Volume 8 — Delaware Reports

<p>If a Constable sells goods on the day of sale under an execution, against the order of the plaintiff in it, given to him in the hearing of bidders, not to sell them, the sale will be null and void.</p>

<p>If a tenant with the knowledge that the premises in his possession are to be sold on a judgment and execution against his landlord before the expiration of his tenancy, prepays the rent for the year to him with a view to prevent the purchaser at the sale of them from obtaining any portion of it, and without the knowledge of the purchaser at the time of bidding for them, it will be characterized by bad faith and tainted with fraud in contemplation of law, and the latter will accordingly he entitled to dis-train for and to recover his proportion of the rent from the time of the sale under the statute in such case made and provided, after the return of the execution and confirmation of the sale hy the Court and a deed is made to him hy the Sheriff for the premises.</p>

This was an action of debt on a Constable’s bond for the use of Morris, against Clymer and the co'-defendants as his sureties, to recover a balance of-$419.14 which it was alleged remained in his hands as Constable, and was due and payable to Morris after satisfying two executions levied and collected by him at the suit of Isaac C. Harrington against him on the sale of his goods, amounting in the aggregate to $121.34 and costs, and also an execution of William Hines against…

This was an action of assumpsit on an account for $258.85 with interest from the 1st day of January 1862.

<p>As to the degree of skill which a party who furnishes a certain amount of linen to the other party under an agreement that the latter shall make and deliver to him as many knapsacks out of it, as it will make according to the regulation standard of the Government, has a right to expect and require of him in the cutting and making of them in order to prevent any unnecessary waste of the material furnished for the purpose, the general principle and rule of law is that in all such cases where skill is required, it is to be understood to mean ordinary skill in the particular business or employment which the other party undertakes, or in which he is engaged, for he is not presumed to engage for extraordinary skill which may belong' to few men only in his business or employment, or for extraordinary endowments, acquirements or qualifications to fit him in the highest degree for it. Reasonable skill therefore constitutes the measure of his engagement and responsibility in regard to the work undertaken by him, unless he has professed to the highest degree of skill in regard to it and "expressly engaged to do it in the best manner.</p> <p>Ft is also a well settled principle of law that where the particular business, employment, or work to be done is such as to require skill in the person who undertakes it, if in such a case a party is employed to undertake it who is known to the party employing him, not to possess any skill in it, or that it is not and never has been his particular art, business or employment, and that he makes no pretensions to skill in it, and the employer with full notice or knowledge of that fact, trusts him with the undertaking, the party so employed is bound only for a reasonable exercise of the skill which he possesses, or the judgment which he can employ in it ; and if any loss ensues from his want of due skill in it, he is not in law chargeable with it or liable for it, if he did the work with such reasonable skill as he possessed in the art or business, and with the same care and diligence which he would have applied to the undertaking, had he been doing it for his own use and benefit alone under a direct contract with the Government and supplying the material himself.</p>

<p>Not only the subject, or substance of a contract for the breach of which suit is brought before a Justice of the Peace, should be stated in the record, but also the sum demanded in consequence of the breach of it.</p>

<p>This ease was (.11 a writ of error to the Superior Court for Eew Castle County, and was heard in this Court before Harrington, Chancellor; Grilpin, Chief Justice; and Milligan, Associate Judge.</p> <p>The case from below had been heard and decided before all the Judges in the Court of Errors and Appeals, on a case stated, and question of law reserved for their decision, on the main question involved in the present case, at the suit of Andrew D. Cook, v. Andrew C. Gray, and reported in 2 Houston’s Reports, 455, and to which the reporter, to save repetition, here begs leave to refer.</p>

Action of replevin for a horse. Williams, the plaintiff, had exposed among other goods of his, the horse in question, to public sale duly advertized with the conditions published and posted at the place of sale, as to the terms of payment for articles to be purchased at it; one of which was that on all sums of ten dollars or more, a credit of ten months would be allowed on the purchaser’s giving his judgment note with approved security for the amount; and nothing sold to be…

Pronarr in assumpsit on an appeal from a Justice of the Peace, to recover the price of five hags of dried peaches bought by Davis, the plaintiff below, of Jones, the defendant below, and paid for, but which the former alleged had not been delivered.

<p>A new trial will not be granted in an action against executors on the ground that after the trial, it was discovered that one of the witnesses examined on behalf of the plaintiff, was interested in the result of the suit, and that the defendants were surprised by the testimony, and could now prove that it was false.</p>

<p>An indentured apprentice on the expiration of his term and his arrival at age, may sue in his own name the master for a breach of any of the stipulations in the indentures, in any form of action applicable to his claims arising therefrom.</p> <p>Pronarr in debt on appeal from a justice of the peace. The action was on an indenture of apprenticeship, by Williams, the plaintiff below, who had attained his majority before the institution of the suit below, against Gann, the defendant below, the late master, for the sum of twenty-five dollars payable by the terms of the indenture on the expiration of his service to the said plaintiff".</p> <p>offered in evidence a duly certified copy of the indenture of apprenticeship.</p>

<p>Assumpsit for use and occupation. Oliver D. Caulk, the plaintiff, and William GL Caulk, the defendant, were brothers and tenants in common of a farm of about one hundred and twelve acres in Hew Castle County, which descended to them as the only heirs at law of their uncle, James Caulk deceased, who died intestate in the month of February or March 1861. By virtue of proceedings instituted in the Orphans’ Court for the partition of it, the de_ fendant had become the purchaser and sole owner of the whole of it, at the sale of it under the order of that court on the 23rd day of April 1863, and hy the confirmation of the sale on the 7th day of September 1863; and the assignment of the premises to him upon his entering into recognizance in that court on the 10th day oí October following to pay to the other party entitled his share and proportion of the appraised value with interest thereon from the day-of the confirmation of the sale. The defendant- had been in the sole and exclusive possession of the premises, and in ihe receipt of all the rents and profits accruing from them since the death of James Caulk, the uncle, and the action hy the plaintiff was for one half of the clear rents and profits so received by him, from the date of the death of the uncle to the date of the confirmation of the sale of the premises to the defendant in the Orphans’ Court on the 7th day of September 1863.</p>

<p>This was an action of debt in the name of the State for the use of Tharp, Lofland and Griffith, the plaintiffs, on the official recognizance of Emerson, the defendant, as sheriff of the county, and his sureties, and came up on a case stated and the question of law reserved for a hearing before the court. The plaintiffs were sureties in the official bond of Joshua G. Cranor, collector of taxes in Milford hundred, who had become insolvent and against whom judgment had been entered in the Superior Court at the suit of the State upon his official bond, on the 15th day of March 1860, at the instance of the county treasurer, for the county, road and poor taxes levied in Milford hundred for the year 1859, and also severally against his said sureties, and on which execution had been issued against Cranor to October Term 1860 and returned levied on goods and chattels, and advertised and no sale for want of bidders, and upon which a venditioni exponas was issued November 16th, 18 60, to April Term 1861 and returned goods sold December 20, 1860, for $566.24, and the money applied as follows : $899.15 to Moses Harrington, $99.50 to John Stewart and $67.59 to this execution and not sufficient to pay it, the amount to be collected on it being $1145.63; execution was also issued on it October 9, 1860 to October Term 1860, at the instance of the treasurer of the poor of the county, for taxes levied in Milford hundred for the year 1859, collected by him, which was returned levied on goods and chattels and unsold for want of time, and on which a venditioni exponas was also issued Rovember 16, 1860, to April term 1861, to collect the said tax amounting to $222.13, and which was returned goods and chattels advertised and sold December 20, 1860 for $566.24 and applied as has been herein before stated ; and that on the 29th day of October 1861, the said judgment and executions were transferred to the use of the said William Tharp, James R. Lofland and Daniel L. Griffith to the amount of six hundred dollars, they having paid the same as sureties. That previous to the entry of the said judgment at the suit of the State against Cranor on his official bond as collector as aforesaid, a judgment had been entered in the said Superior Court on the 4th day of February 1858, for the real debt of $427.56 with interest from the 29th day of January 1858, at the suit of William Real v. Joshua C. Cranor ; end also a judgment in the said court entered on the 7th day of March 1860, for the real debt of $300, with interest from March 7th, 1853 and credited thereon up to March 7th, 1859, at the suit of Rhoda TTill v. Joshua C. Cranor and Joseph S. Truitt; and that on the said judgment at the suit of the said William Real v. Joshua C. Cranor, a writ oí fieri facias was issued to April Term 1861, and duly returned nulla bona and levied on land, and on the 18th day of May 1861, a rule of inquiry was issued and returned not sufficient, &c., and afterward a writ of venditioni exponas was issued June 10, 1861, to October Term 1861, and which was returned land sold July 3, 1861, to William Tharp for $1857.00, and that the said Pennell Emerson, Sheriff, to whom the said writs were directed and by whom the said premises were sold applied the proceeds as follows: $79.30 to a judgment of Moses Harrington entered August 6th, 1855 and sufficient, $552.65 to the writ of Heal and sufficient, $10 to costs on judgment of Levin Thompson entered August 26th, 1858 and sufficient, $354.32 to the judgment of Rhoda Hill v. Joshua 0. Cranor and Joseph S. Truitt entered March 7th, 1860 and sufficient, $847.24 to the judgment of the State of Delaware v. Joshua C. Cranor above mentioned and not sufficient, and the residue $12.99 retained as his commissions. It was agreed by counsel that if upon the foregoing facts the said sum of $354.32 so applied to the judgment of the said Rhoda Hill ought to have been applied to the said judgment of the State of Delaware v. Joshua C. Cranor, then judgment should be entered in the present suit in favor of the plaintiffs for $354.32, with interest from October 29, 1861; otherwise judgment to be entered for the defendants.</p>

Thomas Wallace had recovered on the 21st of March 1851 two judgments, one for $54.30, and the other for $70.95, before the justice of the peace against Artimus Smith, who then was, and had been the preceding year, a tenant on land rented of Beniah Tharp, and on the same day executions were issued thereon to William W. Simpson, the respondent, a constable of the county, returnable Sep. 19, 1851, who levied them on the personal property of Smith, the tenant, on the demised…

<p>Whenever a second or subsequent will is shown to have been executed, and is traced to the possession of the deceased, and it cannot be found after his death, it is to be presumed that he afterward destroyed it with the intention of thus revoking it, and this presumption is conclusive unless rebutted by countervailing evidence; and, therefore, it will not revoke a former will made by the testator.</p>

Pronarr in assumpsit, tried before Wootten and Houston, Justices, on appeal from a justice of the peace, which contained, in addition to the common counts, a'special count on an alleged agreement between the parties by which Hannah Cannon, the defendant below, had hired her son to Francis Matthews, the plaintiff below, to work for him on his farm for the term of nine months, to commence on the 1st day of March and terminate on the last day of November 1864, for twelve…

Petition for discharge under the act of insolvency. The first question presented was, if the creditors elect to propound interrogatories to the petitioner and take his answers to them, could they afterward call and examine witnesses against granting the prayer of his petition ?

This was an issue of devisavit vel non from the Hegister of Wills for Hew Castle County, on a caveat filed by the contestants against it, whether the paper writing thereunto annexed and purporting to be the lastwill and testament of Thomas Jamison was or was not his last will and testament.

This was an action of assumpsit by Jacob Deakyne against George W. Buchanan, who were the sureties of Enoch J. Fleming in his bond as the executor of Joseph Fleming deceased, for contribution as his co-surety in the bond. Joseph Fleming at the time of his death was indebted to Doct.

Certiorari. The record showed that the cause of action and demand of the plaintiff against the defendant, was for $98.00 due and payable to the former as landlord out of the proceeds of the sale of the goods of a tenant of his, then in the hands of the- defendant who had seized, levied upon and sold them on the demised premises as a constable of the county on an execution at the suit of another against the tenant.

Appeals from, the decree of the Chancellor sitting in two cases on cross bills filed in Kent County, before Gilpin C. J. and Wooten, Houston and Wales, Justices. The cases came up for a hearing together before the court at this term upon appeals from the decrees of the Chancellor sitting in the cases in Kent County on cross hills filed by the parties upon a written agreement signed and sealed by them for the purchase of a farm by Shock from Lesley.

<p>The goods of a testatrix remaining in specie in the hands of her Administrator c. t. a., cannot be seized in execution of a judgment against the administrator in his own right, until he has closed as such Administrator, all the concerns of her estate; and if the goods so remaining in his hands consist of the balance of her personal property specially bequeathed in her will after the payment of her debts and funeral expenses, in trust to another for the separate use and benefit of a married woman for life, and after her death to be divided among her children, be seized in execution of a judgment against the administrator in Ms own right before he has closed as such Administrator, all the concerns of the estate of the testatrix, the Court of Chancery may and will, at the suit of the trustee against Mm and such judgment creditor, decree a specific execution of the. bequest in the will by his delivery of the goods in . specie to the trustee, and perpetually enjoin the judgment creditor from selling, or proceeding any further in Ms execution and levy upon them.</p> <p>This ruling, however, is not intended, nor is it to be understood, to abridge or impair in the slightest degree, the general right and power of executors and administrators to sell the goods and chattels coming to their hands as such, either at public or private sale to bona fide purchasers, or to accept the same at a fair and bona fide appraisement, and thereby to convert the property in them and to make them their own, though still retained in specie in their hands, by paying all the debts of the testatrix, or intestate and discharging all the other obligations and liabilities to which they are lawfully subject in the due administration of them; for when that has been done by them, it is neither in the power of a court of law or a court of equity to question or disturb the right to, or the possession of the purchaser of them in the one case, or their own right to, or possession of them as the lawful and absolute owners of them, in the other.</p>

<p>This was an action of waste to recover the place wasted and double damages for the injury sustained, by Charles II. Richards, who was seized in fee of the reversion, against Catharine A. Torbert, who was seized of an estate for the term of her life as tenant in dower, in a lot of land of about six acres in Georgetown, with no other improvements than a fence around it. The action was for both voluntary and permissive or negligent waste, the first for planting and tilling the lot in Indian corn for the three successive years next preceding the commencement of the action, without applying any manure or fertilizer to the ground, to the permanent detriment and impoverishment of the soil and the injury of the plaintiff, the reversioner, and the latter, for neglecting the necessary repairs to the fences upon it, and permitting them to go to decay and destruction without renewing them when actually and imperatively required, to the injury of the plaintiff, the reversioner. "It was proved that the lot had been tilled each year for the last three years in succession in corn as alleged, with a reduction of about thirty bushels per annum in the yield of the last two years, but the same witness testified that the corn had not been as well tilled during the last two seasons, as in the preceding year; and it was also proved that the fence around the lot was much decayed and in a bad condition.</p>

<p>An arrangement between a railroad company and a committee of a Peach-Growers’ Convention to run a special daily peach train during a peach season over their road from this State to Philadelphia, so as to connect by a certain hour the same day with the railroad thence to New York, and deliver peaches there in time for the next morning’s market, and afterward advertised by the company by handbills posted at the stations on the road prior to the commencement of the season, to be so run with the design to make such connection at Philadelphia, will not constitute a special contract on the part of the company with the peach growers of the State, or with any one, to transport peaches during the season by such train; but only such a contract as the law applicable to common carriers raises in such a case, and therefore the company was not liable for any peaches which were not accepted by it for transportation by such train.</p> <p>Nor was the company liable for work and labor of hands furnished by the shipper in loading the cars at a station with such of his peaches as were shipped from it, if it was the custom of shippers to furnish the hands for that purpose, and the custom was acquiesced in by the shippers. The company was a common carrier of goods in the case, and as to peaches that were delivered to, and accepted by. it for transportation by such train, was responsible as such for all losses and injuries thereto, except such as were caused by act of God, the public enemy, and the default of the shipper himself. The care and diligence rprp-m-grl in am»Ti case is to be measured in a great degree bv the character of the goods to be transported, and its liability may be greater or less according to the condition of them when received by it, for they ought to be in a suitable condition and a proper state of preparation for transportation when delivered and accepted for it. This obligation is imposed upon the Company as a public duty and by its undertaking to carry safely, as far as human care and foresight will admit. These obligations impose on the carrier the duty to carry and safely deliver the. goods in good order and in a reasonable time at the place of their destination, and nothing will exempt the company as such from this responsibility, except as before stated.</p> <p>But the principle on which the extraordinary liability of common carriers is founded, does not extend the responsibility to the time occupied in the transportation of them, unless they expressly contract to deliver them within a given time ; but if they do so bind themselves by special contract, they are obliged to deliver at all events at the specified time, although the delay may be occasioned by inevitable accident or necessity beyond the control of human care or foresight. In the absence, however, of a special contract to deliver on time, they are bound to use due care and diligence to complete the transportation within a reasonable time, having regard to the character of the goods and the necessity of its speedy delivery at the place of destination.</p> <p>In this case, the company having put forth a public handbill indicating the time for the train to leave Dover and about the time it was to reach Philadelphia, was bound to use due diligence, care and skill, and to exert all the means in its power to make the time mentioned in it for its arrival there. And for the same reason that it was not responsible for the natural decay of the fruit in transit, it is held to a stricter degree of care and diligence for the transportation and delivery of it at the time specified.</p> <p>Ordinarily the delivery of goods to a railroad company is made at its stations to a freight agent. To constitute a delivery to, and an acceptance by, the company as common carriers, it must appear that the peaches which were not carried away by it were in its possession, and that it had assumed the exclusive custody and control over them, and that the plaintiffs had at the same time narted with and entirely surrendered their ppssession and control over them. If there was not such a delivcry, the relation ot consignor and carrier did not exist between the parties.</p> <p>If there was any negligence or default on the part of the Camden and Am-boy Railroad Company which resulted in loss and injury to the plaintiffs, the defendants were not in any way responsible for it, because the engagements of the former, formed no part of the obligations of the latter, unless they made themselves so responsible by express agreement. If they engaged or undertook, as common carriers, to carry and deliver peaches beyond the terminus of their road, they would be bound to do so, and would be liable for the consequences of their default in that respect.</p> <p>The peaches which the company accepted and undertook to carry, established the relation of carrier and consignor between it and the plaintiffs, and the responsibility of a common carrier attached to it on receiving them for transportation, notwithstanding the advertisement excepted Saturdays and Sundays as days for the running of the train.</p> <p>Whether the defendants as common carriers were bound to receive and carry the plaintiff’s peaches without prepayment or tender of the freight upon them, would depend upon the custom of the company in that respect, which was a fact for the jury to determine.</p> <p>If it appeared that the loss and injury complained of by the plaintiffs was caused partly by their own negligence and partly by the negligence of the defendants, they cannot recover, unless by ordinary care the plaintiffs could not have avoided the consequences of the negligence of the defendants.</p>

Certiorari. The record showed that the parties appeared on the 16th of September, 1865, and the defendant claimed a postponement of the case, and the case continued to Saturday the 30th inst. And now, to wit, this day, Sept. 23rd, 1865, the plaintiff appears and the defendant by his attorney, J. Pratt, Esq., and ready for trial.

This was an action of debt upon articles of agreement between Mahlon Batton and Hannah Bradley by which the latter agreed to rent to the former a certain farm and mill situated on it, for. one year to commence on the 25th of March then next ensuing, for $528.00, and for the performance of which each was bound to the other in the sum of $500.00.

<p>Scire Facias, on a judgment in the Superior Court for Sussex county, for three hundred dollars entered 1st of March, 1836, at the suit of John Hays use of James P. Lofland against James Johnson, with payment of interest endorsed thereon to February 27th, 1836.</p>

Scire Facias on a judgment at the suit of the Farmers’ Bank against William Wilson, Barclay Wilson, Josiah .Marvell, James Wilson, and Silas Reynolds for $670, real debt, with interest from Feb. 19, 1852, which’ had been paid by Barclay Wilson’s Administratrix, the plaintiff, and assigned to her by the Farmers’ Bank, and wídch bow stood on the docket hv endorsement to and for her use. Pleas null tiel record, payment and release.

<p>Although a negro or mulatto child bound under the third section of the seventy-ninth chapter of the revised statutes, has no remedy by petition to be discharged therefrom under the statute, except for cruelty, ill usage, treatment not conformable to the terms of binding and breach of contract, under the proviso contained in the sixteenth section thereof, she may by writ of habeas corpushe. discharged therefrom for any illegality or invalidity whatever in the binding.</p>

This was an action of trover by James Tatman against Abel J. Barrett to recover the value of timber cut and carried away and converted to his use by the defendant. The lands upon which it was cut, had been devised by the will of Charles Jones to the plaintiff, with authority and for the purpose of selling and disposing of the timber upon them, which consisted of two tracts, one of a hundred and twenty, and the other of seventy-six acres.

. This was an action of assumpsit at the suit of John Truax against the Philadelphia, Wilmington and Baltimore Railroad Company, for alleged damages sustained by ' him during the peach season of 1864, by reason of the failure of the company to carry and transport for him pursuant to the arrangement entered into with the committee appointed by the convention of peach-growers of the State, held in Dover in the month of May in that year, forty-five thousand baskets of peaches,…

<p>Action for assault and battery by William Dolson against Jacob Hill - The pleas were not guilty, and that the defendant was possessed of a certain close in Appoquinimink hundred, -which the plaintiff broke and entered, and from which lie attempted to carry away certain hoop-poles, which he resisted, as it was lawful for him to do, and if any injury happened to the plaintiff thereby, it was done in defence of the possession of the close, to which the plaintiff specially replied that the plaintiff' had before that sold him the hoop-poles with the right and privilege of going upon his land and cutting and hauling them away, and whilst so upon his land, he, of his own wrong, committed the assault and battery upon him, absque hoc that the plaintiff, with force and arms, and with a strong hand did attempt to break and enter, or did forcibly break and enter the close of the plaintiff to carry away certain hoop poles, and this he was ready to verify, &c. The defendant rejoined new-assigning the locus in quo by metes and hounds, traversing the replication that the plaintiff entered it under a contract with him, or with his leave and license to cut hoop-poles thereon, and also concluding it with a verification; to which the plaintiff sur-rejoined that he did enter the said close as described and s-"t forth in the defendant’s rejoinder under a contract made with him for the purchase and cutting of hoop-poles as alleged by the plaintiff in his replication, and with the license and consent of the defendant, with conclusion to the country.</p>

Action of assumpsit by Alexander M. Biddle against Richard A. Frazier for the support and maintenance of his wife and two children for a period of six years. The defendant had married the daughter of the plaintiff and had taken her to reside with him on his farm in Maryland, where their two children, a son and a daughter, were born.

Assumpsit upon a Promissory Note, dated May 15th, 1863 for $400 at three months made by Samuel B. Sutton to his own order, payable at the Newark Bank, and by him endorsed, and also by Henry G-. Freeman, the plaintiff. The usual pleas, with want of consideration, were entered in the case.

This was an action on the case by Thomas M. Ogle against the Philadelphia, Wilmington and Baltimore Bail-road Company, to recover damages for injuries sustained by him in his person, his horse, carriage and harness in the overturning of his carriage while driving over the railroad track and embankment of the company across Washington Avenue in the town of Hew Castle, in the night time, in December 1863, in consequence of cars left standing on their railroad track within the…

<p>Childeeu of deceased sisters of the whole and half blood of the father of an intestate, are entitled to share as next of kin, in equal degree in the distribution of the residue of his personal estate.</p>

<p>Assumpsit on a contract between Anthony Keybold and John J. Henry, in which the latter sold to the former a livery stable in the city of Washington, with the horses, carriages and harness appertaining to it, together with the right to supply Willard’s Hotel in that city with all the horses and carriages required by the guests of it, for the sum of twenty-four thousand dollars. The defendant valued the stable, horses, and carriages at twenty thousand, and the right to supply the hotel, as just stated, at five thousand dollars. At the time of making the contract, the defendant represented to the plaintiff that he had acquired that right and privilege from the person from whom he had purchased the stable, and was then doing it under a contract with the proprietors of the hotel made for the purpose by the person from whom he had purchased the stable, and that he had the right to sell and transfer that right with the stable. The contract was made at the hotel, aiid during their conversation on the subject, one of the proprietors of it passed through the hall, when the plaintiff proposed to the defendant that they should speak to him about it and see that the matter was all right, but the defendant replied that there was no use in saying anything to him about it, for he was a gruff man and would give them no satisfaction about it, but it was all right. The plaintiff then offered the defendant twenty-four thousand dollars for it, which was accepted, and the contract was concluded between them. In a short time afterward the plaintiff learnt from the proprietors of the hotel that they had no agreement with the defendant to furnish their house with horses and carriages, but they had the right, and were in the practice of getting them wherever they chose, and that up to the month of March preceding the making of the contract between the plaintiff and the defendant, they were in the habit of sending to the defendant’s livery stable for horses and carriages for their guests, but they had had so much trouble in getting them when wanted, and they were so inferior and in such bad order that they' were compelled to send to other, stables. The plaintiff had paid the price agreed upon to the defendant, and the action was now brought to recover damages for the alleged fraud and deception practiced upon him in the contract of sale. The declaration contained several special, as well as the common counts in an action of assumpsit.</p>

This was an action of assumpsit by William C. Oonine against The Junction and Breakwater Railroad Company in the Superior Court in and for Hew Castle County, and came up on a case stated and the following facts and the question of law thereupon reserved by consent of counsel, for a hearing before all the Judges in this Court, and was heard before Bates, Chancellor, Gilpin, Chief Justice, and Wootten and Wales, Justices, Houston, Justice, not sitting, being a stockholder,…

Writ of error to the Superior Court in and for STew Castle County, heard before Bates, Chancellor, and Wooten and Wales, Judges. For a statement of the case in the Court below, spe ante page 267. The errors assigned were, first, that the Court below erred in charging the jury that there was a grave question underlying that of the dedication by Tasker & Shaw of the laud referred to as a public highway.

<p>The action upon a due bill payable on demand and without date and no other proof of demand of payment of it than the institution of the suit upon it, must be commenced in six years after the making and delivery of it, if the statute of limitation is pleaded.</p> <p>Pronarr in assumpsit on appeal from a justice of the peace upon a due-hill without date and payable on demand for $72.00 from John H. Pratt, the deceased, to Coates, the plaintiff below. There was no proof that any demand of payment of it had been made prior to the death of Pratt, or when it was made and delivered to Coates.</p>

<p>A search into all the writs in the Prothonotary’ s office is not necessary to render the entries contained in the execution docket therein, admissible as secondary evidence of the pre-existence, loss and contents of missing execution process on a judgment in the Superior Court, but a diligent search among the writs of the terms to which they were returnable, will be sufficient for the purpose.</p> <p>An objection to the levy of a, ft. fa. on the ground that it did not include all the lands of the defendant, or on the ground that the description of the land contained in the levy, was too general and indefinite to identify the land, cannot be taken after the return term of the ft. fa. and inquisition. Nor can any objection be taken to the sale of the land thereon for the purpose of invalidating or setting it aside, after the term to which the sale is returned. If the objection is not taken at the return term of the writ, the sale is affirmed as a matter of course, and is final in its character and effect.</p> <p>The provision of the statute, Rev. Code, chap. Ill sec. 48, which prescribes the duty of the sheriff in respect to levying on land and holding inquisi" tians, is very general in its terms and gives him great latitude in describing the laud levied on Its language is, “ If there have been a levy or seizure of land, the sheriff’s return shall specify the principal improvements thereon, if any, as well as the known or computed quantity, and . the situation thereof.” If there are no improvements upon it, he is to return none in the description. He is to state the known or computed quantity of it, and if he knows the exact quantity, it is his duty to state it; if he does not, he is required to state the estimated, computed, or reputed quantity of it The terms “known” and “ computed” are used in the act in contradistinction to each other, and have this import or signification If in the absence of fraud, the sheriff errs in regard to the quantity, it is not material, and does not vitiate or render void the levy or return.</p> <p>He is also required to state where the lands are situate, and he has done so by describing them as being in Dagsborough Hundred, Sussex County, and adjoining lands of Joseph Kolloek and others.</p> <p>The statute is general in its terms, and does not require a special or particular description. A general description is sufficient, if such description identifies the land and its locality.</p> <p>The description of the land levied on, as recited in the venditioni exponas and set out in the sheriff’s deed, namely, “No. 2, a certain tract or parcel of land situate in Dagsborough Hundred and County of Sussex, containing 140 acres, more or less, and no improvements, adjoining lands of Joseph Kolloek and others, a part of which is cypress swamp,” is sufficient to cover and include all the lands of which the defendant in the execution died seized, situated in Dagsborough Hundred, Sussex County, which adjoined lands of Joseph Kolloek and others, upon which there were no improvements at the time of the levy, and a part of which was cypress swamp. And the fact that the tract contained more than 140 acres, will not of itself, vitiate or avoid the sale. For where a tract of land is levied on and sold by the sheriff as a tract of so many acres more or less, the purchaser takes the whole tract without reference to the computed quantity which it is said to contain.</p>

<p>Issue of devisavit vel non from the Register of Wills in and for Kent County, to be tried before the court and jury, whether the paper writing annexed to it, purporting to be notes containing the substance of a will made by Elizabeth Smith deceased, in the year 1857, and alleged to be lost, was, or was not, her last will and testament.</p>

Rule to show cause wherefore a judgment obtained at the preceding term of the court, at the suit of the executrix of James R. Garden, deceased, against the administrator of Isabella Garden, deceased, on an affidavit of the cause of action filed, by the plaintiff, and an affidávit of defence thereto, filed by the defendant, for a part of the demand to the amount of $235.65, admitted to he due by the latter, and on which • the judgment had been entered at the first term for…

Summons case under the mechanics’ lien law. This case with nine others of the same kind at the suit of' other parties against the same defendant, were stated and argued together at the same hearing this term by the counsel of the parties respectively, as the questions involved in all of them depended upon the construction to be given by the Court to the statute recently enacted entitled “ An Act securing to mechanics and others payment for labor and materials in erecting or…

Pronarr in assumpsit on appeal from a justice of the peace, on a promissory note for $52.44 made by the defendants to the order of the plaintiff, and payable two years after date, January 31, 1862.

<p>Replevin for one hundred bushels of wheat. Bowers, the defendant, was a tenant of Alrich, the plaintiff, and was living on a farm rented of him, on which the tenant of the preceding year had left the wheat in question in the barn, by the direction of Alrich, his landlord, for him, as his share or rent of the wheat for that year. There was no demand proved on the part of the plaintiff upon the defendant for it prior to the commencement of the action, but the deputy sheriff had instructions, when he went to the farm to replevy- it and take it out of the hands of the defendant, that if he would give him satisfactory security for it, to let him retain the possession of it, and when he arrived there found that the defendant was sowing it on the farm. Wheat was then selling for $2.40 per bushel in the neighborhood, and the defendant gave the requisite bond and security on the writ and retained and sowed the wheat. When the plaintiff closed his testimony.</p>

<p>Although the doctrine of estoppel has often been denounced as odious, and declared to be unworthy of recognition by the courts, yet it would seem, when properly understood, to be founded on such principles of morality and justice, as commend them to our best conscience, because its proper application only debars the averment of the truth, in a case where such an averment would convict the party of a previous falsehood, and where to permit it, would be to allow him to deny a previous affirmation upon the faith of which other persons have been induced to deal with him. The purpose and intent of it is to prevent fraud and falsehood, and it only closes the mouth of a party, when to let him speak, would be contrary to honesty and good conscience.</p> <p>Estoppels are said to be of two kinds, the one personal in its character, operating as a personal rebutter and preventing the grantor and those claiming under him, from asserting title, or contradicting the intent and effect of his deed; the other is of larger scope, for while it carries with it all the qualities and attributes of the former, it also possesses the additional function of operating an actual transfer of an after acquired estate. Mere grants, releases, or quit claims, however, do not possess this function, nor were conveyances under the statute of uses held to have this operation ; but the doctrine when applied to deeds of bargain and sale, must be confined to that description of conveyance strictly and properly so defined, that is to say, to naked deeds of bargain and sale. Eor it is well settled that if it is manifest on the face of the conveyance, either by recital, admission, covenant, or in any other way, that the parties actually intended to convey and receive the identical estate and interest which is the subject matter purporting to be conveyed by the instrument, they shall be held estopped from denying the operation of the deed according to its manifest intent.</p> <p>Where one who has no title conveys land with warranty, and afterward acquires title, and conveys to another, the second grantee is estopped to say that the grantor was not seized at the time of the first conveyance. And where both parties claim under the same person, they are privies in estate, and cannot as such, deny the title of the grantor at the time of the first conveyance ; and the estoppel working upon the estate, binds both parties and privies. It adheres to the land, is transmitted with the estate, it becomes a muniment of title, and all who afterward acquit take it subject to the burden which the existence of the fact imposes on it.</p>

This was an action of assumpsit by the plaintiffs, Lu-kens Pearce and Joseph M. Chambers, against Edward J. Carter, the defendant, for his refusal to comply -with the following contract of sale on his part with them : “ Willow Grove, July 14,1865.

This was an action of assumpsit for alleged damages sustained on two boxes of soap shipped by the plaintiffs over the road of the defendant from Philadelphia to Dover, and upon a barrel of eggs to he shipped from the depot of the company at the latter place to Philadelphia, and also on a box of tobacco shipped over the road from Philadelphia to Dover and lost at the depot of the company after its arrival at the latter place, amounting in the aggregate to $177.41.

<p>The plaintiff contracted to buy a horse of H. for $300, to be paid for by his promissory note at six months, but before the note was given or the horse < was delivered, he verbally contracted with the defendant to sell the horse to him for $250. and sent Mm with his note drawn to the order of H. for $300. at six months to deliver it to the latter and get the horse from him, which H. received and delivered the horse to the defendant, and afterward endorsed the note and got it discounted in bank, but before its maturity the defendant applied to him to know what he would give and take the horse back, and expecting it would go to protest at maturity, he told him he would give him $200 and take the horse back, if he would pay the balance of the note in bank which the defendant did not agree to. Held that the contract between the plaintiff and the defendant was an original contract which the statute of frauds did not require to be in writing.</p>

This was an action of covenant on a policy of insurance by James P. Lattomus against The Farmers’ Mutual Fire Insurance Company of the State, to recover the sum of twelve hundred dollars insured on a stock of goods in a store kept by him in the town of Clayton in Kent County, and which were totally destroyed by fire in the month of May, 1865. The policy of insurance was also destroyed with his other papers in the store.

Action of assumpsit with the usual pleas, for the sum of $500, demanded by the plaintiff of the defendant, ior entering as a substitute for him into the military service of the United States under the draft of July 12th 1864. By the act of Congress of that date, the defendant was drafted, and being obliged to enter the service, or procure a substitute, by agreement between them the plaintiff entered it as his substitute.

<p>The statute of frauds does not require that the authority of an agent to contract for the sale of real estate, and to sign such contract as agent for the vendor, shall be in writing ; but he must have explicit and direct verbal authority, at least, from the vendor to sign the contract.</p> <p>Assumpsit with the usual pleas. The action was on a contract for the sale of a house in the City of Wilmington, through the agency of a real estate broker, to Edwards, the plaintiff, by Johnson, the defendant. William Bright was the broker,to whom the defendant had spoken in the summer or fall of 1865, about selling a house owned by him on Walnut below Third street, and said that he wished him to sell it for him, and that he wanted $2800 for it. Afterward the plaintiff went to Bright, as the agent for the sale of it, and wanted to buy it at that price, and stated the terms of payment on which he desired to purchase it, which were $100 cash on the day of sale, $1300 on or before the 25th of March 1866, the possession of it then to be given to him, and the balance to be secured by bond and mortgage on the property with the interest thereon, payable semi-annually. Bright then had one or two interviews with the defendant on the subject, who at first dissented as to the proposed terms of payment, and was inclined to require a larger cash payment on the day of sale, and mentioned $1300 as the amount of it, but finally assented to the terms offered by the plaintiff, with whom Bright afterward met and concluded the bargain with him on the terms stated, when he received from him the $100 in cash, and gave him a receipt for it, stating the terms of the contract, under his signature as agent of the defendant for the sale of the property, which was as follows: ‘‘Received Uov. 29th 1865 of Mr. John Edwards, one hundred dollars as part of the purchase money of a three-story brick house on Walnut Street below Third Street, west side, I have this day sold to him as agent for G. P. Johnson for the sum of twenty-eight hundred dollars clear of all incumbrances. He is to pay thirteen hundred dollars more in cash on or before the 25th of March next, and give a bond and mortgage on the property for fourteen hundred dollars, being the one-half of the purchase money, with interest from the 25th of March next, payable half yearly, with the policy of insurance transferred with the mortgage. The deed to be made as soon as the balance of the money is paid and the mortgage is given.”</p>

<p>Iu an action for a breach of contract in not making a steam boiler according to the written specifications prescribed in it, the plaintiff cannot recover, if he knew of the change and modification made in the construction of it, or had a reasonable opportunity of inspecting and examining it and of ascertaining the same, before he accepted and paid for it.</p>

This was an action on the case by James V. Jefferis against the Philadelphia, Wilmington and Baltimore Bail-road Company, to recover damages for the burning and destruction of a barn and twenty tons of hay in it belonging to the plaintiff, near the line of the railroad of the com-pony in Brandywine hundred, and alleged to have been set on fire by flying coals or sparks emitted by a passing locomotive engine and train of cars of the company over the road just before the same…

The proceeding below was on a petition in the Court of Chancery in and for Sussex County, at the suit of Mary Ann Waples for the assignment of the land devised to her, as and for her dower, in and by the last will and testament of her late husband, Gideon B. Waples, deceased, against Clara Waples who was the only child and sole devisee of the remainder of the real estate of the testator under his last will and testament, and who was, at the time of the filing of the…

This was an action of ejectment by Trusten P. McColley, the plaintiff, who had acquired by purchase all the right and title of the heirs at law of David Black deceased who was one of the heirs at law of George Black deceased, the testator hereinafter mentioned, in a lot of ground with the appurtenances, situate in Cedar Creek hundred and containing about three acres,to recover the same from the defendants, heirs at law of George May deceased, and a case stated therein with…

<p>Under the fourth section of the act of Congress in relation to internal revenue, approved July 1st., 1862, the collector of an internal revenue district, is the recognized agent of the government, and is responsible both to the government and to individuals, for all moneys collected and all acts done by his deputy collectors, who are his agents and are alone responsible to him, and he may, or may not, take security from such a deputy for the faithful discharge of the duties of his office, at his pleasure.</p> <p>Molasses manufactured from Sorghum, was subject to taxation under section 75 of said act and under section 94 of the act approved June 30th, 1864, under the former at the rate of three per cent, ad valorem, and under the latter of five per cent, ad valorem.</p> <p>If the collector consents to the use of the public money by his deputy collector in his private business of buying and speculating in grain, it will be a fraud on the sureties of the latter, and will discharge them from their liability on his bond for a defalcation on his .part resulting from it.</p> <p>The true meaning of the rule established in courts of equity, that an answer which is responsive to the allegations and charges of the bill and contains clear and positive denials thereof must prevail, unless it is overcome by the testimony of two witnesses to the "substantial facts, or, at least, of one witness fortified and sustained by corroborative facts and circumstances, is not that the testimony of one witness with such corroborative facts and circumstances is indispensable in all cases. Because circumstances alone may sometimes be found in the answer itself, or in documentary evidence referred to in it, more than sufficient to countervail the denials of it. The rule properly applies to the case of an answer opposed only by the testimony of a single witness. But to have this effect, the witness must not only be competent, but his testimony must be credible, and the corroborative circumstances must materially support the witness and strengthen his testimony, so that when both are considered together, they may be sufficient to satisfy the conscience of-the court that the allegations and charges of the bill in respect to the points in dispute are true.</p> <p>If the language of a statute or the saving clauses in it, are deficient in precision and clearness, or faulty and imperfect in phraseology or structure, the court is bound to give them such interpretation as may appear best adapted to effectuate the object contemplated in the enactment of it ; and if it is obvious that by a particular construction great public interests would be endangered or sacrificed, the court ought not to presume that such construction was intended by the makers of the law. And giving such a construction to section 173 of the act of June 30th 1864, and the several exceptions and savings and provisos therein contained, which declared all of the provisions of the preceding act of July 1st 1862 repealed, but the second, fourth, fifth, one hundred and fifteenth and one hundred and nineteenth sections thereof, neither the office of collector or deputy collector constituted by and filled under the former act, nor the bonds given by them under the same and prior to the - passage of the latter act, were terminated, vacated, changed, or altered thereby in any respect, but continued and remained in full force, operation and effect after the passage of the subsequent act. Nor was it necessary for either of them to give a new bond, or new security after the passage of it.</p> <p>But the giving of any bond by the collector of the district, was not made by either act a condition precedent to his authority to exercise the powers or perform the duties of his office. On the contrary, the provision in question was merely directory to the proper officer of the Treasury Department, and it might be required or waived at his discretion. It is solely intended for the security and benefit of the government, and constitutes no part of the contract between him and his deputy collector and sureties, and his not giving such a bond, can in no way affect their responsibility.</p> <p>Concealment in the sense in which the term is understood in courts of equity, means the concealment of those material facts and circumstances which one party to the contract, is under a legal or equitable obligation to make known to the other, and which the latter of right and by law is entitled to have communicated to him ; and in relation to the liability of a surety where there has been a defalcation on the part of his principal, the concealment of the fact by the creditor must be active or industrious, and, therefore, fraudulent in its character. Mere passiveness on the part of the creditor, in not enforcing his remedy, will not, of itself, discharge the surety, nor will a failure or neglect on his part, to give notice to the surety of the principal’s defalcation have that effect. The creditor under such circumstances, is not bound to anticipate inquiry by disclosure, and may refuse at his pleasure, to proceed against the principal alone for the advantage of the surety, although urged by the latter to do so. Nor is there any decision or rule of law which requires the collector in such a case, to discharge a deputy collector immediately on the discovery of his defalcation, or his sureties will be thereby discharged from their liability. Nothing less than fraud, actual or.-constructive, on the part of the collector in such a case, could relieve them from their responsibility.</p> <p>The correctness of the doctrine, that the contract of a surety shouldbe con_ strued strictly, is conceded, if by the term strictly, it is meant that his liability is not to be extended by implication beyond the fair scope of the terms of his contract.</p> <p>There could be no question that the bond of the deputy collector and his sureties, executed in the month of October 1863 in the penal sum of $10,000, covered all the taxes assessed and collected under the act of July 1st 1862, whether they were collected before or after the passage of the act of June 30th 1864 ; but whether it extended to taxes assessed and collected under the provisions of the latter act, is a question not material to be considered, as between the collector and the sureties of the deputy collector, if the sureties have settled the matter of the appropriation of the payments on that and upon the second bond executed on the 13th day of October 1864 in the penal sum of $5000, by their indorsements on the bonds, and have provided by their concurrent agreement between themselves, for the final adjustment of their, respective liabilities upon them.</p> <p>The general rule, however, in regard to the appropriation of payments, if there be several debts due from the debtor to the creditor, is that the 'debtor has a right to direct the application of the payment to which one of them he pleases ; but he must make the appropriation at the time he makes the payment, and cannot do it afterward. If no specific appropriation be made by the debtor at the time of making the payment, then the right of appropriation is devolved upon the creditor, and he may make it as he may think proper, at any time before an account is settled between them, or before action brought, provided such appropriation is not manifestly inequitable in respect to third persons. But if no appropriation be made by either party, then the payment must be applied as the law directs. Where there is a single running account between the parties, in which third persons are not interested, if neither party makes the appropriation, the law will apply the payment to the discharge of the several items of the account in the order of their priority, the first item on the debit side being the item discharged or reduced by the first item on the credit side of it. But where there are intervening equities in favor of third persons, the true doctrine is that the law will apply the payments according to its own notion of the intrinsic justice and equity of the case. And it is now settled by repeated decisions of the Supreme Court'of the United States, that where a public officer has given different bonds at different times and with different sets of sureties in them, his payments must be so appropriated, as to give each of his bonds credit for the money respectively collected, due and paid under them.</p>

This was an action of debt on a note under seal for one hundred dollars with interest, against Clement Lines and John R Sudler who had survived John Willey, by Loxley Willey, the plaintiff.

This was an action of tresspass quare clausum, et domum fregit for breaking and entering the dwelling house of the plaintiff and the asportation of certain goods therefrom belonging to him.

<p>A copy of a book of original entries regularly and fairly kept, but accidentally destroyed, is not admissible in evidence to prove an account of matters properly chargeable in it.</p>

This was an action of assumpsit for copper, brass and yellow metal to the value of $833.07, furnished and supplied by the plaintiff's in the building of an hermaphrodite brig, and charged to her in their books, as “ The Horton & Stearly Brig,” and which was built at Milford by the defendant and owned by him.

Assumpsit with the usual pleas. The action was by Jeremiah Morris against the executor of Elias Morris deceased, for the board and nursing of the latter for a period of five years next preceding his death.

This was an action of ejectment by the plaintiffs, Isaac Betts and his wife, in her right to recover from the defendants, Solomon Deputy and Henry Deputy, the one-undivided third part of a tract of land in Cedar Creek hundred, Sussex County.

This was an action of replevin by H. H. Mears & Son, the plaintiffs, against Waples, the defendant, who was the master of the schooner, Paugussett, for a cargo of Indian corn on board of her, and which was lying in the river at Hew Castle bound with it from Philadelphia to Boston, when the writ was served upon him ; and in which the pleas were 1st, Non cepet in modo et forma. 2nd, Property in himself. 3rd, Property in the firm of M. Hunt & Co. in the City of Baltimore. 4th,…

These were amicable actions included in a case stated, for the recovery of a legacy of five hundred dollars each, bequeathed by Margaret Purdy, deceased, in her last will and testament, to The American Tract Society, and The Presbyterian Committee of Home Missions, upon the following statement of facts, and the questions of law arising upon them.

<p>This was an action of replevin by George 8. Hagany to recover certain household goods and furniture seized in execution, by William Herbert, Sheriff of the County, upon a Ji. fa. on a judgment at the suit of the Farmers Bank against Joseph A. Heston and others, as the property of Heston. The plaintiff was the father-in-law of Heston, and on his removal from Hew Castle in the month of Hovember 1866, had disposed at public sale of his household furniture in general, and had since been residing with his family in the house of the latter, in the city of Wilmington, until the 28th of March following, when he rented and took possession of a house in the city, and removed the goods and furniture in question from the house of Heston into it, taking with him the wife and children of the latter, who had in the meanwhile changed his residence to Hew York. A bill of sale of the goods from Heston to the plaintiff for $686, dated March 12th, 1867, was proved and produced in evidence, and the deposition of Heston was also read, to the effect that he had sold and delivered them to him for a good and valuable consideration, and that it was a fair and bona fide transaction between them, and that he had received the full value for them. It was likewise proved that the plaintiff directed and paid for the removal of the goods to his house ón the 27tli and 28th day of March' 1867, and that on the next day the execution of the Bank was issued against Heston, and the same day came to the hands of the defendant and was levied by him on the third day of April following, upon the goods as the property of Heston, who failed about that time, and being the cashier of the Bank proved a defaulter to it, and upon which the judgment had been entered at the suit of the Bank against him and his sureties.</p>

<p>Assumpsit for money had and received with the usual pleas. The plaintiff was the son of the defendant, and the action was for money had and received to and for his use whilst he was yet a minor. The evidence was that he had been very harshly treated by his father and stepmother in his boyhood and until he was sixteen or seventeen years of age, when he left his house and hired himself out to the Messrs. duPont on the Brandywine for a year or more, receiving his own wages and entirely supporting and clothing himself without any assistance from, or expense to his father, in the meanwhile; and who had declared that he was glad he was gone, and that he should never come home again. Afterward, on the breaking out of the rebellion, he sought and obtained employment as a wagon-master in the army of the United States in Virginia, and remitted from time to time, money to his father, amounting in the aggregate to seven or eight hundred dollars, to pay for a house in the city of Wilmington, which he wished him to buy for him, if he could find one which he thought would suit him when he returned from the war, and which he purchased before his return, paying nine hundred dollars for it, but took the deed for it in his own name, and afterward refused to convey it to him, or to account to him for the money which he had in the meanwhile remitted to him for that purpose, and which the defendant had since sold oil his removal to Philadelphia, where he had invested the proceeds of the sale of it in the purchase of a house there in his own name also.</p>

<p>This was a scire facias on a judgment in this Court at the suit of the Farmers Bank against William Wilson, Barclay Wilson, Josiah Marvel, James Wilson and Silas Reynolds, for the real debt of $670 and costs, confessed on the 2nd day of March, 1852, paid to the Bank by Barclay Wilson in his life time, and assigned by it after his death to Louisa A. Wilson, his administratrix. The pleas were null liel record, payment and release. The assignment of the judgment by the Bank to the plaintiff, was under the hand of the President and the seal of it before two credible witnesses, and the affidavit of the plaintiff of the sum due and that the same was wholly unpaid, had been filed in the Court before the institution of the suit, which was under the provisions of the third, fourth, fifth and sixth sections of chapter sixty-five of the revised statutes, Rev. Code 186, 187, to recover from William Wilson and Silas Reynolds, the surviving defendants in the judgment, the whole amount of the real debt of it, which had been paid by Barclay Wilson alone in his life time, with interest and costs, or such part thereof as his administratrix might be entitled to by way of apportionment and contribution from them under the statute. The evidence for the plaintiff was that Barclay Wilson, Josiah Marvel and Silas Reynolds confessed a judgment to the Bank for the real debt of $800 and costs on the 10th day of October, 1860, in which was included the amount of principal, interest and costs then due and unpaid on the first judgment in question, and it was this latter judgment, principal, interest and costs, which the plaintiff had paid as his administratrix since the death of Barclay Wilson to the Bank, and upon the payment of which the Bank had assigned to her the first mentioned judgment at her instance and request, and which had not been otherwise paid or satisfied than by the confession of the second, or subsequent judgment just mentioned and paid by her as before stated.</p>

Rule to show cause wherefore a judgment entered in this court on the ninth day of July 1867, a,t the suit of the State of Delaware against George H. Welch on his official bond with warrant of attorney to confess judgment thereon annexed, as the collector of public taxes in and for Cedar Creek hundred, for the sum ot nine thousand dollars, and a writ of fieri facias thereupon issued by the order of John L. Coulborn, County Treasurer of Sussex County, returnable to the October…

<p>Pronarr in assumpsit on appeal from a Justice of the Peace. The demand of the plaintiff below was for eighty dollars, balance due, after deducting payments, for work and labor, &c., who being sworn testified that he worked and charged for it by the hour, and that sixty hours’ work constituted a week’s work in his business, and that he kept the account of his work by the hour on a slate, but by the week in the account book produced and sworn to by him as his book of original entries, but that he had not preserved the entries on his slate, as they were effaced when they amounted to sixty hours, and when they were first entered upon his book.</p>