Volume 5 — Delaware Reports

This was an action on a replevin bond, taken on a distress for rent. The pleas were:—1. Non est factum. 2. That the condition of the bond was not conformable to the statute. The plaintiff replied and took issue on the first plea; and demurred to the second.

The record showed a service of process and appearance of defendant; an adjournment and appearance of both parties; trial and judgment for plaintiff, after hearing the allegations and proofs of the parties.

This was an appeal from the Orphans’ Court of this county, in a matter of the assignment of dower.

<p>On the reversal, in the Court of Errors and Appeals, of a judgmeut for the defendant, that court will order a procedendo in the cause below.</p> <p>There is no saving in the act of limitations in favor of a new suit in such case.</p>

This was an action of replevin for a schooner named the Samuel R. Paynter. The defendants avowed the taking and pleaded property in a certain William Holland, and justified, the latter as sheriff and the former as plaintiff, in a judgment and execution against the said William Holland, and a levy on said schooner by virtue of that execution. There was also a plea of property in defendants, (of which no evidence was given;) and property in a stranger, without naming him.

Scire Facias on a judgment in the Court of Common Pleas, dated April 18, 1830, for $126. Heal debt $63 46. Pleas, mil Liel record; payment; discount; set-off and release. The witness proved that in July, 1844, William Cannon said he owed the Burtons; -talked about this judgment; or the bond on which it was entered. He talked about the length of time since he had signed the bond. He said he had paid $15, and would pay the balance.

<p>A motion for a rule to show cause why a mandamus should not issue to an inferior tribunal, must specify the object.</p> <p>In case of an unincorporated body, should not the members be named?</p> <p>Leave granted, alter argument and decision, to amend the motion.</p>

<p>A demand in writing for the delivery of an article purchased, cannot be proved by copy, without notice to produce the original, or proof of actual comparison.</p> <p>But such demand need not be in writing, unless the terms of the contract so requir e it.</p>

<p>To support a plea of tender, the money must be paid into court.</p> <p>Money may, at any time, be paid into court, to save costs subsequently accruing.</p>

<p>In the matter of the petition of James Kimmey and others, for a public road in Dover hundred.</p> <p>The petitioner proved the service of written notice of the intended application on the owners of the land, over which the contemplated road was to run, but as to one of them, who resided out of the county, the notice was left with an overseer, who resided on the farm and carried it on for the owner.</p> <p>Mr. Bates objected that this was not sufficient notice to the owner; that the overseer was not a tenant, nor in any way obliged to communicate such notice to his employers; and that where the owner resides within the State, the purposes of the act of 1847 required notice to such owner directly.</p>

Certiorari. The record showed a summons and judgment for plaintiff by default, for want of the defendant’s appearance, for $20; the subsequent appearance of the defendant and application to have the judgment by default taken off, and a new trial granted, which the justice, without any notice to the plaintiff granted; and appointed another day for trial; at which time both the parties appeared and went into trial by freeholders, on the demand of the plaintiff, and there waS'…

<p>Townsend vs. Townsend; judgment dated September 9, 1844; real debt $1,054 37; and judgment October 31, 1845; real debt $975 00.</p> <p>On motion of Mr. Gray and affidavit filed, rule to show cause why the above judgment should not be opened and the defendant let into a trial.</p> <p>The affidavit stated that the judgments were founded on bonds and warrants, for which there was no consideration beyond $600; that they were executed ignorantly by the defendant, on the pursuasion of the plaintiff, and in confidence that they would not be used to his injury; that the plaintiff refuses to come to a settlement, though defendant has delivered him grain since the execution of the bonds enough to pay what is due on them; and that in the execution of the bonds he was imposed on by the plaintiff.</p>

<p>The easement of a right of way through another’s land may exist by prescription ; by grant; by usage, or from necessity.</p> <p>Quere.—Whether there can be in this country a prescriptive right of way?</p>

<p>This was an action of ejectment, tried at</p> <p>The points appear from the case agreed, and the following opinion delivered by Judge Wootten.</p>

This was an action on the case, by a landlord, for the proceeds of sale of his tenant’s goods destrained on; against a purchaser of those goods. Josiah Sparks.—Was employed by plaintiff'to sell the property of John T. Enos, on a landlord’s warrant and distress for rent, in 1846. Question.—Was your authority for making this distress in writing? Yes. Parol proof of the authority objected to and admitted. Court. The authority need not be in writing.

King, Boyd & King, of Philadelphia, commenced suit in this court against Peter Johnson, and on the 17th of October, 1846, assigned the debt to Lippincott & Way. Judgment was rendered in this case December 9, 1847, for $2,094 75, subject to the opinion of the court on the question of the right of attachment by Iddings, Wells & Trotter.

<p>If goods be taken tortiously and sold, the owner may wave the tort and recover the value in assumpsit.</p> <p>But assumpsit cannot be maintained on a transaction from which no contract can be implied.</p>

Narr in assumpsit by husband and wife, on a promissory note given to the wife. Plea of a set-off for goods sold, &e.; money had, &c., &e., by defendant to said Smith and wife, at their instance and request; and for the use and occupation of a dwelling house, &c., of the defendant by the said John Smith and Margaret, his wife, at their special instance and request, and by the permission and sufferance of the defendant. Demurrer and joinder.

<p>Action on a note, dated April 11, 1846, for $277. Pleas, payment ; discount, and statute of limitation.</p> <p>The defence set up a counter claim on book of account of defendant,- for goods sold and delivered to plaintiff. It was objected to, on the ground that there was no plea of set-off; and insisted on under the plea of discount.</p>

Capias ad respondendum; defendant taken; special bail entered; and judgment for plaintiff. Ca. sa. issued and returned “ non est inventus.”

In the matter of the proceeds of sale of the real estate of Henry Gibbons. The sheriff brought into court the proceeds of sale of a house and lot in Wilmington, sold as the property of Henry Gibbons. It was sold on a mortgage executed by him, and the proceeds were claimed by the administrators of William Gibbons, deceased, and by the defendant’s execution creditors. „

<p>This was an action of covenant.</p> <p>Nicholas Barlow died, leaving a daughter Bathsheba Barlow, who married first Gideon 0. Emory and afterwards Joseph Fleming; Mrs. Fleming was the administratrix of Gideon G. Emory; Harriet Barlow, -Bathsheba Barlow, Gideon Emory and Isaac Walker were the executors of Nicholas Barlow deceased. William Rothwell married Ann, the sister and sole heir' of Gideon 0. Emory. The first administration account on the estate of Nicholas Barlow, was filed by Gideon Emory and Isaac Walker, on the 5th of February, 1816; the second was filed the 8th of April, 1817, by Gideon Emory and Bartholomew Emory; the third by Joseph Fleming and wife and Gideon Emory, on the 3d of June, 1825, and the fourth by the same, on the 15th of March, 1828. This suit was brought November 12, 1828.</p> <p>It was an action of covenant by G. Emory, reciting that as one of the administrators of Nicholas Barlow, deceased, he had settled the estate with J. Fleming, acting executor in right of his wife, as between said Gideon Emory and Bathsheba, Fleming, late Emory, and formerly B. Barlow; and they having passed acknowledgments of such settlement, and as there was money due from his wife, who was administratrix of G. 0. Emory, deceased, to W. Rothwell or his heirs, that is, one-half of G. 0. Emory’s part of his brother Charles Emory’s estate, G. Emory covenanted to give him his fees on the settlement of the estate of N. Barlow, deceased, after deducting expenses. This he gave to Joseph Fleming “to pay to William Rothwell or his heirs, on the claim he holds against Bathsheba Emory, administratrix of Gideon 0. Emory, deceased;” and the covenantor further binds himself, his heirs, &c., to pay to Joseph Fleming, his heirs, &c., the balance that is due William Rothwell, or his heirs, from the estate of Gideon C. Emory, deceased, after deducting the fees aforesaid, “so that Joseph Fleming shall lose nothing'by paying the claim due from the estate of Gideon 0. Emory to William Rothwell, in right of his wife.”</p> <p>On the force and construction of this covenant, it was contended for the defendant, that as the obligation on the part of the estate of Gideon Emory, whatever it was, to pay any thing to Mr. Fleming, accrued at the date of the covenant in 1828, or shortly after; and as Mr. Emory lived till 1837, and there were various settlements between them, up to as late as 1835, when a bond was given by Fleming to Emory for $73, which was paid in 1842, five years after the death of Emory, this was sufficient proof of payment of whatever was due under this covenant.</p> <p>2. That the payment by Fleming to Rothwell in right of his wife, was after her death, and he had no right to receive "it without administration on her estate; and Mr. Fleming could not recover against the estate of Gideon Emory, for such a payment. Gideon Emory left four grandchildren, the children of his daughter Ann Rothwell. There was a settlement between Joseph Fleming and Gideon Emory in September, 1835, showing a balance due Emory of $73. Nothing was then said of the present claim, or of any thing left unsettled between them. Mrs. Rothwell, the daughter of Charles^Emory, was then dead, and had been dead a great many years.</p>

This was an appeal from the judgment of a justice of the peace, in an action of assumpsit. Barr was a grocer in Wilmington; made a sale at auction, for cash; the goods not to be taken away until paid for. Logan bought a lot of goods which he refused to pay for. Barr would not give them up unless paid for, and sold them again, on account of whom it might concern, at a loss of $93 37. The house where the goods were kept was Logan’s, and Barr was his tenant.

This was an appeal from the judgment of a justice of the peace in an action of assumpsit, for grain sold and delivered. The grain was delivered on a market, as plaintiff contended, subject to his power of pricing it.. The defendant contended, that by the course of trade it priced itself, after a certain time. This was the point of dispute. A witness was asked as to the general custom or usage of grain buyers, in receiving grain on a market.

<p>This was an action of replevin for a carriage, &c. The pleas were non cepit, and cognizance as bailiff of James Martin, for a half year’s rent in arrear from plaintiff to said Martin. Replication, no rent in arrear; non dimisit; non tenuit.</p> <p>The plaintiff proved the taking of a carriage; and closed. The defendant proved that the premises were rented as a stable, for the manure' as the rent; and proceeded to prove the value of the manure.</p>

Question reserved by the Superior Court on the plea of nul tiel record, in an action of debt on a foreign judgment. Heard at June term, 1847, before all the judges. The plaintiff declared in debt upon a Pennsylvania record.

<p>■phe specific performance of contracts is not a matter of right, but rests in the sound discretion of the court, regulated by general rules and principles, and not dependent on whim or caprice.</p> <p>Where a contract respecting lands is in writing, and is certain, fair, equal and mutual, and fo unded upon an adequate consideration, a court of equity will decree a specific performance.</p> <p>But if the intention of the parties, or the motive, inducement or consideration for entering into the contract can be ascertained only by conjecture; or where by lapse of time the case is involved in doubt or uncertainty; and generally, where under the circumstances of the case, the court is unable to do exact justice between the parties, a specific performance will not be decreed; but the complainant will be left to his remedy at law.</p> <p>The refusal of a court of equity to interfere, inflicts no injury upon the complainant. The decision in no wise affects his rights to proceed at law for the recovery of whatever damages he may be entitled to; but is the mere declaration of an opinion, that his case is not one where the aid of a court of equity can be invoked.</p>

Writ of Error to the Superior Court in and for Sussex county.

Debt on a guardian bond, against principal and sureties. George Tunnell was administrator of Miers Burton, deceased, duly appointed, with bond and surety. He afterwards became the guardian of Hannah E. Burton,one of the distributees of Miers Burton’s estate, and gave bond and surety in such guardianship. These suits were upon that bond; and the breaches assigned were1.

Petition for freedom, at the October term, 1848, in Sussex county. The petitioner belonged to John Thoroughgood, as a slave for life. He purposed to set her free at twenty-eight years of age; and in the mean time sold her to Thomas Mellvaine, and took his bond in $200, obliging him to free her at twenty-eight. She was actually sold to that time, with the understanding of all the parties; though the bill of sale was general, without specification or limit as to time.

Certiorari. Summons dated October 11, 1847, to appear October 16, 1847. The exception was that the day of appearance was less than five days from the day of the date of the summons. As to computation of time Mr. Layton cited 3 U. S. Dig. 518; 8 Cowen Rep. 260; 3 Halst. Rep. 303; 1 Pick. Rep. 485. Mr. Cullen cited 2 Harr. Rep, 461; 9 Cranch. Rep. 105; 1 ib. 498; 2 Cowen Rep.

<p>A mandamus will not be issued requiring the Levy Court to determine in a matter discretionary, unless there has been a refusal to exercise any discretion on the subject.</p>

This was an appeal from the judg.meat of a justice of the peace in an action of assumpsit by Walker vs. Benson. It was tried at the April term, 1848. The plaintiff’s case was this:—James T. Slack, a workman in the employment of Benson, being indebted to Walker to the amount of $50 20, Walker called on Benson to secure his money, when Benson told him if he would get an order from Slack to that amount, he would accept and pay it.

<p>Assumpsit. Pleas, non-assumpsit; payment; discount; set-off and limitation.</p> <p>It was an action of assumpsit for work and labor of plaintiff, for Joseph Green, deceased; for board of boy; money laid out and expended; goods sold, &c., &c., amounting to $1,107 57; credits $588 68; balance $518 88, and interest.</p> <p>The plaintiff was a currier and finisher of leather; defendant was a tanner; hired plaintiff at $300 per year; and, after he worked some time, at $20 per month.</p> <p>The defence was, that there was a partnership between plaintiff and Joseph Green in the business of tanning and currying; and also that the claim was barred by limitation! Evidence was produced on both sides, on, these points, in the course of which a witness was asked whether Green did not, after Robinson had left the business, bring suits in his own name, as a party interested. This was objected to.</p>

<p>The authority of an agent 'may be proved by the recognition of his principal. The agent himself, though present, need not be called.</p> <p>A plea that the debt has been attached must ordinarily show a judgment and execution to sustain the bar.</p> <p>Short pleadings, if not, objected to by notice or demurrer, may be drawn out at the time, in such form as the plea and issue will then justify.</p>

<p>Assumpsit for work and labor, goods sold, &c.</p> <p>The action was for hauling coal, paper, rags, &c., to and from a paper mill carried on by defendants. The mill was conducted by Dickey & Irving, and plaintiff hauled for them previous to the 20th of November, 1846; at that time the mill passed into the hands of Jessup & Moore, as it was alledged, without any notice to plaintiff, who continued to do hauling and to charge it to Dickey •& Irving.</p> <p>The plaintiff was called to prove his book of original entries, which contained charges for hauling done for the paper mill. The entries were made against Thomas Irving.</p>

<p>A book of original entries is competent evidence to be weighed by the jury, though some of the entries be falsified.</p>

<p>What items are properly chargeable in a book account.</p>

<p>The party having the legal interest must sue though others be beneficially interested.</p> <p>Where the legal interest is in several, they may bring several suits, though the covenant is joint. The right of action follows the interest.</p>

<p>Though mere inadequacy of price is not sufficient to avoid a sheriff’s sale of land, any irregularity connected with it will be regarded as causing the sacrifice of the property, and the court will set the sale aside.</p> <p>A sale made by thb sheriff under circumstances inducing public belief that there would be no sale; and the property sold to the sheriff’s son, as a secret bidder, at a sacrifice, though there had been a previous attempt to sell, and though the sale was now conducted fairly and in good faith, was set aside for irregularity.</p>

Action of trover for a negro slave named Thaddeus, “the proper man slave of” the plaintiff. Thaddeus was the slave of one Jeremiah í\ Kinney, and as such was bound by execution process in the sheriff’s hands against Kinney. After the issuing this execution, and before the levy, Kinney sold and delivered the boy to N. & W. B. Horsey, who had no knowledge of the execution.

<p>This was an action on the case, under the statute of 1826, [Digest 291,] against a steamboat captain, for carrying a slave out of the State.</p> <p>The declaration contained several counts, two of which were as follows:— ■.</p> <p>In the Superior Court,</p> <p>October Term, 1847.</p> <p>Kent county, ss. John M. Collins, the plaintiff, by Willard Saulsbury, his attorney, complains of Charles Bilderback, the defends nt, of a plea of trespass on the case:—For that, whereas, the said plaintiff, before and at the time of committing the grievance by said defendant in this count hereafter mentioned, was a citizen and inhabitant of the State of Delaware, and being such citizen and inhabitant of the said State, did hold to labor and service a certain negro girl called Alice, and which said negro girl so as aforesaid named and called Alice, was a person held to labor and service by the said plaintiff, he the said plaintiff then being a citizen and inhabitant of the State of Delaware, yet the said defendant well knowing the premises, but contriving and wrongfully and injuriously intending to injure the said plaintiff, and to deprive him of the labor and service of the said negro girl named and called Alice, heretofore and after the passing of a certain act of the General Assembly of the State of Delaware, made and passed at Dover, on the 19th of January, 1826, entitled “An act relating to fugitives from labor,” to wit: on the 11th day of August, 1847, and before the commencement of this suit, to wit: at, &c., wrongfully and injuriously did carry away and transport by water out of the State of Delaware, the said negro girl called and named Alice, the said negro girl then and there being a person held to labor and service by the said plaintiff, he the said plaintiff then and there being a citizen and inhabitant of the State of Delaware, and he the defendant then and there being a captain of a certain vessel called the Portsmouth, and he the said defendant then and there knowing that the said negro girl was a person held to labor and service by the said plaintiff, and that he the said plaintiff was a citizen and inhabitant of the said State of Delaware, contrary to the said statute in that case made and provided, by means whereof an action hath accrued to the said plaintiff to have and demand of and from the said defendant the sum of five hundred dollars, &c.</p> <p>And whereas, also heretofore, to wit: on, &c., at, &c., the said plaintiff was a citizen and,inhabitant of the State of Delaware, and the owner of a certain other negro girl commonly called Alice, then and there held to labor and service under and according to the laws of the said State ; and whereas, also, the said defendant on the day and year aforesaid, at the county aforesaid, was the captain of a certain steamboat called the Portsmouth; yet the said defendant, so being then and there captain of the said steamboat, not regarding his duty, wrongfully and injuriously afterwards, to wit: on the day and year last aforesaid, at the county aforesaid, did in and aboard the said steamboat carry and transport by water out of the said State of Delaware, the said last mentioned negro girl so held to labor and service, and of whom the said plaintiff was the owner as aforesaid, contrary to the form of the statute in such case made and provided; whereby and by force of the said statute the plaintiff hath sustained damage to the value of five hundred dollars, to wit: at the county aforesaid.</p> <p>The defended pleaded—1. not guilty; 2. by leave, &c., a license from the plaintiff; 3. a license from Mrs. Collins, wife of the plaintiff; 4. that Mrs. Collins, wife of the plaintiff, at the time mentioned in the declaration, took passage on board said steamboat Portsmouth, as a passenger, on a visit from this State to Philadelphia, in the State of Pennsylvania, and then and there took with her, and carried said negro Alice as her negro servant, and under her own special charge and care; 5. that.Mrs. Collins, at the time mention-ed, &c., was removing with her family from this State to the State of Pennsylvania to reside, took passage on board said steamboat Portsmouth, and did remove the said negro Alice as her slave -to said State of Pennsylvania. Replications and issues.</p>

This was an action on the sheriff’s recognizance, for a false return of “nulla bona” to an execution, at the suit of T. Lewes et al, against John H. Ellegood. The execution was dated April' 3,1844, being No. 378, to April term, 1844, returnable to that term, and was returned “nulla bona” on the 11th of April, 1844. The plaintiff proved a levy to the amount and closed. Mr. Cullen moved a nonsuit.

Habeas Corpus. The sheriff returned that he had the complainant in custody, under a warrant of commitment from Justice Windsor, directed to S. A. Polk, constable, to the sheriff or jailer, and reciting that “whereas Robert Sipple, free negro, has this day been brought before the subscriber, one of the justices of the peace for said county, by virtue of a warrant by me issued on the 15th of September, 1.849, to answer to the charge of not leaving the State of Delaware, in…

Rodney obtained a judgment by attachment process against Joshua Lamb, and issued execution to William Newcomb, constable, who levied on the goods of Lamb, and attached a debt in the hands of one of Lamb’s creditors. The proceeding on the attachment against Lamb was very irregular on the face of the record. It was against him as an absconding debtor, and judgment was rendered by the magistrate, without the report of referees, the demand being above $5 33.

<p>In proceedings respecting roads a common interest as a citizen will not give a- right of review ; there must Lea special interest, as the owner or holder of lands affected hy the road.</p> <p>The return will not be conclusive as to the land owners.</p>

<p>Motion for an exoneretur for special bail, and rule to show cause.</p> <p>The defendant was arrested in Delaware, for a debt contracted in Pennsylvania, with a citizen of New Jersey. He. gave special bail. He had been, since that time, finally discharged under the insolvent law of Maryland; of which State he was a resident. The question was, whether the Court would order an exoneretur to be entered on the motion of the special bail.</p>

This was an action of covenant for breach of warranty, in a deed of bargain and sale from Albert G. Lewis to B. Watson, who assigned to one Bell, and Bell to the plaintiffs.

<p>If land of a decendant be sold on judgment, and execution against his executor, the surplus is payable to the executor and not to the heir.</p> <p>The executor may be required to give further security.</p>

The plaintiffs were a 'company incorporated by statute'; and the defendant subscribed for twenty-one shares of stock, under the following general form of subscription —“ We, the subscribers, agree to take the number of shares of stock in the Odd Fellows’ Hall Company, of Wilmington, prefixed to our names respectively.” He paid the first instalment of one dollar-; was elected a -curator, and acted as such; after -which four other calls were made, which he failed to pay; and…

<p>In the matter of a petition by Benjamin Chandler and others.</p> <p>It was objected to the order, that due notice had not been given. The notice was on the 27th of April; the court sat on the 7th of May.</p> <p>The act says that “ written notice of the intention to prefer such petition, and of the day and place of preferring it” shall be given, “ at least ten days before the sitting of the court.”</p>

<p>Judgment entered by a magistrate on a judgment note set aside, the note not being sent up with the record.</p>

<p>This was an action by indorsee against the drawer of a promissory note, in favor of Matthew R. Carnahan, dated March 6, 1848, for $144 13, payable at the Bank of Wilmington and Brandywine.</p> <p>The defence was, that the note was subject to certain equities as between Gann and Carnahan, having been indorsed (as was alledged) after maturity; and that it was endorsed to McCready, without consideration, and held for Carnahan.</p>

<p>This was an action under the statute of January 19, 1826, against the defendant, as captain of the Seamboat Zephyr, for carrying out of the State the plaintiff’s slave.</p> <p>The declaration set forth that, whereas, the plaintiff, on the 26th of October, 1848, was possessed of a negro slave named William, as of her own proper slave, and by reason of the service of the said negro slave, the said plaintiff had received great benefit and advantage ; nevertheless, the said defendant, the captain or commander of the Zephyr, did, on the 26th of October, in the year aforesaid, carry and transport by water, out of this State, in the said vessel or steamboat, the said negro slave, William, against the form and provisions of an act of the General Assembly of the State of Delaware, in such case made and provided; whereby and by force of the said act, an action has accrued to the said plaintiff to demand and have the sum of five hundred dollars from the said defendant; nevertheless the said defendant (although often requested) to pay the same, has refused, &c., to the damage &c., $1,000.</p> <p>• It appeared from the evidence that the hoy in this case, if carried off by the defendant, was carried, off without his knowledge, the boy having skulked on board and hid himself from the knowledge and observation of the captain and crew; and</p>

<p>This was an appeal from the decree of the register of wills, refusing to admit to probate the will of John Butler, deceased.</p> <p>The petition of John and William R. Butler stated that John Butler, their grandfather, made his will and by it devised certain lands, &c., to petitioners; that he died without revoking it. That said will went into the possession of Robert Bailey, who destroyed or secreted the same. It prayed a citation to the defendants (heirs-at-law and assigns,) to show cause why the contents of said will should not be proved and established, as the last will, &c., of John Butler.</p> <p>The answer of Hester Butler (the widow) stated that the will was made in the autumn of 1830, in due form, by which he gave his real estate, subject to the respondent’s right of dower, to his son, William Butler, for life, and then the home farm, one hundred and seven acres, and another, sixty acres, to the grandson, John Q. A. Butler, and his heirs and assigns forever; and the other real estate, one hundred and ten acres, after the death of William, to the other grandchild, William R. Butler (the petitioner.) That he also left $400 to J. Q. A. Butler, to be invested, and paid over to him at twenty-one years; and made his son, William Butler, executor.— That the will was placed in Robert Bailey’s hands, after being publicly read, and was never again seen. The grandchildren were, at the date of the will infants. William Butler died about two years ago. Respondent sold her interest in the estate to William Butler.</p> <p>The depositions proved that John Butler died seventeen years ago. He made a will the fall before he died ; which was duly executed in the presence of Lavinia Harris and Robert Bailey. The will was read after the testator’s death; and a portion of its contents was proved. John Butler, the grandson, was to have $400, and one of the farms, and what was left to his grandmother, after her death, which was a small farm along the road; and there was left to William R. Butler, another farm. This was proved by an aged witness, from memory, after the lapse of many years, the witness having heard the will read but once; she could not remember all the will; did not know what was left to his son William; thought it was §10 00, to cut him off. He left to his wife the farm he lived on, for life; then to John Butler; to William R. Butler one farm, when he should be twenty-one years old; she did not know who was to have it before; John was to have another farm, when he came of age; but she could not remember the words of the gift. The will was left with Robert Bailey, and could not be proved.</p>

<p>On the removal or death of an administrator, the co-administrator or succeeding administrator is entitled to receive not only the goods unconverted, but all the assets in hand, and may sue for the same on the bond.</p> <p>Where co-administrators execute separate bonds, and one of them dies or is removed, the co-administrator may sue on the bond, and recover the balance appearing on his account.</p>

Writs of Error to the Superior Court in and for Sussex county, in four cases of petitions for freedom. Heard at the June term, 1847, before Johns, jr., Chancellor, and Judges Milligan and Hazzard. Mr. Hazzard having resigned before judgment, this case was re-argued at June term, 1849, before the Chancellor and Judges Milligan and Wootten.

These cases came up at the June term, 1847, before all the Judges, on a ease stated in the Superior Court, in and for Sussex county; and questions reserved for hearing in banc.

<p>On petitions for freedom, though the proper mode of taking testimony is at bar, if the defendant join in a commission, he waives objection to depositions.</p> <p>Unlawful exportation confers freedom on the slave.</p> <p>This may he proved, without the conviction of the master for the misdemeanor.</p>

These cases came before the Court of Errors and Appeals, on questions reserved, upon the following case stated:— Nicholas R. Neal died intestate, and without issue, leaving Mary L. Vickers, his sister, one of three heirs-at-law; the defendant, William Robertson, administered on his estate, (P. R. Burton surety,) and passed a distributive account on the 22d of September, 1845, showing $276 86, a distributive balance, as due to Joseph Vickers and wife, in right of his wife.

<p>Writ or Error to the Superior Court in ■ and for New Castle county.</p> <p>Heard at the June term, 1849, before Booth, Chief Justice, Milligan and James A. Bayard, Judge ad litem, (the Chancellor being disqualified.)</p>

Heard at the June term, 1849, before Booth, Chief Justice, and Harrington and Milligan, Judges. The bill was filed by Paynter Jefferson, for himself and other creditors who should intervene, stating that P. J., on the first of January, 1841, sold and conveyed to George Tunnell several lots of ground, &c., for $775, who paid $75 in cash and gave his judgment' note for $700, payable July 1, 1842, upon which judgment was entered August 18, 1842.

•Questions of law reserved by the Superior Court in and for Sussex .county, for hearing before all the Judges. Heard .at the June term, 1849, before Johns, Chancellor; Booth, Chief Justice,- and Judges Harrington and. Milligan. The action was in debt on the guardian bond of George Tunnell and James Anderson and others, his sureties in the guardianship of Hannah B.

Writ of .Error to the Superior Court in and for Sussex county. Heard at the June term, 1849, before Johns,- Chancellor, and Judges Harrington and Wootten. This was an action of replevin for a vessel, the schooner Samuel R. Paynter. [Ante. 10.] The defendant, Albert Holland, claimed property in the schooner, under a judgment, at his suit, against William Holland, and execution sued out and levied on the schooner as William Holland’s property.

This was an action on a negociable note, drawn by James C. Dunning, in favor of Richard F. Hastings, payable at the Georgetown bank, of the Farmers’ Bank of Delaware, and endorsed to plaintiffs. Plaintiffs proved the note, endorsement, and protest, and closed.

<p>This was an appeal from the judgment of C. C. Windsor, Esq.</p> <p>The first count was special, alledging that Hosea had recovered a judgment against George Culver, before Justice Hearn, and issued execution to constable Burton; and that West, who was the administrator of Culver, promised to pay the debt, if he was allowed to sell the goods. The second count was on a promise to the constable to pay the execution. This case was proved.</p>

<p>This was an action on the case for breach of warranty of soundness in the exchange of horses.</p>

<p>The declaration laid the trespass on the 8th of October, 1848, and</p>

<p>What constitutes a common carrier.</p> <p>That is a question of law.</p> <p>A common carrier is an insurer, except for inevitable accident; war ; or the default of the bailor.</p> <p>What is a private carrier.</p> <p>His obligation is to use ordinary care and diligence to prevent accident.</p>

<p>In the matter of a road return in Kent county.</p>

<p>This was an action for any injury done by the grading and extension of Fifth and Spruce streets, in Wilmington, by which the plaintiff’s cellars were flooded, his goods damaged, and the health of his family impaired.</p> <p>The plaintiff was the owner of lots on Fifth and Spruce streets, the grading of which streets raised them several feet above the natural level of the ground, and caused a pond of water to collect in the lot opposite to plaintiffs’s premises, which was a very offensive nuisance, and which it was alledged, penetrated through the street and ran into his cellar. The city at first put a trunk through Spruce street to run the pond off; but on complaint by the owners of the lots below, they had this trunk removed. The consequence was a collection of water on the lot above, which had no means of escape otherwise than by evaporation.</p> <p>It was contended that the city was bound to make the streets so as not to injure the plaintiff; as much so as an individual is bound to use his own property, so as not to prejudice his neighbor; that if a man dam water, even on his own premises, so that by the leakage of -the water through the dam it injures another, he is liable for damages ; and the same where he obstructs the natural flow of water to another’s injury.</p>

<p>Manner of striking juries at bar.</p> <p>M. sold to the canal company a part of his farm to be flooded, received the price, and bound himself to convey when called on. The company took possession, by flooding it, and continued soto use it. M. afterwards sold his farm to H., without reserving the part so flooded. H. brought his action against the canal company, for continuing to flood the land. Held, that he could not recover.</p> <p>A certificate of survey of land for the use of a canal, with the owner’s receipt for its value, is a good defence to an action for damages for so using it.</p> <p>Any entry upon another’s land, without title or authority, makes the party liable to damages; but the amount thereof depends on the damage actually done.</p> <p>If such entry in fact increases the value of the property, the owner cannot recover any more than nominal damages.</p>

<p>This was an action on an award. Plea, non-assumpsit.</p> <p>One of the referees was called as a witness to support the award, and objected to.</p>

The record showed an action on account by C. S. Layton vs. Ebe Tyre, commenced by warrant of attachment for $22 40, returnable the 19th of May, 1848; attachment returned “ no goods,” and summoned Burton Johnson, as garnishee. Five notices made out by the justice, under hand and seal, May 22, 1848, one posted in his office and four delivered to constable, to be posted “ as by law required,” and Friday, January 23, appointed for hearing. Judgment against Tyre for $22 40.

<p>W. sued out a fi. fa. attachment against H. and laid it in the hands of S., who died before answer. An alias was then laid in the hands of the executor of S., and, on a rule to show cause why he should not be compelled to answer, he was discharged.</p>

<p>Trover and conversion. Pleas, not guilty and limitation.</p> <p>The plaintiffs were travelling; and their horse gave out on the road and was left with defendant, as they alledged, to keep for hire. When called for he was not delivered, having escaped from defendant’s premises. The plaintiffs had paid four dollars on account of his keep. The defence was, that the horse ivas only turned in the field for pasture; and escaped, without any fault on the part of defendant.</p>

Hetty W. Giles (now Hetty W. Lawless) administered on the estate of Thomas B. Giles, deceased, with the defendant as her surety. She passed several accounts, showing balances, of which the distributive share of James Giles was $99 05, including rents for 1839-40. The plaintiff offered to prove the value of the rents received by the administratrix, for 1841-42.

<p>Foreign attachment.</p> <p>The writ of attachment was placed in the sheriff’s hands, with orders to close the defendant’s store; he went to the store to shut it up, and was in the store waiting for the key, when the writ of fieri facias was placed in his hands. He sold the goods and brought the proceeds into court; when the execution creditor moved to take it out.</p> <p>Mr. Laws argued the case for the execution creditors; Messrs. Bates and Smithers, for the attachment creditors, declined to argue it.</p>

<p>Trespass qua. clou. fregit. Pleas, not guilty, and liberum tenementum. New assignment and issue.</p> <p>This was an action of trespass to try the title to a certain piece of land at Long Point, in Duck Creek hundred, over which the defendant had laid out and opened a road and built a wharf for a steamboat landing.</p> <p>The plots of the plaintiff’s pretensions were objected to—1. Because the surveyor and chain carriers were not sworn 2. Because it did not appear on the face of the return that any notice was given to the other party. 3. Nor that it was executed in presence of the sheriff. 4. Because the plaintiff’s plots were on their face uncandid and unfair, stating as facts, things which were not proved.</p>

<p>A negociable instrument imports a consideration, and the plaintiff is not obliged to prove a consideration, except in cases of fraud.</p> <p>A conditional note must be declared on as a special agreement; and the plaintiff must prove performance of the condition.</p>

<p>A book charge against A., for work done for, or goods delivered to B., is not of itself » sufficient to bind the party charged.</p>

<p>The Cily Regulators of Wilmington have not power to adjudge questions of title between adjoining lot holders.</p> <p>In a second action for a continued trespass, the former verdict and judgment is evidence, but not conclusive, of title.</p> <p>The courses and distances of a deed may be controlled by the holdings, where there are visible lines marked by permanent and enduring objects, such as walls, fences, &.C., existing at the time of the conveyance ; and with such references as may ap- ■ ply to the property itself as then being.</p> <p>Measure of damages for a continued trespass.</p>

<p>The record entry of a judgment amended in the Court of Appeals.</p>

Before the full court: Johns, Chancellor, Booth, Chief Justice, Harrington, Milligan and Wootten. Questions reserved for hearing in banc, on the following case stated.: The defendant agreed in writing to purchase of the plaintiffs a a tract of land in New Castle county, at a certain sum, if a good title could be had to the same.

Writ op Error to the Superior Court in and for New Castle county. Tried before the Chancellor, Chief Justice, and Judge Milligan. It was an amicable action, docketed by consent and referred to three persons named by the court; they, or any two of them agreeing, t The exceptions were—1. Because the court ordered the award to be amended; and the judgment, being on the amendedaward, was erroneous. 2.

<p>As between near relations, the law does not imply a promise to pay board, &c., while on a visit.</p>

<p>Assumpsit for goods sold, &c. Special count on a note under seal,,date April 1, 1839, for $308, with interest.</p> <p>Hazzard & Prettyman were partners in trade, and bought certain goods of S. & M. Cannon, for which they gave their note, signed by Prettyman, for the firm; with Henry Little as surety. Little had the note to pay, and brought this action to recover back from his principals.</p> <p>The note was signed by Prettyman, in the name of Hazzard & Prettyman, in the presence of Hazzard; and by H. Little. R. Hazzard knew of its assignment to a third party, whom he advised to accept it, saying that the note was good, as it had his name to it.</p> <p>This was objected to by Mr. Layton.</p>

This was an action of assumpsit, under the following circumstances.

<p>On certiorari, the court will not reverse a judgment for error in taxing costs; but will correct the record in this respect.</p>

<p>A bequest to A. B. & C., at the marriage or decease of the testator’s sister, to each $300';, in cash, to be paid them by his executor; held to be a vested legacy in A. B. & C.</p>

<p>The act of limitation does not begin to run until there are parties capable of suing and being sued.</p> <p>Where the cause of action docs not arise until after a person’s death, the act does not begin until there is a party representing him.</p>

Action of trespass vi et armis, and assault and battery. The venue was laid in New Castle county. After the plaintiff closed, Mr. Rogers for defendant, moved a nonsuit, on the ground that there was no proof of the place where the trespass was committed. The only proof was, that it was in Fourth street, or Fourth and Poplar, without any mention of what place.

<p>Assumpsit by the holder against the maker of a check or draft, in the following form :—</p> <p>■“No. 29. Wilmington, September 9, 1847. Union Bank of Delaware, pay to John Seymour, or order, two hundred and sixty-nine dollars sixty-six cents; payable the 29th instant.</p> <p>James E. Hamilton.</p> <p>Indorsed John Seymour, Charles Justice, Jno. B. Austin : pay to Farmers’ Bank, J. S. Smith, Cashier.'’</p> <p>The plaintiff proved the handwriting of the drawer; and called a notary, who proved that he presented the check to the bank on the 29th of September, 1847, for payment, which was refused for want of funds ; and he supposed he notified the drawer and endorsers.</p> <p>The notice to the drawer was by mail, as he supposed, as that is his practice, where the drawer resides out of the city. He could not recollect how it was given in this case, or where directed.</p> <p>Plaintiff then produced a probate, and closed.</p>

This was an appeal from the judgment of a justice of the peace in an action of assumpsit, for work and labor as a journeyman carpenter. The plaintiff made proof of the time and value of his work, and presented a probate sworn to, but not signed; and closed. The defence offered to prove that Chambers was an apprentice to Walker, under a contract with his mother, when he was put to apprenticeship, ratified by him after majority, to work one year after he came of age.

<p>Assumpsit.</p> <p>This was an action by indorsee against the maker of a promissory note for $290 65, dated July 30, 1847 ; drawn by James B. Hamilton, in favor of John S. Walter, at thirty days, payable at the Bank of Delaware.</p> <p>The plaintiff proved the handwriting of drawer and indorser, and that it was indorsed before maturity. The payee was called to prove that he was in fact indebted to the drawer at the time the note was made; which was objected to, on the ground that until the defendant had shown the indorsement to have been made after maturity, the consideration could not be inquired into, as between the indorser and indorsee.</p> <p>The Court said, that the consideration could not be inquired into, except as between the original parties, unless in cases of fraud or collusion. (Bush vs. Pechard,, 3 Harr. Rep., 387.)</p> <p>Note admitted; probate offered; and plaintiff closed.</p>

<p>Trover for a negro girl slave. Pleas, not guilty and limitation.</p> <p>The deposition of a witness taken on commission, executed by F. A. Raybold, commissioner, was offered and objected to; because it was signed by the witness only once, at the close of the examination.</p>

<p>Rule to show cause why a sale of land should not be set aside.</p>

Ejectment for one hundred and fifty-six acres of land in Sussex county.

<p>Such notices must be signed.</p>

<p>The writ of estrepement cannot be issued in an action of trespass quare clausum fregit.</p>

This was an appeal from the judgment of a justice of the peace, in an action of trespass, for crossing the plaintiff’s land to the bay shore, and hauling fish up on the same. The plaintiff was in possession of a farm, extending to the Delaware bay, the original lines of which, according to the patent, run beyond where the fast land now extends, the sea having gradually encroached upon the land, and the tide now ebbs and flows where those lines once covered.

<p>A partner cannot bind the firm by deed, without authority by deed.</p> <p>If one seal in the presence and by authority of the other, it is the deed of all.</p> <p>But the authority cannot be proved by one of the partners.</p>

Question reserved by the Superior Court for New Castle county for hearing before all the judges. [Ante., p. 315.] The case was heard at June term, 1851, before the full court; and was argued by Bradford, for plaintiff, and J. A. Bayard, for defendant. The declaration was upon a promissory note, made by James E. Hamilton, on the 30th of July, 1847, for $290 65, payable at the Bank of Delaware, to the order of John S. Walter, thirty days after date.

<p>J. M. gave a bond for $1,800, conditioned to pay J. F. M $900, without interest, until bis death ; and then to be void, if he by will gave J. F. M. a certain plantation.</p> <p>He devised the plantation to J. F. M., subject to hi* wife’s dower; and made J. F. M., executor, who administered ; received assets; and entered on the land dcvLcd ; but after his death the land was recovered by the heirs-at law of J. M., on the ground that the devise was only of a life estate. His administrator then brought suit on the bond, and it was held:—1. That the devise was a satisfaction of the bond, even with dower, unless further encumbered; and then, if it was accepted in satisfaction. 2. That if it was not a satisfaction, as the obligee was the executor, he was bound to pay himself out of the assets, if sufficient came to his bauds.</p>

Action of trespass on the case, for seduction of plaintiff’s daughter. The daughter was called as a witness and proved that she lived with her father, and did such acts of service as are usual in a house, and that the defendant seduced her. Question.—Did he ask you to marry him ? Objected to.

<p>The action was against the defendants as partners, on a sealed instrument, executed by only one of them.</p> <p>Mr. Cullen stated the case as before, [ante., p. 291,] and offered to prove the admission of Hazzard that he was present when the note was given, and assented to it.</p> <p>Mr. Layton objected to this. The authority of one partner to seal an instrúment for another, must be proved by deed; it cannot be pi’oved by paroi, and of course a recognition by paroi will not be sufficient. The subsequent declarations of Rhodes Hazzard, even recognizing the authority of his partner to sign this note for the firm, would not make it his note, nor bind the firm. All such authority must be deed. (Cary on Part., 49 ; 5 Law Lib., 20 ; [50] Holt. Rep., 141; 2 Harr. Rep., 147 ; 4 Ibid, 428 ; Watson on Part., 218: 2 Kin. Com. Law Rep., 268; 7 Term Rep., 207; 2 John. Rep., 213; 10 East, 418 ; 1 Dallas, 109 ; 1 Caine’s Rep., 254.)</p> <p>Cullen and Houston, contra.—This is a question of authority. We insist that a partner may bind his co-partner by deed—1. If it be done by the consent, or in the presence of the other partner, or by his authority, and for partnership purposes. 2. If ratified by the partner who did not sign the deed ; and 3. That the ratification may be by paroi. (Story on Part., 173; 11 Pick. Rep., 300; 1 Hall Rep., 262 ; Coll. on Part., 481; 4 Wash. Cir. Court Rep., 471; 5 Cranch Rep., 289 ; 19 Johns. Rep., 514; 4 Term Rep., 313; 1 Esp. Rep., 236; 3 Ibid, 328; Coll. on Part., 423.)</p>

This was an action of assumpsit on the common counts. The parties had been partners and the question was, whether there had been such a settlement between them and admitted balance, as would sustain the suit at law.

<p>Appeal from the judgment of a justice of the peace, in an action of assumpsit. The pro narr. counted on a subscription to the church for $50, and a claim of $34, on the common counts.</p> <p>The defendant’s signature was to the following form of subscription:—“ We the undersigned agree to pay to the treasurer of the village Presbyterian Church of Newark, Delaware, the amount opposite our names, upon condition that an amount is raised by subscription, or otherwise, to liquidate the entire debt of the church, supposed to be about one thousand dollars.”</p> <p>The defence was, that this was a gratuitous subscription, without consideration. (Story on Cont., 372 ; 13 Ves. Rep., 178.) 2. That it was upon a condition which was not performed. 3. That the trustees of an incorporated church, and not the treasurer, was the proper party; and 4. That the sum claimed for pew rent could not be recovered on the common counts.</p> <p>It appeared in evidence that enough to pay the church debt was not subscribed, or raised, at the commencement of the action below, but was subscribed before the trial; and it was contended for the plaintiff—1. That a subscription to a common object created a legal liability, for which an action would lie. 2. That on an appeal, the case stands de nova in this court; and if the condition was performed before filing the declaration here, it was sufficient. 3. That the engagement here was to pay to the treasurer and not to the trustees. It was admitted that the pew rent could not be recovered without a special count.</p>

Assumpsit against a stake-holder, to recover a sum deposited as a wager on the result of a foot-race. The plaintiff’s case assumed that the race had not been fairly run, nor any decision with regard to it made by competent judges; both of which the defendant controverted in fact. On the law of the case,

Scire Facias on a recognizance entered into on taking out a writ of certiorari to a justice’s judgment. The pleas were performance and payment. Mr. Giuthrie gave in evidence the recognizance, and the decision of the court affirming the judgment on certiorari. - Mr. Rogers made the question whether a scire facias could issue in such a case as this. There has been no practice such as this; no case in which the question has been made.

<p>The assignee of a judgment note has recourse, if he use diligence against the maker. Suit must be brought promptly ; unless the maker bo notoriously insolvent.</p>

<p>Though a scroll is a sufficient sealing of an instrument, some seal must appear on its face. The words “ witness my hand and seal" are not sufficient.</p>

<p>Free negroes being in this State prior to the act of 1851, arc not subject to its penalties, though non-residents.</p>

<p>Certiorabi.</p> <p>The defendant filed exceptions, without any signature.</p>

<p>This was a proceeding under the act of 1770, {Digest, 51,) founded on an affidavit that the defendant was indebted in a sum not yet due, was about to leave the State and remove his goods, before the debt was due, and had refused to give better security. Upon this affidavit the plaintiff took out a copias, and the defendant was arrested and gave bail to the sheriff.</p> <p>At the term, Mr. Wales moved for an order on the sheriff to produce the body of the defendant; when the question arose, what was meant by the act, which provides that the debtor shall be obliged to give better security for such debt. (Digest, 51; Code, 371.)</p>

<p>C. D. being seized by devise of an estate tail in possession, in one moiety of an estate, with a vested remainder in tail in the other moiety, after an estate tail in R. D., had all his interest in the premises sold by the sheriff on judgment and execution; and confirmed the title of the vendee by a deed conveying “ all his right and estate” in the devised premises. R. D. afterwards died intestate, leaving a child, which died .without issue, which determined the estate tail in his moiety:—</p> <p>Held—1. That the interest of C. D. in this moiety also passed to the vendee of the sheriff. 2. That, even if it did not, C. D. was estopped by his deed of confirmation, from claiming it.</p>

<p>Appeal from a justice of the peace, in an action of assumpsit.</p> <p>Pro narr. on common counts and special counts for a horse, and on the assignment of a note in writing, from Edward P. Macauley to Aaron M. Prettyman, for $35 00, with interest, as a valid note, whereas, it was not due "or recoverable ; which was alleged as the breach.</p> <p>Pleas, 1. non assumpsit; 2. payment; 3. set-off; 4. discount; 5. accord and satisfaction; 6. that appellant did not execute the assignment, as is alleged, &c.; 7. that the sum of $35 was due from McCaulley to Prettyman, at the time of the assignment; 8. that the assignment was without recourse; 9. that there was not due diligence used in enforcing payment from McCaulley; 10. that the respondent has not used the proper means to collect the note.</p>

This was an action of trespass on the case, for obstructing the plaintiff’s right of way over a public road. Some of the counts laid it as a private road. No special damage was laid. The obstruction was proved in a public highway.

<p>Construction of the “ Act concerning wood cordera."</p>

<p>On a judgment note given to an unmarried woman, who afterwards marries, judgment cannot be entered at the suit of her husband alone.</p>

<p>On a hearing in defendant’s absence, though after an appearance, a magistrate must hear proof as well as allegations before giving judgment; and the record must show this.</p>

<p>On non est factum pleaded, the defendant cannot show that the bond signed was re. presented to be of a different amount.</p> <p>He should plead per fraudem.</p> <p>This was an appeal from the judgment of a justice of the peace, in an action on a judgment note for $55 83. Judgment entered by warrant to justice. Plea, non est factum. There were two witnesses to the note, who signed by mark.</p> <p>On the trial evidence was offered that the note, attested by the witness, was a note for $45, on which plaintiff objected, that nothing was in issue, under the plea of non est factum, but the execution of the note; and that supposing it to be a note for $45 instead of $55,, this could not be set up as a defence, unless the fraud was pleaded.</p>

<p>Appeal from the decree of the register of Sussex county, in the matter of the will of George Goslee.</p> <p>The will was dated January 19, 1829; admitted to probate August, 10, 1835; proved again January 12, 1837; petition for review filed'September 4, 1851; decree October 18, 1851. The will was signed by mark—witnesses, John Lowe, William H. Wales, Benjamin Collins and James Nicholson. There was a “ nota bene,” written under the signature of the testator, (and also under the signatures of the attesting witnesses,) by the witness, Lowe, who wrote the will. It was as follows:—</p> <p>“ N. B. Item, I give and bequeath unto Aaron Owens, all my personal property, I possess or hold.”</p> <p>Test.—The foregoing N. B. was written at the same time with the main part of the aforesaid will, and before said George Goslee executed and signed the same; and was acknowledged by him at the same time.</p> <p>The will was proved by John Lowe, one of the witnesses, the other three being dead or out of the State. Lowe proved their death and absence, that the will was regularly executed and published, and that the postcript, or N. B., was written by the express orders of the testator before execution.</p> <p>The register admitted the will to probate, rejecting the “ nota bene;” from which decree this appeal was taken.</p> <p>The exceptions were— L. That the petitioner, as the administrator/,of Elizabeth Bennett, late Elizabeth Owens, deceased, is not entitled to a review of said will. 2. That no review having been prayed for in her life time, by either her or her husband, and her husband still surviving her, and praying no review, it is now too late for such review.</p>

This was an appeal from a justice of the peace, in an action of assumpsit, for a medical bill. Demand $44 10. The plaintiff proved his books. A part of the charges was for visits and medicines furnished to the defendant’s wife, when she was not at her husband’s house. The wife went to her brother’s, against her husband’s consent; and was taken sick there and died.

<p>Appeal from the judgment of a justice of the peace, in an action of assumpsit. Pleas, non-assumpsit and usury.</p> <p>The action was by C. Nields, for services rendered in the negociation of a loan of $5,000. The claim was one per cent, commission. A witness was asked if that was the usual rate of commission, which was objected to as ah attempt to set up a special custom, at a particular place; and no such custom was set out in the declaration.</p>

<p>If credit be given to an agent, with knowledge of the principal, the latter cannot be charged. If without knowledge of the principal, he may afterwards be charged before settlement between the principal and agent.</p>

Pleas, non-assumpsit, payment, discount and set-off. The plaintiff’s case was, that he hired defendant, as a laborer, to cultivate his farm, at a compensation of one-half the grain and produce raised. The farm was not rented to him. He went on the farm in 1819. The corn raised in 1850 was nine hundred bushels; Edwards received, only about four hundred bushels.

<p>A tenant is not excused from the payment of rent by the destruction of the premises hy tempest, unless it be so stipulated.</p> <p>The entry of the landlord to repair, for the tenant’s benefit, is not an eviction.</p>

Foreign attachment case. Objection was made to the plaintiff’s commissions, on the following grounds:—1. That the depositions of the witnesses in chief were not signed. They were signed at the end of the cross examination; at least the name was there; but there was no certificate even of the commissioner, that they were signed. The certificate was merely “ attest,” Buffinson, commissioner. (2 Daniels' Ch. Pr., 485; 1 Peere Wms., 414.) 2. For irregularity of return.

Action of assumpsit, on two promissory notes, made July 22, 1812, for $167 74, and $167 14, payable at six, and nine months. Pleas, non-assumpsit, and statute of limitation. The plaintiff proved that the defendant, within the time of limitation, spoke to a thiril person to buy .the notes up for him, and said they had not been paid.

This was an action on a replevin bond, executed by Benjamin Mcllvaine and David R. Smith, conditioned to prosecute the replevin of Mcllvaine against Albert Holland and Thomas W. Records, sheriff. [Ante. 10, 226.] The replevin was issued for the half of a vessel, the schooner Samuel R. Paynter, which had been levied on by Sheriff Records, at the suit of Albert Holland, on execution process against William Holland.

<p>Certiorari to Justice Tunnell.</p> <p>The record showed a judgment by confession, on a sealed instrument, executed by John and Matthias Kinniken, to Warren P. Massey, with warrant authorizing the entry of judgment. It was assigned by Massey to J. H. A. Dulaney, before two witnesses, but not under seal. The judgment was entered “ in favor of J. H. A. Dulaney, plaintiff, against John P. Kinniken and Matthias Kinniken, defendants, for $72, real debt, and $4 40, interest, with costs: judgment $76 41, costs $1 31, in the margin.</p>

<p>Fees of witnesses not sworn disallowed.</p> <p>Costs of attachment to be paid by the party, unless otherwise ordered.</p>

The record was as follows:— Capias issued February 7, 1855, by Justice Hazzard, to any constable of Sussex county, commanding him “ to bring Elisha Proctor, free negro, forthwith to answer to a complaint of non-residence. “ The State of Delaware vs. Elisha Proctor, n.—Coming into this State a non-resident free negro.

Action of trover. Plaintiff, as a constable, levied on a pair of oxen, the property of Elijah Adkins, at the suit of N. Conoway. Jefferson claimed the oxen, and refused to give them up. Plaintiff pioved the judgment and execution, and proposed to prove the levy by paroi.

<p>A husband is not liable for jewelry and ornaments sold his wife, without his authority; but such authority may be implied from circumstances.</p>

<p>Amendment in the names of parties allowed, on terms.</p>

<p>A motion was now made by Mr. Comegys, in behalf of other creditors of Jenifer Taylor, on affidavit filed that Taylor was and had been from his birth, a resident of the State, for a rule to show causé why the attachment should not be dissolved.</p> <p>objected to the rule, that it was too late, and came from improper parties. He argued that after judgment and execution, it was not competent for. the defendant, much less for third parties, to set aside the judgment for informality of process.</p>

<p>On an iséue of property in replevin, the onus is with the plaintiff.</p> <p>A purchaser at constable’s sale acquires property, though the proceeding be irregular, if founded on judgment and execution.</p> <p>A constable’s return may be objected to before the justice.</p> <p>The officer’s authority cannot be controverted collaterally.</p> <p>The statute of frauds does not apply to transfers of property by judicial sale.</p> <p>But a sale of property, however public, may be vitiated by fraud.</p>

<p>Action of assumpsit, for goods sold and delivered. Usual pleas.</p>

<p>Trespass quare clausum fregit. The plaintiff offered pretensions which were objected to for want of notice. The sheriff proved that he gave notice to the defendant of laying down pretensions on a certain day. The parties and surveyor met at the time appointed and commenced the survey. Before closing they adjourned until the next Tuesday. On that day no one went, it being rainy. The sheriff and surveyor and plaintiff met, on the next day, and made the survey, without any further notice to the defendant.</p>

<p>It seems that the Superior Court has power to attach a justice of the peace for flagrant official misconduct affecting private rights.</p> <p>But if he deny the facts under oath, the Court will not try them in this summary way; but remit the party to his action, or indictment.</p> <p>A rule was laid on the defendant, a justice of the peace, to show cause why an attachment should not issue against him for official neglect and default, grounded on an affidavit of the complainant, stating that the justice had refused him an appeal in a case where he was entitled to it, and applied for it in due time, and offered sufficient security; and that he refused to give a transcript of his record to the complainant; when duly applied for, and the fee therefor tendered.</p> <p>On the return of the rule, the justice appeared; and, by affidavit, fully denied the facts set forth in the complainant’s affidavit.</p>

<p>Debt on administration bond. Case agreed.</p> <p>Thomas Holland died intestate, leaving a widow and six children, the plaintiffs, his heirs-at-law. The defendants administered and gave bond with Alfred Du Pont as surety. Henry Belin, one of the administrators, passed a final account of his administration on said estate in April, 1848, showing a balance of $ due from him.</p> <p>Thomas Holland, in his life time and shortly before his death, became co-administrator with John Holland, jr., on the estate of John Holland, deceased, having given bond and surety, together with said John Holland, jr. The administration was conducted solely by John Holland, jr., who wasted the estate.</p> <p>The question was, whether Thomas Holland, as co-administrator with John Holland, was liable for the acts of his co-administrator.</p>

<p>This was an action of debt on a covenant to convey land. The agreement was in reference to an exchange of properties; the plaintiff being bound to convey to the defendant, by a good legal title in fee, clear of all incumbrances, a house and lot in Wilmington; to deliver him possession of the property on the 25th of March, 1851, and to pay him $250 in money; upon which the defendant covenanted to convey in Mice manner a farm to the plaintiff.</p> <p>It was proved that the plaintiff, on the 25th of March, 1851, tendered to the defendant a deed for these premises, together with the key of the house, and the money in gold. To this conveyance it was now objected, that it was not clear of incumbrances, but was subject to the dower of Mrs. Joshua Gilpin.</p> <p>It appeared in evidence that the property referred to was conveyed in 1813, by Thomas Gilpin, acting for himself and Joshua Gilpin and wife, under a letter of attorney from them, regularly executed and acknowledged, with private examination of the wife, before a proper magistrate out of the State. This the plaintiff contended would, prior to 1829, be sufficient to bar her right of dower; and that a married woman could by the common law of Delaware, that the common law of as modified acts of the coloniai legislature and the established usage of the State, join the husband in making a letter of attorney like this, for the conveyance of land; and, being privately examined to such letter of attorney, it, together with the deed made in pursuance of it, would bar dower.</p> <p>The common law of England was brought hither by the colonists, that is, so much of it as was suited to theiri condition; and the early colonial legislature very soon began to modify it. Very early the right of primogeniture in the descent of estates was modified.</p> <p>With regard to the law of husband and wife, the principles of the common law were adopted. In regard to dower, the principles of the common law were soon modified, with a view to facilitate the conveyance of property. The land was made subject to execution for debt, even to the exclusion of the widow’s claim of dower, whether the sale was by execution process or by sales made by the Orphans’ Court.-</p> <p>In 1816, the principle of the common law was restored so as to give the widow a preference to dower over the debts, except under certain circumstances, where the wife had voluntarily joined in a conveyance of the land.</p> <p>Several acts of the legislature were passed to quiet possession, and to supply deficiencies in respect to the mode of execution of deeds by married women. The earliest questions seem to have been made in reference to deeds by husband and wife, for the land of the wife. (4 vol., 461.) And in 1811, the necessity of a private examination of the Avife to exclude her dower is distinctly recognized and required. (1 Del. Laws, 144, 528; Ib., 460; 1 Com. Digest, 641; 1 Delaware Laws, 220; 86, § 4; App., 50; Bac. Ab., Bar. f Fem. ; 3 Harr. Rep., 87; Sugd. Vend., 178, 243; 18 Law Lib., Atkinson titles, 1, 183, 639, 261, 590; Rawle on Cov. of title, 430; 2 Binn., 341; 10 Johns. Rep., 265; 10 Mass. Rep.. 313; 4 Taunt. Rep., 334; 1 Hen. Blac., 279.)</p>

<p>A writ of error lies to the Superior Court, in cases appealed from Justices of the Peaoe.</p>

Wb.it of Ebbob to the Superior Court of Sussex county. Tried at the June term, 1853, before the Chancellor and Judges Harrington and Wootten.

<p>Appeal from the decree of the Chancellor in and for Sussex county. Heard at theATune term, 1853, before Chief Justice Booth and Judges Harrington, Milligan and Wootten.</p> <p>The bill was filed by A. G. Hastings, Irons and Burton, against Clendaniel & Neall, and Richard F. Hastings, and stated that the complainants, to enable R. F. Hastings to borrow of a certain James Bishop the sum of (about) $300, on a credit of five years, signed a blank printed judgment bond, which they delivered to R. F. Hastings, for that purpose, but that he, failing to get the money of Bishop, went to Clendaniel Sc Neall, to whom he was indebted, and filled it up, without the knowledge of complainants, for $354, the amount of an old debt due Clendaniel & Neall from Hastings & Dunning, and that Clendaniel & Neall had full knowledge of the facts. Judgments were afterwards entered on this bond against R. F. Hastings and these complainants severally ; Hastings became insolvent ; and this bill was to be relieved against the bond thus fraudulently filled up and delivered.</p> <p>R. F. Hastings’ answer admitted the facts (substantially) as stated in the bill. Clendaniel & Neall answered that they knew nothing of the signing of the bond; but that R. F. Hastings being indebted to them on his own account, and as one of the firm of Hastings Sc Dunning, in the sum of $354 48, came to them with the blank bond executed, as he said, to enable him to raise money to any amount not exceeding $800, to sustain his credit; that he expected to get $500 of a friend (Bishop,) but had failed; that he was fully authorized by the other parties to fill up the bond in any sum less than $800, and to any person; that he could so pass it off to his Market street creditors for the amount of their claims, but he wanted some cash, and he proposed to fill up the bond to C. & N. for $500, deducting the debt of $354. C. & N. refused to advance any money upon it, but took the bond op the faith of his representations, for the amount of their debt; and R. F. Hastings filled it up accordingly.</p> <p>The Chancellor decreed a perpetual injunction to stay execution against the sureties in the bond; from which decree Clendaniel & Neall appealed.</p>

<p>A husband is liable for necessaries furnished his wife, living separate from him by his own fault.</p> <p>If the separation he voluntary, though caused by the husband’s misconduct, he is not liable, if he pay her a suitable allowance of which the party trusting her has notice, or the means of knowledge.</p> <p>A wife, though separated by partial divorce, cannot be a witness against her husband.</p>

The defendant’s goods were sold on execution process, and the proceeds brought into court. The amount was claimed by Mrs. Gray, as landlord, and by the Bank, as execution creditor.

<p>The action was against the defendants, as indorsers of Joseph S. Hedges, on a promissory note drawn by him, in favor of defendants, and endorsed by them to plaintiffs, a copy of which was filed, and affidavit made under section 4, Code, 377.</p>

<p>On attachment for rent, on affidavit that the tenant is about to remove, so as to defeat a distress, the court will not quash the attachment fcr want of sufficient grounds, but will refuse costs.</p> <p>Attachment for rent, under 'Code, 428, on affidavit of a landlord, (Janney) that he had rented his farm to Wier for $275 per year, and from the tenant reducing his stock and other acts, the landlord believed he meant to remove his property, so as to defeat a distress for rent.</p> <p>On motion of Mr. Patterson, and affidavit filed denying plaintiff’s affidavit, rule on the landlord to show cause why the writ of attachment should not be quashed.</p>

Replevin. Trial and verdict for plaintiff, on a plea of property in defendant, and property in A. C. Walker. Motion for a rule to show cause why a new trial should not be had, on the following grounds, supported by affidavits :—1. The jurors did not agree on a verdict. 2. The discovery of important testimony since the trial. The defendant presented an affidavit of one of the jurors, the foreman, that he did not agree to the verdict, and did not answer when polled.

This was an appeal (tried at the spring term, 1854,) from the judgment of a justice of the peace in Sussex- county, in an action of assumpsit.

<p>A return of “ levied to the amount,” is a payment, unless the levy be otherwise disposed of.</p>

<p>A husband, though a minor, is liable for necessaries furnished his wife.</p> <p>The law will not imply a contract as between father and son-in-law, to pay his wife’s board, while staying at her father’s house.</p>

<p>Certiorari to Justice Russell.</p>

This was an action of debt on a sheriff’s recognizance for neglect to levy an execution placed in his hands in due time, upon a crop of peaches and other property of the defendant in the execution. The plaintiff put in evidence a judgment of Roe, against one Sheerman, for the real debt of $400, payable in three annual instalments, the first being due in April, 1846; upon which an execution was issued on the 16th of July, 1847, and was levied the 5th of October, 1847.

<p>On a motion for a continuance of a cause, because of the plaintiff’s inability to procure certain papers as evidence, the court required a specification of the papers, to judge of their materiality.</p>

Rule for distribution of money in sheriff’s hands, the proceeds-of sale of land of Robert Thompson. The mortgage of Hollingsworth was executed August 27, 1850,. and recorded October 15, 1851, at 11 o’clock, A. M.; but judgment was not confessed on the accompanying bond until November, 22, 1852, for $1,200 00.

On affidavit of the administratrix of William S. F. Graham, stating that property which had come to her hands as administratrix had been seized by the sheriff, and the money made on execution process issued against her estate, after administration granted, rule to show cause why the execution should not be set aside, and the sheriff ordered to bring the money into court, to be paid to the administratrix, to be administered in due course of law.

<p>Writ of Error to the Superior Court for New Castle county, before the Chancellor and Judges Harrington and Milligan.</p> <p>The action below was against the defendant, as the captain of a steamboat, for carrying the plaintiff’s slave out of the State, contrary to the act of January 19, 1826. (Digest, 291.)</p> <p>The narr. counted, “ for that the plaintiff on, &c., was possessed of a negro slave named William, as of her own proper slave, and by reason of the service of the said negro slave, the said plaintiff had received great benefit and advantage; nevertheless, the said' defendant, the captain or commander of a steamboat or vessel called the Zephyr, did, on, &c., carry and transport by water out of this State, in the said vessel or steamboat, the said negro slave, William, against the form and provision of an act of the General Assembly of the State of Delaware in such case made and provided, whereby and by force of the said act, an action has accrued to the said plaintiff, to demand and have the sum of five hundred dollars from the said defendant ; nevertheless the said defendant (although often requested) hath refused,” &c., &c.</p> <p>The plaintiff hacj a verdict for $500 and judgment; to which this writ of error was issued and a citation returnable to June term, 1851, which was returned “ non est inventusan alias issued, returnable to the June term, 1852, which issued to the sheriff of New Castle county improperly, and was not returned; whereupon, a citation issued to the June term, 1854, which was returned “ non est inventus.”</p> <p>Upon these two returns of non est, Mr. Bayard, for the plaintiff in error, claimed to be heard as upon a return of cited; otherwise, the defendant could not review the judgment against him, where he could not serve process on the plaintiff.</p>

<p>Trover and conversion. Plea. Demurrer.</p> <p>The declaration was in trover, for a sow, in the usual form, averring that, whereas, the plaintiff on, &c., at, &c., was lawfully possessed, as of his own property, of a certain swine, to wit: one sow, of great value, to wit: of the value of $20, lawful money, &c., and being so possessed, casually lost the said swine, to wit: the said sow, out of his possession, and the same afterwards, to wit, on, &c., at &c., came to the possession of the said defendant by finding. Yet the said defendant, well knowing the said swine, to wit: the said sow, to be the property of the said plaintiff, and of right to belong and appertain to him, but contriving and fraudulently intending craftily and subtily to deceive and defraud the said plaintiff in this behalf, hath not as yet delivered the said swine, to wit: the said sow, to the said plaintiff, although often requested so to do; and afterwards, to wit: on the day and year last aforesaid, at, &c., converted and disposed of the said swine, to wit: the said sow, to his own use, to the damage, &c., &c.</p> <p>The defendant pleaded—1. Not guilty; 2. act of limitations; 3. and the said Thomas Dazey, by, &c., for a further plea in this behalf as to the taking and finding of the said sow, in the said declaration mentioned, and converting the same to his own use, as in and by the said declaration is supposed to have been done by this defendant, Tie, this defendant, by leave, &c., says that the said plaintiff ought not to have or maintain his aforesaid action thereof against him, because he says that the said defendant, long before and at the time when, &c., was lawfully possessed of and in a certain close, called-, lying and being in Baltimore hundred, in the county aforesaid; and because the said sow, at the said time, when, &c., was in the said close of the said defendant, then and there eating up and destroying the corn and grass growing there, and there doing damage to the said defendant, he the said defendant, in his own right at the said time, when, &c., took the said sow in the said declaration mentioned, so being in the said close called-aforesaid, and doing damage there as aforesaid, for and in the name of a distress, and drove and carried away the said sow, and impounded the same in a common pound there in Baltimore hundred aforesaid, to wit: at,-&c., and there confined and kept the same, as it was lawful for him so to do, for the cause aforesaid, which are the same taking and finding and converting and disposing of the said sow in the said declaration mentioned, whereof the said plaintiff hath above complained against him the said defendant, and this he is ready to verify; wherefore, he prays judgment, if the plaintiff ought to maintain his action against him, &c.</p> <p>Replications and issues as to the first and second pleas; and demurrer general and special to the third; 1. Because the said plea alledges no sufficient justification or excuse, nor any denial of the conversion or disposal of the said sow to the defendant’s use, as in the declaration is charged. 2. Because the said plea amounts to the general issue. Joinder in demurrer.</p>

Action' of trespass for obstructing a public road, with special damage ; and a count for obstructing a private road. It was a very old road, and had been used by the public at pleasure, but'chiefly by the owners of two or three farms, for severity years ór more, as á neighborhood or by-road passing through these farms,but always having gates across it, which were kept up by the land owners.

<p>The suit was by the only child and heir-at-law of Constantine Morris, against the administrator of his estate, for a distributive share. It was in special assumpsit, under the provisions of Code, 806, the declaration averring the appointment of defendant as administrator, the rendering of accounts, distributive balance, assets in hand, &c., and counting on the consequent promise to pay. These averments were proved.</p> <p>The defendant, who appeared in person, objected that he was sued pérsonally and not as administrator, and was thereby precluded from pleading outstanding debts due from the estate; and he applied for a. nonsuit on this ground ;• but, ' -</p>

<p>This was an action of trespass, assault and battery. The defendont had assaulted the plaintiff and beaten him with a cowhide whip, in a public office in Dover, The plea was not guilty, and on the trial evidence was offered of expressions made by the plaintiff derogatory of the defendant, several days before the assault. This was objected to, and Lee vs. Woolsey, 19 Johns. Rep., 319, and Avery vs. Ray, 1 Mass. Rep., 12, were cited.</p>

Assumpsit. Plea, nul tiel corporation. Demurrer. The objection to the charter was, that it does not sufficiently reserve to the Legislature the power to revoke it. The terms of revocation are—“ Sec. 25.

<p>A constable is not bound to sell goods under a fi. fa., without orders or special occasion. A return of execution process before the return day, is not irregular, unless a further levy is thereby prevented.</p> <p>On an appeal, the officer can be charged only with the neglect of duty, for which the suit was brought below.</p>

<p>Appeal from the judgment of a justice of the peace, in an action of assumpsit, on a promissory note, dated May 25, 1848, for $100, payable in sixty days, to the plaintiff or order.</p> <p>It was an action to recover the amount of a note for $100, given on consideration that Kennedy should procure a mail contract from the general government, at a certain sum. The defence was, the illegality of the transaction, and want of consideration.</p> <p>Kennedy and Murdick were both bidders for mail service, on route No. 1916. Kennedy was the lowest bidder, and his bid was accepted, with a qualification that enabled him to decline it; and at this point Murdick gave his note to Kennedy for $100, to get him the contract, and Murdick thereupon refused to take the contract, and withdrew his bid; and the contract was .given to Murdick.</p>

<p>Issue from the register, to try codicils No. 3, and No. 4, to the will of John Sutton.</p> <p>One of the witnesses to codicil No. 3 wai dead, and his hand writing was proved; the other witness was old and had only a very indistinct recollection of having signed it, though she believed the signature to be hers. She could not prove the signing or publication of the testator, or the presence of the other witness, apart from her own attestation, which was genuine, and she had no doubt was placed there to attest what at the time she knew to be true.</p> <p>The witnesses to codicil No. 4. were both dead. Their signatures were proved; and the deposition of one of them, made at the probate before the register, was put in. But against that, his general credit was impeached, and it was proved by several witnesses that he had said he did not see the testator sign the paper, nor hear him publish it as his will.</p> <p>One of the executors, a party to this proceeding, and the person chiefly interested in the codicil, was offered to prove the circumstances under which the will was found.</p>

This was an action of trespass and false imprisonment, tried at May term, 1853, on the general issue. The defendant was a magistrate, but this was not suggested by the pleadings, which were simply in trespass vi et armis, to which he pleaded not guilty.

Indicted for an assault, with intent to kill William B. Crammer. The prisoner’s counsel denied that the test proposed by the State, whether the assault was with intent to commit murder, namely, whether if the person wounded had died, it would have been murder, was a correct test. Malice was an inference of law; intent was an inference of fact, from other facts proved. He cited 3 Harr. Rep., 371, The State vs. Negro Bill Johnson.

The prisoner was tried in June 1851, for the murder of his wife. He was an aged man of position and property, in Sussex county, shrewd and successful in business, of general good character and peaceful conduct; but the subject of melancholy habits and hypocondriac affections; of superstitious fears and vague apprehensions; probably, of fixed delusions on certain subjects.