Volume 7 — Delaware Reports

<p>The goods of a sub-tenant removed from the demised premises after the expiration of the term, are not liable to distress on a warrant at the suit of the landlord against the original tenant, for rent in arrears.</p>

<p>Assumpsit on a promissory note made by the late firm of Dubois & Graves, of which the defendant William Graves had been a member, to the plaintiff Henry Evans. Dubois the other member of the late firm of Dubois & Graves, had left the State and had not been served with process in the suit, which had issued against both of the members. The usual pleas were entered.</p>

<p>The Union Bank of Delaware had a judgment in the Superior Court for Sew Castle County, subsequently endorsed for the use of Benjamin A. Janvier, against Solomon Prettyman, on which a rule had been granted and an issue directed to try by a jury at the bar of the court, if any, and what amount was due thereon, &c. Preparatory to the trial of the issue and with a view to be used as evidence in the case, the depositions of Solomon Prettyman, the defendant in the judgment, had been taken on a commission issued out of the State for that purpose, and returned and filed in the court. To these depositions exceptions had been filed, and the question now arose as to the competency of the defendant as a witness in the case and the admissibility of his depositions, as evidence on the trial of the issue directed by the court.</p>

<p>Action of trespass vi et amis for an assault and battery committed by Taylor on Keller.</p>

<p>Pronarr in assumpsit, on appeal from a Justice of the Peace. The suit below was by Moses Walker, the plaintiff, against School District, Ho. 7, in Hew Castle County, the defendant, for compensation for his services as a teacher in the district for six months, terminating on the 23rd of March 1857. The proof was that the plaintiff was employed by the school committee to teach the school in the district in the fall of 1856, at $90. per quarter, but the term for which he was to teach, was not specified, or mentioned. He commenced teaching from the time he was employed, but as soon as the school fund for the district was expended, he was notified of the fact by the school committee, and that they could not pay him any longer; to which he replied that he had nothing else to do andhebelieved he would teach on, and continued to do so for three or four weeks afterwards. The committee had paid him for the first quarter and for about six weeks on the second, amounting to $45.</p>

Action of assumpsit and case stated. The following statement of facts in the case were agreed upon and submitted by the counsel for the parties respectively. On the 13th October, 1854, John McClung gave to William McClung, his brother, then in the grocery business in Wilmington, Delaware, a letter in the following words, viz : Post Oeeioe, Wilmington, Del., Oct. 13, 1854. Messrs.

<p>A fi, fa. without clause to levy on goods, and levied on the lands of the defendant, issued out of court on a duly certified transcript of a judgment, execution and return of nulla bona thereon before a justice of the peace, filed.in court, is regular. They?, fa. and return of nulla bona below, is equivalent to the same return on a f. fa. against the goods issued on the transcript out of court, and no goods will therefore be presumed, unless the contrary is shown.</p>

<p>Certiorari . Cann had recovered a judgment against Herdman before a Justice of the Peace, on which an execution had been issued and returned nulla bona, and thereupon a duly certified transcript of the docket entries of the judgment, execution, and return was filed in the office of the Prothonatory, and entered on the records of the court. Afterward, and after the judgment had been standing more than three years, the plaintiff in it sued out a writ of scire facias upon it before the Justice of the Peace, with a view to obtain execution against goods subsequently acquired by the defendant.</p> <p>The exception was to the sci. fa. and that it would not lie after the entry of the transcript in this court, on the judgment before the Justice of the Peace.</p>

<p>A declaration by a defendant that he would not plead the statute of limitations to the demand of the plaintiff, but at the same time expressly denying that he owed the debt, will not take it out of the operation of the statute. Indeed, a declaration simply that he would not plead the statute to the demand, if there be nothing more in the case, is not an acknowledgment that will remove the bar of the statute. Nothing short of an unqualified acknowledgment of the debt, as a still subsisting demand against the party making it, will have this effect.</p>

<p>Action of assumpsit for. goods sold and delivered with the usual pleas and affidavit denying the partnership of the defendants. The proof was that the goods were sold by Bacon the plaintiff, to William and James Cannon the defendants, and charged to them, and that they were both present at the time of the sale and delivery. Also that they bought and owned the one fourth of a schooner, which James generally, and William occasionally, sailed and commanded as captain; that they acted together in procuring freight for her, and both attended to and superintended such business, and had bought lumber and drawn drafts in their joint name of William and James Cannon for the proceeds of it shipped by her and sold in the city of Philadelphia. But they had no sign, or general place of business as partners, and did not reside in the same village; James residing at Concord and William near Seaford: and that the former sometimes bought and shipped wood by the vessel in his own name, without connecting the name of the latter with his own in the purchase of it. The defence was that they were part owners, or tenants in common- of one fourth of the schooner, but not partners and could not be sued as such, unless they carried on business and traded in some other way. as a partnership.</p>

. This was an action of\ ejectment for fifteen^acres of land in Indian Elver hundred.

<p>A judgment against two persons, one of whom has died since, may be pleaded as a set off against the survivor in a subsequent action by him in his own right against the plaintiff in the judgment.</p> <p>An award, or report on a submission to arbitration, or rule of reference out of Court, “of all matters in controversy between the parties,” is not conclusive as to all such matter, but the same may be enquired into, and evidence is admissible to prove that a matter within the terms and scope of the submission, or reference, was not included in it and was no) considered by the referees, ór arbitrators.</p> <p>The counsel for the defendant under the plea of set off, offered in evidence a judgment recovered in the same Court at the April Term 1840, at-the suit of the administrators of Miers Burton dec’d., against Joshua Ingraham and Thomas Robinson, the plaintiff for $200,00 and costs, after proving that Ingraham was dead previous to the year 1841, and that Robinson was then the sole surviving defendant in the judgment.</p>

<p>In an action by a father for the seduction of his daughter, if she was of age at the time, the loss of some actual service on her part by the father, in consequence of it, must be proved to maintain it; but any service, however slight, will be sufficient for this purpose. This however, is but the basis on which the action is founded; for the jury in estimating the injury sustained by him, may take into consideration, the wound' ed feelings and affections of the parent, the wrong done to him in his domestic and social relations, the stain and dishonor brought upon his family, and the grief and affliction which he may have suffered in consequence of it, and award damages, accordingly ; but exemplary, or vindictive damages, as they are called, are only proper in cases characterized by circumstances of gross aggravation, or enormity, and are not to be allowed in ordinary cases and in the absence of such circumstances.</p> <p>It may be proved in what manner and on what terms the defendant visited the daughter, the family and her relations; but not that he visited her with a view to marriage, or that he made her any promise of marriage.</p> <p>The pecuniary means and fortune of the defendant may also be proved in the action, with a view to the assessment of damages.</p> <p>But evidence as to the general character of the defendant, is not admissible in the action.</p>

<p>Certiorari. The proceeding below was at the suit of Jackson against Brinkley, on the provision of the Act of Assembly, Rev. Code, 46 Sec. 18, to the following effect: If any free negro or free mulatto, not residing within the limits of any town where an election shall be held, &c., &c , shall be found within the limits of such town, &c., &e., on the day of such election, every such free negro or free mulatto, shall forfeit and pay the sum of two dollars to any person who will sue for the same; to be recovered with cost before any Justice of the Peace of the county.</p> <p>The errors assigned were, 1st. That it did not appear on the record that Brinkley was a free negro, or free mulatto, 2nd. That it did not appear in the record, that if such was th e case, that he did not reside within the limits of the town where the election was held. 3rd. That it did not appear therein, that he was not going directly to the place for necessaries, &c., and directly returning therefrom, as provided for in the 20th section of the act.</p>

<p>This was an action of assumpsit on a book account against the “ Schooner Sarah Jones and owner,” for cordage, spun yarn, manilla rope, tallow, tar, &c., by the plaintiff against the defendant. The plaintiff filed a copy of his account with an affidavit under the statute, that it was a true copy of his account and original entries against the defendant, as the owner of the schooner, and that the sum demanded was justly and truly due. To this the defendant had filed a counter affidavit of defence, that the goods were not sold, or delivered to him, or to any other person by his order or request. And the plaintiff by his counsel, T. F. Bayard, now moved the Court for judgment, notwithstanding the affidavit of defence. If the goods were furnished to the master, or captain of the schooner, in Philadelphia, for the use of the vessel, and the defendant was the owner of her, he was bound to pay for them, because the captain, as his agent, had authority to bind him for them, without any express order or request from him to the plaintiff to furnish them ; and this the affidavit of defence did not deny, and was therefore not a legal defence to the action.</p>

<p>Pronarr in assumpsit on appeal from a Justice of the Peace, with the common counts and the usual pleas. A brother of the plaintiff below, being over fourteen years of age, had indentured himself as an apprentice to the defendant, and lived in "his family. During his apprenticeship, he was taken sick with the scarlet fever at his brother’s, the plaintiff’s house, where he remained until he recovered, who employed a physician and nurse to attend him, and incurred other expenses on his account, as well as inconvenience to his family during his illness ; and the action was to recover for these expenses and this inconvenience. It was proved that the defendant had notice of his illness at the house of the plaintiff, and had said that he would not have him at his own with that complaint for a hundred dollars.</p>

Writ of error to the Superior Court in and for Sussex county. The case below was an action of ejectment brought by Peter P. Dodd against Aaron Dodd, to recover certain lands and tenements in Broadkiln hundred, devised by Aaron Dodd, deceased, to his son Absalom Dodd, without any words of limitation, but which the latter, who was also now deceased, had devised by his last will and testament to his son Aaron Dodd, the defendant.

The action below in this case was in the Superior Court for blew Castle county, on a promissory note for $250, drawn and signed in the usual manner, by Thomas Deakyne, May 21st, 1856, and payable ninety days after date to the order of Samuel E. Massey, the plaintiff, and endorsed in blank on the back before the delivery of it to him, by Thomas Turner, the defendant in the action.

<p>Appeal from the Court of Chancery, Hew Castle County. .</p>

<p>This was an amicable action in the Court of Errors and Appeals authorized b\ a resolution of the Legislature “ in relation to the Bank of Smyrna,” adopted February 25, 1857, to adjudicate the question of the constitutional validity of an act of the Legislature entitled “ An Act to tax the surplus, or contingent fund of the Banks of the State of Delaware, “ passed February 24,1855, so far as it concerned the Bank of Smyrna, on the following facts stated.</p> <p>The defendants are a corporation originally created by an act of the General Assembly of this State, entitled “ An Act to establish a Bank and to incorporate a Company under the name of the Bank of Smyrna,” passed at Dover, February 5th, 1821; in and by which Act, in the 20th Section thereof, it was provided in the words following, viz:</p> <p>“ And be it further enacted, That as a condition of the “ passing of this Act, the President, Directors and Com- “ pony of the Bank of Smyrna shall, semi-annually, pay “ to the Treasurer of the State, for the use of the State, “ at the rate of one-half of one per centum per annum “ on the stock actually paid in for and during the contin- <£ uance of the present charter.” And by the 23d Section of said Act, it was provided as follows, viz : “ That it is “ upon the condition contained in the 20th Section, and ££ upon the other conditions in this Act mentioned, that “ this charter of incorporation is granted, and in case the ££ same and every part thereof should not be complied “ with by the President, Directors and Company of the £-£ said Bank, according to the true intent and meaning “ thereof, then the authority hereby given shall cease and ££ be of no effect.”</p> <p>By a subsequent Act of the General Assembly, entitled “ A supplement to the Act entitled An Act to establish a Bank and incorporate a Company under, the name of the Bank of Smyrna,” passed at Dover, February 7th, 1822, the aforesaid corporation was continued until the 1st day of September, A. D. 1843; and by the same Supplementary Act, in the 6th Section thereof, it was provided in the words following, to wit:</p> <p>££ That the 20th Section of the Act to which this is a “ Supplement, and so much of the 23d Section as relates ££ thereto be and the same hereby are repealed, and that “ in lieu of other taxes the said President, Directors and “ Company of the Bank of Smyrna shall pay the Treas- “ urer of this State for the use of the State, a tax serni. “ annually at the rate of one-fourth of one per centum “ on the whole capital stock of the said Bank actually “ paid in, for and during the continuance of the said £ £ Bank from and after the first day of September next.</p> <p>By two Acts of the General Assembly passed in the year 1837, on the 17th and 21st days of February, the former entitled,61 A Further additional Supplement to the Act entitled An Act to establish a Bank and incorporate a Company under the name of the Bank of Smyrna ; ” and the latter entitled 66 An _Act Supplementary to the charters of certain Banks therein mentioned,” the original Act of incorporation and the Supplement thereto of 7th February, 1822, were extended until the 16th day of February, A. D. 1857, and it was provided that66 the corporation and body politic created, established, or continued by the said recited Acts, or any of them, with all the rights, powers, privileges, franchises and immunities which were then vested in the said corporation by any law of this State should be thereby continued, extended, and held in full force and operation until the said 16th day of February, A. D. 1857.”</p> <p>By an Act of the General Assembly, entitled 66 An Act for the renewal of the charter of the Bank of Smyrna,” passed at Dover, February 13th, 1855, the aforesaid corporation was renewed and continued for and unto the end and term of twenty years from the day of passing said last mentioned Act inclusive; and the capacity of the said corporation and body politic, and all the powers, privileges and franchises belonging to, or vested in the siame by any Act of the General Assembly of this State were, by the said Act, re-enácted and extended for the said term ; and by the same Act it was provided that the tax to be thereafter paid by the said Bank should be one-half instead of one-quarter of one per cent, per annum; provided, that no tax should be required on any stock held for the benefit of the school fund. ></p> <p>By an Act of the General Assembly entitled,66 An A.ct to tax the surplus, or contingent fund of the Banks in the State of Delaware,” passed at Dover, February 24th 1855, it was provided in the words following, to wit: “ That each of the Banks that now are, or may hereafter “ be chartered in this State shall pay to the State Treas- “ urer semi-annually hereafter on the first day of July “ and January a tax of one fourth of one per centum per “ annum upon all and every portion of the surplus, or “ contingent fund of the said Banks exceeding twenty- “ five per cent, of the said surplus, or contingent fund.”</p> <p>The President, Directors and Company of the Bank of Smyrna were duly organized as a Banking Institution under and pursuant to the original Act of Incorporation and the Supplement thereto of 7th February, A. D. 1822, and' subsequently to the passage of said Supplement; and the said corporation has continued until the present time as an organized Banking Institution and transacting business as such, under and in pursuance of the said original Act of Incorporation and the said Supplement thereto, and the several acts renewing and. extending the same above set forth. That the said corporation has hitherto fully paid to the State the tax imposed upon it in respect to its capital stock by the acts above recited as the same became due and payable.</p> <p>All the several acts of the General Assembly above referred to and in part recited, as well as any and all other acts of the General Assembly the provisions of which may touch, or concern the said corporation, or its rights, privileges, immunities, franchises, or liabilities, are hereby expressly made a part of this case stated, and submitted to the consideration of the Court in forming their opinion upon the question hereinafter presented for its judgment.</p> <p>Since the passage of the Act of February 24th, 1855, for taxing the surplus or contingent Fund of the Banks of this State, the President, Directors and Company of the Bank of Smyrna, have, upon the demand of the Treasurer of this State for the time being, paid to him in the whole the sum of one hundred and eighty-four dollars and ninety-two cents, that being the amount claimed by the said Treasurer to be due to the State under the act last aforesaid as a tax upon the taxable portion of the surplus, or contingent Fund of said Bank up to the 1st day of January, A. D. 1857. Such payment was made under a protest on the part of the said Bank, by which it was insisted that the Bank was under no legal liability for the payment of such tax, and the privilege was reserved of appealing to the proper authority for the decision of the question of its liability.</p> <p>It is hereby agreed that if, upon consideration of the premises hereinbefore recited and referred to, the Court should be of opinion that the defendants are, by virtue of the aforesaid Act of February 21th, 1855, legally liable to pay to the State of Delaware a tax semi-annually at the rate of one fourth of one per centum upon the surplus or contingent Fund of said Bank exceeding twenty-five per centum of the said surplus, or contingent Fund, that then judgment shall be rendered by the Court in favor of the said State against the . defendants for the sum of the payment of which to the Treas-</p> <p>urer of the State shall be in discharge of said tax for the six months ending on the 1st day of July, A. D. 1857; but if the Court should be of opinion that the defendants are not so liable, that then judgment shall be rendered by the Court for the defendants for costs.</p>

Narr in assumpsit with the usual pleas. West, the the deceased, had been sheriff of the county from November 1846 to November 1848, and the action of the plaintiff was against his administrator for services performed by him as a deputy during his term of office. Benjamin Burton was produced and sworn as a witness for the plaintiff, and was proceeding to state that he had acted as a deputy sheriff for Mr. West, during the time he was in office.

<p>Tresspass for taking and carrying away eight pine logs valued at twenty dollars each. The plaintiff was a constable and had taken them by virtue of a writ of attachment issued upon the affidavit of John W. Walker before a justice of the peace against Captain William Rogers and owners of the steamboat Albert Horn, and had them lying in Lewes Creek. The defendants afterward took them at night from the creek out to a steamboat in the bay, which towed them away, up the river.</p> <p>On behalf of the defendants it was argued that it was necessary for the plaintiff to prove, first, that the property taken was the property of the defendants in the writ of attachment; secondly, that the logs taken away by the defendants in the suit, were the same logs which had , been taken by the plaintiff as constable on the attachment, and also that it should appear that the writ of attachment was a regular and valid process, which in this case it could not be, because it was at the suit of the plaintiff therein, John W. Walker against Captain William Rogers and owners of the steamboat Albert Horn, without naming the owners, or stating who they were.</p>

<p>Action of ejectment. A commission de bene esse had issued in vacation to take the testimony of aged, infirm and departing witnesses, and on the trial the plaintiff offered in evidence the deposition of an aged and infirm female witness which had been taken under it, proof having been first produced at the stand that the deponent was aged and very infirm, and owing to a severe attack of paralysis, had not been able to walk for two years, and had not been out of her house within that time, and that her residence was sixteen miles from Court. One of the witnesess, however, qualified his statement by adding that she might be brought to court by laying her in a carriage; but none of them had seen her for a week previously. Upon this, objection was made by the counsel for the defendant, to the admissibility of her deposition, because it did not sufficiently appear that she was then, or had at any time been actually unable by reason of her infirmity to attend as a witness, and if even such was the case, it should be shown by subpoena, or attachment and return of the sheriff to that effect, as the best and only proper proof of the fact under the circumstances.</p> <p>But the Court overruled the objection. Paralysis, such as has been proved in this instance, is usually a continuing infirmity, and, as it had been shown that the deponent has not been able to walk for two years past, up to a very recent period at least, it would be presumed to continue and still exist, unless the contrary appeared. It was also competent to prove her infirmity and consequent inability to attend as a witness, without resorting to a summons, or attachment and the return of the sheriff, by other evidence, such as had been already adduced at the bar of the court.</p> <p>A further objection was then taken to the deposition, because it did not appear by the return to the commission on which it was taken, that the commissioner had been sworn or affirmed, and was duly qualified to execute it.</p>

<p>In an action of ejectment to recover an estate for life as tenant by the curtesy, the marriage of the plaintiff to his deceased wife, may be proved by facts and circumstances, such as cohabitation as man and wife lawfully married to each other, proclaiming and representing themselves uniformly to be so, and visiting and being received, recognized and entertained among their relatives, friends and acquaintances as such.</p>

<p>Libel for divorce. The ground alleged for the divorce was adultery, and on the hearing of the case, the party with whom it was alleged in the petition, the wife had committed the offence, was called on the part of the petitioner as a witness to prove it, and declined to answer the question propounded to him for that purpose, on the ground that his answer to it, would have a tendency to degrade him.</p>

<p>This was an action of ejectment for a farm containing a hundred and sixty acres in Broad Creek hundred, which had been sold at sheriff’s sale to satisfy sundry judgments against the defendant, and bought by the plaintiff1. The sale had been duly returned and confirmed by the court at the October Term 1853, and a deed had been ordered from the sheriff to the plaintiff for the premises, and which was duly executed and delivered and bore date November 1st, 1853. The counsel for the plaintiff proved by a witness called to the stand, that the defendant was in possession of the premises when they were sold by the sheriff and bought by the plaintiff, and also, when the present action was commenced; and that he had known him after the execution and delivery of the sheriff’s deed to the plaintiff, to find fence rails for the land and guano to manure it, and that he had told him he was to pay to the plaintiff as rent for the farm, one half of the corn raised upon it.</p> <p>On the cross-examination of the witness, the counsel for the defendant enquired if there was not an understanding, or agreement between the plaintiff and the defendant at the sale of the land by the sheriff, that the defendant was to remain in possession of the farm and pay rent for it, which was objected to on the ground thatno evidence by paroi merely was admissible to prove an agreement in regard to lands, or any interest in or concerning them.</p>

The plaintiff had obtained a judgment in the Superior Court for Sussex County against the defendant, on a writ of scire facias upon a judgment of several years standing, recovered by Peter Robinson against Arthur Milby, on which he had sued out a writ of elegit against the administrator and terre tenants of Milby, and on which he had afterwards obtained a rule to show cause wherefore the elegit and inquisition held thereon, should not be set aside.

<p>In an action on the case for fraud and deceit practiced on the plaintiff by the defendant in a written contract of sale of timber on a tract of woodland, in which the limits of the tract are not stated, it is competent to prove that the defendant, after the execution of the contract, stated and pointed out the limits to the plaintiff. The foundation of the action being the fraud and deceit alleged by the plaintiff in the transaction, the representations made by the defendant, and by reason of which the plaintiff was induced to make the purchase, must not only be proved to have been false and untrue, but also that the defendant knew them to be untrue when he made them : and it must also be shown that such representations were made to the plaintiff, or his agent, before or at the time of making the contract.</p>

<p>Replevin for a carriage. Fleas. Non eepit. Property in the defendant. Property in one William W. Chapman. On the trial the proof was that Chapman owned the carriage, which was then unfinished .and incomplete in several particulars,—not being sufficiently painted, and having no apron in front, and the handles were not fastened, but only tied together on the dash-board; and being indebted to the plaintiff Cowgill, he applied to him to buy it and take it at the price of $180 in payment of the debt he owed him to which the plaintiff consented; but left it still in the possession of Chapman, to have a tongue made and fitted to it by him, for which they bargained at the time and for which the plaintiff agreed to pay him $10, a part of which he afterwards paid him in a short time. Chapman was also to put an apron to it, and a back to the front seat and otherwise finish it and was to have it done in a week or two, or as soon as he could, as the plaintiff told him he was in no hurry for it. The carriage afterwards in its unfinished condition came into the possession of Ford, the defendant, who refused on the deinand of the plaintiff, to deliver it to him, and replied that it had been placed in his hands for safe keeping until court, and he could not let him have it.</p> <p>For the plaintiff it was contended that the facts proved constituted in law a constructive delivery of the carriage by Chapman to Cowgill the plaintiff, and transferred the property in it to him. It was bought and sold at the price agreed upon between them for it, $180, and it was to go in payment of so much of the debt which the former owed the latter. It only remained in the possession of Chapman for a special purpose, by the agreement of the parties, to have a tongue made and adjusted to it, an apron put to it and a back made to the front seat of it. If property is retained for a purpose distinct from the contract of sale, as was the case in this instance, although it does not amount to an actual delivery, it constitutes in law a sufficient and constructive delivery to transfer the property in the thing sold, from the vendor to the purchaser. Add. on Gontr. 248, 249, 1 Taunt. Hep. 457.</p> <p>For the defendant the distinction was taken and it was insisted that the sale of a chattel in an unfinished state, to be finished at a future day, does not pass or transfer the property in it to the party contracting to purchase it, although he may maintain an action against the other party for a breach of the contract to sell it to him. Will, on Pers. Prop. 79, note 80. The sale is not complete and perfect, and the property in the article does not pass, if any thing remains to be clone to it before it is ready for delivery. Gh. on Contr. 881.</p>

Certiorari. The record of the justice of the peace stated the docket entries as follows: Action of assumpsit. Amount demanded $10. Summons issued Feb. 14,1859, to constable Biggs, returnable &c. The error assigned was that the record did not state or show the cause of action in the suit.

Rule to show cause wherefore a writ of copias ad satisfaciendum should not be quashed, a writ of fieri facias having been issued in the same case and returnable with it to the present term. Judgment had been obtained by the defen dont against the plaintiffs in the rule at the May Term of the Court 1859, in a copias suit brought to the preceding term, all the parties being non-residents.

<p>Debt on a replevin bond made and executed by Smith the defendant to Ogle when sheriff, upon a writ of replevin placed in his hands at -the suit of Smith against J. B. . Tyson, and on which the goods mentioned in the writ, were replevied and delivered to Smith by the sheriff. The breach assigned in the narr on the bond was that Smith the defendant in the present action, did not prosecute his said action of replevin against Tyson with effect, but therein made default, &c. Pleas. Non est factum and performance.</p>

<p>Notice of protest and non-payment of a promissory note written and served on the right day upon an endorser of the note, will not be vitiated by a mere error, or mistake in the date of the notice, but the same will be a sufficient notice of protest.</p>

This was an action of replevin for the wrongful detention of a steam boat boiler which the defendant claimed to detain by virtue of a specific lien upon it for work and labor done on it. The boiler originally belonged to the Cape Henlopen Steamboat Company of whom the defendants, who were engine-makers and machinists, received it, and who had performed certain work upon it at the request of the company, for which they had a small charge amounting to about five dollars.

<p>No action will lie on the recognizance of a sheriff against him and his sureties, by the plaintiffs in a domestic attachment to recover their debt, or any part of it against the defendant in the writ, out of the sheriff and his sureties, by reason of the default of the sheriff to account for and pay the money into Court arising from the sale of the goods of the defendant in the attachment, without first proceeding by auditors under the attachment law, as provided for in it, to adjust and ascertain all the demands of the defendant’s creditors. But if in such an action, the plea of performance only is pleaded, the plaintiff will be entitled to a verdict for nominal damages.</p>

<p>Foreign attachment case. The foreign attachment was issued in vacation on which certain goods of the defendant at the time in the county were attached, and in a few days afterward special bail was given by the defendant to the plaintiff’s action, on which the goods were discharged from the attachment. On the first day of the term of the court the plaintiff filed an affidavit with a copy of his cause of action, which was a book account, under the statute, and no affidavit of defence having been filed, the plaintiff’s attorney on the last day of the term moved for judgment on his affidavit and cause of action filed.</p>

<p>Action of Scire Facias Sur Recognizance in the Orphan?’ Court for the one seventh share or part of $2043 09. Pleas, Nut tiel record, payment, set-off and accord and satisfaction.</p> <p>Levin Connoway deceased, was'one of the seven children and heirs at law of Noble Connoway deceased, who died intestate and whose real estate was accepted -on appraisement in the Orphans’ Court by Nathaniel Connoway, one of the heirs, who entered into recognizance with Levin D. Vaughan as surety, to pay the other heirs their respective shares of the appraisement. The only defence relied on was the plea of set-off. The evidence in the case was that Levin Connoway was an imbecile, and incapable of taking care of and maintaining himself, and had lived for several years with his brother ^Nathaniel Connoway, the defendant, whose counsel was proceeding to prove the subj ect matter of his plea of set-off for clothing, support and maintenance of the decedent during that time.</p>

On Demurrer. This was an action of assumpsit commenced by foreign attachment, on five several promissory notes dated respectively June 26, 1851, payable in four months, for $500; July 17, 1851, payable in four months, for $500; August 11, 1851, payable in four months, for $500; August 28, 1851, payable in four months, for $500, and September 18, 1851, payable in four months, for $583 50, made and delivered by the defendants, Wells & Sappington, to the firm of W. & J. Sooy,…

<p>Memorandum pleas noted briefly on the docket, are to be considered and construed, as if they had been drawn ont at length in full and regular form and filed in the record of the action, and apply to the parties, the plaintiff and defendants in it, and to no other persons.</p> <p>The plea of payment so entered, imports a money payment, or what is equivalent to ic, in full to the plaintiff in the action, and not to another ; and the same is also the case as to the pleas of accord and satisfaction and set-off so entered.</p> <p>The presumption of law that a debt, or security of an inferior grade is extinguished by a security of a higher nature, can only apply in the absence of any proof of an intention, or understanding between the parties to the contrary, when the debt, or security of lower grade was due and payable at the time the secnrity of a higher nature was given and taken. But if the two securities do not appear upon their face, or from the evidence, to be for the same amount, or for the same debt, and more particularly, if it appears that the security of lower grade was for a larger sum than the subsequent security of superior grade, and the debt, or security of inferior grade had not matured and was not due and payable when the higher security was given, the law will not imply that the two securities were for the same debt, in the absence of any proof of intention between the parties in regard to the matter.</p> <p>To constitute a legal set-off under the statute, it must be of mutual debts due to and from the parties to the action and in the same legal right in which the plaintiff sues and the defendant is sued in the action. It must also be of legal demands for which an action at law can be maintained. A trust fund is not a subject of legal set-off. A fund in the hands of assignees under an assignment pursuant to statute, for the benefit of the creditors of the parties making the assignment, or any balance thereof remaining in the hands of the assignees after the payment of all the creditors presenting their claims against the fund, is a trust fund, and as such, is not the subject of a legal set-off to the debt, or demand of another creditor in an action by him against the parties making the assignment.</p>

<p>The heir can only be disinherited by express words contained in the will, or by a plain and unequivocal intention appearing upon the face of the instrument when carefully and attentively considered, or by necessary implication of law giving an estate in fee in the lands devised to the devisee.</p> <p>A testator in the preceding items of his will bequeathed several legacies to his other children and heirs at law,, separately by name, accompanying the bequest to each with the concluding words “ and to have no more of my estate,” and in a succeeding item of his will devised all his lands to one of his sons without any words of inheritance or limitation in the devise. Held that the devisee took but a life estate in the lands devised, and that it was not enlarged in the absence of any words of inheritance, or limitation, by construction, or implication to an estate in fee, by reason of the foregoing words added to the bequests and legacies to his other heirs at law.</p> <p>When a debt or legacy accompanying such a devise of land is directed to be paid to another and is charged by the testator on the devisee personally to pay it, it will by implication of law enlarge the estate so devised, and which would otherwise be but an estate for life, to an estate in fee. But no such implication of la.w arises, and the estate so devised will not be so enlarged, when the debt, or legacy to be paid, is charged upon the land itself so devised, or upon the testator’s estate generally, or upon his personal estate in particular, and not upon the devisee personally.</p>

<p>On appeal from a justice of the peace. Pronarr in assumpsit, with the usual pleas.</p> <p>The party plaintiff below, produced and proved the book account of the deceased, which commenced in May,</p> <p>1836, and continued until August 13, 1866, on which date the last item in the account was entered. The suit was commenced below upon it April 23, 1859. The counsel for the defendant below, then offered in evidence an account of his against the deceased, commencing. March 29, 1836, and terminating July 18, 1853. The item preceding the last in the account of the deceased, was entered June 18, 1855.</p> <p>The question raised by the counsel in the case, was whether the account of the plaintiff below, or any part of it, and if so, what part of it, was barred by the statute of limitations ; and also, whether the account of the defendant below was barred, or whether it did not constitute and prove a case of mutual accounts still open and current between the parties at the time of the institution of the suit below, and thus save and exempt both accounts from the operation of the statute of limitations.</p>

Debt on a note under seal for $100. The plea and defence was that the note was for an animal bought by the defendants of Mes-sick, and which he warranted to he sound and valuable, but that it proved to be worthless and of no value; and general demurrer to the plea.

This was an action of ejectment for a farm of a hundred and thirty acres in Brandywine Hundred-. The evidence was that John Beeson, recently deceased, and the owner of ' the premises from whom both the plaintiffs and the defendant claimed their title to them, died in possession of them in December 1858, intestate and without issue, leaving to survive him as his heirs at law, the children of two deceased brothers, Edward Beeson and Henry Beeson.

<p>The 17th section of the English Statute of Frauds, 29th, Charles 2d is not in force in this State.</p> <p>Definition and explanation of what constitutes a contract in law for the sale of goods, and when such a contract is concluded and complete and binding upon the parties.</p>

<p>On the common count for work and labor to recover for partial services under a special agreement not to be performed within one year, and not in writing, the defendant cannot give the special agreement in evidence, nor prove the terms of it as a defence against the action. Although the provision of the statute of frauds on the subject is that no action shall be brought whereby to charge any person upon any agreement not to be performed within the space of one year from the date thereof, unless the same shall be in writing &c., it applies as well to a defendant as to the plaintiff in an action, for the meaning and object of the prohibition is that the court shall not take cognizance of any such contract, unless the requirements of the statute have been complied with in the mode of making and evidencing it.</p>

<p>These were three several actions of trespass at the suit of the respective plaintiffs mentioned, against the Delaware Railroad Company, submitted on cases stated to the court and argued together by the counsel who were the same in each of the cases.</p> <p>In the first case the facts stated and submitted were as follows : Vandegrift the plaintiff, was the owner of a farm in Hew Castle County through which the Delaware Railroad passes, and became seized thereof by descent on the death of his father, John Vandegrift, in whose life-time the railroad was located upon the land in question, and upon whose appeal taken to the finding of the commissioners appointed under the charter of the company to determine the damages, a writ/ of ad quad damnum was executed and returned by the sheriff of the county, by which return in addition to the money assessed by the jury as damages, they also returned that the said railroad company should make and keep up the fences on both sides of the road passing through the said farm, with sufficient crossings, which said return was confirmed by the court. That a part of the fence on one side of the road passing through the said farm,-had been erected by the defendant, the railroad company, but it had refused to put up fences on both sides of the road, or to pay the plaintiff therefor. The question of law arising upon this statement of facts and to be determined by the court, was whether the company was bound to make and keep up the fences on both sides of the road with its crossings on the plaintiff’s said farm ? If yea, ■ the amount of the damages in the action to be ascertained by the prothonotary upon proof to be submitted to him of the expenses of making them by the plaintiff.</p> <p>In the second case, Peter Cleaver, the plaintiff, was the tenant of a farm in said county owned by Jacob Yandegrift, through which the said railroad passes. Similar proceedings were had in this as in the preceding case with regard to the assessment of damages for the right of way, and in which a similar return was made to the writ of ad quad damnum as to fences and necessary crossings and confirmed by the court. The company, however, had only put up a part of the required fence on one side of the road on the said farm, and had refused to do anymore. The cattle of the plaintiff, to wit, one ox and one heifer had escaped from some of the fields of the farm where they had been pasturing, and strayed upon the railroad for the want of the required fences to exclude them from it, and were run over and killed by a locomotive and train of cars belonging to the Philadelphia, Wilmington and Baltimore Railroad Company, running over the road of the defendants under their authority. The question of law submitted for the decision of the court in this case was, whether the defendants were liable in damages for the cattle of the plaintiff so killed as aforesaid. If the court should be of opinion that they were so liable, judgment to be rendered for the plaintiff for one hundred and ten dollars; otherwise for the defendant.</p> <p>In the third ease, Robert P. Haynes, the plaintiff, was the tenant of a farm in the said county, late the property of Wm. H. Crawford, deceased, and now owned by his heirs at law, under whom the plaintiff held the premises, upon which a portion of the Delaware Railroad had been located under a special written contract between the said Wm. H. Crawford and Andrew 0. Gray, agent of the said railroad' company, by which it was stipulated and agreed that the company was to pay to Crawford the sum of three thousand three hundred dollars in full compensation for the portion of the farm to be taken and occupied by the company for the purposes of the road, and supposed to contain nine acres, and in like proportion for whatever quantity it should be found to contain above that number of acres; said company to make and keep up good and substantial fences on said lands on both sides of the road, and which the said Crawford agreed to accept as full compensation for the use and occupation of the land as aforesaid. But the fences mentioned and referred to in the agreement were not put up by the company; and whilst the plaintiff' was tenant of the premises as aforesaid, a young horse of his being in one of the pasture fields of the said farm adjacent to the said railroad, escaped upon it from the said field and was run over and killed by the cars of the Philadelphia, Wilmington and Baltimore Railroad Company running upon the said road of the defendants under a special agreement made between the said two railroad companies under the authority of an act of the General Assembly of this State. The question for the court in this case was, whether the defendants were responsible to the plaintiff in this action for the value of the horse so killed and destroyed ?</p>

This was an action of debt qui tam under the statute against usury by Delight Gardner against William Daniel, to recover the penalty, or forfeiture of money lent by the defendant to John B. Deakyne upon a usurious contract and at an illegal rate of interest.

Assumpsit for work and labor and materials furnished in building a grist mill by the plaintiff for the defendant. The declaration contained only the common counts, to which the usual pleas were pleaded. The plaintiff produced and was sworn to his book of account containing his original entries for work done and materials furnished by him in building it, which was put in evidence.

<p>Assumpsit for work and labor, with the usual pleas. The suit was commenced September 6th, 1859, and to the plea of the statute of limitations the plaintiff replied that before and, at and after the accruing of the cause of action, the defendant was in parts beyond the seas, and not in any part of the State of Delaware, or of the United States of America, to wit, at &c., and that afterward, to wit, on &c., he the said defendant returned from the parts or place beyond the seas, where the said defendant so was aforesaid, into this State, which said return of said defendant, was his first return into this State from said parts or place beyond the seas, where the said defendant so was as aforesaid, after the accruing of the said cause of action; and the said plaintiff further saith that he commenced this suit within three years next after his, the defendant’s first return in this State; and this &c. To this replication the defendant rejoined and took issue.</p> <p>The demand of the plaintiff was for work and labor under a contract to construct a saw mill for the defendant on a large timber estate, owned, or contracted for by the latter, on the river Susquehanna in the State of Pennsylvania, amounting in the aggregate to $1,783 84, subject to a credit of $310.</p> <p>The proof was that the defendant, de Villeroi, was a Frenchman who could hardly speak a word of English, even at the time of the trial. That he came to this country about the year 1848, and in the following year purchased, or entered into a contract to purchase a large tract of land in Clinton County, Pennsylvania, on which he paid $10,000, executing a mortgage upon it for the balance of the purchase money, payable by installments. In his visits to purchase it he was always accompanied by a Mons. Montalant with whom he resided in Philadelphia, who spoke English and did all the talking for him, interpreting between him and the owners in the negotiation for the purchase, and also wrote letters on his behalf in matters of business in the character of, and as an agent for him. In the following year of 1850, the latter returned to France and remained abroad for several years, and until a short time before the commencement of this suit, when he returned to this country and took up his resilience temporarily in this State. After his departure</p> <p>for France, Montalant endeavored to obtain an extension of the time for the payment of the last installment of $20,000 on the mortgage, when it became due, and stated that he was expecting funds from Mons. de Yilleroi to meet it. This was on the 29th of September, 1850. After the defendant had purchased the land he went with Montalant in January of that year to view it, and after spending several days in examining it, departed, leaving the latter, who remained in the neighborhood until some time afterward, gave orders about the land, paid'bills and after his return to Philadelphia, corresponded by letters in relation to the business. Saw mills were soon afterward commenced and built and machinery for sawing lumber was erected on the lands, and he wrote by letter to a witness examined for the plaintiff, that the latter had been sent there to do the mill-wright work and put up the machinery of the mills, and stated that he and the defendant, de Yilleroi, expected to move into and take up their residence in the vicinity, the latter to attend to the coal lands and he to live on the land and to attend to the cutting and sawing of the lumber; and that he afterward sent an agent up to the lands to attend to matters connected with the business.</p> <p>The plaintiff, G-eylin, was also a Frenchman, or a foreigner, and was the inventor of a water-wheel called Geylin’s Turbine, said to be an ingenious and valuable invention. His contract on which the action was founded, appeared to have been made by letters, the correspondence being in the French language, and were put in evidence after being duly proved, the court ordering translated copies of them in English to be prepared, sworn to and laid before the jury. The correspondence was commenced with the plaintiff by the defendant himself, and the first letter was as follows: “ Yilleroi Village, 17th of February, 1850. My dear Mr. Geylin: Here are the conditions by which we desire you to enter into our business of the Susquehanna. 1st. You will give us the sum of one thousand dollars at the delivery of the deed. 2d. You will make for us two Turbines for the present saw mills at a proper and just price with their accessories and erection up to putting them in motion. 3d. You will give your time for two years from the beginning of the works for the equivalent of the sum of the 3000 acres. ($4000.) Your engagement will be of 4 to 5 years - at your wish. 4th. Your part though undivided from ours for the productions, will be laid out as you wish it, and you have the right to establish thereon such industry as you may like on your own account. 5th. Besides your salary, your part will give you the right to one twelfth of the net income of whatever nature they may be, from the whole extent of the property. I wish that this well founded chance to make a fortune may enter into your pecuniary arrangements. On our side we shall be happy to have you and I think we will get on well together. Friendly remembrance on the part of Mr. Montholon; Your &c., de Villeroi. P. S. I will take your answer at Philadelphia where I expect to return soon.” The next letter was of the date of April 4th, 1850, from Montalant to the plaintiff in the following words : “ Mr. G-eylin : By this letter I authorize you to construct two turbines for two saw mills located on my lands, west branch Susquehanna, Clinton County, Pa., which turbines are to be erected and ready for operation the first of June 1850. The construction, transportation and mounting at our expense, and for the above named works I bind.myself to pay the sum of one thousand dollars. Per procuration of B. de Villeroi, J. O. Montalant. ” Two other letters from him to the plaintiff, one dated May 30th, and the other July 22d, 1850, were also read in evidence; but as they related only to certain correspondence which he had in the meantime with the defendant then in France, in regard to supplying him with the necessary funds to pay the balance due upon the mortgage and for the purchase of the land, it is not material to allude any further to the contents or the substance of them.</p> <p>In the discussion of the case before the jury the only question presented to the court and debated by counsel was, whether upon this evidence Montalant was the agent of the defendant for the erection of the saw mills referred to, and had authority as such, to order the turbine wheels of the plaintiff and to employ him to erect and construct the machinery for them. Eb authorities, except one or two on the general principle of agency, was cited on either side, in the argument.</p>

<p>This was an action of trespass for mesne profits after a recovery in ejectment by the plaintiff against the defendant, with the usual pleas and notice to the plaintiffs of recoupment on the other side, for taxes paid and repairs and improvements made upon the premises by the defendants and others.</p> <p>The lands in question had been sold on a judgment in the Superior Court for the county at the suit of Jacob Charles, who purchased them at sheriff’s sale and afterward sold and conveyed them in fee simple to Amos Stayton, who built and made sundry improvements and repairs on the premises, and afterward rented them to Alexander, the defendant, from whom one-third of the premises had been recovered by the plaintiffs in the action of ejectment for defect of title in Stayton, his landlord.</p>

Action on the case for a malicious prosecution, and general issue. The counsel for the plaintiff put in evidence the record of the indictment of Anderson, the plaintiff, which was for an assault and battery committed on the defendant with intent to commit murder; and of the trial and acquittal of the plaintiff thereon. The name of the defendant, Callaway, was the only name endorsed as a witness on the indictment.

Scire Facias on recognizance of bail. Joshua T. Heald was the special bail of Brutus de Villeroi in an action and judgment against him in this court at the suit of Emile Grey]in.

This case was twice argued in the Court of Errors and Appeals, the first time at the June Term, 1860, and again at this term by order of the court, before Harrington, Chancellor and Wootten and Houston Justices.

<p>The sheriff’s return is part of the record; it imports verity and cannot be collaterally impeached. Farmers’ Bank v. Gardner’s Admr. 4 Harr. 453.</p> <p>Whether the attached property was, or was not forthcoming to respond to the judgment, was legally ascertainable on an order of sale directed to the attaching officer, and not by a writ of fieri facias to his successor in office, as the property could not be sold under such writ. And even if it could have been sold under such writ, it is not averred that it was not forthcoming to he levied on and sold under thefi. fa.</p>

<p>Writ of error to the Superior Court for ¡New Castle County, before Harrington, Chancellor, and Milligan and Houston, Justices.</p> <p>The case below was an action of debt in the name of the State for the use of Ferdinand Y. Carter on a constable’s bond v. James C. Johnson and William McClelland, survivors of James Miles, deceased, principal and sureties in the bond.</p>

<p>A negotiable promissory note drawn in blank as to the payee, may at any time, either before or alter its maturity, be filled with the name of the tona fide holdir of it for a valuable consideration, as the payee of it, against the maker of it.</p>

Scire facias on a judgment in the Superior Court in and for Sussex County entered on the 27th day of December, 1834, at the suit of Peter Robinson against Arthur Milby for $1,999 debt and $3 77 costs, with interest from the 11th of March preceding.

<p>If a fi. fa. has been issued on a judgment recovered before a Justice of the Peace, and not returned by the constable, another Js. fa. and venditioni exponas cannot be issued upon it, without first resorting to a writ af scire facias upon it to enable the defendant to show, if he can, that the debt had been levied and collected on the former Ji. fa.</p>

<p>In an action on a constable’s bond against him and Ms sureties, paroi evidence is not admissible to prove that an execution was issued to him by a Justice of the Peace on a judgment and that it was not returned by him.</p>

<p>Written notices of the time of holding an inquisition upon lands under execution process must be given to the defendant, and if the notice contains an error as to the time appointed for holding it, correct information given him the same day by the sheriff, verbally of the proper time of holding it, will not constitute a sufficient notice, and the sale will be set aside.</p>

<p>It is no defence in a suit by the assignor for the use and benefit of the assignee of a chose in action, that the debt had before been attached in the defendant’s hands and recovered from him on an execution attachment at the suit of a judgment creditor of the assignor, if the same was due and the defendant had notice or knowledge of the assignment of it, before he answered to the attachment.</p>

Action of debt on a bond with condition. The declaration was filed in it on the 15th of January, 1862, and rule was thereupon entered by the Prothonotary to plead or demur by the second rule day in vacation, which was the 25th of February following.

<p>This was an issue of devisavit vel non awarded by the Register of Wills in Hew Castle County, on a caveat thereto by the plaintiffs, to try the question whether a certain paper purporting to be the last will and testament of Samuel Lodge, deceased, was or was not his last will and testament. The only question of fact involved in it was as to the mental condition and capacity of the deceased to make a valid will at the time it was made by him, and upon which several witnesses were examined on each side, whose testimony in the main, was both pointed and conflicting, as to the extreme feebleness of his mind as alleged on the one side, and the soundness of it as alleged on the other. In addition to which undue influence was imputed to the principal devisee in the making of it, but little or no testimony was adduced to support the imputation.</p> <p>On the former point Clark Webster, a witness, testified that he thought in the latter part of his life Samuel Lodge was a good deal altered in his mind. In April 1856, he went down with his son Hyram to his house who paid him twenty-five hundred dollars and when it was paid down on the table, he took no more notice of it than if it had been brown paper. He was down there on another occasion with his son Hyram who went down to pay him interest on a debt he owed him, and after he had paid it, the witness asked the old man if he wanted the principal, to which he answered “oh no,” he did not “want the principal, ” and in about three months afterward he executed him for it, and he was put to a great deal of trouble to raise it for him at that time. The amount of the debt was five thousand dollars. The witness was then asked the question what was the impression at that time made on his mind by the facts and circumstances which had been stated by him as to the state and condition of the old man’s mind and his capacity to make a will.</p>

<p>A judgment confessed against one of the obligees in a joint and several bond severally, without authority in the warrant of attorney to confess judgment against the obligors severally, set aside.</p>

This was an action of debt at the suit of the firm of Cake, Bouiden & Co. on his official recognizance as sheriff of the county, against Abraham Cannon and his sureties. The plaintiffs had recovered a judgment in this court against Enoch J. Fleming for $509 35, on which a writ of fieri facias had been issued to Cannon as sheriff, to which a return of nulla bona had been made by him, and which the plaintiffs alleged and contended was untrue.

<p>A promissory note issued with a blank left in it for the name of the payee, may be filled by any bona fide holder of it with his own name, and it will then become the promissory note of the maker to him as the payee from its date, and in an action upon it against the maker, he will not be bound to prove the nature of the transaction between the maker and the first holder from whom he received it, or that he received it from the latter according to the purpose for which it was so given to him, or that he had authority from the maker to fill the blank with his own name, or at his will and pleasure to pass it, as he received it, to another with the like power and discretion in regard to it; for this authority the transaction itself imports and the law implies in favor of every bona fide holder of it, whenever a promissory note is made and issued in this manner.</p>

<p>The obligation of a recognizance of special bail entered into when the statute then in force in relation to writs of copias ad satisfaciendum, provided that none should in any case be issued upon a judgment recovered by a person not residing within the State, without an affidavit of fraud against the defendant, is not impaired by a subsequent statute repealing that provision and dispensing with the affidavit of fraud in such cases. There is a manifest and well established distinction between the obligation of a contract and the remedy in a court of law upon the contract. The former the legislature has no power to impair; but the latter may be modified and regulated by the legislature at its pleasure in relation to past, as well as future contracts.</p> <p>The affidavit of fraud required by the repealed statute, was as much a part of the remedy on the judgment, as the writ of copias ad satisfaciendum upon it, which it was required to precede, was in such a case ; and as the subsequent and repealing statute did not touch or impair the obligation of the contract, but merely modified the remedy upon it, it is not unconstitutional in respect to it.</p> <p>The general rule that the construction of a statute is not to be such as to give it a retrospective, but on the contrary, a prospective operation, does not apply to a repealing statute without any saving in it.</p>

<p>In an action upon a promissory note against an endorser, the maker of it is a competent witness for the defendant.</p> <p>No action will lie against the endorser of a promissory note for the accommodation of the maker, by the holder of it, who discounted it for the latter, with the knowledge of its character at a higher rate of discount than six per cent., for it was in effect a loan of money to the amount advanced upon it within the meaning of the statute against usury, and as such,was void for that reason, notwithstanding the statute does not in terms provide or declare-that a loan, or contract made contrary to the provisions of it, shall be void.</p>

<p>This was an action at the suit of the County Treasurer against Thomas M. Ogle, and his sureties, as late Sheriff of New Castle County, for the sum of $150, with interest, collected and received by him upon a judgment recovered by the plaintiff against John Frazier, and his sureties, one of the tax collectors of the County. The only defence to it was under a plea of set-off, to the effect that the defendant had a just and legal charge against the County to the amount of $120 43, for the support and maintenance of a certain number of vagrants committed to his custody whilst he was Sheriff, and for the sum of $16, fees due him for summoning juries, as such, both of which had been wrongfully disallowed by the Levy Court.</p> <p>For the defendant it was proved that although there was no statute for the committal of vagrants to the custody of the Sheriff, as the keeper of the public jail of the County, it had been the uniform custom for a long time previous to his election to the office, so to do, and that the Levy Court, both before and during his term of office, had made him due allowances therefor, but had refused to allow the charge in question, without any previous notice to him that no allowance would be made in future for such charges. But on the contrary, for the plaintiff it was proved that vagrants were frequently admitted and accommodated for the night in the County prison, upon their own application, or upon the verbal or written request of some magistrate, and without any commitment whatever, and when they were admitted at night and discharged the next morning, there was always a charge for two days maintenance, as well as an additional charge of fifty cents for commitment in each instance, even in such cases; and in regard to the latter sum stated in the plea of set-off, that the defendant had charged it for summoning grand jurors to attend the Court of Oyer and Terminer, as separate and distinct from the Court of General Sessions of the Peace and Jail Delivery, whereas they were summoned by him to attend both of them, at one and the same time.</p>

Rule to show cause wherefore a writ of fieri facias issued upon a judgment in an action of debt qui tam obtained in vacation under the rule for want of a plea to the declaration filed at the suit of John T. Oooper against William Daniel, should not be set aside.

<p>Fraud in the usual sense and meaning of the term is never presumed in law, but it must be proved by the party who alleges it, like any other fact, to the satisfaction of the jury.</p> <p>If pending an amicable action between parties who have mutual accounts against each other on a rule of reference out of court, the defendant institutes proceedings in bankruptcy ntider the act of Congress, and files, as required by it, under his oath, a list of his creditors and of the several sums respectively due to them, and also of his debtors and the several sums respectively due from them, and inserts in the latter list the name of the plaintiff with the amount claimed to be due from him, but omits to insert his name in the list of his creditors or any amount as due to him, stating however that there were mutual and unsettled accounts between them, and referring to the fact that the same were then in the course of amicable litigation between them as before mentioned, it is no evidence of fraud to effect or invalidate his discharge in bankruptcy, notwithstanding the plaintiff afterward obtains judgment against him in the amicable action and before the final discharge of the defendant in bankruptcy. For it was not incumbent upon the latter after the recovery of the judgment, to add the former to the list of his creditors with the amount of the judgment due him ; whilst it was competent for the plaintiff to have appeared in the court in which the proceeding was yet pending and proved his judgment before the final discharge of the defendant in bankruptcy.</p>

<p>Assumpsit on a promissory note at six months for twenty-five hundred dollars, made by the firm of Eaudain & Murphy to the order of the firm of Christian & Curran. Jacob Y. Eaudain constituted with Murphy the firm of Eaudain & Murphy, and the note which was dated December 28th, 1856, was signed with the.name of that firm and also by Elias 8. Eaudain.</p> <p>The proof was that the firm of Eaudain & Murphy were in the grain trade and had been shipping frequently to the plaintiffs and drawing drafts upon them on account of such shipments, and that the note was given as collateral security and was signed by Elias S. Eaudain as a surety only, for such drafts, and that he was neither a member of their firm, nor owed any portion of the money for which the note had been given, except as such surety. The firm of Eaudain & Murphy had since failed in business and after that Jacob Y. Eaudain, the member of the late firm had, on the 14th of April, 1857, executed his judgment bond to the plaintiffs for the sum of $8000, to secure the payment of all the debts then due them from the late firm of which he had been a member, and that on the same day judgment had been entered on the bond in this court against him; and had also soon afterward delivered two vessels to them for the same purpose, which they had sold and received the proceeds of the sale of them.</p>

<p>There is nothing in the statute, Rev. Code 228, to forbid a party erecting a division wall on the boundary line between him and an adjoining lot-owner in the City of Wilmington, from constructing it with windows, or openings in it, although they may abridge or impair the convenient use, privacy, occupation and enjoyment of the messuage and premises of such adjoining owner.</p> <p>The general principle of the common law on the subject is that no action lies for opening windows in party or boundary walls. The only remedy for the party who is thus incommoded, is by Kinds, or some other erection on his own premises, to obstruct or exclude the view from such windows or openings, which the owner of them cannot prevent, unless they have acquired the privilege of ancient windows, or openings in such wall.</p> <p>But if the roof, or cornice of any building so erected under the provisions of the statute, or if the water spout attached to it, is so constructed as to project beyond the line of such division wall and overhang, or overshadow any part of the close and premises of such adjoining owner, it will constitute an unlawful and wrongful encroachment upon the property of the latter, for which an action will lie.</p>

<p>A partial failure of the consideration, is no defence in an action upon a due hill. If the purchaser of a horse pays a larger part of the price agreed to be given for him, and gives his due bill for the balance, and afterward discovers a latent disease and defect in him and in consequence of it soon sells him to another for less than the amount of the due bill, it will not be such a failure of the consideration for which it was in part given, as will constitute a defence to an action upon it.</p> <p>But if the seller knew of such disease and defect in the horse at the time of the sale and fraudulently concealed it from the purchaser, or falsely deceived him in regard to it, it will constitute such a fraud as will vitiate the sale, and he will not be entitled to recover in the action upon it.</p>

Action of ejectment for the undivided eighth part of three several tracts of land comprising about three hundred and seventy acres in Baltimore Hundred.

<p>Action of assumpsit on a promissory note for $500 made by Collins, the defendant, payable six months after date, to the order of G-omey, and by him endorsed, and which afterward came to the hands of Sudler, the plaintiff, before its maturity.</p> <p>Gomey, the payee and endorser, was called by the defendant as a witness, and objected to by the counsel for the plaintiff.</p>

This was an action of debt by William Bush against Henry S. McComb, who were co-administrators on the estate of Charles’Bush, deceased, to which the defendant in addition to nil debet pleaded that they were such co-administrators on the 1st day of September, 1856, at which time there remained in their hands unsold, certain vessel property of the deceased, which in the appraisement of his goods and chattels, had been valued at $8600, but that the market value of them had,…

<p>The distinction between an implied and an express contract, lies not in the nature of the undertaking, but in the mode of proof. The law, however, presumes or implies a promise only, where it does not appear that there was any special agreement between the parties. For if there is a special contract, which is still open and unrescinded, embracing the same subject matter with the common counts on an implied promise merely, the plaintiff though he fails to prove the special contract as alleged, will not be allowed to recover on the common counts for the same demand upon an implied promise simply. But if he fails altogether to prove a special contract, he may recover on the common counts and an implied promise as much as he may reasonably deserve upon the facts proved in the case.</p> <p>So long as the special contract continues executory, the plaintiff must declare specially upon it; but when it has been performed on his part, and nothing remains to be done but the payment of the price in money by the defendant, which is nothing more than the law would imply against him, he may declare generally, or in the common counts on the implied promise, or he may declare specially on the original contract and express promise, at his election.</p> <p>If the mode of payment was to be any other than in money, the count must be on the special contract; and if it was to be in money and a term of credit was allowed, the action, though on the common counts, must not be brought until the term of credit has expired.</p> <p>This election to sue upon the common counts, when there is a special agreement, applies only to cases where the contract has been fully performed by the plaintiff. But when, though partly performed, it has been abandoned by mutual consent, or rescinded or defeated by some act on the part of the defendant, the plaintiff may resort to the common counts alone, for remuneration for what he has done under the special agreement. In such case, however, it is not enough to prove that he has been hindered, or prevented by the defendant from performing the con'raet on his part, for as he must sue upon the agreement itself, it must further appear from the circumstances, that he was at liberty to treat it as at an end.</p> <p>But where it appears that what was done by the plaintiff, was done under a special contract, but not in the stipulated time and manner, and yet was beneficial to the defendant and has been accepted by him, although he cannot recover upon the contract from which he has departed, yet he may recover on the common counts for the reasonably value of the benefit which, upon the whole, the defendant has derived from what he has done.</p>

This case came up for trial at the November Term, 1861, in New Castle County, and after the evidence had been heard and the argument of counsel on both sides, upon the question of law involved in it, had been concluded, upon the suggestion of the Court that, as both the legal decisions and the text writers seemed to be in conflict on the subject, the counsel should consent to withdraw a juior, make a case-stated of it and reserve the question for a hearing before all the…

<p>In this appeal the action was on a note under seal exeouted and delivered by Hopkins, the defendant below, to Mathews as the administrator of Nicholson, the plaintiff below, for goods bought by Mm of Nicholson. The person who signed the note as the witness to it, and in whose presence it purported upon its face to have been signed, sealed and delivered, proved upon his examination in chief, that the note was drawn by him at the instance and request of Nicholson, and that he signed it as the witness to it; that it was at a vendue of Nicholson’s, of which he served as clerk, and remembered that Hopkins was at the vendue. Also that he had seen him write, was acquainted with his handwriting and that his signature to the note was in his name and handwriting; but he could not then say that he saw him sign it, or heard" him acknowledge it to be his signature, or that the note was his act, or deed, or say any thing else to that effect.</p>

<p>This was an issue of devisavit vel non awarded by the Register of Wills for E"ew Castle County to inquire by the verdict of a jury at the bar of this court, whether the paper writing annexed, purporting to be the last will and testament of Francis R. Garden, deceased, was, or was not, the last will and testament of Francis E. Garden, deceased.</p>

<p>Upon a verbal contract between parties that the minor son of one of the parties shall serve the other for five years and learn a trade with him, the father to be paid nothing for the first year, until the expiration of the five year’s service, and after a service of three years and eight months, the son is discharged for disobedience of reasonable orders by his employer, the father will be entitled to recover reasonable compensation for such services, as were rendered by him during that time, notwithstanding the action is not commenced until more than three years after the first year’s service has been performed, and he had been paid the price agreed upon during the residue of such service actually performed.</p>

October Term 1855, Sussex County. A.t a court of Oyer and Terminer held at this term, Thomas Oliver, a free negro, was indicted and tried for the murder in the first degree, of David Burton.