Volume 4 — Delaware Reports

Before all the law judges. The bill stated that Isaac Jones, of Wilmington, the grand-father of complainants, on the 18th of January, 1826, for the purpose of settling his estate and making provision for his family, and being seized of a large real estate in Delaware and elsewhere, did make, execute and deliver, a certain deed, whereby for the consideration of one dollar, he granted and conveyed unto David Bush, William Larkin and William Keay, their heirs and assigns, in…

Writ of error to the Justices of the Superior Court in Sussex county. Coram, Johns, Jr., Chancellor, Milligan, Justice, and Wm. H. Rogers, a judge ad litem in place of Judge Layton. The case came up on a writ of error to the judgment of the Superior Court in Sussex county, in an action of debt on an administration bond, dated 11th January, 1826, at the suit of the State for the use of Wm.

Before all the law judges. This was an appeal from the decree of the chancellor in Sussex, in a case of partition under the will of John C. Burton, which after several bequests of personal property to his wife, Elizabeth Burton, devised as follows:—“ Item, my will and desire is, that the residue of my estate both real and personal, shall be divided between my said wife Elizabeth, and my two half sisters, viz: Kuth Burton and Mary Short, as the law directs; giving nw said…

This was an issue of devisavit vel non sent by the Register of wills of Sussex county, to try the validity of the will of Caleb Ross, dec’d., dated the 5th of October, 1842. The case was heard on the 15th of October, 1843. The respondents proved the factum, and the general competency of the testator to make a will, and rested.

Capias case. The declaration contained a special count on an agreement by defendants to take the plaintiff’s son into their employment for one month, at five dollars wages, with meat, drink, &c., and then to take him as an apprentice to the trade of tanning and currying. There were other counts for work and labor, See.

<p>A bequest of personal property for life, without any farther or other limitation of it over, seems to be an absolute gift.</p> <p>Personal property may be limited over after a bequest for life, by way of executory bequest.</p> <p>No limitation can be made of specific chattels, the use whereof consists in the consumption.</p>

<p>The treasurer of a ditch company, under the general ditch law, cannot be sued on orders drawn by the managers before acceptance.</p> <p>Such orders should be drawn by both managers.</p> <p>The liability to laborers is on the part of the managers, and not of the treasurer.</p>

<p>A purchaser of goods at sheriff’s sale, may maintain replevin for them after a demand and refusal to give them up.</p> <p>It is not legal for a sheriff to sell goods not present; but the right of the purchaser of goods so sold, is good unless the sale he set aside.</p>

The defendant’s testator, David Wilson, was the owner of a sloop, ■“the Sarah and Emily,” of which one Jerry Jeffers, a coloured man, was master, trading from Slaughter creek. Jeffers sailed the vessel for a share of the freights.

<p>The acknowledgment of a deed before a notary public of the State, must be within the State.</p> <p>A married woman cannot make a valid deed of her own lands, so as to hind even her own interest, without her husband being a party.</p>

Narr. in assumpsit for use and occupation. Pleas non assumpsit, See. In 1836, Coard Button contracted to sell Philip W. Mariner a house and lot for $60, and delivered possession; the deed to be made on payment of the purchase money. Philip Mariner died, and his representatives refused to pay the purchase money; but agreed to rescind the contract. Burton brought an action of ejectment and recovered the land; and brought this action for use and occupation.

Replevin for a carriage and harness. Sheriff returns “goods replevied ; defendant gave security, and the property remains in his hands.” Fleas—1st, Property in James R. Truitt, and that defendant as a constable by virtue of execution process at the suit of C. S. Watson & Co., against the said James R. Truitt, took the goods and chattels in the declaration mentioned. 2d. Property in the said James R. Truitt; and a further justification as constable by virtue of execution…

<p>Appeal from the Register’s court of Sussex county, in the matter of the granting letters of administration, d. b. n., on the estate of Daniel Burton, deceased.</p> <p>Record of the grant of letters to defendant. Petition by David Burton to the register to revoke the grant of letters to defendant, and grant them to petitioner. Petition dismissed. Whereupon this appeal was taken.</p> <p>Causes of appeal.:—1st. Because John B. Waples is not entitled to any part of the residue of the personal estate of Daniel Burton. 2d. He is not a creditor of the deceased. 3d. He is not a suitable person to be administrator, being a seafaring man, generally absent from the State 4th. Because Daniel Burton, deceased, left to survive him four brothers, fully competent and willing to administer.</p>

This was an action of ejectment for certain lands in Kent county. The plaintiff showed title, as heir at law of Susan Wallace, his half sister, to one third of the land late of Train Caldwell, deceased. The defence rested on the plaintiff’s own deed to defendant, for all his interest in the land, dated August 17th, 1837; and duly acknowledged and recorded. The defendant went into possession under this deed, and improved the premises.

<p>Certiorari to Justice Ruth.</p> <p>The record showed a proceeding by summons (under the act of 1833,) against Moses Rash, a constable, “ for neglecting as by law required, to make return of his proceedings on execution process against Andrew Mitchell, to show cause why an execution should not issue against him for eleven dollars and twenty cents, principal; two dollars and sixty-five cents interest, and seventy-five cents costs, being the amount of the original execution, Parris vs. Mitchellwhich execution was issued by Justice Coverdale, July 13, 1839; returnable 28th September next, “ and delivered to Harper and Moore security.”</p>

<p>Corporation books are evidence in a suit between the company and a corporator.</p> <p>A member of the company is not a competent general witness for the plaintiff in such suit.</p> <p>The record of a private act of assembly, takes date from the time of lodging a copy in the recorder’s office to be recorded : a private act is, therefore, not void, though not actually recorded within the year, if deposited in due time.</p>

<p>This was an action against the defendant John Ruth and the others, his sureties, as collector of road taxes for W. C. Creek hundred, New Castle County.</p> <p>The declaration was on a lost bond; and the defendant suffeted judgment to go by default, and an order was made in the nature of a writ of inquiry to charge the jury attending at this term, to inquire of the damages, &c.</p> <p>The jury were sworn “well and truly to inquire, and true inquisition make and return, of the damages and costs sustained by the plaintiff on occasion of the breaches of the condition of the writing obligatory assigned in the declaration in this cause,” &c.</p>

<p>Rule on the Levy Court Commissioners of New Castle county, to show cause why a mandamus should not issue, to compel them to pay plaintiff out of the county treasury the eight-ninths of two hundred and thirty-five dollars, being damages assessed on the opening of a certain road laid out and opened in New Castle county. (See Wilson vs. Hollingsworth’s adm’rs. 3 Harr. Rep. 500.)</p> <p>The affidavit of William S. Wilson stated:—That previous to Nov. 1, 1838, a road was laid out in Brandywine hundred by virtue of an order of court, &c., which road passed through the farm of Amer Hollingsworth, and the freeholders assessed the damages to said Hollingsworth at two hundred and thirty-five dollars. The return was confirmed at May term, 1839. The Levy Court approved of said road and ordered it to be opened, and it was opened ; and the Levy Court ordered the damages to be paid to the parties entitled. This was in the year 1S4L Amer Hollingsworth died intestate in Nov. 1838. Upon the application of his heirs at law, the Orphans’ Court divided said farm into two parts, of which one was accepted by Joel Hollingsworth, and the other ordered to be sold, and it was sold, and bought by the relator, on the 14th of January, 1841; and it was duly assigned to him by the Orphans’ Court, on the 17th of February, 1841. The road so laid out passes for eight-ninths of the distance on the part so sold to relator, who claims that proportion of the damages. The clerk of the peace on the 25th of January, 1842, paid Amer Hollingsworth’s administrator the said sum of two hundred and thirty-five dollars. The relator presented his claim for these damages to the Levy Court on the 15th of February, 1843; and the Levy Court, on the 13th of March 1843, refused to allow or pay the same.</p>

<p>There may be a second adjournment of a cause before a justice of the peace, without application from either party, but the record should show the cause for such adjournment.</p> <p>The oath against a defendant’s freehold must be made within two days after judgment rendered, to deprive him of a stay of execution.</p>

- This was an appeal from^the judgment of a justice of the peace. The declaration was in trespass for killing the plaintiff’s ox. The plaintiff proposed to prove, that Townsend took the ox and appropriated him to his own use. This was objected to, because there was no count de bonis asportatis.

Narr. Pleas. Trial and verdict for plaintiff below. Motion in arrest of judgment. The case came into this court on an appeal from the judgment of of Justice M'Caulley. The action below was by John Hedges against George F. Jackson, and John S. Dickenson. The constable returned “non est” as to John S. Dickenson. Jackson appeared and went to trial, and there was judgment against him for $21.

<p>Replevin. Goods replevied and. delivered to- plaintiff. Narr. Plea, property in defendant.</p> <p>The property in question was seized and sold, on execution process "against plaintiff’s son, John H. Burton, as his property, and bought by defendant. The plaintiff claimed the property at the sale. She and her son lived together. (See the former case of Hazzard vs. Burton, ante. p. 62.)</p> <p>The defendant proved the judgment, execution, levy and sale of the goods as the property of John H. Burton, and his- purchase; and produced evidence that John H. Burton carried on the farm, on his own account; bought and sold the property, and was the real owner. Evidence was offered on the contrary for the- plaintiff, in support of her claim to the property; amongst which, was the record of the-trial and judgment, in the case of David Hazaard and John H. Burton (ante p. 62,) for this same property, which suit was defended by tbe present plaintiff, and in her behalf.</p>

These were cross appeals from the decree of the Register of wills for Sussex county. On a review of the will of Caleb Ross and an issue of “devisavit vel non” tried and found for the will, the register charged all the costs of the issue on the estate, though there was no good ground for impeaching the will; and allowed the executor only $300, for fees paid counsel for defending the will, though he had paid $900. Both sides appealed from this decree.

<p>The jury directed to presume a patent from the State- on proof of a warrant one hundred and three years old—located sixty-seven years ago—and a possession of eighty-eight years.</p> <p>Thirty years’ possession will nut give title as against the State.</p> <p>An alteration of the record of an- old survey unaccounted for, but proved to have been, recently done, will not affect rights previously existing under it.</p>

Summons in dower. Plea, that the land was sold on a judgment •against the husband, which was a lien thereon at the time of the marriage. Replication and issue. It was admitted that Samuel Ingram was seized of an estate of inheritance in the premises at the time of the marriage. The judgment upon which the land was sold bore date on the same day of the marriage, and there was no evidence which, in point of time, preceded the other.

<p>Pi. fa. issued 25th of April, 1843, levied, &c. Venditioni exponas. Sheriff returns, goods sold, &c.</p>

<p>A charge that plaintiff was about to run away and defraud his creditors, is actionable, with special damage.</p>

<p>After execution issued and delivered to a constable, an alias cannot issue until the first be regularly returned.</p> <p>IThe presumption of law is that the judgment is satisfied by the execution, until the contrary appear by the officer’s return of the same.</p>

<p>Petition to be discharged from indentures of apprenticeship, on the ground of the invalidity of the binding.</p> <p>The petitioner was bound by two justices of the peácé df Kent county, as a poor child having no parents able to maintain him and bring him up to industry, and in suitable employment.</p>

This was an action of covenant on the following sealed instrument, dated 27th September, 1839:— “ George Houston, of the town of New Castle, Del., contractor on mail route 1801, from Wilmington, Del., to Georgetown, has sold his interest in said contract to Enoch Spruance, of Smyrna, Del., and Elihu Jefferson, of New Castle, for the use and benefit of the People’s line of stages company, now in operation on said route; the new service to commence on the 1st of January next:…

<p>If one sell goods to an agent lmowing the principal and give credit to the agent, he cannot afterwards charge the principal.</p> <p>Additio probat minoritatem; thus A. B., means A. B., the elder, where there are two of the same name; but this may be explained otherwise, according to the fact.</p> <p>Interest is calculated from the expiration of the credit, where that is agreed on ; otherwise by the usage.</p>

Question reserved by the Superior Court in and for New Castle-county, to be heard before all the Judges. The case came before the Superior Court on a certiorari to the mayor of the city of Wilmington.

<p>[Note. The Chief Justice did not sit because of his connection as brother-in-law of the defendant in the second cause.]</p> <p>These suits were dockettcd by an arrangement between the defendants and attorney general, to try the question of the defendants’ right to retain as a compensation for their services, a balance in their hands of a fund received for the State and Delaware college.</p> <p>By an act of the legislature passed February 11, 1835, James R. Black, James Rogers, Andrew Gray, George Platt and Henry Whiteloy, were appointed managers of a lottery for the benefit of Delaware College and other purposes, with power to institute, carry on and draw a lottery in one or more classes, for raising a sum not exceeding one hundred thousand dollars clear of all expenses. They were required to give separate bonds for the faithful discharge of the trusts reposed iu them, and to take an oath faithfully to perform them. They were authorized to proceed to draw the lottery themselves; to appoint commissioners to attend tile drawing; and, if they thought proper, to sell the scheme, or any class of the lottery, provided they took sufficient bonds and security from the vendees, in which case they wore to be exonerated from ail liability on account of such persons as they-might sell to. The grant was limited to ten years. The managers were all trustees of Delaware College. Mr. Gray did not act; the others gave bond, and in April, 1835, sold the entire scheme to Yates & McIntyre and D. S. Gregory & Co., of New York, for one hundred thousand dollars clear of all expenses, payable ten thousand dollars each year, with the right of terminating the contract at six months’ notice. The vendees gave bond and security. The proceeds of this contract were paid quarterly to Mr. Black, one of the managers, he being also treasurer of the college. After his death, in September, 1839, the managers permitted the treasurer of the college who suceeded him to receive that portion which belonged to-the college, directly from the contractors; and the balance, belonging to the school fund and State, they allowed for about one year to accumulate in the contractors’ hands, when it was, by their consent, paid over directly to the State treasurer. The amount received from the contractors and paid to the college and State treasury was sixty-six thousand, nine hundred and forty-one dollars, and seventy-nine cents. In consequence of notice from Gregory & Co., closing the old contract, a new one was made with them in April, 1840, very much reducing the sum to be paid by them annually. On the 6tb of April, 1842, the managers had in hand the sum of two thousand and fifty dollars, and they subsequently received three thousand, three hundred and fifty dollars. On that day they met and determined upon a compensation of two hundred dollars per annum each.,, “ for services, Sztc., connected with the managementand they apportioned the" sum in hand in equitable proportions, as they judged, among themselves and the representatives of the deceased managers, Judge Black and Col. Whiteley having died, and their places being supplied respectively by Thomas M. Rodney and John Evans Young, by appointment from the governor.</p> <p>The declaration was in debt on the defendants’ bond as managers of the lottery, reciting all the material facts and assigning as a breach the receipt and non-payment to the college and State of a sum sufficient to cover the balance in the managers’ hands. The defendants traversed all the material allegations in the narr., and pleaded several pleas to the breach, the most material of which was, “ 4th, a set off for services and compensation as managers of said lottery.”</p> <p>The questions therefore were:—</p> <p>1. Whether the defendants’ were entitled to retain the fund in hand as a compensation for their services as managers of the lottery. *</p> <p>2. If they were entitled to compensation, what should be the amount thereof; and this the parties agreed should be settled by the judges.</p>

<p>This was an action of trover for a yoke of oxen and a cow and calf belonging to the estate of James B. Wilson; and which the defendant resisted as a purchaser from the plaintiff under the following circumstances:—</p> <p>James B. Wilson died the 23d of March, 1843, leaving this and other property; but being involved in debt to more than its value, the widow was advised to let the creditors divide the property until they were satisfied, and take the residue herself. The defendant, D. Hudson, was one of the creditors. They divided the property by a sale. Each article was put up and the creditors bid for it. D. Hudson bought the cow and yearling, with plaintiff’s consent, at this sale. There was no advertisement of the sale, but the property was previously appraised. Immediately after the sale, in consequence of notice from the Register, the widow administered; all the creditors gave up to her the property they had bought at the sale, except the defendant, who refused to do so. This action was brought to recover the value of that portion which he had purchased and taken away.</p>

<p>Meney paid through ignorance or mistake of a fact, may be recovered back in the action of asssumpsit; but not where the party had full means of knowledge in his power.</p>

This was an action of replevin for a horse. The sheriff returned replevied, and delivered' to plaintiff. Pleas, non-cepit triodo et forma; cepit in alio loco; and property in. Rebecca Johnson. The plaintiff claimed property in the horse by purchase at a- sheriff’s sale, on execution process at his suit against the defendant, Manió ve Johnson.

This was an action of covenant on a contract under seal, for the sale and delivery of one thousand cords of oak wood to the defendant, at four dollars and seventy cents a cord, delivered in Philadelphia. The breaches were, the nonpayment for a portion of the wood delivered under the contract, and refusal to accept the residue.

<p>Certiorari to Justice Wilson.</p> <p>The exceptions to the judgment in this case were:—</p> <p>1. That the place of appearance was uncertain. The summons commanded the constable to “ summon John H. Elligood to appear on Monday, the 29th of January inst., at his office at Bridgeville, before Wm. B. Wilson, one of our justices, &c. &c.” 2. That judgment was rendered by the justice, by default, against the said John H. Elligood, without first having heard the" allegations and proofs of the plaintiff. The record stated that “ the defendant not appearing, the constable is sworn to the service of the aforesaid summons; and after investigating the plaintiff’s demand, judgment is rendered for plaintiff for $18 32 debt, and sixty-nine cents cost,'by default, January 29, 1844.” 3. That John H. Elligood was at the rendition of judgment, a freeholder of the county, and was treated as such by the plaintiff below, by suing out the writ of summons; and that execution was therefore irregularly issued without a stay.</p>

Daniel Hudson, the respondent, recovered a judgment before Justice Tindal, against John Lynch, for $21 90; and issued an execution thereon, which was delivered to constable Isaac Jefferson. Jefferson placed the execution in the hands of constable Pettijohn, who collected the money from the defendant Lynch. The execution was not returned by either. The present action was in assumpsit against Pettijohn, for money ‘had and received to Hudson’s use.

This was an action on the case for the use and occupation of a dwelling house in Georgetown. The defendant entered into possession under a contract of purchase which fie failed to comply with; and the question was whether he could be held liable for rent whilst he occupied. There was some evidence offered of admissions by the defendant that he was liable for rent, or of his payment of taxes which he said he should deduct from the rent.

<p>.This was an action on the case by a reversioner against a tenant in dower, for an injury to the inheritance; with a count in trover for the value of the timber cut and carried away: (as to which see 1 Ch. PI. 199, 201.)</p> <p>It appeared in evidence that the defendant, Hannah Piper, had been in possession by metes and bounds for more than thirty years, occupying as tenant in dower, as the widow of Joseph Piper. There was no record or other evidence of the assignment of dower. It was further proved that Joseph Piper had sold and conveyed the reversion to a certain Josiah Piper, who conveyed to plaintiff, reserving a life estate for his own life, and that he was still living. The injury to the inheritance was proved as laid. , .</p> <p>On this evidence of the plaintiff Houston, for defendants, moved a nonsuit. The narr., states that the defendant, Hannah Piper is tenant in dower, and that plaintiff is seized of the reversion. The proof shows that there is an intermediate life estate in Josiah Piper.</p> <p>The remainderman, Manaen Short, cannot maintain an action on the case for an injury to the reversion by the first tenant for life, during the life of the second tenant for life. The action can only be brought by him who has the immediate reversion in fee or in tail. (1 Leigh. JV. P. 585; 2 Saund. Rep. 252, n.; Co. Lilt. 54; Cro. Jac. 688.) And if there be tenant for years, remainder for life, remainder in fee, the remainderman in fee cannot maintain an action for an injury to the reversion during the life of tenant for life.</p> <p>2d. The plaintiff cannot recover on the last count which is in trover; because the trees severed belong to the tenant for life, Josiah Piper, and not to the remainderman.</p>

<p>R, having a married daughter (Mary) and several grand children, devised his estate to his brothers, in trust to divide it equitably agreeable to the laws of the State; but that his daughter Mary should receive no part of it whilst married to her then hus. band; nor her minor children; and in case of their death under age, that their share should '• descend to the trustees, their heirs and assigns foreverand in case eZZ his children and grand children should die without leaving lawful issue, then the estate should go to the trustees, their heirs and assigns in fee, and clear of any limit■ation or trust. Held, that the brothers took no estate discharged of the trust, while there were children of the testator bom after the will, though his daughter Mary and her children died without issue, and before any of her children attained full age.</p>

This was an appeal from the judgment of a Justice of the Peace, in. an action of assumpsit. Pleas, non-assumpsit, &c. It appeared in proof that the respondents- sold a small vessel to-Solomon for $125, and placed his note for that amount in the hands of an attorney, for collection. He brought suit, and afterwards mislaid the note. The defendant came to the attorney, and said the note was for $100, upon which a judgment was confessed for that sum, and the money paid.

<p>This was an action of assumpsit, instituted against Samuel Temple and a certain James Thomas, as partners in the blacksmithing business, under the style of Thomas & Temple. James Thomas was not taken. The pleas were non-assumpsit, payment, discount, and set off.</p> <p>The plaintiff’s claim was for iron and other materials sold and delivered. The iron was ordered by Thomas and charged to the firm of Thomas and Temple. A clerk in plaintiff’s store proved that Temple had been at plaintiff’s store in company with Thomas, and had spoken with the plaintiff about the blacksmithing business which they were carrying on.</p> <p>Question. Were they generally considered and known in the neighborhood as partners 1 Objected to.</p>

<p>This was an action on the case for words, imputing to the plaintiff the crime of perjury. The plea was, not guilty.</p> <p>The declaration set out the slander in several forms, to wit:—1st count: “ That Joseph Y. Eccles was a perjured man.” 2. That “ he had perjured himself.” 3. That “ he had perjured himself, and that I, the defendant, had persons there ready to prove the fact.” 4. “ I, the defendant, am going to prove that Joseph Y. Eccles had perjured himself.” 5. “ I am going in to New Castle to prove Joseph Y. Eccles'a perjured man.” The damages were laid at S3,000.</p>

<p>In the matter of the petition of Garrett & Smyth, for a jury of view, under the act of 1773, Dig. 404, in relation to mill property; to assess damages done to previous mill owners by the erection of a dam by Samuel Bailey, within six years last past.</p> <p>Petition presented by Mr. Wales, and motion that a writ be issued for this purpose to the sheriff of New Castle county.</p>

<p>On a sale of real estate by the sheriff, he must be prepared to prove at least one advertisement posted in each hundred, ten days before the sale.</p> <p>It seems that this is not exclusive of both days.</p>

<p>Any justice of the peace of the county may take and' certify- affidavits, to be used in, court as the foundation of a motion to the court.</p> <p>The Court, on motion, struck off the use endorsed on a judgment by husband and wife-in favor of the assignee of the wife, though the bond was to the husband and wife; and the survivor. The bond- vests in the husband entirely during coverture.</p>

The sheriff of New Castle county, by his petition, represented that he had sold the lands of Thomas Smyth, the defendant, by virtue of a writ of levari facias, at the suit of David Brown, executor of Thomas Pusey, for the sum of $2,235, and that there was a balance in his hands of $488 07, which was claimed by sundry judgment creditors of the said Thomas Smyth, to wit: by Abel Jeans on two executions ; by Reader, for the use of Benjamin Chandler; and also by the defendant…

This was an action of scire facias on a mortgage for $1,053-80,. with interest.from the 25th of March, 1837. There were credits indorsed:—5th of Nov., 1840, $300 ; 30th of March, 1841, $390'; 27th of June, 1842, $50 ; October, 1842, $50. The plea was “ payment;”’ and the defendant produced a farther receipt, signed Ann Faris, and dated April 20, 1843, for $676 64.

<p>Actual possession is necessary to support trespass to real property. A constructive possession will not do.</p> <p>After an ouster, the plaintiff cannot recover damages for subsequent trespasses, with- _ out a re-entry. After re-entry, he may lay his action with a continuando, and recover for mesne profits as well as damages for the ouster.</p> <p>The judgment in partition, by rule of court, is conclusive of title between the parties and all claiming under them.</p> <p>The verdict in one action of trespass, is evidence in another, between the same parties ; but conclusive only of the fact and date of the trespass, and of plaintiffs possession at that time. His possession will be presumed to continue, unless the contrary appear.</p> <p>At the term after a trial, the court heard an application to tax costs as to the proved attendance of witnesses; and ordered the prothonotary to ascertain the true attendance, with notice to the witnesses. -</p>

<p>This was an action on the case against the defendants as owners of the People’s line of stages from Georgetown to Wilmington, for carrying away plaintiff’s slave “ Jerry,” and aiding him to escape from his master’s service, knowing him tobe a slave.</p> <p>The plaintiff proved that his man “ Jerry,” reputed to be his slave, ran away from the service of W. Jones, to whom he was hired, on Saturday afternoon, May 25th, 1839, and was afterwards seen in Philadelphia, but was never recovered. A man named Watson left the county7 some time before Jerry did.</p> <p>Azael Stevens, sworn.—Drove defendants’ stages from Milford to Camden in the spring of 1839. Has frequently taken up passengers on the road; the route from Milford to Smyrna is a night route. One night about that time took up a colored man or boy, at the junction of the three roads near Canterbury. He called to me; said he wanted a passage; said he was a free man named Peter Clayton; offered me a paper which he said was a pass, which he got from squire "Redden. -It was dark and I could not read it. I took him on the box with me; after we passed Canterbury, he offered to sell me a pistol. ■ He said he wanted money to pay his fare. I told him if he had no money he must get off, and I turned him off. I have not ■seen him since. He rode with me a very short way. I began the inquiry about him; asked his name, &c., as I did’nt wish to carry him without inquiry whether he had a right to go and could pay. He said he wanted to go to Philadelphia. I don’t think it was Saturday night. I drove down the next day to Milford. Either the next night, or the next but one, I saw Redden at Milford. He called on me, and I told him what I now say. Mr. Redden then said a pass for Peter Clayton would answer pretty well for his boy where they were not known. There was no one with me that night in the stage. I understood Redden to admit that he had given Peter Clayton a pass. There was nothing like a runaway about the negro; no concealment. I had no suspicion he was a runaway. I don’t think he could have-overtake'n the stage again that night. I know I left him behind.</p> <p>The way-bill of May 25th, 1839, from Milford to Wilmington showed that a Mi-. Watson entered from Milford to Wilmington; also a “ Mack man” from Duck Creek to New Castle ; also a “ Mack man” from New Castle to Wilmington, who paid “twenty-one cents, «all he had.”</p> <p>The way-bill of the 31st of May, from Georgetown to Wilmington, showed that Wm. 0. Redden was a passenger up.</p> <p>Charles Palmer, sworn.—Saw a black man in New Castle, in May, 1839 ; a lightish colored negro, about twenty years old, five feet, eight or nine inches high; would weigh one hundred and sixty pounds. He was in company with John Watson. It was on Sunday morning, the 26th of May, between eight and ten o’clock, A. M., before the stage arrived. Qu. Did he admit himself to be the slave of Wm. O. Redden ? Objected to and ruled out. (State vs. Garrett, post.) Heard Watson tell Jefferson, one of the defendants, on Sunday afternoon, that he knew this boy was running away from Redden, and that he ought to be taken up.</p> <p>The plaintiff now offered to prove his own declaration when in New Castle, in May, 1839, that he was in search of a runaway slave; which, after argument, was admitted as a part of the res gesta, to show what caused his visit to New Castle.</p> <p>The plaintiff" then offered his book of accounts, in which he had charged the defendants with certain expenses occasioned by the search after this negro. Objected to, and ruled out, as not being matter of account; and being capable of proof otherwise.</p> <p>Isaac H. Register, a witness, was shown a letter purporting to have been written by him to Mr. Redden, on the 30th of May, 1839, in relation to this negro, in order to refresh his memory as to the facts stated in that letter. The witness examined it and .stated that he had no recollection o,f the facts stated in the letter; but this letter was written by him. Its contents were then offered in evidence, and, after much argument, ruled out. Exception prayed and granted. (See post.)</p> <p>The plaintiff had much difficulty in proving who were the owners of the stage line, it being a private association; a joint stock company without incorporation, or any public notification of the partners.</p>

<p>Objections to inquisition on lands heard after the return term, where the defendant had no notice or knowledge of the holding the same until after the term.</p> <p>Quere. What is legal notice when the defendant lives out of the county?</p> <p>The sheriff is bound to prove notice of sales of land strictly.</p> <p>It seems that the sheriff is not bound to inquire on lands which have been sold and conveyed by the defendant and possession delivered, though such lands are bound by the judgment; at least until after condemnation of the other lands also bound. •</p>

<p>A purchaser of land at sheriff’s sale is entitled to rent from the day of sale.</p> <p>If the land be in possession of a tenant, the purchaser has remedy by distress or attachment.</p> <p>But not so against any other than a person occupying by actual demise.</p> <p>He may recover from any occupant a reasonable compensation in the action for use and occupation.</p>

<p>Vessels, like carriages, meeting must, in general, keep to the right, unless circumstances, as of wind or tide, would - render it improper. Having sufficient room to pass, neither is bound to go out of the way to get to the right.</p> <p>These rules seem tó be settled in reference to collisions, and questions of liability arising therefrom.</p> <p>It seems that a vessel having the wind free, must get out of the way of one that is close hauled.</p> <p>A vessel on the starboard tack may keep her wind ; a vessel on the larboard tack is bound to bear up, or heave about to avoid danger.</p> <p>The vessel to windward is to keep away to avoid collision, when both vessels are going the same course in a narrow channel.</p> <p>A steam vessel is regarded as having a wind, and is bound to give way to a vessel with sails.</p> <p>The usage is for vessels having the tide to keep furthe^ out; those stemming tide nearer the shore; and this usage will be considered in questions of collision.</p> <p>Vessels are bound to provide proper pilots, look outs, lights, &c., and are responsible for accidents resulting from the want of such care.</p> <p>Trespass on the case is a proper form of action for a collision caused by such neglect.</p> <p>Exemplary damages may be given for a wilful collision.</p> <p>For mere negligence, or want of skill the damages are compensatory only ; such as will restore the injured vessel to her former condition; hut not for detention, loss of profits, &c.</p> <p>In case of mere accident, it is damnum absque injuria, and neither party can recov'er.</p>

Assumpsit; reference by rule of ■ court; award for plaintiff for $2,434,22. Rule to show cause, &c. This was an action of assumpsit.

<p>A certificated bankrupt, under the law of 1841, cannot be arrested and held to bail upon a subsequent promise to pay a debt due before the bankruptcy.</p>

■ Appeal from the act and decree of the Register of wills for New Castle county, on the settlement of ah administration account. The record showed a citation by the register to the appellant requiring him to settle his administration account on the estate of Wm.

<p>A constable having made a lawful levy on goods, is justified in taking possession of them afterwards, by force if resisted.</p> <p>Trespass de bonis asportatis. Pleas, not guilty; justification and license. Replication to plea of license; excess.</p> <p>The action was against defendants for entering plaintiff’s house and taking away his goods forcibly.</p> <p>The proof on the part of the plaintiff was that the defendants came to the house and demanded admission, which was refused by plaintiff’s wife; that they threatened to break open the doors, and the defendant Tatman did break a pane of glass and run his arm through the window. The defendants were very violent; frightened the children ; and threw the goods out of doors.</p>

<p>A woman may by an ante-nuptial contract, secure her own property against her husband’s debts; but after acquired property, though the proceeds of the property so secured, and of her own labor, belongs to the husband.</p> <p>Quere. If such property can he secured to the wife 1</p>

<p>The railroad company is liable for injuries resulting from the negligence of its agents or servants.</p> <p>It has the right to pass' through Wilmington at the usual speed, and with the necessary noise, taking due precaution to avoid danger. If horses are frightened by the escape of steam, or other necessary noise, the company is not responsible.</p> <p>Negligence is a question of fact for the jury.</p> <p>The court will not set aside a verdict founded on conflicting evidence, though they would have drawn a different conclusion from the jury.</p>

<p>After judgment in attachment and auditors appointed, payment of the attaching creditor will not arrest the proceeding, which may go on even without substituting another plaintiif.</p>

Questions reserved by the Superior Court in and for New Castle county, for hearing before all the judges in the Court of Errors and Appeals. Heard at the June term, 1845, before the full court; Johns, jr. Chancellor ; Booth, Chief Justice ; Harrington, Milligan, and Hazzard, Judges. The actions were in assumpsit for goods sold and delivered to the defendant’s intestate, being for the price of certain lottery tickets.

The action below was against the defendants, proprietors of a line of stage coaches, for carrying the plaintiff’s slave out of the State, knowing him to be a slave. Isaac H. Register was called as a witness for plaintiff to prove the admission of Elihu Jefferson, one of the defendants, and the agent of the stage line, that the negro passed through New Castle in the defendants’ stage, and that a passenger told him it was plaintiff’s slave.

<p>Writ of error to the Superior Court. Heard before the Chancellor, and Judges Booth and Hazzard.</p>

Tried at June term, 1845, before Judges Booth, Harrington, Milligan, and Hazzard.

Writ of error to the Superior Court in and for New Castle county. Tried before the Chancellor, and Judges Milligan and Hazzard, at the June term, 1845. This case was again argued by Wales, for plaintiffs in error, and Bates; and Bates, jr., for defendant in error. The principles, and authorities cited, with a particular statement of the case may be found in 3 Harr.

<p>A general avowry in replevin for rent in arrear may be proved generally, but if it set out a lease it must be proved accordingly.</p>

Petition for freedom. The petition stated that Jesse Green, jr., being the owner of petitioner and his mother, Clansey, as slaves for life, and being about to leave the State, on the 9th of July, 1833, executed his deed of manumission in due form, by which he proceeded to manumit and dispose of said slaves as follows: “ Now therefore, know all persons, that for and in consideration of her the said negro’s good conduct and behavior towards me, I do hereby discharge her the…

This was an action of trespass de bonis asportatis. The defendants pleaded not guilty, and a justification under judgment and execution at the suit of P. D. Shockley, assignee of W. R. Parsons, plaintiff, against Thomas West; and execution process at the suit of Peter R. Shockley, against the said Thomas West. Replications and issues.

Demurrer. The declaration contained three counts. The first was special, and set out that whereas, heretofore, to wit: on, &c., at &c., the plaintiff recovered a judgment against C. M. Cullen in his life time for $1,315, which is still unsatisfied; that by virtue of sundry proceedings on said judgment, and sundry writs of execution particularly set out, the lands of the said C. M. C. had been sold, and a large amount of the proceeds applied to said judgment, to wit: $835;…

This was an action of ejectment for certain lands in Indian River hundred. ■ Thomas Robinson (of Wm.,) and Miers Burton, were seized in fee of the premises in question, as tenants in common, in the year 1825-.

This was an action of assumpsit to recover back money paid on a contract relating to lands which the defendant failed to execute. The declaration had the common counts. The pleas were non assumpsit and limitation. • The plaintiff gave in evidence the defendant’s'receipt, dated July 29th, 1839, for $58, on account of the purchase of certain lands, &c., which he promised to convey on the payment of $150 more.

<p>How to declare on a note signed by a wrong name.</p> <p>The plaintiff on an appeal from a justice of the peace cannot take a non pros at pleasure.</p> <p>The defendant in such case may recover an amount oven beyond the magistrate’s jurisdiction.</p> <p>A probate need not be produced unless called for.</p> <p>Verdict set aside for an error in calculating interest, and for surprise, though the party might have had notice by requiring the pleas to be drawn out.</p>

<p>This was an appeal from the judgment of a Justice of the Peace, in an action of assumpsit, for sheriff’s fees, on execution process, sued out by the appellant, and placed in respondent’s hands, for execution.</p> <p>The matter in dispute was a charge for dollarage on the amount of an execution, at the suit of appellant, against L. Layton, which was in the sheriff’s hands more than thirty days, and then paid to plaintiff, after the return day of the writ.</p> <p>The judgment against Layton, was dated August 28, 1825; an alias fi. fa. was sued out to October .term, 1833, and placed in sheriff Jefferson’s hands ; it was returned “ levied,” and the costs endorsed, $4 50. Successive writs of venditioni exponas were issued to the same sheriff, every term, up to October term, 1838, all of which were returned, “ goods unsold for want of buyers,” except the last, which was returned, “ settled to plaintiff,” and dollarage endorsed, $24 15. Warren Jefferson was elected sheriff, in Nov., 1832; George Frame was elected in 1834; and Purnel Johnson, in Nov., 1836. These executions were levied on the defendant’s goods, which were advertised, but no sale was made, being stayed by orders of plaintiff; the last writ was held up by plaintiff’s orders. Sheriff Jefferson sent him a statement of the debt and all costs, including the dollarage, which plaintiff collected of Mr. Layton, and afterwards refunded to him. The writs were all 'delivered to sheriff Jefferson, by order of the plaintiff; who from time to time gave directions about them to the sheriff. The last writ was returnable to October term, 1838 ; but it was not then returned. The money was paid to •plaintiff, in 1840, or 1841, and sheriff Jefferson then returned it “ settled to plaintiff.” At the time it was issued, to wit: in. July, 1838, Purnel Johnson was sheriff of Sussex county, and Warren Jefferson was not his immediate predecessor.</p>

<p>Appeal from the judgment of a Justice of the Peace. Pro. narr. in assumpsit against a stake-holder for a sum of money deposited in his hands on a horse-race.</p> <p>The evidence was, that the race was made up and run in the State of Maryland, and the bet made there. It was conflicting as to the result of the race.</p> <p>One of the witnesses admitted on cross examination, that he had a small wager on the result of the race, and he was objected to as having a disqualifying interest; but the court decided that he was not disqualified; the interest being in the question, and not in the result of the suit.</p>

<p>A part owner of a vessel, who is not the master, or ship’s husband, cannot order repairs, and sue his partner at law for his share of the expense.</p>

Capias case on two promissory notes, drawn by the defendant to George Waterman, and endorsed to plaintiff, dated Cincinnati, January 18, 1842, for $255 20, and $5. The depositions proved the execution of the notes, and the endorsements, and consideration; being other notes due from Conover, Campbell Si Barratt to Western Smith, assigned to Waterman; and on which Barratt was under arrest at the time these notes were given.

<p>This was a certiorari directed to Justice Edward Dingle, to send up the record and proceedings in a certain action at the suit of Zadock Hill against Mary W. Lynch, executrix of Joseph I. Lynch, deceased.</p> <p>The justice returned the record of an action commenced by summons on the 25th of May, 1844, upon a promissory note under seal, executed by Joseph I. Lynch, on the 7th of May, 1836, for $50, with two credits endorsed amounting to $40. The summons was made returnable on the 8th of June, 1844, “ at Waples & Hickman’s storehouse, before Edward Dingle aforesaid.” This process was returned “ summoned.” The defendant appeared. Plaintiff produced the note with the credits endorsed. The next entry was “ Plaintiff and defendant both appeared on the 22d day of this inst., June, and after hearing the proofs and allegations of both parties, I gave judgment in favor of plaintiff against defendant as of assets, for debt $24 68, costs of suit 56 cts.—$25 24.”</p> <p>The principal exceptions were: 1st. That the warrant of summons did not sufficiently ascertain the place of appearance of the parties. 2d. That the return day mentioned in the summons, was the 8th of June, which was the day of trial; and judgment was rendered on the 22d of June, without any regular continuance of the cause.</p>

<p>A justice of the peace may make a second adjournment of a cause of his own motion, without affidavit.</p> <p>In a suit against two persons the court will not imply that they are partners, but regard them as joint debtors, to support the judgment.</p>

This was an action of trespass on the case for damages arising from a collision of vessels. The plea was, not guilty. The plaintiff stated his claim to be for damages arising from a collision of .vessels, caused by the negligence of defendants’ captain.

<p>This was an action of trespass quare clausum fregit, assault and battery, et alla enormia by Jefferson, against Adams and eight others.</p> <p>The plaintiff proved a violent assault and battery, the entering of his house forcibly in the night time, beating him and driving him from the house; and he claimed exemplary damages.</p>

/The plaintiff proved a clearing of a certain meadow for defendant; and that it was worth $30 to clear it. The defence was, that Brown was the tenant of defendant on a farm for five years, and that he cleared this meadow which was not a part of the farm, for his own benefit, without any agreement on the part of defendant to pay him any thing.

The constable returned this execution with an endorsement that he had summoned Abraham P. Shannon as garnishee. The garnishee appeared Feb. 18, 1843, and answered on oath “ that he has $28 in his hands,” therefore judgment against him for that sund.

<p>¿Replevin lies only for a tortious taking.</p> <p>Possession is evidence of property.</p> <p>' Replevin will not lie by the owner of property against the purchaser from a bailee, though he had no authority to sell; for the taking is not tortious.</p> <p>' But a contract with such a bailee when drunk, whether made so for the purpose or not, is void and gives no right to the possession; and a taking under color of such contract may be regarded as tortious.</p>

<p>Amicable action. March 24, 1831, by consent of parties, and order of court, referred to Jacob Paris, George Platt and Nathan Boulden.</p> <p>At the November term, 1845, Mr. Wales, for plaintiff, made a suggestion of the death of Joseph G. Rowland, which took place in 1839, and moved that his executors be admitted party to the record. (Canst. Art. 6, Sec. 18.)</p>

This was an action on a note under seal, dated November 15, 1843, by which defendant promised to pay plaintiff $100, five months after date, without defalcation, for value received. Pleas, non est factum and payment; replications and issues. The- attesting witness was- called' to prove the note; and testified that he did not see Paul Bogan write his name. He handed the paper to Higgins- and Higgins to witness, and asked him in the presence- of Bogan to sign it as a- witness.

<p>'This was an action of debt on a deed securing an annuity to Mrs. Houston in lieu of dower, to recover the arrears, ¡and interest. The deed contained a clause of distress.</p> <p>The question was whether the plaintiff could recover interest on the arrears of an annnity which was granted in lieu of dower, and Beeson’s Ex’r., vs. Beeson’s Jldm’rs. 1 Harr. Rep. 106, and Waples vs. Waples, Ibid 392, (n.) were cited.</p>

<p>Real fixtures, such as steam engines, &c,, placed on the premises by the owner, and attached to the freehold, as a fixed establishment, are a part of the freehold, subject to real estate liens, and not liable to be seized as chattels.</p> <p>Not so of trade fixtures set up by tenants for their own use and convenience.</p>

Case stated. The case agreed set out, that Robert Forwood, being seized in fee of certain real estate, duly made and published his last will and testament, by which he devised as follows: “ Imprimis, it is my mind and will that all my just debts and funeral expenses be paid in a reasonable time after my decease, out of my personal property and sales of lands hereinafter mentioned by my executors hereinafter named.” The testator then devised different portions of his real…

<p>-A release fay a judgment creditor, at the instance of'thc ddbtor, of one of several tracts of land bound by the judgment, will ndt operate as a release of the others.</p>

This was an action of trespass quare clausum fregit, for entering plaintiff’s close, and cutting trees, &c. &c. The pleas were not guilty, and justification under the authority and direction of Auley Lore, who purchased thirty timber trees on the premises, at a collector’s sale of said trees, made by Thomas Scott, collector of taxes for Appoqinimink hundred, to pay a balance of public taxes due from plaintiff; replications and issues.

<p>This was a scire facias on the recognizance of Elisha Huxley in the Orphans’ Court, dated 7th of September, 1842, on the purchase of intestate lands, conditioned to pay to the parties entitled their respective shares of $959 96, the amount of the sales of the intestate lands of Alice Pennock, deceased, after deducting costs, &c. The plaintiff was entitled to one-sixth in her own right; and claimed another sixth as assignee of Thomas Temple, as to which share the defendant pleaded, that on the 7th of August A. D., 1841, a writ of foreign attachment issued out of the Superior Court at the suit of Hannah Wilkenson against Thomas Temple, under, which all the right; title, and interest of said Thomas-Temple, of and to the said" lands and tenements mentioned in said recognizance, were, on the said 7th of August, 1841, taken and attached, and such proceedings were afterwards had, that the said Hannah Wilkenson, at the May-term, 1842, recovered judgment in said attachment against.the. said Thomas Temple, for the sum of $264 46, with costs, &c., &c. This plea was demurred to; and the plaintiff took a verdict for $381 28, on the other pleas, subject to the opinion of the court on the demurrer.</p>

This was an action of trespass quare clausum fregit, for breaking the plaintiff’s close, and cutting down timber trees and carrying them away. The pleas weie not guilty, and liberum tenementum in Susan Shields, one of the defendants, by whose command the other defendants entered. To the second plea the plaintiff made a new assignment. The defendants pleaded to the new assignment, not guilty; and issue was joined. The trial was had at New Castle, at November term, 1845.

This was an appeal from the decree of the register of Sussex county, admitting to probate the will of Captain Lewis Spicer.

<p>This was an issue of devisavit vel non, sent by the register of wills, to try whether the paper annexed was the will of Isaac Dolby, deceased. It was dated the 17th of February, 1844; and there was a codicil dated the 15th of March, 1844.</p>

<p>Certiorari to Alanson Dickerson, Esquire. The exceptions sufficiently appear from the following judgment of the court.</p>

Debt upon specialties. The declaration contained several counts on single bills. The defendant pleaded; 1. Non est factum. 2.

<p>in an action against^a/constable for neglecting to execute process, he cannot plead the-defectiveness of his. writ, unless it be for want of jurisdiction.</p>

<p>Every contract to do work, implies that it is to be done with skill and- care, according to the nature of the work to he done; and that the contractor has the necessary knowledge and skill to do it.</p> <p>The employer is not bound to accept any other performance ; but if he in any manner sanctions it, and derives any benefit from it, the contractor may recover accordingly.</p> <p>If a price was stipulated, the plaintiff in such case recovers in proportion to that price, subject to deductions for any defectiveness; if not, he recovers on the quantum meruit.</p> <p>An admission made in an affidavit between other parties, is evidence of the fact against the party making it.</p>

<p>Judgment by default cannot be signed until the usual time of closing business for the day, unless a certain hour is fixed for the hearing, with due notice thereof to the defendant-</p>

<p>Certiorari to Justice Walston. Record returned. Exceptions filed.</p> <p>The plaintiff below alledged diminution, and had an order for a further return; on the coming in of which, it appeared to the court that all the exceptions were met.</p>

<p>Itt this case, after a trial at bar, and verdict for plaintiff;</p>

The suit was commenced May 10th, 1845, and was sustained by proof of the following settlement under hand. “ Jan. 6, 1840. This day James Chambers and Thomas Fennemore, administrators of John Fennemore, deceased, settled, and there was a balance due from the estate of John Fennemore to James Chambers, of $249 10.”

This action was against the defendant, as late coroner, for default in not taking bond, or not taking sufficient bond, upon executing a writ of replevin. The plaintiff, Plunkett, (with one Dougherty,) had sued out a writ of domestic attachment against Lewis Hart, upon which the sheriff, Boys, seized certain goods of Hart to the value, by his appraisement, of $420.

<p>A landlord attaching his tenant’s goods, on affidavit that he is about to remove them from the county, is not bound to support his affidavit by proof of reasonable ground at the next term of the court.</p> <p>The proceeding by attachment against the goods of a tenant, founded on an affidavit of his intention to remove them from the county, differs in this respect from proceedings founded on an affidavit of the tenant's intention to leave the State.</p> <p>Attachment for rent under sec. 9, Dig. 365, on affidavit of a landlord, that his tenant intended to remove his effects from the county before the rent became due, so as to defeat a distress. The attachment was returnable to the November term, 1844: nothing was done in it at that term; and, at the next term, the defendant obtained a rule to show cause why the attachment should not be quashed, because the affidavit was not properly supported.</p> <p>The plaintiff now proved the defendant’s occupation of the premises, and that in July or August, he had said he was going to move off as soon as his corn was fit to gather. He did move off into Kent county, before the end of the year; after the corn was gathered.</p>

This was a suit by scire facias, on the part of A. H. Quinby against J, W. Duncan, as special bail of Benj. M. Hyatt. The defendant became bail for Hyatt, in the original suit of Quinby vs. Hyatt, on the 8th of May, 1843; and bound himself by recognizance, that Hyatt, his principal, should satisfy any judgment that might be obtained against him in that action, or render his body in execution whenever lawfully called on, or that he would do it for him.

<p>This was an appeal from the judgment of a justice of the peace against a husband, in an action of assumpsit, for articles furnished his wife, to wit, carpeting, table linen, clothing, muslin, &c. &e., whilst living in a state of separation.</p> <p>The plaintiff was called to prove his books of original entries; and proved them. They contained regular charges against the defendant for articles sold.</p> <p>The defendant proposed- to examine him as to whom the goods were in fact sold and delivered; to which it was objected, that the defendant had no right to make him a witness against his will. The evidence was insisted on, upon the ground that the proof of a sale and delivery of goods by books was a statutory privilege to the plaintiff, but only extended to the case where the oath of the plaintiff corresponded with, and did not contradict his book.</p>

Questions of law reserved by the Superior Court. Heard at June term, 1846, before Judges Harrington, Milligan and Hazzard, and John W. Houston, judge ad litem, in the place of the Chancellor, he and the Chief Justice being legally disqualified to sit.

Writ of error to the Superior Court in and for Sussex county. Heard at the June term, 1846, before Johns, jr., Chancellor; and Judges Booth and Hazzard. The action below was in assumpsit by the executors of T. Robinson, for goods sold and delivered, and money had and received; to which there was a plea of set-off of a legacy bequeathed to the defendant by said Robinson.

<p>This was an action on a guardian bond, against principal and sureties.</p> <p>The defendant, George Tunnell, was administrator of Miers Burton, the father of Martha Burton, and passed sundry administration accounts showing balances in his hands, and distributing the same among the heirs, including this plaintiff. He afterwards became the guardian of Martha Burton, the plaintiff, and gave bond with the other defendants, his sureties. He never passed any guardian account; but was removed, and Ben. Burton appointed in his place.</p> <p>This suit was brought against him as former guardian, to recover the balance so'distributed to the plaintiff, as her share of her father’s estate.</p>

This was an action on the case for deceit and false representation in the exchange of horses; with a count in trover for a pair of oxen.

Summons in dower. Death of plaintiff suggested, and her administrator made a party; who prosecuted the suit for arrears.

' This was an action of debt on a sealed instrument, executed by John Spence, in the name of Jones & Spence, for money borrowed by the firm. The declaration was special on the instrument, and the common money counts were added.

This was an action by the bank against an indorser, on a note drawn by Jacob. Forsett, payable to Wm. D. Waples, or order; and indorsed by him to plaintiffs. It was proved that the indorser specially requested the bank not to protest this note, and expressly waived notice, saying he would always renew his indorsement, and hold himself liable without protest or notice. It was in consequence of this request, that the note was not protested.

<p>Demurrer. This was an action of debt against a sheriff. The plaintiffs declared setting out a judgment in the Supreme Court, at their suit against James Armor, for $121 21 with interest, yet unpaid and a lien on the lands of said Armor, from its date; that a writ of plu. fi. fa. was issued at the suit of John Caldwell, on a judgment against said Armor for $332 56, which writ was directed and delivered to the said James Gardner, the sheriff of N. C. C., to be executed ; and upon which he made return “ nulla bona, levied on lands per inquisition annexed, which inquisitors say, will not rent within the space of seven years for a sum sufficient to pay the debt;” that thereupon a writ of venditioni exponas was issued and delivered to said Gardner, as late sheriff, upon which he returned that he had sold the lands so levied on, for $1,767, subject, &c., by virtue of which sale he became liable, and was required by law to pay previous liens; and plaintiff avers that he received from said sale money sufficient to pay plaintiff’s judgment, and all prior liens; whereby action hath accrued to the plaintiff to demand and have from said defendants the sum of $196 78: yet the said James Gardner, sheriff as aforesaid, hath not paid, nor have the defendants, his administrators, paid, &c. &c. To this declaration the defendants pleaded the act of limitation; and plaintiffs demurred.</p>

<p>The judgment against a garnishee whose answer admits a specific chattel, must be that he deliver the chattel, and cannot be for the payment of money.</p>

<p>Mode of authenticating records under the acts of Congress.</p>

<p>Requisites of affidavit by landlord against tenant, to procure attachment under Dig. 365.</p>

Assumpsit. In this case the administratrix, who was a colored woman, was offered to prove a book of original entries, kept by her for her husband, showing the number of bushels of ashes sold and delivered to B. Webb. Her testimony was objected to; 1st, as a person of color; and 2d, as incompetent to prove the books of her husband, except so far as she made the entries herself.

Verdict for plaintiff, subject, &c. This was an action for use and occupation of certain lands belonging to Mary Ann Humphries, lately the wife of Peter A. Humphries, in her maiden right.

<p>Ca. sa., on a judgment rendered against the defendant. The plaintiff made oath as required by the act of 1841, (9th vol. 423,) and the defendant was committed to prison.</p>

<p>A common carrier is bound to deliver goods safely; and to store them when necessary; unless n well known usage be contrary.</p> <p>The obligation of carriers is more stringent than .that of warehouse.men; who are bound only to ordinary care.</p>

This case was instituted by writ of- foreign attachment against the defendants; who appeared and dissolved the attachment by filing special bail.

Alias fi. fa., debt. Real debt $928 39; interest from the 19th of October, 1846. Returned “ Levied on goods as per inventory and appraisement, and' settled to sheriff.” Costs:—Levying on eight defendants $32; appraisers $4; advertising $4 80; dollarage 974 58—$29 23; total $70 03.

<p>This was an action of replevin for a mare, tried in Kent at the May term, 1847. The pleas were, 1st., non cepit; 2d., justification as a constable under execution process against Peter Fisher; replication to the second plea, that the mare was not the property of Fisher.</p> <p>The proof was, that Fisher bought the mare of John W. Webb, in April, 1846, for a cow and yearling and $20, which he was to secure by his note with approved surety. He delivered the cow and yearling to Webb, and Reuben Bowman agreed to become his surety on the note with the understanding that Bowman was to hold the mare as collateral security until the note was paid, and if not paid he was to have the mare, and pay Fisher for the cow and yearling. The mare was delivered to Fisher and- continued in his possession until she was levied on by defendant on the execution of John Thompson, who was the real defendant in this case. This levy was made in August, 1846; the note of Fisher and Thompson to Webb fell due Sept. 3, 1846, and was paid by Bowman soon after maturity, who also paid Fisher $12, as the agreed price of the cow and yearling.</p>

Judgment, November term, 1846. Fi. fa. issued May 5, 1847, for $265 62, “levied on goods, &c., per inventory and appraisement.” On affidavit filed January 2, 1847, that a sum exceeding $50 was due from Harvey Belcher, a non-resident, to Wm. Amor, a foreign attachment was issued to May term, 1847, and laid in the hands of the defendant, Adam Grubb, on the same day.

This was an action on the case to recover the amount of three promissory notes, two dated Newark, July 27,1842, for 0461 39, at five months, and $299 93, at seven months respectively, drawn by Joseph E. Perry, in favor of Samuel Hatfield, or order, payable at the Western Bank of Philadelphia; a note dated October 27, 1842, drawn by the same, payable at the Bank of Chester County, for $200, at sixty days: a balance on account for goods sold and delivered, amounting to $193…

Fi. fa., attachment. Sheriff returns “ laid in the hands of Eli B. Talley, January 15, 1847, at 12 o’clock (noon,) and summoned him as garnishee.” Motion to dissolve the attachment on an agreed statement of facts. The real estate of Matilda Babb was valued in the Orphans’ Court under the intestate laws, and assigned to Eli B. Talley, who entered into recognizance to pay to the parties entitled their respective shares of the valuation money.

<p>Assumpsit will lie against a constable for money had and received, though he be liable on his bond, and also under the act of 1833.</p>

Questions reserved by the Superior Court of Kent county. The questions arose in the Superior Court on an appeal from the judgment of a justice of the peace, in which appeal the parties had pleaded to issue, and the jury were sworn; when the counsel for the defendant moved to dismiss the appeal for want of a sufficient certificate to the transcript.

Debt on a lease. Case stated. The legislature of Delaware by-act of the 19th of February, 1847, entitled “ An act authorizing the people to decide by ballot, whether the license to retail intoxicating liquors shall be permitted among them,” enacted as follows :— Sec. 1.

This was a writ of error to the Supreme Court, in and for Sussex county, in an action of dower. The case was heard on appeal at the June term, 1847, before the Chancellor, and Judges Booth, Milligan and Hazzard. It was argued by Layton and Bayard, for plaintiff in error, and by Cullen and Bates, for the defendant. The case below was an action of dower by Polly Butler (late Hammond,) against L. Layton, a purchaser of the land out of which dower was claimed.

These were actions of debt on the defendant’s bond as administrator cum testamento annexa of John Wilson, deceased, by the plaintiff and his wife, a child and residuary legatee of John Wilson.

Ejectment for a granary, wharf, &c., on the Nanticoke river at Seaford, in defendant’s possession. The land in question was devised by Jacob Kinder to his daughter Catharine Horsey (then the wife of Josiah Horsey) in fee; on condition solely and specially that she should pay the debts and a legacy of $200 to a grand-daughter, Sally Ann Cannon or her heirs, with interest.

This was a scire facias on a transcript of a judgment rendered by a justice of the peace, and recorded in the late Court of Common Pleas, to bind lands. . The defendant pleaded among other pleas: 3d. That there was no valid execution issued by the justice of the peace. 4th. Nul tiel record of said execution. 5th. That the transcript from the justice’s docket was not entered by the prothonotary pursuant to law. 6th.

This was an action of slander for words. Plea, not guilty. Plaintiff proved the slander and offered evidence of the defendant’s circumstances. This was objected to, and insisted on; and, after argument, was ruled out by the court. (2 Greenl. Evid. 222, § 2(59.) ' •

<p>Where land is vácant, and the title, in the State, all occupiers are trespassers; and one cannot maintain 'trespass against another.</p> <p>A grant from the State may be presumed on an uninterrupted possession of fifty or sixty years.</p> <p>Persons occupying vacant land in mixed possession prior to the act of 1843, become tenants in common under that act.</p> <p>A person petitioning the legislature for a grant of land stated by him to be vacant, and accepting a grant, is estopped to deny that it was vacant.</p> <p>The investigation of a dispute between members of a church, by 'a committee, . according to church regulations, though applied for by both parties, and attended by both, can have no effect on their legal rights, and the award of the. committee is not evidence in a court of law.</p>

<p>This was an action on the case, on a contract in writing, between Boston and Bradley, dated November.7, 1840, and signed by both parties, by which Boston agreed to load defendant’s schooner with oysters for New York or New Haven, in good order and clean; the vessel to proceed to market, and the defendant to dispose of the oysters to the best advantage for all concerned, and to have one-half the oysters, or. proceeds, after they were sold, for his freight.</p> <p>The plaintiff declared in assumpsit in several counts, one of them setting out the written contract; averring that the defendant sold the oysters, and did not pay the proceeds; and also the common counts for goods sold and delivered, money had and received, &c., and he proved a sale of the oysters more than three years before the commencement of this action.</p> <p>The act of limitation was pleaded; and the defendant’s counsel moved a nonsuit on the ground that no cause of action had been proved within three years.</p>

<p>This was an action of assumpsit for work and labor, goods sold and delivered, &c., with a count for use and occupation.</p> <p>The plaintiff presented several scraps of paper as his book of original entries; which, though very irregular, the court permitted to go before the jury, he swearing to them as original entries.</p>

This was an action of debt on a guardian bond. Pleas, non est factum, payment, &c. The plaintiffs gave the bond in evidence; the guardian account, showing a balance due the ward, of $62 71; and proved the sum of $48 73, received by the guardian, and not accounted for. The defendants gave in evidence a receipt under seal, dated June 3, 1845, for $63 65, in full, of M. A. Outten’s share of her father’s estate; acknowledged, and recorded in the register’s office.

This was an action of replevin. The defendant’s pleaded non cepit; and the defendant, Patterson, also avowed the taking for rent arrear for three quarter’s of a year, commencing on the first of March, and ending on the last day of Nov. 1846, amounting to $37 50, and the defendant, Mason, made cognizance as Patterson’s bailiff.

<p>A sheriff’s return of “ levied on lands as per inquisition annexed, subject, &c,” does not satisfy the judgment though it might make the sheriff liable.</p> <p>A judgment is presumed to have been paid after twenty years without demand or recognition; if nothing be shown to account for the delay.</p> <p>The defendant’s poverty and insolvency is evidence going to rebut the presumption of payment.</p>

<p>In the matter of the petition of Lillburne Harwood, a non-resident insolvent prisoner.</p> <p>A petition was presented for discharge under the act of 1845. (10 vol. 34.) The imprisoning creditors were J. C. & J. H. Tabor of Philadelphia, who opposed the discharge.</p> <p>The creditors declined examining the petitioner, and required him to proceed; insisting, that the petition unsustained by other proof, was not sufficient to call upon the creditors for any proof.</p>

This was an action of assumpsit, with the usual counts for money lent, &c. Pleas, non-assumpsit; the act of limitation, &c. Plaintiff offered in evidence a due-bill for $600, dated February 2S? 1840, signed by defendant’s mark, and attested by James McDermott, who was proved to be dead, and proof was made of his handwriting. He also, gave some evidence of an acknowdedgment in 1841, or 1842.

Attachment for rent: goods attached: issue directed to try whether there was a just demand of rent; and, if any, the amount thereof. Barr rented a storehouse of Logan, from the 25th of March, 1846, to the 25th of March, 1847, at $375. The first two-quarters were paid. In October, 1846, Barr sold out his goods at public sale, and Logan agreed 'verbally to take the house off his hands. Logan did not, in fact, take possession until the 25th of March, 1847.

<p>This was an action of trespass quare clausum fregit. On a dispute between the parties concerning a dividing line of their lands, they employed a surveyor, who surveyed both their farms, and found a vacant strip about sixteen feet wide lying between them, not covered by the lines of either. They agreed to divide this strip; found the centre; together planted a stone, and moved their fences on the line so fixed. They held thus for eleven years; though it was proved that the defendant soon after this adjustment of the line said the surveyor had made a mistake, and that he would not abide by it, but would move the fence back again when it became necessary to reset it.</p>

Indicted for assault and battery. Plea, autrefois convict. The defendant was arrested and taken before Justice M'Caulley, who bound him over to appear at court. The prosecutor afterwards agreed to settle the matter, and went with defendant before Justice Veach, who allowed them to compromise, on payment of costs.

The defendant, a tavern keeper, was indicted for a misdemeanor in suffering a game of chance to be played about his house on which money was betted.

Habeas corpus. The sheriff returned that the defendant was in custody on a writ of ca. sa. at the suit of Thatcher & Coleman. The defendant was rendered by his special bail in this suit after judgment and fi. fa. returned nulla bona ; ca. sa. returned non est, and sci. fa. issued.

The indictment was against defendant as presiding officer of an election, for knowingly and wilfully taking the illegal vote of one John Pontseller.

The defendant was indicted for refusing a legal vote, the vote of Charles Fawcett, at the general election in 1844, in Wilmington; he being the inspector of the election. The court charged as in M’Donald’s case, ante 555.

Indictment for illegal voting at the inspector’s election in Wilmington, in October, 1844; he not having resided in the State one year next before said election.

<p>Section 24 of the act of 1825, regulating the general election, is not repealed by the act of February, 1845.</p> <p>Distinction between “offering” and “promising" a reward.</p>

Indictment, murder of Waitman Vickery. The deceased lived about nine days after receiving a blow on the head from the defendant. On the day he was struck, and every day afterwards, until he became insensible, he said he should die. His declarations as to the cause and extent of the injury were offered and objected to, as not being made under the perfect conviction of a dying state; and as not being competent to prove that the blow was the cause of death.

The defendant, a white girl twelve years old, was indicted for arson. The dwelling of George P. Fisher, Esq., of Dover, was fired on the 10th of March, 1845, and his two children burnt to death. Mrs. Ann Eliza Fisher.—The prisoner was in my service up to, and after the 10th of March last. She was twelve years old last August. She is a very shrewd, artful girl; not intelligent, or very capable of learning; but smart to work, and shrewd in mischief.

The defendant was indicted for an assault on Amanda Smith with intent to ravish her. The prisoner was a boy between fourteen and fifteen years of aget, and was proved to have assaulted a child of seven or eight years old with the intent charged.

Indicted for feloniously,receiving stolen goods, knowing, &c., to . wit, a quantity of wool. One Washington Brown had been indicted, tried and convicted on his own confession of stealing the wool, but sentence h$id not passed. His confessions were now offered in evidence against Newport.

The defendant was indicted for obstructing a public road leading from Robinson’s Landing on Taylor’s Gut to Carrollown school-house. The State proved the existence of the road for more than twenty years as a public road, and that the defendant closed it; but opened another road, within a few rods, on better ground than the old one.

<p>Appeal in bastardy.</p> <p>The State proved the paternity of the child, by the mother, and closed.</p> <p>Witnesses were called by the defendant, to impeach the character of the mother for chastity, and also to prove her intercourse with other men at or about the time.</p> <p>The attorney general desired to inform these witnesses that they were not required to answer any question which tended to criminate themselves.</p>

The defendant was indicted for imprisoning, with intent to kidnap, a certain Betsey Bungy; she being a free negro.

<p>Habeas corpus before Chief Justice Booth.</p> <p>The defendant made return that the petitioner was in his custody as high constable and keeper of the common jail of the city of Wilmington, by virtue of a commitment under the hand of the mayor: that he was arrested on a warrant issued by the mayor, upon the oath of Henry Baker, of Centre county, Pennsylvania, setting forth that the petitioner, about the 25th of August, 1845, committed a larceny at the county and State aforesaid, of the goods of one Thomas Fitch, of the value of $2,000.</p> <p>The case was heard on the 22d of July, 1846, and was argued by Mr. Bayard for the petitioner, and Mr. Huffmgton, contra. The points made will appear from the following opinion of the chief justice.</p>

<p>Exceptions filed by James Rowland.</p>

<p>Indictment, kidnapping William Hogans, negro.</p>

<p>Change of venue.</p>