the price may become a proper subject of book charge.</p>

Case. moved a continuance on the ground that the I plaintiff had been imprisoned for six weeks next before this term, and [had been unable to instruct'his counsel in the preparation of his cause. The motion was resisted, and the court refused to continue the Icause.

A writ of venditioni exponas, returnable to the November term, 1841, was issued against the defendant, for the sale of a tract of land situate in White-clay creek hundred, and which had been previously taken in execution upon a fi. fa. under a judgment obtained by the plaintiff. To the venditioni exponas the sheriff made return, that he sold the said tract of land of the defendant on the fourth of August, 1841, to John Miller of the said hundred, for one thousand dollars.

Assumpsit. Pleas, non-as-Brmpsit, &c. Replications and issues. I This was an action of assumpsit on a promissory note made by ■lenry L. Peckard “to Robert A. Parrish, trustee in order;” by him ■idorsed to Bonny & Bush; and by them indorsed to plaintiff. The fcte was given to Parrish as a trustee for the American Silk Com-■my, for the patent right of a silk machine, to be conveyed in wri-ig to the defendant and others.

<p>This was a certiorari to William M‘Caulley, Esq., a justice of the jace.</p> <p>The record returned by the justice set forth a single bill for the iyment of seventeen dollars with interest, executed by Charles Robson in his lifetime, to Dqct. Abner Prince, bearing date the four-enth of February, A. D. 1839, to which was subjoined a warrant jthorizing any justice of the peace to enter judgment. No judg-ent was entered in the lifetime of the parties. After their death, a immons was issued by justice M'Caulley, at the suit of the plaintiff ilow, as administrator of the obligee, against the defendant below, ! administrator of the obligo^ returnable on the twenty-eighth of September, 1840. On that day the defendant below appeared and confessed judgment in favor of the plaintiff below, for eighteen dollars and seventy cents, the debt and interest, and fifty-six cents costs, and pleaded no assets.</p> <p>On the twentieth of September, 1841, a scire facias was issued by the said justice, returnable the twenty-eighth of the same month, at the suit of said plaintiff against the said defendant, to show whether there were a.ssets in his hands, as administrator of Charles 'Robhison, deceased, applicable to the judgment of the 28th of September, 1840. The parties having appeared on the return day of the scire facias, the cause was continued, at the instance of the defendant, to the 7th of October, 1841; at which time the parties and witnesses appeared. “After hearing, the justice finds assets in the administrator’s hands, applicable to the judgment of the 28th of September, 1840, and sufficient to satisfy it.”</p> <p>The following exceptions were taken on behalf of the defendant below: — 1. That the original judgment rendered on the 28th of Sep-i tember, 1840, was rendered without determining the plea of no assets. 2. That the justice had no authority to issue a scire facias onl the alledged judgment of the 28th of September, 1840. 3. That the| finding or judgment of the justice on the 7th of October, 1841, oi assets in the administrator’s hands, was without any legal authority.! 4. That there is error in fact in this, that the defendant below withinl fifteen days after the finding or judgment of the justice of Octoberl 7th, 1841, that there were assets in his hands, craved an appeal which the said justice refused to allow; and also r’efused to make any! entry on his docket showing that an appeal had been craved, and refused and disallowed by the justice.</p> <p>Mr. Bayard relied on the first three exceptions, and therefore did not attempt to sustain the fourth exception.</p>

<p>Though a co-plaintiff may testify voluntarily against his own interest, an infant party will not be permitted to do so even with the consent of a next friend by whom he sues. The infant can consent to nothing! and the court will not allow him to do an act to his prejudice.</p>

This was an action for verbal slander, charging the plaintiff with burning the Pennsylvania hall. (See ante, p. 77.) The pleas were not guilty, and a special justification, that before the defendant spoke the words, the plaintiff asserted the same thing of himself in the presence of defendant and others, and the defendant believing the same repeated them without malice, &c. Issue was taken on both pleas.

Judgment confessed on bond and waiTa-nt of attorney, dated 18th of February, 1836. On the application of defendant, rule to show cause why the judgment should not be-vacated, on the ground that the defendant was an infant at the date of the- bond and warrant of attorney. At the hearing it appeared that the defendant was born on the 24th of April, 1816.

<p>A party cannot recover on an altered note, without explaining the alteration.</p> <p>But he may recover on the common counts as for money lent.</p>

<p>This was an action on the case for a libel against the defendant in the form of circular letters, addressed to divers citizens of Sussex county, each respectively, informing them that money had been deposited with the defendant to be paid over to them. The libel was in this form:—</p> <p>“Confidential circular. The committee appointed to superintend the appropriation of the whig fund in the, city of Baltimore, has re-1 ceived information that you are prevented from voting the whig ticket, from pecuniary embarrassments. We hereby inform you that one hundred dollars has been remitted to you through Mr. Joshua S. Layton, the agent for your county, to receive and pay over political I donations; which sum it is expected, has been paid you in due season.</p> <p>Jno. Foster, Chairman,</p> <p>By order of the committee.</p> <p>Baltimore, Nov. 2, 1840.</p> <p>It was proved that numbers of these circulars, stating different! sums, were addressed to different individuals in Sussex, through thel post-office; and that demands had been made on the plaintiff for payment of the money, under the belief that they were genuine. But! the only agency that the defendant was proved to have had in thel business was the taking a number of the letters from the post-office,! at the request of the post-master, and delivering them to the personsl to whom they were addressed. Some of them were delivered after! the defendant knew their contents; and one of the witnesses sworel that defendant advised him to sue Layton for the money, and if he did not recover, he would pay the costs.</p> <p>The defence was that this was no libel. That there had been nc publication of it by the defendant, who was justified in delivering letters from the post office at the request of the post-master, noil knowing their contents. That the advice given after knowing the contents if ever given (which was denied) was innocent in itself from a belief that the letters were genuine, and entitled the party to recover money actually deposited in plaintiff’s hands; and that there! was no malice, without which there- could be no libel. (4 Bac. Ml 45S; 3 ib. 497, Libel B. § 2: 2 Stark. Ev. 448; 1 Caine’s Rep. 581; 2 Stark. Sland. 239, 325, 861; 2 Saund. PL & Ev. 332, 809.)</p>

The plaintiffs below declared in this court, in debt on a judgment obtained by them in Pennsylvania, against the defendant below, before a certain John Johnson, Esq., an alderman and justice of the peace in and for the county of Philadelphia. The defendant pleaded — l. Nultiel record. 2. Nil debet. To the first plea, the plaintiffs took issue; and to the second, demurred generally.

This was an action of trespass on the case for damages done plaintiffs’ meadows, by inundation from defendants’ canal.

<p>Judgment for husband and wife entered on. a bond given to the wife dum sola.</p>

Sci. fa. sur le mortgage. The writ in this case was issued three weeks before the sitting of the court, returnable to this term; but it was not served by the sheriff until Monday evening the 9th of May, being the first day of the session of the court, after the adjournment of the court on that day. The matter was brought to the notice of the court, and the question was whether the service was sufficient.

,Action- on a promissory note, dated the 29th of March, 1841, at six months for $200; drawn by Harris Wells, in favor of John H. Barr, or order, and by him indorsed to plaintiff. William M'Oaulley, Esq., a notary public, proved a demand on H. Wells the drawer, and protest for non-payment, and notice the same day put in the post-office in Wilmington, directed to the defendant the indorser, who resides also in Wilmington.

<p>This was an appeal from the judgment of a justice of the peace.</p>

<p>On avowry for rent arrear the verdict is for the sum found due for rent, with costs; but without interest.</p>

This was a scire facias on a recognizance in the Orphans’ Court, entered into 22d May, 1798, by Joshua Lobb, the oldest son of Joseph Lobb, on the acceptance of his father’s lands, in the penalty of £282 7s 6d, conditioned to pay £191 3s 9d, in three instalments— one-third in six months; one-third in one year from date with interest, and one-third at the death of the widow, Frances Lobb, without interest. Frances Lobb, the widow, died in August, 1828.

Ceutiorari to a justice of the peace in an action on a judgment note, at the suit of Huffman & Donoho vs. M'Namee. The note was given to plaintiffs by the name of Huffman & Donoho, with a warrant of attorney authorizing any justice of the peace to enter judgment thereon “at the suit of Huffman & Donoho,” for $24 70, with interest, &c. Judgment entered accordingly and note filed.

Castle county, Samuel Woodward died seized of land in N. Castle county, leaving a widow, Mary Woodward, and four daughters, of whom the appel lani’s wife is one.

Questions reserved by the Superior Court, New Castle county, for tearing before all the judges. An award was made in an amicable action, at the suit of Ke-tiah Robinson against the defendant, Joel Robinson, administrator of Charles Robinson, deceased, on the 18th of May, 1841, and judgment If assets thereon rendered on the 24th of May, 1841.

Questions reserved by the Superior Court for hearing before all the judges, on a case stated. The first of these suits was an action of debt brought under SeG. 1, of the “Act concerning lotteries,” (9 Del.

<p>Question reserved by the Superior Court in Sussex county, for hearing before all the judges.</p> <p>This was an action of slander for imputing to the plaintiff the crime of burning the Pennsylvania hall. (See ante p. 398.) The declaration set out that whereas, before the committing of the seve ral grievances by the defendant “to wit, on the 17th of May, 1838. a certain building known as and called the Pennsylvania hall, being the house of a certain Daniel Neall, situate in the city of Philadelphia, in the commonwealth of Pennsylvania, to wit, at Sussex countj aforesaid, and which said building was a house then and there ad joining to a dwelling-house of a certain man called and known bj the name of M'Calla, was maliciously and voluntarily set on fire am burned, to wit, at Sussex county aforesaid: And whereas also, by certain law or act of the legislature of the State of Pennsylvania, i is provided, among other things, that every person duly convicte-of the crime of maliciously and voluntarily burning the dwelling house or any other house adjoining thereto, belonging to any othe person or persons, or as being accessary thereto, shall be sentence-to undergo solitary confinement at labor for a period of not less tha: one or more than ten years for the first offence, agreeably to th provisions of said act;” yet the said John Hosea, well knowing thl premises but envying, &c., and contriving to injure the said Jen miah F. Kinney, (fee., and to cause him to be suspected to be guilt of the offences and misconduct hereinafter mentioned, &c., “and t] subject him to the pains and penalties and corporal punishments b the laws of this State, and by the laws of the commonwealth of Pent sylvania aforesaid, made and provided against and inflicted upo persons guilty thereof,” in a certain discourse, &c., “falsely and ma liciously spoke and'published to and of and concerning the matter aforesaid, these false, scandalous, malicious and defamatory words; that is to say — You put fire to the Pennsylvania hall or had a ham in it, thereby meaning, &c &c.</p> <p>Upon the trial below the plaintiff offered in evidence a duly ai| thenticated copy of the law of Pennsylvania, which was objected on the ground, that there was no averment in the declaration of the existence of this law at the time the house was alledged to have been burnt; and the court admitted the evidence, reserving the question of law — “Whether the averments in the narr. were sufficient to entitle the plaintiff to give the said act in evidence on the trial of the issue of not guilty in this cause.”</p>

Samuel Woodward, died seized in fee of'a house and lot, and of a farm containing one hundred and twenty acres, with a stone house, barn, &c., erected thereon, having made his last will and testament… Held: was not that of a perfect dower interest, and so ong as the testator “held” the land, there never could be any perfect .itle to dower. Then how can the will, under this construction, be sffectuated by a sale and conveyance of the land, subject to a perfect fight of dower?

<p>The saving of the sixth section of the act of limitation in favor of persons under disability applies to administration and other bonds, which by the Jirst section are barred in six years from their date. And if the person entitled be a feme covert at the time the cause of action accrues, an action may be maintained by the husband, though brought after the expiration of six years from the date of the bond.</p> <p>The principles of calculating interest and deducting payments on bonds; running accounts; and for and against administrators or guardians,1 stated.</p> <p>The jury are not bound to state the principles on which their verdict is founded; but if they return, together with the verdict, a statement which shows errors of law, or of admitted fact, the court will set aside the verdict for this cause, and grant a new trial.</p>

Ejectment. Case stated. Edward Short being seized of the land in dispute in fee, made his will and devised as follows: — 1st. I give to my son Wingate Short “$24 of my estate and no more.” 2d. To Hannah Piper, my daugh ter, and Naomi West my negro Jinn, and no more of my estate. 3d.| My will and desire is, that my son Isaac Short, should have my ne' gro Frank, and “to him and his brother John Short should have fou: hundred acres and three to be equitably divided between the…

<p>Fi. pa. levied on land. Inquiry held and sufficient.</p> <p>The inquisitors valued the land at $40 per year beyond all repri-es, and found it sufficient to pay this execution, and all judgments gainst it at the time of inquisition.</p> <p>now obtained a rule to show cause why the iquisition should not be set aside, founded on an affidavit that there rere three judgments entered on the same day of the inquisition, ffiich were not considered, and that the inquisitors valued the land >o high.</p> <p>Woollen now showed for cause — 1st. That the three judgments atered on the day of the inquisition, were entered after the inquisi-on held. 2d. That the plaintiff had no right to controvert here the nding of the inquisition; and 3d. That the land was worth $40 per sar, which is sufficient to pay all the liens that were against it at e time the inquisition was held.</p>

Rule to show cause why the plaintiff should not take out of cour a sum of money brought in by the sheriff as levied from the defend ant’s property. The money was levied by a sale of defendant’s property on plain tiff’s execution, which was issued on the 8th of May, 1841.

<p>Definition of a partnership.</p> <p>What is a partnership is a question of law; its existence is a question of fact.</p>

The record showed that this was an action of summons upon a judgment rendered by justice Godwin of Kent county, a transcript of which judgment was filed. The defendants appeared, went into trial, and there was judgment against them, to which they pleaded their freehold and obtained a stay of execution.

The plaintiff claimed title under Daniel Bedwell, assignee of Ann eterson, to whom the land was assigned in the Orphans’ Court as ntestate land of Rebecca Sutton. Exceptions were taken in the rphans’ Court to the assignment of the land, and objections made to ¡he return, by this defendant; but it was confirmed by that court afer hearing. The title of Rebecca Sutton rested on a very ancient rolding.

CERTIORARI. Record. “George W. Chaytor vs. John H. Barr. Action on ac-| count for medicine and attendance for one of the crew of the Ceres,| $5.

Attachment to secure rent under section 20, of the act of 1770.

<p>Venditioni exponas. Sheriff returns — “Land sold, viz: No. 1 tJ Thomas Bradley for $250: part of No. 2 to Carr & Springer fo| $605; other part to T. B. for $340.” Rule to show cause why till sale of defendant’s land by the sheriff should not be set aside, o[ proof that the day of sale was very stormy, and the streams so much swollen as to render their passage dangerous; and that in consequence of this, many persons were prevented from attending, who would have given, and are now willing to give, much more for the land, which was sold at a great sacrifice, and much below its value.</p>

<p>moved a continuance of this cause Bn the ground (supported by the defendant’s affidavit,) of the absence ■f a material witness. The witness lived in Philadelphia, and had Bromised defendant to attend at this term; and defendant had written R>r him several times,</p> <p>The continuance was opposed.</p>

<p>In a suit regularly before a justice of the peace judgment rendered on confession is valid.</p> <p>The case of Morrison vs. The Turnpike Co. (1 Harr. Rep. 366,) distinguishable from this.</p>

Pearce vs. Thompson. “Demand on account $15 00.” Appearance — plea of nil debet; reference; report and judgment for plaintiff for $15 00. New trial on the demand of defendant; trial by referees; report and judgment for $10,00. The defendant below alledged diminution, and obtained an order for a further return of the cause of action; to which the justice returned that there was nothing further among the record and proceedings before him than what he had already returned.

<p>The purchaser of intestate land sold by order of tile Orphans’ Court, is entitled to all the accruing rent.</p>

<p>An action will not lie against an administrator in hia representative capacity, for mo ney had and received by him to the plaintiff’s use.</p> <p>Quere. — When does the right to road damages become complete?</p>

Scire facias on a recognizance in the Orphans’ Court on the ac ceptance of the intestate lands of Henry Walker. Judgment by cor fession; amount to be ascertained by the prothonotary; stay of exl ecution three months. March 31, 1842. The prothonotary asceil tuined the amount to be $394 48; execution issued for that amount, returnable to May term, 1842, and the sherifflevied the money.

Foreign attachment case to November term, 1842. Attachment bvied. Nov. 15, 1842, Wm. Hemphill Jones appeared in the office If the prothonotary and entered special bail, and dissolved the at-ichment according to Dig. 47. The prothonotary took his justifi-lation without the presence of, or notice to, the attaching creditor. now moved for judgment, heating this entry of special bail as a nullity, because it was taken vacation without notice.

<p>In an action for a malicious prosecution, the plaintiff is bound to prove that It was at the instigation of the defendant; that it terminated in his favor; and was without probable cause, and malicious.</p> <p>It is for the court to decide what amounts to probable cause.</p>

I This was an action of assumpsit for goods sold and delivereil The plaintiffs proved their book of original entries charging the goocl to defendant under date of 22d November, 1836. They commence® action before justice Ewing on the 20th of March, 1841, and hsl judgment by default, from which the defendant appealed. Pro narr. in assumpsit. Pleas non-assumpsit and the act of limitation.

<p>From an inquisition of damages at bar.</p> <p>Form of the jurat.</p>

<p>Quere. — How far will a court of law, on motion, enforce, as against the assignee of a judgment, an equitable set-off between the defendant and assignor?</p>

<p>A writ of fieri facias, though it binds the defendant’s goods from the delivery to thej sheriff, does not change the property in the goods until actual levy.</p> <p>A bill of sale must be accompanied by possession.</p>

<p>By agreement between debtor and execution creditor, the defendant’s land was sold without first selling his goods; and the sale was confirmed; though objected to by a junior judgment creditor who had not power to issue an execution.</p>

<p>The judgments of courts of other States are conclusive in all the States, if it appear that the court rendering judgment had jurisdiction of the parties and subject.</p> <p>These essentials of jurisdiction may be denied by a special plea, even against the record.</p> <p>1‘Full faith and credit” are to be given to the judgment records of other States, when these pre-requisites appear; if they do not appear, or be denied, they must be established, or the judgment has not the force of a domestic judgment.</p>

<p>Assumpsit for attorney’s fees. Narr. First count laying the indebtedness to the testator, and a promise to the executors. Second count for interest. Pleas, non assumpsit; payment; discount and the act of limitation.</p> <p>The plaintiffs relied on the following letter from defendant dated the 28th of November, 1839, as taking the case out of the act of limitation. (1 Harr. Rep. 207.)</p> <p>Dear Sirs, — Your letter of the 20th instant has come to hand, and in answer, l shall have some leisure in the course of next week, which time 1 will come up to New Castle to see you about the claim which the late judge Black has against me. I hope when we come to talk the matters over, we will be able to settle the business satisfactory to both parties.</p> <p>Philip Reybold.</p> <p>It was objected that this letter was not admissible under the pleadings, there being no count on a promise to the testator in his lifetime. It was argued that unless the plaintiff could show a promise to Mr. Black in his lifetime, he shows no cause of action ever existing; and though there was a count laying a promise to the executors, such a promise was without consideration, and could not be the ground oi action. All the forms of pleading in such cases, where it is intended to rely on a promise to the executor, first count upon an indebtedness and promise to the deceased; and then, in another count, al-ledge the indebtedness to the deceased, with a promise to the executor.</p> <p>It is well settled that when you declare for a debt due to the intestate, and seek to recover on a promise to the executor, the pleading must alledge the debt due the intestate, and a promise to the executor. It has been so decided in our Court of Appeals. (1 Harr. Rep. 207; 3 ib. 286.)</p> <p>The Court. — Each count must stand or fall by itself. It can, therefore, not be necessary to lay any promise to the testator, as a foundation for a promise to the executors. The indebtedness must be laid to the testator, wfith a promise to the executor, as it is in this case. If plaintiffs had declared on an indebtedness and promise to the testator, and then replied, to a plea of the statute, the promise to the executors, it would have been a departure in the pleading, and demurrable. Letter admitted in evidence.</p> <p>I The plaintiffs then proved a payment to the prothonotary for them lof one of the fees charged in this account, within three years; and ■relied on the letter as taking the case out of the statute of limita-jtion; as “an acknowledgment of a subsisting demand." (1 Harr. lAep. 206, JVewlin vs. Duncan.)</p> <p>contended that there must be an express admission of the debt, without qualification, to remove the bar of the statute. (1 Law Lib. 64; 1 Peters’ Dig. 33; 2 Saund. PI. & Ev. 157.)</p>

<p>The effect of an assignment in the insolvent court is to pass the title in the lands oí the insolvent to the assignees.</p> <p>The title passes by the mere act of assignment, without any act or consent of the assignees.</p> <p>And the title is not returned to the insolvent though no debts be proved, and no further action be taken under the assignment; nor whére the objects of the assignments are answered otherwise than by a sale.</p> <p>A defendant in possession peaceably, though without color of title, may defend himself in ejectment on the weakness of the plaintiff’s title.</p>

This was an action of ejectment for a tract of land in Appoquini-mink hundred, in possession of defendants. A verdict was taken for plaintiff’s, lessor by consent, subject to the opinion of the court on the following case.

<p>Foreign attachment case to November term, 1842.</p> <p>On a previous day of the term Mr. Gray, for plaintiff, moved and obtained judgment; and now, on the last day of the term, Mr. Wales applied for leave to put in special bail to the action, and dissolve the attachment.</p> <p>The question was, whether the defendant had the whole of the second .term to put in special bail; or must do it at some day in tha term before judgment actually entered.</p>

Oyer and Terminer, Kent, June, 1840. The prisoner was indicted for burglary, with intent — 1st, to steal the goods of John Sipple; and 2d, to ravish Deborah Sipple. It was proved that the prisoner attempted in the night time to break into the dwelling-house of Sipple, where his wife and two children were sleeping; that he succeeded in getting his arm and hand in; but was successfully resisted by Mrs. Sipple.

The defendant, Wilson, (the only one now on trial) was indicted with Jacob R. Griffin, for exporting from this State to Virginia, two negro convicts, Emory Hand and James Hickman, contrary to section 17, of the act providing for the punishment of certain crimes and misdemeanors. (Digest, 148.) Emory Hand was called as a witness, and objected to, on the ground that he was not a freeman.