Volume 8 — Delaware Chancery

Bill for Injunction to Restrain the Pilot Commissioners From Enforcing a Penalty.—The complainant was a pilot duly licensed by the defendant, a corporation created under an Act entitled “An Act regulating Pilots and Pilotage of and in the bay and river Delaware,” passed April 5, 1881.

Injunction Bill.—The complainant, being engaged in the business of manufacturing fertilizers within the corporate limits of the City of Wilmington, was notified by the Board of Health of that city that it had declared the works of the complainant to be a nuisance, detrimental to the public health and that the same should be abated within five days.

Petition for Removal.—The respondent, the Joseph Bancroft and Sons Company, was a corporation of the State of Delaware and the complainant was a stock-holder therein.

Petition by trustee for approval of his action and instructions.—The petitioner was trustee for Anna R. Hollingsworth, by appointment of the Chancellor, under the last will and testament of Elijah Hollingsworth, deceased. The testator in and by his said will dated June 27, 1865, and since his decease duly approved and allowed, devised and bequeathed, inter alla, as follows: “Item Fourth—I give and bequeath unto.....................................

Injunction Bill.—The complainants were owners of land in the town of Newark, in New Castle County, who sought to restrain the Council of Newark from taking portions of their land under the power of eminent domain for the purpose of widening a street. The Council, under the town charter, assessed the damages and from that assessment the complainants appealed by filing an' application in writing to Chief Justice Lore for the appointment of freeholders to assess the damages.

Bill for instructions by a trustee.—The bill alleged that Benjamin F. Fooks died February 3, 1895, leaving to survive him a widow, Mary Ida Fooks, one of the respondents, and a child, Sallie Fooks, about the age of eleven years, both of whom were living, having in his lifetime made his will, which was proved before the Register of Wills for Sussex County and recorded in Will Book R, No. 17, folio 163, and in and by which the testator appointed his sister, Elizabeth J.…

Bill in Equity by Legatees against an Executor. The allegations of the bill, which was filed April 24, 1895, were as follows: Daniel Caldwell, late of Wilmington, died November 7, 1891, having first made his last will, which was duly proved and recorded in the office of the Register of Wills for New Castle County in Will Record N, Yol. 2, page 411.

Injunction Bill.—The object of the suit was to restrain the respondents from selling under execution certain machinery and appurtenances of a cotton and woolen factory which had been levied upon by the sheriff as personal property, under executions in favor of the other respondents, who were judgment creditors.

Bill for injunction by a steam railroad company to restrain a street railway from crossing its roadway. The parties were both corporations of this State. The complainant, a steam railroad company, having its tracks laid across Fourth Street in the City of Wilmington, sought to restrain the defendant, a street railway company, from constructing its railway and operating it by electricity, over the track of the complainant at said crossing.

Motion to re-instate a cause pending before a Chancellor ad htem upon the regular docket of the Court. The bill in this cause was filed April 2, 1891, and a preliminary injunction issued against the defendants to restrain them from opening or excavating the streets of the City of Wilmington for the purpose of laying gas pipes. In May, 1891, a rule to show cause why the bill should not be dismissed was discharged and the injunction continued.

Bill for an Injunction by Sureties of a Collector of County Taxes. This was a bill filed in November, 1893, by the complainants, as sureties of John J. Dougherty, who was appointed on February 26th, 1890, Collector of County Taxes for the Northern District of Wilmington Hundred, in New Castle County. Judgment was entered on the said bond on July 8th, 1890.

Bill to Remove a Cloud on a Title.—The complainant, a corporation of the State of Delaware, was the owner of land situate in Wilmington, to which it had taken title under several indentures recited in the bill as follows: (1) Indenture dated May 4, 1872, and recorded in New Castle County in Deed Record W, Vol. 11, page 297, from Matthew J. Draper, and Susan Draper, his wife, to the Penn Loan Association, a corporation of the this State.

Bill by Executor in the Nature of a Bill for Instructions.—The complainant was the executor and trustee under the will of William M. Parkin, deceased. It appeared that the testator had. made a last will and testament, bearing date July 31, 1891, and duly executed at Newport, New Castle County, where the testator then resided.

Bill for an Injunction to restrain the defendant from building a railway across the property of the complainants. The defendant was a street railway company operating a trolley line the construction of which, under its charter, it had been required to commence, within six months, and to complete within two years, from the enactment of the charter, and its construction was completed within the time limited.

Bill for Specific Performance.—The bill sought a decree for the specific performance of a contract for the sale of certain real estate in the City of Wilmington, which the complainant had contracted to sell to the respondent, for which the payment was to be made by the execution of a bond and mortgage for the entire purchase money.

Bill for Injunction by the Surety in the Bond of an Officer of a Bank.—The complainant was surety in two bonds of Peter T. E. Smith, given to the defendant bank, to secure the faithful performance of his duties as paying teller. The first bond was dated Nov. 1, 1879, for $15,000.00 and on February 24, 1893, judgment was entered thereon against the complainant and his co-sureties.

Bill for Specific Performance.—-The facts set forth by the bill were as follows:— Elizabeth Bassett was in her lifetime seized in fee of a lot of land with a brick dwelling house thereon erected, in Wilmington, and being so seized, she made her will devising to her “executor hereinafter named, his heirs and assigns, all my property real and personal, intrust nevertheless to pay •over the net income thereof to my brother Mark S. Bassett, ■during the term of his natural…

Bill by Legatee to Establish a Charge on Lands.— The complainant was the widow of Thomas Rust, who had died in the month of September, 1890, seized and possessed of certain, lands and tenements in Sussex County, and who during his lifetime had duly made and published his last will and testament, which after his death was duly proved and allowed.

Bill by an Executor for Instructions.—This was a bill for instructions filed by the complainant as executor of Nathan H. Clark, deceased, to obtain the construction of his will. The original bill was filed May 3, 1898, and separate answers of several of the respondents had been filed, when the complainant presented a petition for leave to amend his bill without requiring any further answer from the respondents who had already answered.

<p>Where a bill in equity sought to restrain certain individual defendants from laying pipes in the streets of a city, and the defendants • pleaded that they were engaged in laying the pipes solely and only as the officers, agents and employees of a gas company, and claimed no right to lay such pipes otherwise than through the authority and direction of said company, and that the company was not made a defendant, although it ought to have been joined as such, held, that the plea, having been replied to, raised the issue of the existence of the company as a legal corporation, and a necessary party, and such plea was sustained and complainants had leave to amend upon payment of costs.</p> <p>Where a municipal corporation seeks to restrain the officers and agents of a gas compay from laying pipes in the streets of the city, the corporation is a necessary party defendant.</p> <p>Where a plea to a bill in equity for want of proper parties is sustained, it is the settled practice of the Court of Chancery not to dismiss the bill, but to give the complainant leave to amend upon payment of costs, the cause meanwhile being ordered to stand over.</p> <p>The Oxy-Hydrogen Company of Delaware, a gas light company, incorporated April 3, 1873, is an "ncorporation for public improvement” under the Constitution of 1831, which provides that no act of incorporation shall continue in force for more than twenty years without reenactment by the Legislature, “unless it be an incorporation for public improvement;” and, there being no limitation of time expressed in the Act creating it, the charter is perpetual, subject only to the constitutional reservation of the power of revocation to the Legislature.</p> <p>A general Act to revive private acts and extend the time for recording the same, by notice to the Secretary of State and recording a certified copy of the act of incorporation, has no application whatever to the charter of a corporation for public improvement within the meaning of art. II, sec. 17 of the Constitution of 1831.</p> <p>Where a corporation for public improvement is chartered without any limitation of the time of its corporate existence, it is a perpetual charter, and if, as a precautionary measure, because of doubts whether the courts would hold the charter to be perpetual, it is renewed, under a general act authorizing the extension and renewal of private acts by notice to the Secretary of State' and recording the act of incorporation, the question whether the action of the corporation declaring its acceptance of the renewing act, and attempting to do the acts and things necessary to obtain the benefit of its provisions, amount to a surrender or forfeiture of the existing grant of a perpetual charter, cannot be raised collaterally, but only on quo warranta, in the name of the State.</p> <p>The question whether the Act of February 5, 1891, “to revive private acts and extending the time of recording the same,” is unconstitutional so far as it undertook to renew, as a class, the charters of corporations which had expired by limitation of time, not determined because rendered immaterial by reason of the decision that the Oxy-Hydrogen Company was an incorporation for public improvement.</p> <p>As a general rule, the corporate existence of a corporation de facto, cannot be inquired into collaterally, but its right to exist can be determined only by quo warranta proceedings in the name of the State. And where an incorporation for public improvement is created by the Legislature and a regular organization and user follows, there can be no issue raised collaterally with respect to its corporate existence. It is one of the absolutely settled principles of corporation law that in such case, the State alone can proceed to exact a forfeiture of the grant of corporate franchises. The apparent exceptions, as in cases where the aid of courts is ■ invoiced by corporations seeking to condemn land, or obtain certain other special rights, rest upon principles that in no way conflict with the general rule.</p>

Bill for an Injunction to Stay Waste.—The complainant was the son of Edward Burris, by whose will he had been disinherited. He had filed a petition for review of the probate of the will 'and was seeking to remove the proceedings to the Superior Court.

Petition by Trustee for Authority to Take Title to Mortgaged Property, Purchased at Foreclosure Sale.—The petition was filed by Henry W. Baker, trustee appointed by the Chancellor, under the last will of Benjamin F. Fooks, deceased, who died July 8, 1893, and whose will was, after his death, proved and recorded in the office of the Register of Wills for Sussex County in will book R, No. 17, page 163.

Petition for Distribution of Money Paid into Court by an Executor.—Daniel Caldwell died November 7, 1892, having duly made his will, .which after his death was probated and letters testamentary were granted thereon to Daniel Caldwell, his executor. In and by the said will, the testator made a bequest of certain'deposits of money in banks in the city of Boston, the interest to his sisters and the principal to their children.

Bill in Equity.—The bill was filed to obtain a decree striking off and annulling an entry of satisfaction upon the record of a recognizance in the Orphans’ Court, which was alleged to have been signed by mistake. The facts alleged in the bill were as follows:— The complainant as widow of James D. Wilds, whose lands, after his death, had been sold in partition proceedings in the Orphans’.

Bill in Equity to set Aside a Voluntary Settlement.—The complainant had made an assignment to the respondent, as trustee, of securities constituting practically her whole estate, and valued at about eight thousand dollars.

Bill for Specific Performance.—The complainant claimed to be the owner in severalty of certain land in Wilmington, which had been conveyed to him and his wife by deed dated September 24, 1869. The wife, Annie E. Kunz, died September 12, 1892, leaving her husband, the complainant to survive her.

Bill in Equity to Establish a Grade Crossing.—■ The complainant was a railway company organized under the General Corporation Law of this State to construct and operate a line of railway from New Castle to Delaware City. A survey of the route had been filed in the office of the Secretary of State, under section 112 of said law.

Bill for an Injunction Against a Tax Collector.— The bill was filed to restrain the respondent, who was the collector of County taxes for the Northern District of Wilmington, from collecting a county tax from the complainant, either individually or in its fiduciary capacity. The tax which formed the subject of the suit was laid under the provisions of 21 Del. Laws, ch. 25.

Objection to Costs Charged by Register.—The account of the trustees under the will of Henry duPont for the year ending July 31, 1899, was filed, showing a balance carried over from the last account of $1,052,272.62. Income had been received since the last settlement amounting to $93,828.14, making an aggregate of $1,146,100.76. On this amount the Register claimed to be entitled to a charge of $606.00.

Injunction Bill.—-This was a bill filed by the complainants, as land owners, to restrain proceedings for laying out a road, straightening the same and vacating a part of the old road in Lewes and Rehoboth Hundred, Sussex County, under an Act of Assembly passed April 13, 1897, 20 Del. Laws 521, ch. 496.

Bill to Enforce an Equitable Assignment.—The complainant was a national banking association organized under the laws of the United States and carrying on the business of banking at Odessa, in New Castle County.

Injunction Bill.—The complainant was the owner of a farm and tract of land lying on both sides of the public road from Dover to Camden.

Injunction Bill.—The complainant was a street railway company owning and operating its railway by electricity over many miles of streets of the City of Wilmington.