Volume 9 — Delaware Reports

<p>A letting without any lease or agreement in writing of premises for fifty dollars a year for the purpose of erecting a distillery on them by the lessee, will constitute a renting for a year under the statute ; and if the lessee after commencing the erection of the buildingupon the premises, and before the completion of it, fails or becomes insolvent and abandons the work upon it, the lessor will have a lien on the lumber used in the erection of it for the rent then due him, and a right to retain it until the rent is paid, or tendered to him. But if no rent is then due to the lessor, and the lessee in consideration of his failing circumstances or insolvency, and with a view to secure the payment for the lumber to the particular creditors from whom he purchased it for the building, in preference to other creditors, resells it to such creditors, or with the like view simply assigns it by an instrument of writing to them without any price stated, but with a covenant that they were to sell it and out of the sale to pay the debt due to them for it and to hold the surplus for his use and benefit, such resale or assignment will be fraudulent and void under the statutory provisions against preferring creditors. Rev. ' Code 467, sec. 4, And, therefore, such creditors can not on such resale or assignment of it to them, maintain an action against the lessor to recover the value of it on his refusal to allow them to remove it from , the premises.</p>

Assumpsit for work and labor with the usual pleas. The plaintiff was a builder and his account against the deceased entered in a book of original entries regularly kept by him, consisted of debits for work and labor performed by him, beginning in 1846 and terminating on the 3rd of March 1865, amounting in the aggregate to about $800, and in which there were credits of cash entered to the amount of near $200.

<p>A testator devised thus: “I give and devise all my real estate to Elijah Cannon and Joseph Cannon and William Cannon, sons of my sister Elizabeth who was the wife of Isaac Cannon, to be equally divided between them, to be held by them, their heirs and assigns forever, provided that the said Elijah, Joseph and William Cannon shall take care of and suitably provide for their sister, Eliza Wilmer, for and during her natural life.” Elijah Cannon, the first named devisee, was dead when the will was made, and that fact was known to the testator when he made it. There was no other, or residuary devise of his real estate in the will. Held that the devise to him of the one equal third part of it was a void and not a lapsed devise, and did not pass under the will to his brothers, Joseph and William Cannon, the surviving devisees, but descended as intestate real estate to the heirs at law of the testator, and that the charge expressed in it to “take care of and suitably provide for their sister, Eliza Wilmer, for and during her natural life,” and the fact that the testator knew when he made the will, that Elijah Cannon, the devisee first named, was dead, could not have the effect to enlarge the corpus of the estate devised in it to Joseph and William Cannon, the other two devisees named in it.</p> <p>Action of ejectment and case stated upon the following facts, and question 'of law reserved to be heard before all the judges in this court. Heard before Bates, Chancellor, Gilpin, Chief Justice, and Wootten, Houston and Wales, Judges. Levi Cannon, deceased, late of Northwest Fork hundred, Sussex County, by his last will and testament, among other things, devised as follows : “ I give and devise all my real estate to Elijah Cannon and Joseph Cannon and William Cannon,sons of my sister Elizabeth who was the wife of Isaac Cannon, to be equally divided between them, to be held by them, their heirs and assigns forever, provided that the said Elijah, Joseph and William Cannon shall take care of and suitably provide for their sister, Eliza Wilmer, for and during her natural life.” Elijah Cannon, one of the above named devisees,was dead at the time when the will was written and executed, and the fact of his death prior to that time was well known to the testator when he executed it. There was no other, or residuary devise of his real estate, or any part of it in his will, and the question was whether the surviving brothers and devisees, Joseph Cannon and William Cannon, took the. whole of it under the devise in question, or the one equal undivided third part thereof descended, as intestate real estate, to the heirs at law of the testator, of whom the wife of the lessor, David L. Hearn, was one, and in whose right the suit was brought.</p>

<p>The general doctrine of a court of equity is that decreeing of specific performance of a contract is discretionary, especially in those cases in which the party may have adequate compensation at law in the shape of damages for the injury actually sustained; for in such cases the court will not feel itself bound to interfere, but will leave him to pursue his remedy in a court of law. In these cases it is not what a court of equity must do, but rather what'it may justly do under the circumstances.</p> <p>In the case of a contract in respect to the sale of land, it must be in writing according to the statute of frauds ; and it must be a complete written agreement, so complete and perfect, indeed, as to manifest clearly the terms of the contract and the intention of the parties ; and as it is required to be in writing, the writing must speak for itself. Defects cannot be supplied in it. It must be certain in itself, or capable of being reduced to certainty by reference to something else which is thus made a part of it, so that the terms of it, and the intention of the parties can be ascertained with reasonable precision. These rules may, however, be modified in cases of fraud,'or part performance of the contract, when they exist.</p> <p>But when the case stands on the naked agreement alone, and the complainant has not been put in possession of the property, nor has made any improvement, nor expended any money on it, nor has in any respect been led in consequence of the agreement to do anything which has resulted to his detriment, the court will not decree the specific performance of it.</p> <p>And where the stipulation in the agreement is that one half of the purchase money is to be paid by the purchaser on the day the possession of the premises is to be given, and the remainder in instalments of five hundred dollars each,pay able with interest annually,commencing Jan.l, 1868, but without any provision in it for securing such deferred payments, the court will not supply the omission of it, or infer that it was the understanding and intention of the parties that they were to be secured in the usual method in such sales, by bond and mortgage, or decree a specific performance of the agreement, notwithstanding the complainant tenders one half of the purchase money on the day appointed, and his bond and mortgage on the premises for the deferred payments as stipulated, and in his bill submits himself to the order and direction of the court in that particular. The vendor’s equitable lien for the unpaid purchase money, at best, would be but a .very imperfect and inadequate security.</p> <p>The exercise of a sound discretion according to the circumstances of each particular case lies at the very foundation of this extraordinary jurisdiction of specific performance of contracts, and the court, though not exempt from the general rules and prin ciples of equity in granting or withholding relief, uniformly acts with greater freedom than when exercising its ordinary powers.</p>

<p>Ox Writ or Error to the Superior Court for Hew Castle County at the May Term 1868, and Bill of Exceptions filed to the charge of the Court to the jury in the case below. Eor the statement of the case and the charge of the Court to the jury, see H. H. Mears & Son, v. Waples 3 Houst Rep. 581.</p>

The plaintiff had filed at the present term of the court a petition for divorce from the bonds of matrimony with her husband, the defendant, on the ground of cruelty and ill treatment, and now applied for a rule upon him to show cause wherefore the court should not grant alimony for her support pending the suit.

Ejectment for a tract of land in N. Murderkill hundred, Kent County, containing forty six and a half acres. The tract had formerly belonged to Aaron P.. Osmond who with his wife had executed and acknowledged a deed of bargain and sale in fee simple for it, on the 20th day of April 1861, for the consideration mentioned in it of $1000, to their son.

Action of replevin, and special plea that the defendant as the treasurer duly appointed by the commissioners under an order of this court to locate and open certain ditches in New Castle county described in the plea, he levied upon and seized the goods in question and replevied in the' action, to pay taxes assessed and imposed on the plaintiff under the order to defray the expenses of opening the ditches; to which the plaintiff' replied that the order of the court to lay out…

Assumpsit on a promissory note of the defendant for $212.25 at sixty days to the order of William II. Walker, and by him indorsed to the plaintiffs. . Proof of the note and the indorsement was made on behalf of the plaintiffs.

<p>Assumpsit on a promissory note for $636.00 payable one year after date, by John Elliott to the order of the defendant and by him indorsed to the Bank.</p>

<p>In an action on a promissory note by an indorsee against the makers of it with an affidavit of the cause of action and a copy of the note filed with the declaration by the indorsee, but without containing a copy of the indorsement, or any reference to it, the signature of the indorser to it will be taken to be admitted unless it is denied by the affidavit of the defendants when they filed their pleas."</p>

<p>This was a scire facias on a recognizance in the Orphans’ Court in and for Sussex County, to recover for the use of Margaret Cannon her share of the value of the intestate real estate of her mother which had been thereupon assigned in that court to John E. Spicer, the recognizor in it.</p>

Action of trespass on the case with the usual pleas, for corporeal injuries sustained by the plaintiff in consequence of the alleged negligence of the servants of the defendants.

<p>The eviction by a landlord of Ms tenant from the demised premises, may be given in evidence under the plea of nil debet in an action of debt for the rent, although it must be especially pleaded in an action of covenant for it.</p> <p>To constitute an eviction there must be an actual entry and expulsion or exclusion of the tenant by the landlord from the demised premises, or some such intolerable annoyance and interference with the possession of the former by the latter, as to deprive him of the beneficial enjoyment of the demised premises.</p> <p>If after the tenant has left the demised premises, the landlord advertises them for sale or rent, and agrees to rent them to another, which agreement fails, and he takes possession and exercises acts of ownership over them before the expiration of the term for which they were leased to the tenant, it will not be evidence of an eviction of the tenant by him, nor even of a surrender of the demised premises by the tenant to the landlord with their mutual consent, either express or implied.</p> <p>In case of an eviction, however, the tenant is thereby discharged from his liability to pay any rent after it, but the landlord is entitled to rec over the rent up to the time of the eviction. :</p>

<p>After the parties to a contract for the sale of lands have gone so far as to execute the contract by conveyance of title, the transfer of possession and the payment or securing of the purchase money, the Court of Chancery will not unravel the transaction merely to relieve against the hardship, or even great injustice of an unequal bargain. A contract executed will be set aside only where either there has been mistake materially affecting the subject matter of it, and with respect to which the contract cannot be reformed, or where the contract has been procured by fraud, in some of its forms of misrepresentation, circumvention, or undue influence.</p> <p>But misrepresentations made by the vendor to the purchaser of a farm at an exorbitant price as to the value of the crops produced and the cost of improvements made on it the preceding year, at the time of selling it to him, even if they form a material inducement on the part of the purchaser to buy it, will not be ground for a decree rescinding the sale.</p> <p>With reference to the effect of fraudulent misrepresentations by a vendor touching the "property sold, there is a material distinction in a court of equity, whether the bill is for the specific performance of a contract yet unexecuted, or it is a bill to rescind a contract which has been executed. It is in this last class of cases that courts of equity so stringently apply the maxim caveat emptor, a hard, stern maxim, but one founded both on justice and policy.</p> <p>Although for mere inadequacy of consideration without other circumstances, a contract executed will not be rescinded, yet an unconscionable bargain made with a person of such weak understanding as to be incapable of self-protection, though not an idiot or lunatic, raises a presumption that it was procured through some fraud, or undue influence ; and on this ground equity will relieve such a person against a transaction which it would not,if it had been made with one of ordinary capacity. However the court interferes in this class of cases with great caution, and only where the mental weakness to such a degree as disables the party for self protection is clearly made out in the proof.</p> <p>In all the cases in which the question of fraud, undue influence, or incapacity is raised, inadequacy of consideration is a material element; that is, by it proof on these points which otherwise would be doubtful, may be rendered decisive. In a case where the capacity of a party to bargain is left in doubt, the very exorbitancy of the bargain may convince the court that the party must have been unfit to transact business and have become the dupe of some imposition. But to have this effect the inadequacy must be gross, and such as to shock the conscience and confound the judgment of any man of common sense. In all the cases in which inadequacy of price or value, has been treated as a material consideration, it has been of this gross character; and the inequality has not been less than half the value.</p>

This case came up from the Superior Court in and for New Castle County, at the late November term of that Court, on a case stated, as if found by a special verdict of a jury for the opinion of the court, upon the question of law therein stated and reserved and directed to be heard in the Court of Errors and Appeals, and which was heard before all the Judges in this Court. The case stated was as follows : 1. The Plaintiff is the Treasurer of the State of Delaware. 2.

<p>The insolvency of the maker will not dispense with the necessity of giving notice to the indorser of the non-payment of the promissory note by him at its maturity, or of proving enough to dispense with the necessity of giving such notice.</p> <p>If the maker and the payees and indorsers of a promissory note jointly borrow for their mutual benefit and accommodation the money for which it is given, any promise made by the payees and indorsers before, or at the time of its falling due, or after its maturity, that they will pay it, will dispense with the necessity, and will amount to an implied waiver of notice of the non-payment of it by the maker at maturity.</p>

This case was heard at the last, and held under advisement, until the present term of the court. It was an action of indebitatus assumpsitfov money had and received, and on an account stated, with a bill of particulars filed by the plaintiff which stated that the demand was for one hundred dollars deposited in the hands of the defendant on the 30th day of October, 1868.

This was an action of trespass quart dausemfregit by the plaintiff against the defendants for. a trespass-committed upon his premises situated on the western side of Shipley Street between Sixth and Seventh Streets in the City of Wilmington, adjoining premises formerly owned by one of the defendants, Henry S. McComb, and sold and conveyed by him to his mother, Mrs. Martha McComb prior to the commencement of the action, but with an alley between them, and the only question of…

Assumpsit on ,a promissory note for $686, made April 6th 1868, by John L. Elliott to the order of John Tweed payable one year after date, and indorsed by him in blank on the back, with the words “ Credit the Drawer” written across the face of it and signed by him.

Ejectment for a town lot and premises in Dover. The parties, both the real plaintiff and the real defendants, claimed the premises in fee under title derived from one Sweeny Saxon, since deceased, whose title to them was incepted by a deed of bargain and sale dated November 1st 1839.

<p>When copies of two promissory notes and an affidavit of the causes of action by the plaintiff have been filed under the statute, but no judgment is asked for or taken thereon at the first term, another and independent count for a sum of money lent, or for money had and received, may be joined with the counts on the notes in the declaration afterward filed in the suit.</p> <p>Assumpsit with a count for money lent to the amount of $280, and two additional counts on promissory notes made by the defendant to the order of the plaintiff, one of May 8th, 1866, a,t thirty days for $4000, and the other of October 29th, 1867, payable on demand for $2500, with a credit on the former of $3000. Copies of the notes had been duly filed with the affidavit of the plaintiff that they were true copies of the notes sued on in the action and stating the sum demanded on them, and that it was justly and truly due.</p>

<p>Assumpsit on the following agreement between the parties signed by the defendant: I hereby agree to assume the amount of three hundred and seventy-six dollars and forty-three cents, and pay the same to Weldin & Lane, being the amount of Samuel Forrest’s indebtedness to Wise & Weldin, and that I further agree to make over to Weldin & Lane a deed for one of ten houses situated on the north side of Eighth Street between Spruce and Pine Streets in the City of Wilmington, Del. For the said row of ten houses Weldin &■ Lane are to furnish the lumber and to take in part payment for bill of lumber the house which I have above agreed to deed over to them. The value of the above named house to be fifteen hundred dollars, and I will pay to Weldin & Lane the excess of their bill of lumber on said row of houses above the amount for said house which I deed to them. The evidence was that Weldin & Lane had succeeded the late firm of Wise •& Weldin in the lumber business, and .that it was-for the use and benefit of the latter firm the present action was brought by Weldin & Lane, to recover the balance of indebtedness, amounting to $376.43, due from Samuel Forrest to that firm at the time the plaintiffs succeeded them in business, and which had been assigned to the plaintiffs for their benefit at the iustance and request of the defendant, and it was in consideration of their agreement to furnish the lumber for the houses mentioned, and take one of them in part pay for it at the stipulated price of $1500, that the defendant agreed to pay them the $376.43, so assigned to them as before stated. Forrest had contracted with the defendant to do the work'upon the houses, and a number of written orders were given by the defendant on the plaintiffs for lumber during the progress of the work upon them, and that they furnished, all the lumber that had been used in the building of them. The defendant was also to see the workmen paid as they proceeded with the work, but Forrest being also indebted to him, he and all the other workmen abandoned the work upon them before they were completed, because the defendant refused to pay them for it: The plaintiff then closed his testimony.</p>

<p>Part payment of a debt is not a sufficient consideration to support an executory promise to discharge the debtor, and where there is an agreement to release a debt on the part payment of it still remaining in fieri, the defence of want of a valid consideration for it, will be available. But a release under seal complete in its terms, and duly executed, needs no consideration to support it beyond what the seal imports. It will be effectual, even, if it be wholly gratuitous and without the payment of one cent by the debtor.</p> <p>False and fraudulent misrepresentations, or concealment of material facts, unless they appear to have induced the party creditor to compound and release the whole debt upon the payment of a part of it, will not invalidate or avoid an executed release of it. But where the debt consists of a judgment recovered in an action recently instituted on which an execution has been issued and levied to the full amount of it, if. the creditor be guilty of negligence in compromising it without consulting his attorney who was cognizant of the levy, as to the condition and security of the claim, false and fraudulent misrepresentations made by the debtor before the compromise, of his inability to pay the whole debt, and his concealment from the knowledge of the creditor of the fact well known to him, that the execution had been levied on his goods, and that they were sufficient to pay the whole amount of it, will not avoid an executed release of the entire debt made in consideration of the payment of a part of it.</p>

<p>A decree in partition in Chancery is final and conclusive between the par. ties and all claiming under them until appealed from, as to the length of a line of an allotment of the lands and tenements assigned in severalty to one of the parties, as the same is described and designated in the proceeding in partition, notwithstanding there is a discrepancy in respect to the length of it, between the partition and all the title papers pertaining to the premises prior to it; and a party claiming under it. will be thereby concluded and estopped from controverting or calling in question the correctness of it, in an action of trespass quare dausern fregit brought against him by the owner of adjoining premises, although the latter was not a party or privy to the partition.</p>

Assumpsit on a promissory note dated March 20th, 1869, for $600, at six months, made to the order of the plaintiff by Richard M. W. Marley, with the names of the defendant and another written by them across the back of it. The note was admitted and read in evidence, when the counsel for the plaintiff rested his case.

<p>Trespass quare clausem fregit, and plea of justification, all other pleas having been withdrawn. The action was for a trespass for wrongfully entering upon an artificial dam of the plaintiff, erected across Red Clay Creek in New Castle County, and removing from it certain logs with which it was in part constructed. The defendants were the owners of a mill seat and woolen factory on the same stream next above the dam of the plaintiffs, who were the tenants and occupants, of a mill and a mill seat of which their dam was part and parcel, and the plea of justification was that they had increased the height of their dam above its former and rightful elevation by fixing additional logs upon it, and thereby raising and backing the water above it up to the factory of the defendants, so as to materially impede and obstruct the running of it, wherefore they had peaceably entered upon the dam of the plaintiffs, as they had a right- to do in such case, and removed the additional logs from it. They were both old-establisbed mill seats with their respective dams, and had been for much more than twenty years prior to the increase in the height of that of the plaintiffs’ complained of by the defendants.</p>

Assumpsit on a promissory note for $1000 made on the 14th day oí February, 1871, payable in three months, at the Bank of Delaware by Woolston & Co. to the order of the defendant and indorsed by him.

<p>In an action for a reward offered for the return of lost goods, by a party who has performed the prescribed condition of it, by finding and returning them to the owner, he will be entitled to recover it although he did not know at the time he returned them, that any reward had been offered for them.</p> <p>Proharr in assumpsit on appeal from a justice of the peace. It was for a reward of fifty dollars offered by the defendant below for the recovery of- a horse, wagon, harness and buffalo robe lost by him, and believed to have been stolen from his stable and premises, at a late hour of the night of the 6th of January 1871. Between 12 and 1 o’clock the following morning they were found in the public road near the residence of the plaintiff by a son of his, the horse appearing to have been driven very hard, who took them into his father’s premises, unhitched him from the carriage and after currying him well, put him in the stable and fed him. But- neither he nor his. father know the horse or carriage, or to whom they belonged. During the morning the defendant below prepared a written advertisement of the loss, offering the above reward to any one who would restore the property to him, or give any information of where they could be found, and took it to the office of the Delaware Republican for publication, but as it was-too late to be inserted in the paper of that day, it was left for publication in the' next paper on the 9th inst. About seven o’clock in the afternoon of the 7th inst. the plaintiff having learnt to whom the property belonged, and that he was then in Sew Castle making inquiries concerning it, drove the horse and carriage into town and delivered them to him, and when asked by the latter what he should pay him for his trouble, replied that he asked nothing for his trouble or attentions in the matter, but he might, if he felt so inclined, make Ms son a present, as he had found them and had taken all the care and trouble of attending to them. The advertisement appeared in the paper on the 9th inst., which was the first knowledge the plaintiff or his son had that the defendant had designed to offer any reward for the recovery of the property.</p>

<p>If three parties enter into a verbal agreement between themselves, the first being indebted to the second and the second to the third, that the first shall pay the debt of the second to the third party, and that the second shall be discharged fro:» any farther liability for his debt to him, it will not be an agreement to answer for the debt of another within the meaning of the statute of frauds.</p>

<p>Replevin for certain machinery and two boilers to be used in an india-rubber mill by the plaintiff against the defendant, as sheriff, who had laid an attachment on them as the goods of Thomas Scott at the suit of Jonathan Strayhorn, against him, then in the custody and possession of Tatnall, Warner & Co. who were carriers and ware-housemen of goods, with whom the goods had previously been deposited by Scott. The attachment was issued, and was laid in their hands by the Sheriff on the 29th of April 1869. The plaintiff whose residence was in Chester, Penna. and who was the father-in-law of Scott,produced and proved by the witness to it, a receipt of the date of March 1st 1869 from Scott to him of $575, paid him for the machinery and boilers, and although he did not see the money counted, he saw some bank notes laid on the table by the plaintiff, and that Scott was indebted to him at the time. The latter soon after removed to Missouri.</p>

Assumpsit for money had and received with the usual pleas. The receipt of the'money by the defendant was proved, and Cullen then called More who was associated with him as an attorney for the plaintiff in the action, to prove a demand made by him as such upon the defendant for it.

<p>Action of covénant on a policy of insurance and demurrer to the second count in the declaration, which after alleging the substance of the policy of mutual and perpetual insurance in the usual form, and that it was made and sealed with the corporate seal of the company, and signed by the President of it, and was executed and delivered to the plaintiff on the twenty second day of August in the year of our Lord one thousand eight hundred and sixty five, and that the insurance by it was in the sum of three thousand dollars on the following property, to wit, on stock of wool and woolen goods, materials &c. in their two storied brick factory in Smyrna, Del., and making proferí of the same, further alleged that after the making of the policy as aforesaid, and before any loss or damage insured against by virtue of it, had occurred to or befallen the plaintiff, and while the same remained and continued in full force and effect, to wit, on the twenty second day of January in the year of our Lord one thousand eight hundred and sixty eight, the plaintiffs being desirous of terminating the said insurance on the said goods in the said two storied brick factory in Smyrna, Del., and that the same should then cease and terminate, and in lieu thereof the said insurance for three thousand dollars should be transferred to the brick building containing the same, .and that the latter should be substituted therefor, of which the company, the defendants, had notice, and thereupon, while the said policy was in full force and effect, on the day and year last mentioned, by a certain memorandum indorsed or incorporated in, and made a part of the said deed poll or policy of insurance, and subscribed by one Samuel D. Smith, the Secretary of the said company, by the defendants then and there duly authorized in that behalf, it was covenanted and agreed by and between the said plaintiffs and the said corporation, that the said above mentioned insurance for three thousand dollars on stock of wool and woolen goods, was on the day and year last mentioned with the consent of the company, transferred to the brick building containing the same, whereby and by force of the said last mentioned covenant and agreement of the said defendant made and entered into as aforesaid, the said insurance for three thousand dollars for said stock of wool and woolen goods, material &c. in the two story brick factory of the said plaintiffs in Smyrna, Del., ceased and terminated, and in lieu thereof the said insurance for three thousand dollars was transferred to the brick building containing the same, subject to all and singular the stipulations, provisions, conditions, matters and things in the said deed poll or policy of insurance contained and herein before in this count particularly mentioned and set forth, and that by force and effect of the same so made and entered into, and so indorsed upon, incorporated into, and made a part of the said deed poll or policy of insurance, the defendant did then and there promise according to the provisions of the said act of incorporation and by-laws to settle and pay unto the plaintiffs all losses or damages, not exceeding in the whole the sum of three thousand dollars which should or might happen to the said brick building containing the said stock of wool and woolen goods, materials &c. by reason or by means of fire during the time the said policy of insurance should remain in force; the said loss to be estimated &c. The count then proceeded with all the averments, material or usual in such cases, and closed with the allegation of the total destruction of the building by an accidental fire on the 11th day of September 1870, whereby the plaintiffs sustained, damage and loss to the amount of six thousand dollars including the said sum of three thousand dollars so insured in the said brick building and so burnt, consumed and destroyed, and with the breach of the covenant by the refusal of the defendant to pay them.</p> <p>The demurrer was as follows : And the said defendant by &c., comes and defends &c., and says that the said second count of the said declaration and the matter therein contained in manner and form as the same are above stated and set forth, are not sufficient in law for the said plaintiffs to have and maintain their aforesaid action thereof against the said defendant, and it, the said defendant, is not bound by law to answer the same. And this it is ready to verify, wherefore, by reason of the insufficiency of the said second count of the said declaration in this behalf the said defendant prays judgment, and that the said plaintiffs may be barred from having or maintaining their aforesaid action against it.</p> <p>Ancl the said defendant, according to the form of the statute in such case made and provided, states and shows the Court here the following causes of demurrer to the said second count in the said declaration, that is to say; 1st. For that said plaintiffs seek to recover in an action upon the deed poll or policy of insurance in said second count of the declaration mentioned, made, signed, sealed and-delivered on the twenty second day of August in the year of our Lord one thousand eight hundred and sixty-five, and assign as a breach the nonperformance of a supposed covenant in the memorandum indorsed on said deed poll on the twenty-second day of January in the year of our Lord one thousand eight hundred and sixty eight. 2nd. And also for that the action, if any the plaintiff have, should have been brought upon the memorandum indorsed upon the said deed poll, and not upon the said policy of insurance. 3rd. And also for that it is not stated in the said second count of said declaration that the said indorsement in the said second count mentioned as written upon the said deed poll or policy, whereby a certain brick building or factory is alleged to have been insured by the said defendant, in lieu of the said stock of wool, woolen goods in said deed poll or policy in said count mentioned, was signed by the President of the said company and also had the corporate seal of said company affixed thereto. 4th. And' also for that the said plaintiffs in the said second count of the said declaration have declared against the said defendant in covenant upon an indorsement not under seal, in said second count alleged to have been intended, and to be effectual, to vary the terms of the said deed or policy, which is under seal. And also for that the said second count of said declaration is in other respects uncertain, informal and insufficient.</p> <p>The instrument was in the usual printed form of the policies issued by the company with lineal blanks in the head-, ing and conclusion of it for the insertion of names, dates and sums of money with a pen, and also with an intermediate blank space of ample extent for the insertion of the. property insured and the estimated value of it in like manner. The date of its execution, the seal of the company and signatures of the President and Secretary of the company were all at the foot of the policy. Above these in the intermediate blank were the following entries with a pen:</p> <p>On stock of wool and woolen goods, material &e., in their two storied Brick Factory in Smyrna, Del.</p> <p>Amount insured, - $3,000</p> <p>. The factory is insured for $3,000 in The Farmers Mutual.</p> <p>The Machinery is insured for $2,000 in The Kent County Insurance Co.</p> <p>1868, January 22d. The above insurance of $3,000 on stock of wool and woolen goods has this day with the consent of this Company been transferred to the Brick Building containing the same.</p> <p>Saml. D. Smith, Secretary.</p>

Action of debt qui tam under the statute against usury to recover the sum of $5500, forfeited on a loan of that amount by the defendant to one John S. Kersey, at a usurious rate of interest. It appeared by the evidence that Kersey who was much embarrassed and desirous of borrowing $8000, applied in the fall of 1862, to Mr. David T. Rickards to obtain a loan for him to that amount, who soon after made application to Mr.

Certiorari. The judgment in the case was entered on the 11th day of May 1860, on which a ji. fa. was issued returnable, and returned on the 2d day of October following “ levied on the goods of the defendant,” and upon which a venditioni exponas was issued on the 27th day of June 1871, returnable and returned on • the 3d day of October following, with the indorsement upon it, “ returned by order of the plaintiff’s attorney,” and on the following day an alias venditioni…

Assumpsit on a promissory note for $71, made February 15th 1869, by Charles Washington to the order of the defendant, payable nine months after date, at the Delaware City National Bank, and by him indorsed before maturity to the plaintiff for the accommodation of the maker, who had delivered it to the plaintiff in part payment for goods before sold and delivered to him by the plaintiff, and who in a few days after the delivery of it to him, had altered it without the…

<p>Even a latent ambiguity in the terms of description employed in a devise cannot be explained by paroi evidence of the declarations of the testator made after the execution of his will, as to which of the two tracts of land mentioned in it, he intended respectively to devise to each of the devisees . named in it.</p>

<p>This case came up on appeal from the decree of the Chancellor sitting in and for Hew Castle County, upon cross bills and answers filed by the parties respectively against each other, and was heard before Gilpin, C. J., Wootten, Houston and Wales, Associate Judges.</p> <p>The bill of Plunkett, the complainant below in the first case, alleged that on the 10th day of August 1864, he and Dillon, the defendant below in it, verbally agreed that they would buy on their joint account from William Ferris and Philip Garrett, a tract of land in the city of Wilmington, on the terms and conditions, and for the objects and purposes agreed on between themselves as stated and set forth in a certain paper writing signed and delivered by him to the complainant on that day, after the purchase had been made, and the same had been conveyed by Ferris and Garrett, to Dillon in accordance with their verbal agreement in relation to it, which was as follows: “ Wilmington, Delaware, August, A. D., 1864. This is to certify and show that P. Plunkett, of the city of Wilmington, Hew Castle County and State of Delaware, and I, Patrick Dillon of the same city and State, purchased from Ferris and Garrett three hundred and seventy-five feet of land fronting on Madison Street from Second to Third streets, and in depth ninety-seven feet, Philip Plunkett paying for the same the sum of three thousand dollars, for which I received the deed for the same. But I acknowledge and agree for myself and my heirs, that said Plunkett is to be paid back his three thousand dollars with interest, and receive as his share of the profits, if any there shall be, two-thirds, and I one-third, and if a loss should be sustained, we are to bear it in the said proportion. In consideration of my receiving the deed, I executed this day a judgment bond for three thousand dollars for which I hold myself accountable until the property shall be sold, when the proceeds of such sale shall go to pay off said bond. Witness my hand the day and year written,” and signed “ Patrick Dillon.” That the complainant, as stated therein, paid the whole of the said three thousand dollars to Ferris and Garrett, as the consideration and purchase money for the land mentioned and described in the foregoing written acknowledgment, and received as security therefor the judgment bond of Dillon for three thousand dollars, to be paid out of the proceeds of the property when sold, as also therein mentioned, bearing interest from the 10th day of August 1864, and upon which he entered judgment against him on the 10th day of November 1869, in the Superior Court in and for that county, and which he alleged remained still unpaid.</p> <p>That Dillon was a master carpenter and had been engaged for many years in business transactions with him for their mutual profit, the complainant furnishing the means and capital, and he doing the active work in them, and in which mutual confidence had hitherto subsisted between them; his part of the business consisting in buying lots and building houses on them, with complainant’s aid, who was generally paid out of the proceeds of them When sold. That it was thus carried on solely for his benefit, as the complainant had often put himself to much inconvenience to accommodate him, but in no case had taken or received from him more than the rate of six per cent, per annum for the loan or use of money in their transactions. That the particular transaction in question, was for their mutual benefit, and as he was a practical operator, and had greater facilities for the disposal of such property, than the complainant, it was agreed between them, as a matter of convenience in the disposal of the lots, that the deed for the property should be made to him alone, and that as soon as it was so taken, he entered into possession of it, and proceeded to divide it into building lots, some of which he sold without building on them, and the others he built on and sold with the houses on them, and thus disposed of most of the tract, but retained one or more lots for his own use, and was then residing on a portion of it. The bill then specified the several building lots which had been so sold by him in the meantime, their dimensions in front and depth on the streets mentioned, also the dates of the deeds, the names of the purchasers, and the price paid for each, amounting in number to seventeen in all, and in the aggregate to the sum of twenty-nine thousand nine hundred and fifty-one dollars received by him from the sale of them. That the front of the tract on Madison street was three hundred and seventy-five feet and eight inches, or eight inches more than is stated in the written acknowledgment and in the deed from Ferris and Garrett for it, and which with a depth of ninety-seven feet was the actual quantity of land that was conveyed to him, to be disposed of and accounted for under the agreement between them and the acknowledgment signed by him, either as co-partnership, or as trust property. And that the sales showed that there was a portion of the tract remaining in his hands undisposed of, fronting thirty-two feet on Madison and twenty-seven on Second street, and that lots on the former were worth at the time they were sold by him, from -twelve to twenty dollars per front foot, and those on the latter with a depth of from eighty to ninety-two feet, were worth from twenty-five to forty dollars per front foot.</p> <p>That besides the amount due the complainant on the judgment bond, and from the sales of the lots, and for so much of the tract as he had appropriated to his own use as before mentioned, the complainant had advanced to him on several occasions by way of loan, sums of money upon due bills, amounting in the aggregate of nine hundred and fifty four dollars. He had also furnished him with stone for houses he was building on Reed Street in that city to the value of twenty eight dollars; and if the settlement between them herein after stated, should be rejected or opened, he was also indebted to him in the further sum of three hundred and forty one dollars and seventy seven cents with interest from January 1st 1865, a balance of indebtedness on a book account contracted by him and James Plunkett, trading as Plunkett and Dillon, but whom he had survived, and for which he was, therefore, liable. Also in the further sum of ten dollars on a due bill made by him November 21st 1868, and transferred to the complainant for value; and which due bills first mentioned were surrendered and delivered up to him by the complainant June 28th 1869, on the occasion of an account taken and a settlement had between them as hereinafter set forth. On the day last mentioned they met to settle and adjust their accounts and claims against each other, and on stating them it was found he was indebted to him in a balance of three hundred and thirty four dollars and seventeen cents, for which amount he gave the complainant his promissory note of that date, payable to his order on demand, which he still holds, and which the defendant neglects and refuses to pay, although it has been demanded of him. The original draft of the settlement containing all the items of account embraced in it, was annexed to the bill.</p> <p>But that since that time he had annoyed and harassed him by a series of actions in the Superior Court for New Castle County, arising out of the said transactions, and threatens him with others touching the same. The actions referred to in that court were Patrick Dillon v. Philip Plunkett, Nos. 49, 68, 143 to May Term 1870, of which Ho. 68 had been discontinued, but the renewal of it was threatened by him. The others, however, were still pending, and might be called up at the coming term of that court. Ho. 49 was in assumpsit on the common counts for goods sold and delivered, work and' labor, money lent and advanced, paid, laid out and expended, and account stated, with a bill of particulars filed, a copy of which was annexed, and all of which arose out of and were connected with their business transactions before first stated, and were embraced in their settlement of June 28th 1869; whilst he wholly omits to give the complainant credit therein for either his share of the proceeds of the sale of the lots for which the judgment bond was given, or the amount of the due bills surrendered and given up to him on the settlement. While Ho. 143 was an action for damages claimed of the complainant for his failure to satisfy the judgment in that court upon the said bond for three thousand dollars herein before mentioned.</p> <p>But the complainant did not object to opening the settlement of accounts before mentioned, as he believes several mistakes were admitted into it against him, which if corrected, would show that there then was, and still is, due him a greater sum than that for which the promissory note was taken, and alleged the following errors in it : The omission to make any allowance to him on account of the two-thirds of the lot sold to one of the purchasers before named, Philip Hearn, (unimproved) for fourteen hundred and fifty dollars, and of the land . unsold and retained by, but not accounted for by Dillon, with a front of about thirty-two feet on Madison street, estimated to be worth twenty dollars per foot,- and also in omitting the bill against him as surviving partner of the late firm of Plunkett & Dillon, for the balance due of three hundred and forty-one dollars and seventy-seven cents with interest. He had also failed to render any account of, or give the complainant credit for any portion of the proceeds of the lots fronting on Second street sold to the purchasers Morley & G-ause for twenty-five hundred dollars as before mentioned; so that none of the several matters herein last referred to, were considered or made a part of that settlement. The prayer was for an account and for a discovery in relation to the matters last alleged, if denied, and that the defendant might be decreed to pay him the amount which should be found to be due him on a just, full and true account of the several portions of the tract of land so bought and sold as aforesaid, and for an injunction to restrain the suits pending in the Superior Court, and the institution of other &c.</p> <p>The answer of Dillon was as follows; That he denies that at the time and in the manner alleged by the complainant in his said bill of complaint, he agreed with complainant to buy on joint account the tract of land referred to in said bill of complaint, or that the said tract of land was purchased on joint account by the complainant and this defendant under any agreement either verbal or written; and this defendant further denies that he did at the time alleged in said bill of complaint or at any other time, sign any such paper writing, as is set forth in the first paragraph of the said bill of complaint, knowing the contents thereof, or any other agreement with complainant or any paper writing relating to the said tract of land, or to any dealings between him and the complainant on the said tenth day of August A. D. 1864, except a bond hereinafter mentioned; but this defendant avers that, if he did sign any paper writing of the tenor alleged in the said bill of complaint, his signature was obtained thereto fraudulently and upon false representations by complainant of and concerning the contents thereof.</p> <p>And this defendant, further answering, saith that he did on the first day of August A. D. 1864, of his own option and without the knowledge of complainant, apply to William Bright as agent of Messrs. Ferris and Garrett to purchase two lots of the tract of land aforesaid, that Mr. Bright declined to sell less than four lots thereof; that defendant then mentioned the subject to the complainant and proposed to him to take two lots of the four with the understanding that this defendant, when ready to build on them, would buy them of complainant or that complainant could sell them at his own option; that complainant replied that he had then in hand money not in use and if this defendant could make any thing by buying the whole tract, he, complainant, would lend this defendant the money; ‘that upon the second day of August A. D. 1864, this defendant without speaking further upon the subject to complainant, went to Mr. Bright and purchased of him four lots of said tract of land paying him one hundred dollars on account, out of this defendant’s own money, and at the same time requesting Mr. Bright not to prepare the deed until the defendant could decide whether he would take the whole tract; that this defendant then offered Mr. Bright seven dollars per foot for the whole tract and this offer being declined this defendant subsequently offered Mr. Bright eight dollars per foot and bought the property at that price, having no consultation or conversation with complainant on the subject; that the deed was prepared and this defendant requested Mr. Bright to go with him to the store of complainant on the said tenth day of August A. D. 1864; that complainant then lent to defendant the sum of three thousand dollars, taking as a security therefor defendant’s bond which sum this defendant then paid to Mr. Bright (both the latter and this defendant inadvertently forgetting the one hundred dollars already paid by this defendant, which, however, Mr. Bright afterward repaid to this defendant and which this defendant then handed to complainant to be credited to this defendant on his said bond;) that at the time of the said payment of three thousand dollars to Mr. Bright by this defendant, Mr. Bright delivered to this defendant the deed of Messrs. Ferris and Garrett for the property and this defendant entered into possession of the same.</p> <p>And this defendant, further answering, saith that he did agree to repay? to complainant the loan aforesaid of three thousand dollars with six per cent, interest thereon, out of the proceeds of the sale of said tract of land when sold, but this defendant utterly denies that he did ever at any time enter into any agreement with complainant either verbally or in writing for the joint purchase of said tract of land, but this defendant avers that a short time subsequent to the said purchase and the execution of the said bond, complainant approached him and suggested to him that in consideration of the many advantages to accrue to this defendant from holding said tract of land, he, the complainant was entitled to and should receive a greater interest than the six per centum secured to him by law upon the bond taken to secure said loan, and that then and there complainant proposed that this defendant should allow complainant two-thirds of the profits to accrue from the sale of three hundred and fifteen feet eight inches, front of said tract of land purchased as aforesaid by this defendant, (thereby excepting a sixty feet lot on the corner of Second and Madison Streets, which this defendant did not then propose to sell) which proposition of complainant this defendant neither acquiesced in nor declined.</p> <p>And this defendant, further answering, denies that on the occasion just referred to nor on any other occasion did complainant ever make to him any proposition to bear any portion either of expenses or losses connected with the purchase or improvement of the said land, but avers that, on the contrary, this defendant has himself incurred and paid all expenses connected with the ownership of.the said land including even the cost of the deed and the stamp affixed thereto and the taxes assessed upon the land from year to year.</p> <p>And this defendant, further answering, saith that judgment was entered upon his said bond on the day and in the book and page mentioned in the said bill of complaint, but avers that at the time when complainant offered to lend him the said sum of three thousand dollars, this defendant objected that “ it would do him no good,” as he would be unable to sell the land out in lots, with a bond and mortgage against the property, but that complainant then assured this defendant that there “ should be nothing entered up against the property ” so that this defendant could sell the' same without incumbrance, and this defendant avers that the said judgment was entered in violation of the express agreement and promise of complainant as aforesaid that it should not be done. And this defendant further answering, saith that at the time of the entering of said judgment there was nothing due to complainant on account of the principal sum or interest secured by the same, but that on the contrary complainant was then and still is indebted to this defendant for a large sum of money.</p> <p>And this defendant, further answering, saith that he is and has been for the past six or seven years a master carpenter and builder, but denies that he has been for many years engaged in business transactions with complainant for their mutual benefit and profit, or that complainant has furnished capital and this defendant done the active work in any joint enterprises, as in said bill of complaint is alleged, but this defendant says that any monies furnished to him by complainant during the said period have been as in the instance hereinbefore referred to, by way of loans which this defendant has in all such cases repaid to complainant with interest.</p> <p>And this defendant, further answering, saith that the tract of land which he purchased as aforesaid with the sum borrowed from complainant and for securing which this defendant gave his bond as aforesaid, has been disposed of as follows, to wit:; 1.—This defendant did build upon, for his own use, sixty feet on the corner of Second and Madison streets, but subsequently he sold a lot being part of the same 18 feet by 70 feet to Patrick Lally and conveyed the same to him with brick house thereon erected, by deed dated May 2, 1870, for $3000; also by deed dated November 2, 1865,a lot being part of the same 16 feet front by 70 feet deep with brick House thereon erected, to Mary S. Woodward for $1300; also by deed dated Hovember 2,1865, a lot being part of the same 16 ft. front "by 70 feet deep with brick house thereon .erected to Elizabeth Stroud for $1300. Thus there remained in the possession of this defendant á strip ten feet on the front disposed of as hereinafter mentioned. 2.—This defendant sold and conveyed to William Dougherty by deed dated August 18, 1864, a lot 97 feet deep by sixteen feet front on Madison street, immediately adjoining on the North the lot last aforesaid for the sum of $192, or twelve dollars per foot, which said sum of $192 this defendant avers that he immediately paid over to complainant to be entered as a credit in favor of this defendant on his said bond for $3000. And this defendant further saith that he hath since the date of said last mentioned sale repurchased the said lot of sixteen feet front from the said William Dougherty and paid him therefor and has disposed of the same as hereinafter mentioned. 3.—This defendant sold and conveyed to Thomas Curley by deed dated Aug. 18, 1864, a lot 32 feet front on Madison street by 97 feet deep at the distance of 64 feet on the North from the last mentioned lot, for the sum of $384, or twelve dollars per foot, which sum of $384 this defendant avers that he received and immediately paid over to "complainant to be entered as a credit on his said bond for $3000. 4.—To the strip of land fronting 27 feet on Second street and back of the said first mentioned lots sold this defendant added three feet and eight inches front, from other land belonging to this defendant, and running the same back, to make the full depth of eighty feet from Second street, built thereon two brick houses, and sold the same as follows : one with lot 80 feet deep by 15 feet 4 inches front, conveyed by deed dated April 15th, 1870, to Springer, Morley & Cause, for the sum of $2500; and the other with lot of the same dimensions conveyed by deed dated the same day to Bauduy Simmons for the sum of $2500. 5.—Upon 166 feet front on Madison street in two-lots not before mentioned, together with 10 feet retained as aforesaid, and the 16 feet repurchased from William Dougherty as aforesaid making in all one hundred and ninety-two feet front, part of which was 97 feet, and part 70 feet deep, this defendantin the year 1869,erected(12)twelve houses under a contract withBauduy Simmons, Geo. S. Capelle, Jno. H. Bennett, Lewis Curlett and the complainant, each of whom agreed to purchase one of said houses, and a separate agreement with the Steam Brick Company, who agreed to purchase two of said houses; this defendant was to build the houses according to the contract, and to furnish all necessary labor and materials, and to sell them to the parties aforesaid at the price of $1900, when the lot was 97 feet deep, and at $1800, when the lot was 70 feet deep.</p> <p>After he had, at his own expense, graded the land and made estimates for the buildings, he fixed the value of the laud at $12 per foot, and noted the same in a book and showed it with all his other estimates in regard to the cost of said houses to complainant, who concurred in the valuation, and agreed to purchase one house as aforesaid upon said estimates. True copies of the said contract and estimates this defendant has annexed hereto, and craves leave to produce the originals thereof at the hearing of this cause. And after the said houses were finished he conveyed seven of them to the several parties who had contracted to purchase them as aforesaid or to their assigns, to wit; one to John J. Dougherty as assignee of the Steam Brick Company by deed dated April 12th, 1869, with lot 97 feet by 16 feet, credited to this defendant by the said Company for $1900, though sold by the Company to Dougherty at $1800, the consideration mentioned in the deed; one to Bauduy Simmons by deed dated April 5th, 1869, with lot 97 feet by 16 feet for $1900; one to the complainant by deed dated July 13th, 1869, with lot 97 ft. by 16 ft. for $1900; one to William Silver, Jr. as assignee of Lewis Curlett by deed dated January 19th, 1869, with lot 97 feet by 16 feet and with back building in addition to specifications of contract, credited to this defendant at $2500 by Curlett, and sold to Silvers by him for $2800; one to John H. Bennett, by deed dated January, 19th, 1869, with lot 97 feet by 16 feet and with same addition as last aforesaid for $2500; one to the Steam Brick Company by deed dated Sept. 8th, A. D. 1868, with lot 97 feet by 16 feet for $1900; and one to John T. Tazewell as assignee of George S. Capelle, by deed dated January 16th, 1869, with lot 70 feet by 16 feet for $1800. Of the remaining five houses four were sold by the defendant to sundry persons as follows; one by deed dated August 7th, 1869, to John W. Lynch, with lot 97 feet by 16 feet, for $1750; one by deed dated March 9th, 1869, to James Cook with lot 97 feet by 16 feet for $1775 ; one by deed dated March 4th, 1869, to Ann McCruddin with lot 70 feet by 16 feet, for $1700; and one by deed dated July 13th, 1869, to William Marshall with lot 70 feet by 16 feet for 1600. The one house remaining undisposed of was sold by this defendant, but owiug to the judgment hereinafter mentioned, the purchaser declined to accept the title, and the same is now held by this defendant.</p> <p>6.—The remainder of said tract of land being one hundred and one feet eight inches front on Madison Street by ninety-seven feet deep, situated upon the corner of Third and Madison Streets was sold by this defendant to Philip C. Hearn, for $1450. In payment therefor, this defendant took from said P. C. Hearn a mortgage for the full amount of $1450 purchase money and immediately assigned and transferred the said mortgage to the complainant, and the same was accepted by him to be a credit upon this defendant’s said bond for $3000. Subsequently, the said Hearn permitted the said lot to be sold by the city, in default of payment of an assessment for grading and paving. And this defendant avers that complainant was then a member of the city council, and the chairman of the committee on streets thereof, that this lot was sold as aforesaid by the city under the direction of complainant, as such chairman of said committee; that he, the complainant well knowing that the mortgage assigned to him, as aforesaid, by this defendant, was a prior lien upon the said property, permitted it to be sold to Jacob Herdman and James deaden for the sum of $225, being the amount necessary to pay the city’s claim for curbing and paving; that immediately after said sale, complainant caused to be issued a writ of levari facias under which the said property was sold, and owing to the adverse claim set up by Herdman and Cleaden, was bid in by complainant for $1000, he thereby acquiring a clear title to the property at that price, with the benefit of curbing and paving done at the expense of the said Herdman and Cleaden; that complainant sold the same lot to John McCloskey for $2500, taking his bond and a mortgage on another property valued at $4500, that afterward McCloskey becoming dissatisfied through the representations of Herdman and Cleaden, complainant took the property back and continues to hold it up to the present time, being satisfied, and having so expressed himself, that the lot is now worth $10 per foot more than McCloskey had paid him for it. And as this defendant further avers, complainant has been offered and has refused $30 per foot for a part of said lot.</p> <p>And he further saith that the actual depth of Madison street from Second to Third street is, as this defendant believes, 375 feet and 8 inches, and this defendant did purchase from Messrs. Ferris and Garrett and go into possession of the whole of this front with a depth of 97 feet. And that the value of the said lots at the time of the sale thereof has been hereinbefore fully stated, in the prices for which the vacant land was sold, and the estimated value which the defendant placed upon the 166 feet before referred to before building on the same, and which estimate was submitted to complainant and at which complainant agreed to purchase the said house and lot sold to him as aforesaid by this defendant.</p> <p>And he further saith that he had at sundry times borrowed from complainant sums of money and given his due bills therefor, but avers that all of said due bills were for sums of money to be used in the business of this defendant and in transactions entirely foreign to' the subject matter of this cause, and that the same were paid and delivered up to this defendant long prior to the transactians referred to in the said bill of complaint, except one due bill for $50, which this defendant admits was due at the time of the alleged settlement- of the twenty eighth day of June 1869, and was then delivered up to defendant; and this defendant also admits his legal obligation under the due bill for $10 referred to by complainant in his said bill of complaint, but denies that it was ever delivered up to defendant: and this defendant further answering admits that complainant was entitled to a charge of $28 for stone as in his said bill of complaint is alleged, but denies that any thing is due from him to complainant for or on account of any of the said amounts, because he avers that complainant is largely indebted to him upon a correct statement of their mutual accounts, and this defendant further answering, denies that he is indebted to complainant in any such amount as is in said bill of complaint alleged to be due as a balance of indebtedness on book account contracted by this defendant and James Plunkett. And this defendant also denies that complainant ever had any book account against this defendant as a member of any such firm as is in said bill of complaint alleged, or for any other amount.</p> <p>And he further denies that any settlement of their mutual accounts was had as alleged in said bill of complaint, but avers that by invitation of complainant he went to the office of the complainant at or about the time alleged, that complainant had already prepared and lying on his table a paper similar to the one annexed to the said bill of complaint but which this defendant is unable to admit was the same, not having then or since examined it, and the interview not lasting for more than fifteen or twenty minutes, that complainant at once informed this defendant that there was due from him to complainant the sum of $334.17 and demanded a due bill for that amount, which this defendant gave without further investigation, reposing in complainant undue confidence : that afterward on making some calculations as to his accounts with complainant, this defendant discovered that complainant was indebted to him in a large balance and has frequently demanded of complainant a settlement of the same which complainant has repeatedly refused. And this defendant denies that there ever was a balance struck between himself and complainant and a settlement made, and also denies that the paper writing marked A and annexed to the said bill of complaint is a correct statement of the accounts of this defendant with complainant, but avers that the same is false and fraudulent in many essential particulars, because when this defendant by his friends examined the said account on the books of complainant and pointed out the errors therein, complainant persistently refused to rectify the same, although erroneous, as this defendant avers, in the following particulars, to wit: 1.—An error against this defendant of $450 in the omission to credit defendant with the Hearn mortgage hereinbefore mentioned, amounting to $1450, which was assigned to complainant as a payment on bond, in lieu of which this defendant is credited with $1000, for which sum complainant bought in the lot on which the said mortgage was given, as aforesaid. And this defendant avers, that upon his own statement he should be credited with the said sum of $1450, the amount of the mortgage assigned, and if the partnership alleged in said bill of complaint were admitted or established, then this defendant should be credited with one third of the profits accrued to complainant upon the said lot, at complainants own valuation of it, viz.; $3500. 2.—An error in not only failing to credit this defendant with T. Curley’s note given to this defendant for money due and owing to him and transferred to complainant, and since paid by the maker to complainant, amounting to $615.67, but, also, in that, complaint has actually entered a charge in said statement against this defendant of the amount of the said note, (charging it in the said statement simply as “ note,” whereas upon complainant’s own books the defendant avers that this item is charged “ Curley’s note”) together with interest thereon, amounting to $55.45, making this an error against this defendant in the final balance, by reason of this item alone, of $1286.75. 3.—An error in crediting this defendant with the price of the house on Madison street, built for complainant under contract as aforesaid, credited at $1800 in lieu of $1900, as it should be, according to the terms of said contract and as also appears by the complainant’s deed for the same as recited in the said bill of complaint; malting this an error against this defendant of $100. 4.—An error in failing to credit this defendant with sundry items, viz.: trunking Reed Street Row,$5.25, ¿trunking, $6.25 ; city tax on Second Street house, $7.19; also water rent $5.; also lumber from B. Simmons, $16.05, Gurley’s gable end collected by complainant $76 ; Lang’s interest collected by complainant, $21; cash paid George O’Neil $3 ; making in all a further credit due defendant, not included in said statement,, of $139.74. .5.—An error in making the following charge,viz ; To 166 feet land sold for 12 houses at $16 per foot, $2656,” being a charge against this defendant for the value of his own land in and to which complainant had neither right nor title; which land had been fully paid for by this defendant, and with the $3000 borrowed from complainant on his bond as aforesaid, which sum of $3000, was previously charged against this defendant in the said statement, the said charge of $2656 being, as this defendant avers, false, fraudulent and utterly unwarranted since even were the partnership alleged by complainant admittted, complainant could not charge this defendant with two-thirds of the profit on the sale of the said 166 feet, the first cost of the whole of the said tract of land having been previously charged by complainant in the amount of defendant’s said bond; deducting from this, amount of $2656, a credit of one-third of the alleged profits on said sale, $473.33, there remains $2182.67 charged in error against this defendant by reason of this item alone. 6—An error in charging the amount of this defendant’s due bill for $334.17 fraudulently obtained as aforesaid without consideration upon the said false statement of account. 7.—Difference of interest accounts between the said statements of complainant and defendant’s bill of particulars amounting in all to $508.54 in favor of this defendant.</p> <p>And he farther admits that he has commenced certain actions against the complainant as the same are enumerated in the complainant’s said bill of complaint. One of said suits, to wit: So. 49, To May Term 1870, is for the recovery of a balance due to this defendant from complainant for money paid to the complainant without consideration and held by him to the use of this defendant fully set forth in the bill of particulars, a copy of which is annexed to complainant’s bill of complaint, including the items of error last before recited, and that it is one of the suits the prosecution of which is restrained by the preliminary injunction issued in this cause.</p> <p>That he utterly denies that there was any settlement of accounts as therein alleged, and .that at the time of said alleged settlement there was any balance, due from him to complainant, but avers that a large balance, to wit, the sum of $5,001.87 was then and still is due with interest from February 1, 1870, from complainant to this defendant; And this defendant denies that any due bills were delivered up to the time of said alleged settlement except the said due bill for $50 aforesaid ; that complainant had any interest in any sales of lands made by this defendant, of the tract of land herein referred to, or any other land sold by him, or that any agreement or agreements have ever been made between him and complainant as by complainant in said bill of complaint are alleged to have been made.</p> <p>And he further saith, that the action hTo. 143 to said term is a suit for damages for the refusal by complainant to enter satisfaction upon the record of the judgment fraudulently entered by complainant as aforesaid upon the said bond of this defendant, the prosecution of which action is also restrained by the preliminary injunction issued in this cause. And this defendant avers that the whole amount due upon said bond for principal and interest, has been fully paid, and was so paid long before said judgment was entered, and that complainant caused said judgment to be entered with the vindictive desire to injure said defendant, he, the complainant, saying at the time, and also when requested to enter satisfaction as aforesaid, to defendant and to other persons that “ he (complainant), would sell him out, that is the way he would enter satisfaction,” “ that he would sell the pot from under his bed, and the kettle from off his stove,” “ that he would make him bite the dust,” and other like expressions. And this defendant further avers, that by reason of the entering of said judgment against him by complainant, his business, which consisted largely of buying real estate, building on it, and selling again, was entirely stopped; that he was greatly embarrassed financially ; that he was obliged to assign property, amounting in value to about $30,000 to certain persons, to sell the same at public sale for the benefit of his creditors; and that in some cases his friends were compelled to give bonds of indemnity against this judgment to the purchasers of his real estate, and in others, purchasers declined to take title from him, owing to the complainant’s refusal to satisfy said liens; and his conduct in the premises, by means and reason of which this defendant sustained damages to the amount of about $10,000. And he further answering, saith, that he has already fully answered the statements contained in the bill of complaint, and here again denies that complainant is entitled to any credits arising from the sale of the lands mentioned or any other lands of this defendant, or any such balance of $341.77 as is alleged in said bill of complaint, to be due from this defendant as a surviving partner of any such firm as is therein alleged, or of any other firm.</p> <p>The cross bill filed by Billon against Plunkett, after referring to the bill of Plunkett filed against him, and the prayer of it and his answer to it, stated that he was advised that he was entitled to relief in that court in connection with the subject matter of said bill and answer, which he could not obtain by a decree in that cause, and thereupon he filed that, his cross bill in order that the claims of the respective parties in it, might be fully heard and considered, and a decree be made in accordance with their respective rights in the premises.</p> <p>That on the 10th day of August 1864, desiring to purchase of Messrs. Ferris & Garrett, of said city and State, a tract of land situate on the easterly side of Madison Street, between Second and Third streets in said city, he procured from the defendant, Plunkett, a loan of three thousand dollars, for which he executed and delivered to him on the same day his bond with warrant of attorney for the confession of judgment annexed thereto. And that immediately after procuring the money from him, he completed the purchase of the tract of land from William Bright, the agent of Ferris & Garrett, and paid him for the same $2,900 out of the said sum of $3,000 whichhehad borrowed of the defendant as aforesaid, having at the time of his agreement to purchase it, paid out of other funds of his own, $100 to Bright on account, when he received a deed for the land and entered into possession of it. And that he proceeded at once to improve and build upon it, and to sell lots from it, improved and unimproved, and from time to time paid over to the defendant sums of money received by him as well from the sale of the said lots as from other sources, intending such payments to be entered by the defendant as credits upon his bond which he held as security for the loan of the three thousand dollars aforesaid, and supposing that the said payments were so credited by him. That on or about the 28th day of June 1868, he went by the invitation of the defendant to bis office, where he already had prepared and lying on his table, a paper writing, or account, which the defendant presented to him as a statement of the mutual accounts between them, and informed him that there was due from him to the defendant, the sum of $334.17, and demanded a due bill for that amount, which he, reposing undue confidence in the defendant, gave him wit'___d further investigation. He was unable to state from memory the contents of the paper or account, not having then or since examined it, the interview not lasting longer than fifteen or twenty minutes, but subsequently on making some calculations as to his accounts with him, he discovered that instead of owing him that amount, the defendant was, and still is indebted to him in a large balance, and that he has frequently demanded of him a settlement of it, which he had’repeatedly refused, and still refuses to make.</p> <p>But that notwithstanding he had paid him the sum of $3,000, the full amount of the principal of the sum lent to him by the defendant, with the interest upon it, and also through mistake a large amount of money over and above what was actually due him, for which over-payment and for other items hereafter mentioned,the defendant was then and is still indebted to him, he had on the 10th day of November 1869, caused judgment to be entered in the Superior Court for New Castle County, upon the said bond for $3,000, being No. 626 to May Term 1869, which he was advised was fraudulently entered by him, the same having been fully paid as before stated, long before the said judgment was so entered, and that the defendant had caused the said judgment to be entered with the vindictive desire to injure him, saying at that time, and also afterward when he was requested to enter satisfaction as aforesaid, that he would sell him out, and that was the way he would enter satisfaction of it. And that by reason of the entering of it against him, his business which consisted largely of buying real estate, building on it, and selling again, was entirely stopped, and that he became so much embarrassed financially in consequence of it, that he was obliged to assign property to the amount of about $30,000 in value, to certain persons, to sell the same at public sale for the benefit of his creditors, and that in some cases his friends were compelled to give bonds of indemnity against the judgment to purchasers of his real estate, whilst in others purchasers declined to take title from him, owing to the defendant’s refusal to satisfy said lien, and his conduct in the premises; in consequence of which he had sustained damages to the amount of $10,000. And that he had often demanded from the defendant a settlement of the balance due him for the large sums so over-paid, and the entry of satisfaction upon the record of the judgment, but he had always refused to do either, and, therefore, he instituted in the said Superior Court, three suits against the defendant, being Nos. 49, 68, and 143 to May .Term 1870, of which No. 68 was afterward discontinued, and that No. 49 is an action of assumpsit on the common counts for the recovery of the large balance due as aforesaid, and N"o. 143 for the recovery of damages for his failure to satisfy the said judgment.</p> <p>Ilis cross bill next referred to the original bill of complaint filed by the defendant in the case, and to the prayer of the same for an injunction to restrain the said suits, and the preliminary injunction granted upon it, and to his answer thereto, and asked that they might be made, together with all the papers filed, orders and entries of record made in the cause, a part of his present bill of complaint. It then proceeded to enumerate and state the errors contained, as it alleged, in the original account stated in the defendant’s bill of complaint upon which he claimed that their mutual accounts were settled on the day and year in that respect mentioned, in the same mode and manner and in the same words and figures in which they are stated and set forth in his answer to the original bill of complaint. It also further alleged that since the execution and delivery of the judgment bond to the defendant, he had made sundry payments and become entitled to sundry credits on account of the principal and interest of it, amounting on the 2d day of October 1867, to $3,373.14, while the amount then due to the defendant for principal and interest thereon, was $3,318.00, leaving a balance overpaid by him to the defendant at that time of $56.14. But owing to his ignorance at the time, of the state and condition of their accounts, arising from his misplaced confidence in the defendant, and consequent omission to inspect them, and also to the misrepresentations of the defendant concerning the same, he paid over to him on the 28th day of June 1869, the further sum of $600, by an order in his favor on James Bradford which was duly accepted and paid by him to the defendant. That in' addition to the over-payments made by him as before stated, the defendant became further indebted to him for work and labor performed and materials furnished in building and repairing houses, to wit: amount due on contract for houses built in part for the defendant on Reed Street, $1,125.00. Book account against him as per bill rendered and approved and credited by him on the account before referred to as follows : “ May 3, 1869, By bill rendered for carpenter’s work, $420.85.” The price of the house and lot sold him, $1,900. Bill of lumber paid for him to B. Simmons & Co., $16.05. The defendant had also collected and received for his use sundry sums of money from different persons, to wit: May 3, 1869, from Thomas Curley amount due for gable end of house Bo. 618 Second Street, $76. Interest due from James Lang collected by him June 28, 1869 and not paid or credited to him by the defendant, $21. The defendant was also indebted to him in the following amounts paid by him for the defendant, to wit: March 1, 1869, trunking half of Reed Street row $5.25, and -J trunking $6.25. City tax on Second Street houses of the defendant, $7.19 and water rent $5.00. Amount paid for him June 28, 1869, to George O’Biel, $3. The aggregate of which added to the balance due to him from the defendant as before mentioned, on October 2, 1867, to wit: $56.14 made the total amount claimed by him from the defendant $4,241.73,, with interest on the respective amounts from their, dates, and all of which was fully stated in detail in the bill of particulars filed with the narr in the said suit, No. 49 to May Term 1870, of the said Superior Court. The prayer was for an account, and that the defendant might be decreed to pay him the amount which should be found to be due, together with his costs in both suits; and that they should be heard together as one cause and one decree had in both according to the rights of the parties respectively, and that the judgment No. 646 to May Term 1869 of the said Superior Court, might be decreed to have been fraudulently entered and, therefore, invalid, and that the defendant and all persons claiming under him, their agents and attorneys might be perpetually enjoined from collecting it by execution or other process, and for further relief, &c.</p> <p>The answer of the defendant admitted the assignment to him of the Hearn mortgage to secure a bond of $1,450 and interest to accrue thereon, but alleged that it was taken as a credit on general account, for such amount (as understood by him, and he believed, also by the complainant,) as he should be able to collect thereon, but that he had collected upon it on execution process only $1,000, and had, therefore, credited him with that amount from it : and claimed that having learned that the complainant had charged other parties for houses in the same row and of the same kind, $1,800, or less, and the house bought by him being then unfinished, the complainant verbally agreed at the time of the settlement of their accounts undertaken on the 28th day of June 1869, to take $1,800 for it, and for that reason he had credited him with that sum, instead of $1,900, as the price to be paid for it. It further admitted an error in charging him in his account filed with his original bill of complaint, with $2,656 as the proceeds of 166 feet of land at $16 per foot, instead of with two-thirds of the profits on the sale thereof, which would be $885.33¿, with interest from such time as it should have been credited to him by the complainant; but it at the same time claimed that there was another error in it against him inasmuch as he had failed to charge the complainant with two-thirds of the profits on the sale of the Hearn lot, which if estimated at $1,000 would entitle him to a further credit of $143.33, with interest, or if at $1,450 it would entitle him to a further credit of $437.86, with interest. It also admitted that he was due the complainant on the Heed Street houses the sum of $1,100, and the collection from James Lang for account of complainant of $21, but denied all other matters alleged in the bill, and not expressly admitted in it.</p> <p>The evidence in the case and the decree ordered to be entered in the court below, will sufficiently appear in the following opinion read by the Chancellor in this court.</p>

J. and Wootten, Houston and Wales, Associate Judges, on a bill filed by John W. Warren, executor of the last will and testament of Elijah M. Morris deceased, against the appellants, the widow and heirs at law of the deceased, stating that he was ready and willing to administer and distribute the residue of the testator’s estate, but was in great doubt as to his duty under his last will and testament and the rights and interests of the parties claiming under it, and praying…

<p>Rule to show cause wherefore a sale of land on a writ of levari facias by the sheriff of Kew Castle county and returned to this term of the court in the case above stated, should not be set aside on the grounds of the gross inadequacy of the price for which it sold, that due and proper notices of it were not posted in the several hundreds of the county as required by law, and that he did not give the defendant in the writ notice of it in time to afford him a sufficient opportunity to select and indicate the two newspapers in which it should be published.</p> <p>The evidence was that the land sold for only fifty-three dollars per acre, whilst it was assessed in the public rates for taxation at seventy-five dollars per acre, and was reasonably worth one hundred dollars per acre, and was one of the best farms in the county.</p>

<p>Any contract, or consent pursuant to which a tenant enters into, or continues in possession of lands, tenements, or hereditaments under an agreement to pay rent, is a demise. But when he enters into the possession of a farm under an agreement merely to till it on shares, and not under an agreement to pay rent for it, it will not be a demise, and he will be but a cropper on shares. And when the agreement is not in (writing, it will be a question of fact for the jury to decide from the evidence whether it was to pay rent, or otherwise. If, however, after entering into possession under an agreement to pay rent, notwithstanding the landlord retains the possession of the mansion, or any other part of the farm for his own use and occupation, he is expelled or prohibited by the act of the landlord from tilling and carrying it on pursuant to the agreement, against his will and without his consent, it will amount to an eviction for which an action of trespass guare clausemfregit will lie, and in which exemplary damages may he recovered, if the circumstances attending it are sufficiently aggravated in their character to warrant or require it.</p>

<p>Trespass quare clausem fregit. The locus in quo was a private lane and way between the premises of the parties on which they respectively resided in Camden, and extending from the main street of the town back to the rear of both of their lots, where each had a stable and pound opening into it, and which had the appearance of being old buildings as early as the year 1814. According to the evidence, the lane had always been without any gate, or bars on Main street, until the plaintiff proceeded to erect a gate across it and fastened it with a lock and chain. Previous to that time the lane had always been used in common by the parties to the action and by all who had owned or occupied their respective premises before them ; and there was no other way in which the defendant or those who had owned or occupied the premises now owned by him, could have got to or from- the stable on them with horses or cattle. In the spring of 1871 the defendant removed the gate by breaking the lock and chain and cutting it down, and for it this action was brought by the plaintiff, who proved by one witness that in the year 1822 the property of the defendant was owned by one Vincent Offley, and that of the plaintiff by Doctor James Fisher, both since deceased, and that the former told him in that year, that the latter had been so kind as to give him permission to use the lane for hauling hay to his stable, provided he would remove and set in the fence on his side of it, so as to give it sufficient width for that purpose, and that he did soon afterward take up his pales and reset his fence further in upon his premises, which made it about three feet wider than it was before that time. ' The only plea was justification and right of way in the lane.</p>

Pronarr, in assumpsit on appeal from a justice of the peace for one hundred dollars deposited by Provost in the hands of Pearce with the usual pleas, and also a special plea that the matters now in controversy in this suit, had been before adjudged and finally determined by the judgment of this Court, in a certain cause heretofore depending in it, wherein the same parties were respectively plaintiff and defendant, as by the record and proceedings of this Court in suit No.…

<p>This was an action of assumpsit on a promissory note for $560.33, made on the 16th of March 1872, by Lewis & Son to the order of James Webb, and by him indorsed to James deaden, payable-thirty days after date; and the only defence was usury.</p> <p>After proof of the note and notice of protest for non payment at maturity upon the defendant by the counsel for the plaintiff, James Lewis, one of the firm of Lewis & Son, the makers of it, was called as a witness by the counsel for the defendant to prove the character and usury of it.</p>

<p>The plaintiff, and the defendant which was an incorporated company, were the respective owners of two lots adjoining each other, situated on the south side of Fourth between Walnut and Poplar Streets, in the City of Wilmington. A former owner of the lot belonging to the plaintiff by the name of Elias England, had erected more than twenty years prior to the injury complained of in the suit, a brick dwelling house immediately on the division line of the two lots in question, with a cellar wall six feet in depth on that line of it in front on Fourth Street, but built below the surface of the ground and near the bottom of it with an irregular bench of cobble stone sloping into the ground of the adjoining lot as much as eighteen inches at its base, though not of uniform thickness through the whole length of it. The person, however, who then owned the latter lot and who had but a short time before the injury complained of in the suit, sold it to the defendant, had no knowledge of that fact until after the sale of it to the defendant early in the year of 1871. Soon after the purchase of it the defendant through the agency and supervision of a building committee of the company, commenced the erection of a large brick warehouse adjoining the plaintiff’s dwelling house, but of much greater depth and height than her house. In digging the cellar of it,” the excavation was made with a descending slope from the front towards the back part of the lot, to facilitate the carting of the earth from it, but extending in depth to the base or foundation of the plaintiff’s cellar wall along the back portion of it; in which condition it was left by an entire suspension of the work upon it for five or six weeks, and during the time it was filled with water from the frequent rains which fell, and the earth at that depth along the base of the plaintiff’s wall consisting of a spongy and springy sand or loan, which when wet became a kind of quicksand, it penetrated the wall of cobble stones which had been laid without mortar and the earth beneath them and flooded her cellar which had before. always been dry, some times to the height of as much as three feet. It was also proved that a load of bricks had in the mean while been dropped and left lying across the gutter in Fourth Street on the side next to her house, by the servants of the defendants which obstructed the vent of the water down it in heavy rains, and caused it to flow over the pavement from the street into it at times. But after the resumption of the work upon the cellar of the defendant and the excavation had been completed down to the level of the base of the plaintiff’s wall, and it was found to project with a slope as before stated into the grounds and lot of the defendant, as it was the desire and direction of the latter to have theirs dug at least eighteen inches deeper, the increased depth of it was commenced with an offset and a bench of eighteen inches from the base of the plaintiff’s wall in the narrowest parts of it, but diminishing in other and the broadest parts of it to a thickness of not more than ten inches, owing to the irregular width and crooked outline of the slope of the plaintiff’s wall; and that the workmen of the defendant pursuant to the directions and instructions of the building committee to do the whole work well and carefully, so as not to endanger or injure the plaintiff’s property,' which they thus knew to be defectively built and constructed originally, proceeded with care and caution to lay and build the foundation of. their wall with bricks in successive trenches dug at the distances before stated and in lengths not exceeding eight feet and two feet in depth, with a gradual increase in the thickness of their cellar wall as it ascended and was built over and upon the slope and ledge of the plaintiff’s, and from the top of that slope or ledge making the wall of the plaintiff as originally constructed, the party or partition wall of the two houses; but without underpinning the foundation of it, or adopting any other method or precaution to support or secure it, although it was proved to be the practice of builders in that city when a cellar of greater depth is dug adjoining another, unless the building to which it belongs is next to a street or alley, to underpin the latter. From the manner in which the cobble stones had been laid in the foundation of the cellar wall of the plaintiff, it appeared that they had been put there to remedy, as far as it was possible to do so by such means, the inherent defect of the natural formation on which the foundation of the plaintiff’s wall originally rested. It was also proved that before the work had been resumed upon the defendant’s cellar, the walls of the plaintiff’s dwelling had begun to settle and crack, which increased as the work on the warehouse of the defendant proceeded, until by the time it was completed, the front and western walls of it had settled and cracked so much that some of the doors of it could not be opened or closed, while in some places the cracks were not only wide enough to admit both light and air, but could be distinctly seen through from either the inside or the outside of the house. The workmen of the defendant had in building the warehouse to remove the tin from a portion of the eaves and roof of the plaintiff’s house by turning it back, but which they had omitted to replace in as good a condition as before, in consequence of which it had since leaked in that part of it. The action was on the case and on the ground of the alleged negligence of the defendant in building their warehouse in such a careless, unskillful and improper manner as to occasion the injuries complained of to the dwelling house of the plaintiff.</p>

This case came into the Superior Court of the State of Delaware in and for Hew Castle County on appeals from two judgments of a justice of the peace, and from that into this court on a case stated, with questions of law reserved in them for hearing and decision before all the Judges in the Court of Errors and Appeals, and was heard at this term before Bates, Chancellor, Gilpin, Chief Justice, and Wootten, Houston and Wales, Associate Judges. The case stated was as follows.

<p>Certiorari. The judgment in the case had been entered on a note under seal with a warrant to any j ustice of the peace to enter judgment up'on it, but the note was by its terms made payable at a future day, and before that day judgment was entered generally upon it without any stay of execution, and before that day also execution had been issued upon it. One exception was that no stay of execution was granted or mentioned in the entry of the judgment although it appeared from it that the note was not payable until after the entry of it; and another exception was to the execution merely, because it had been issued before the debt or judgment either was properly payable.</p>

<p>Buie to show cause wherefore the sale by the Sheriff on a writ of levari facias on a mortgage returned at this term and heard before Wootten and Wales, Associate Judges, Gilpin, Chief Justice, .absent. The affidavit on which it had been granted stated that the defendant resided out of the State, and that a printed copy of the advertisement of the sale was left for his tenant with his wife at their dwelling house on the premises sold, by the deputy of the Sheriff, but of which she failed to inform him, until several days afterward, and in less than ten days before the day of sale. But on the hearing it was proved that both the defendant and the tenant were on the premises, not, however, in view of the dwelling house, or of the Sheriff’s deputy, at the time when he left the copy of the advertisement in the hands of the tenant’s wife at the house.1 The objecti'on was that in such a case the notice should have been served on the tenant personally, at least, ten days before the day of sale, and that the leaving of a copy of the advertisement for him in the hands of his wife at the dwelling house.on the premises was not sufficient.</p>

Action of covenant, and affidavit of the plaintiff with a copy of the cause of action filed as follows : “ This agreement made and entered into the ninth day of August A. D. 1867, between Lewis Sehabinger, his heirs or assigns, of the county of Kent and State of Delaware, and John W.

<p>In a several action against one of two makers of a negotiable promissory note,judgment refused at the first term on the copy of the cause of action and affidavit filed by the plaintiff, without an affidavit of defence by the defendant.</p> <p>Quare—Does the statutory provision that “an obligation, or written contract, of several persons, shall be joint and several, unless otherwise expressed,” apply to a negotiable promissory note made by two persons ?</p>

<p>This was an action on the case founded on the recent statute in relation to injuries or death occasioned by unlawful violence or negligence, the second section of which provides that “ whenever death shall he occasioned by unlawful violence or negligence, and no suit be brought by the party injured to recover damages during his or her life, the widow of any such deceased person, or if there be no widow, the personal representatives may maintain an action and recover damages for the death thus occasioned. Rev. Code Amend. 664. John Flanagan was the father of Henry Flanagan, the deceased, who was a boy between seven and eight years of age at the time of his death in the mouth of July 1872, which was accidentally occasioned by his falling into a hole full of water and of the depth of seven feet where his body was found, in Eleventh Street in the city of Wilmington; and the plaintiff, his father, as his administrator, had brought the action to recover damages for it under the statute, and on the ground alleged in the declaration that the city authorities had caused the hole to be dug or made in the street, and had neglected to place any guard or fender around it, or to adopt any other means or precaution to prevent such an accident. The evidence in the case, however, was that there had been a stone quarry in that locality belonging to the owner of the land, prior to the opening of that part of Eleventh street by the city authorities, and upon which no work of grading had been done by their agents, or by their direction, except to have the centre or roadway of the street leveled in a partial degree, so as to fit it for the use of carts and wagons, with a good and safe cart way of ten or twelve feet around the hole in question. But as no houses had up to that time been built on that portion of the street, the owners of the land continued to work the quarry and blast and remove rock from it, until a few weeks previous to the accident, and until a cavity eighteen feet in length and fifteen feet in breadth, and with a depth varying from seven to ten feet had been made in it with a steep though irregular and rocky descent, particularly along the margin of it where it curved and extended nearly, if not quite into the middle of the street, and which in a season of much rain, would fill with water up to the level of it. The accident was witnessed by no one, but the deceased with a brother and another boy, each a few years older than him, had been on that day following the horse and cart of his father who was hauling stone out Eleventh street over the Brandywine bridge, and riding back with him in the empty cart on fits return trips, and the last that was seen of him by either of them, until after his death, was at a pump on their way out toward the hole, where the three had stopped for a few moments to get water, and the other two having obtained a drink before him, left him to get his, and immediately hurried on after the horse and cart which by that time had passed around and beyond the hole in question, without either of them, or his father who was walking along side of the cart, looking back for him, the inference was that in following after them and in his haste to catch up with them, he attempted when he reached it to run through the water along the edge of it, and fell into it and was drowned. His father, however, took no notice of his failure to rejoin them after that on their way out beyond the Brandywine, and made no inquiry of them about him, until they had reached the hole on their return trip, when in reply to his question “ where he was,” they told him they left him at the pump on their last trip out, and they supposed he had got tired of following the horse and cart, and had gone back home from there. But learning several hours afterward and after the close of his day’s labor, on his return home, that he was not there, and had not been since that time, he commenced a search for him, and before night succeeded in finding and recovering his dead body from the bottom of the pond or hole not far from the cart way around the border of it, in a depth of eight feet of water. He was the youngest child of his father, and left two brothers and three sisters to survive him.</p>

<p>Wilmington, Del., April 26, 1871.</p> <p>Mn. Abram R. Woolston,</p> <p>725.31</p> <p>The first exception under the rule in the case of France, in substance is, that he was at the time a painter and glazier, and that the work done and materials furnished and charged for by him, are not within the purview or provisions of the statute, as they were not performed or furnished “ in or for the erection, alteration, or repair of any house, building, or structure, in pursuance of any contract express or implied, with the owner of such house, building or structure, or with any contractor who had contracted for the erection, alteration, or repair of the same, and for the furnishing of the whole or any part of the materials therefor,” and which exception we consider unsound and unwarranted by the true and proper meaning and construction of the act, because the term erection employed in the statute contemplates and includes the entire construction of any such house, building, or structure, and whatever is contributed either in labor or materials in the making or finishing of any part of them, is within the purview and intention of the statute.</p> <p>The next and last exception which we shall proceed to notice is to this effect: that the claimant in the first case was the contractor in the special and particular sense in which that word is used in the statute, with Abram R Woolston who was the owner of the houses and lots on which they were erected, to do the part of the work charged for upon them, and to furnish the materials therefor,- by estimate and express agreement, and who performed and executed the same by employing workmen and laborers and procuring the materials from other persons for the purpose ; and yet, notwithstanding he was such contractor, he did not file the statement within thirty _days after the expiration of sixty days from the completion of the houses, or of the work so contracted for and done by him, but filed the same within sixty days from the completion of them; and further, that neither the fact, nor the time of the completion of them is alleged, or appears in the statement or proceeding. No exception whatever is taken to the manifest, but immaterial mistake committed in the first branch of the statement which alleges Woolston, the owner of the houses, instead of France, -the claimant, to be the contractor in the case; but waiving that, it rectifies for the occasion whatever error may be contained in it, by correctly stating and assuming in the exception we are now considering, that at the time when the statement of the claim was filed, France, the plaintiff, was the claimant and contractor, and Woolston, the defendant, was the owner of the houses in the case. And it is true, that neither the fact, nor the time of the completion of the bouses is .any where stated in it, or otherwise appears on the face of the proceeding; but it is stated in it that his performance of the contract was commenced on the 4th day of October 1870 and was completed on the 21st day of April 1871, and it appears from the record that the statement of the claim was filed on the 3rd day of May following, and it is, therefore, evident that this was done before the expiration of sixty days from the completion of the houses, or the completion of the claimant’s contract in relation to the part he was to do upon them. But the evident design and object of the statute in providing, as it has done in the first section, that no such contractor shall file his claim in less than sixty, nor in more than ninety days after “the completion of such building, house, or structure so contracted for by him,” either in whole or in part, (as is clearly implied from the preceding portion of the context) whilst all other contractors and creditors, such as material-men, mechanics and laborers, specially provided for under it, are required to file their respective claims within sixty days after “the completion of the work and labor performed, or from the last delivery of materials furnished by them respectively” for such purpose upon the credit of such building or structure, was, in the first place, to prevent and delay the filing of any claim by such a contractor, until all the other class or classes of creditors and contractors referred to, had in the meanwhile and within the time therein first limited and prescribed, filed their respective claims, that is to say, within sixty days after the entire completion of the building or structure, so that the owner may thus have the means and the opportunity of protecting himself against any duplication of such special judgments and liens against him and his property for one and the same demand substantially; and which might, and doubtless would have happened without this provision, when such a contractor had recovered a judgment for all the work done and materials furnished -under his contract, and other creditors of the classes we have before mentioned, had also recovered judgments for the amounts respectively due them for work done or materials furnished by them under the same contract; and in the second place, to limit and fix a prescribed period beyond which no claim of this kind should be filed in any case on the ground of the general good and public policy. The latter object, we think, was not in fact violated or contravened by filing it too soon, or before the time limited in the act for that purpose, whilst in regard to the former, it is enough to say that the owner of the houses in this case, took no exception to the filing of the statement on that, or any other ground; on the contrary, after having been personally and duly served with process, in the action, he made no defence whatever, but voluntarily suffered judgment to go against him by default, and it does not appear that, either he or any other creditor under the statute, has ever taken any exception to it, and neither he, nor they take any to it now. But the defendant himself is now certainly concluded and estopped from making any objection to it by his default, and the judgment thereupon entered; and-can the plaintiff in the rule by virtue of the mortgage of the premises executed to him on the 16th day of November 1870, one month and twelve days after the specific and retrospective lien of this judgment had attached to them, upon any principle of law applicable to the case, possibly stand on any better ground in regard to it ? As he never was. in possession of them under the mortgage, he never was in any sense the legal owner of them, and as between him and the mortgagor of them, he was, like the claimant, but a creditor of the owner, with a real security and a special lien upon them from the respective dates before mentioned. Doe d. Hall and Wife et al. v. Tunnéll, 1 Houst. 321. And he had at no time any right as such mortgagee, either at common law, or under the statute, to object to the filing of the claim, or to the proceedings upon it, or to prevent the entry of the judgment upon it; for the act expressly provides that the scire facias to be issued in such case, shall be made known to the defendant in it, and to all such persons as may hold or occupy the said buildings or structures, and directs that it shall be served on the defendant therein named, if he can be found in the county, and a copy thereof shall also be left with some person residing in the building, if occupied as a place of residence, and that judgment by default may be entered upon motion by the .plaintiff on the last day of the term to which said process is returnable, notwithstanding appearance by the defendant, unless said defendant shall have previously filed in the cause an affidavit that he verily believes there is a legal defence to the whole or part of such cause of action, and setting forth the nature and character of the same, &c. But as it was the direct intent and object of the statute to secure to such a claimant and contractor a special and preferred lien and judgment for work and labor so performed, and materials so furnished by him, in the erection and completion of any house, building, or structure, under such a contract with the owner of it, which should have priority from the day the work upon it and the furnishing of materials for it was commenced, over all liens and incumbrances subsequently obtained against him or the property, whether general or special in their character; and as it is perfectly evident that the mere filing of the statement of the claim prematurely, as was done in this case, could not in the contemplation of the statute affect, impair, or prejudice the rights or interests of any one but the owner of the houses and the defendant in the suit, there is certainly no just or substantial reason why any other person should be allowed to object to it, or to take any advantage of it whatever. And as in this case the error of prematurely filing it evidently proceeded from a misapprehension of the meaning of the statute in respect to that matter, and in no way affects the justice, validity, or correctness of the claim itself, which the defendants by declining to oppose or object to by filing an affidavit of defence to it upon that or any other ground, must be recognized to have acknowledged and confessed, and for the want of which the judgment in question was properly entered against him in strict accordance with the provision of the statute and the practice of the Court in such cases, we do not consider that it now furnishes sufficient ground for disturbing in any manner the judgment then entered upon it. And this rule must therefore be discharged, the plaintiff in it to pay the costs in three months, or attachment.</p>

Ejectment and case stated for forty-five acres of land in Cedar Creek Hundred, Sussex County, which were devised in the last will and testament of Wilson Shockley, deceased, as follows : Item. “I give and devise to my son John W. Shockley a certain piece of timbered land and cleared land (describing the metes and bounds of it particularly) I give and devise all the above mentioned land to my son John W. Shockley, his heirs and assigns forever, upon condition that he pays to…

<p>A writ of foreign attachments had been issued at the suit of The Pennsylvania Steel Company and also of seven other attaching creditors, against The Hew Jersey Southern Railroad Company, to which the Sheriff had returned, attached goods and chattels as perinventory and appraisement annexed, to wit: One passenger coach and ten box cars, one engine and tender and twenty three platform cars, and by an order of Hon. John W. Houston, A. J., upon the petition of The Pennsylvania Steel Company and the petition of Walton & Brothers, the property attached was sold by sheriff for $19,757.00.</p> <p>The affidavit of Moses W. Serat taken before a commissioner of the State to take depositions in the city of Hew' York was presented to the court to the following effect, that he resided in Long Branch in Hew Jersey and was the president of The Hew Jersey Southern Railroad Company, a corporation existing under the laws of that State, and the defendants in the above stated writs of foreign attachment, and that he was a director and also the Superintendent of The Long Branch and Sea Shore Railroad Company, a corporation also existing under the laws of the State of New Jersey; and that he held those several positions at the time when the attachments were laid as aforesaid, and that to his personal knowledge and belief no single article of the property attached and sold by the sheriff of Kent county in the State of Delaware under the said writs of attachment and the order of a Judge of the Superior Court as aforesaid, belonged to, or was owned by the said New Jersey Southern Railroad Company, the said defendants, at the time of the attachments laid as aforesaid. That the said New Jersey Southern Railroad Company to secure certain of its bondholders, had on the fourteenth day of September in the year of our Lord one thousand eight hundred and sixty nine by a mortgage duly made, executed, acknowledged and recorded in New Jersey in those counties thereof through which the said railroad is constructed, had granted, bargained and sold, transferred, enfeoffed, aliened, assigned, set over, released, conveyed and confirmed unto Benjamin Williamson of the city of Elizabeth in the State of New Jersey, and George B. Upton of the city of Boston, Massachusetts, in addition to the railway, railroad bridges, depot grounds, station houses &c. &c., all the vessels, locomotives, tenders, cars and other rolling stock and equipments &c., of The New Jersey Southern Railroad in and for such trusts as were in the said mortgage mentioned, specially to secure the payment of what are called the first mortgage bonds of said railroad. That in and by the said mortgage the said passenger coach and the said ten box cars were transferred and conveyed to the said trustees under the said mortgage, and were thereby their property for the purposes of the said trust under the said mortgage at the time of their attachment and sale as aforesaid. That also upon the seventh day of April 1873,the said New Jersey Southern Railroad Company by another mortgage duly mad e, executed and acknowledged with the view to the consolidation of their road with certain other railroads in the States of New Jersey, Delaware and Maryland, and which mortgage is recorded in the Recorder’s office of the State of Delaware in and for Kent county, did grant, bargain, sell, transfer, assign, convey, and confirm unto John R. Galland and Walled B. Palmer, of the city of New York, the said attached property, to wit, the passenger coach and ten box cars with other property, both real and personal, in, upon and for such trusts as are in the said mortgage specified and mentioned, as in and by the said mortgage so remaining of record appears : and that all the writs of foreign attachment in 'the heading of this affidavit mentioned were issued at a date subsequent to the said 7th day of April 1873, the date of the said mortgage. That the engine and twenty-three platform cars comprising the residue of the property attached as aforesaid were not the property of the said defendants, the said New Jersey Southern Railroad Company, at the time of the attachments laid, or since, but that the engine was the property of the said Long Branch and Sea Shore Railroad Company at the time of the attachment and sale of it, whilst the twenty-three platform cars were then the property of one Jay Gould, of the city of New York, although they had originally belonged to The Vineland Railway, a railroad existing under the laws of the State of New Jersey, from which he had prior to that time purchased them, and being interested in the said Long Branch and Sea Shore Railroad Company, he permitted and allowed it to have and use the said platform cars, and that it afterward loaned the said engine and twenty-three platform cars to the said New Jersey Southern Railroad Company to be used temporarily by it in its work upon the Smyrna and Delaware Bay Railroad in the county of Kent and State of Delaware1; and that it was under that bailment the said engine and twenty-three platform cars were within the limits and jurisdiction of the State of Delaware when they were so attached and sold as aforesaid. That deponent had been informed and believed that notice was given to the said sheriff that the said goods and chattels, to wit, the said passenger coach, box cars and platform cars which he had attached as the property of the said defendants in the said attachments, the said Yew Jersey Southern Railroad Company, were not their property prior to the sale thereof by him.</p>

<p>Action of replevin for a carriage worth $250. The defendant was a constable and had taken it in execution on a judgment at the suit of the firm of W. B. & H. G-ause against one Dominic O’Connor, individually, as the property of him and the plaintiff as partners in the trade and carriage making business. The plaintiff denied the partnership and claimed to be the sole owner of it. The case was tried before Wootten and Houston, Judges, and O’Conner having been called as a witness for the defendant to prove the partnership between him and the plaintiff, and that the carriage belonged to them as equal partners in the carriage making business.</p>

<p>Judgment on a joint and several bond of two obligors entered jointly against them more than four years after the death of one of them, but under a warrant of attorney which did not authorize the confession of judgment jointly and severally against them, set aside.</p>

This was an action on the case against the company for negligently running a train of cars against a carriage in which the wife of the plaintiff, Thomas P. Lynam, was riding and driving across the railroad of the company, and by which she was very severely injured.

<p>A proceeding by fi. fa. attachment is subject to the statute of limitations, and for a tax due to an incorporated ditchlcompany from a taxable on the ditch, it will be barred in three years from the assessment and levy of it, if not otherwise prescribed, or limited by the act incorporating the company, or is revived by the acknowledgment of the taxable within three years before the attachment is laid in his hands.</p>

This case came up on cross appeals, the first by Stockley alone, as one of the respondents, and the other by Horsey, Millar & Co., complainants in the court below, to the decree of the Chancellor sitting in and for Sussex County, and were heard together as one and the same case before G-ilpin, C. J., and Wooten, Houston and Wales, Associate Justices, in this court.

Action on the case for an injury to the reversionary estate and interest of the plaintiff, a minor, in certain lands and tenements in the town of Lewes, Sussex County, in the possession of his tenant, by an unlawful entry and trespass committed upon them by the defendants, which consisted in widening one of the public streets of the town in front of the premises, which they justified as town commissioners under the provisions of the act incorporating it, passed March 2nd,…

<p>Scire facias on a recognizance in the Orphans’ Court, in and for Kent County, and an affidavit of defence that Gorman, the recognizor in it and the defendant in the action, had been summoned as a garnishee of John D. Coverdale, who was the husband of the said Susan D. Coverdale, by divers parties who had judgments against the said John D. Coverdale, and that the sum of money demanded in the action had been attached in his hands by such judgment creditors of her husband.</p>

<p>Action on the ease for damage to a cargo of Indian corn belonging to the plaintiff' sunk in a sloop by collision with a barge in tow of a steam tug boat of the defendants on the Chesapeake and Delaware Canal in the month of March, 1873, before Wootten and Houston, Judges, Cilpin, C. J., absent. The defendants had by contract with the canal company the exclusive right and privilege of towing all vessels on the canal both by steam tugs and by horses or mules,except such as were propelled by steam, or were provided with horses or mules of their own to tow them. At the time of the collision the sloop with the cargo of corn on board, consisting of about sixteen hundred bushels, was proceeding, drawn by a mule team belonging to the defendants and a driver of it in their employ, from Bohemia on the canal eastward through it to Hew Castle, when on rounding the curve to the west of, and near the Delaware Railroad bridge, and when within a hundred yards of it on the western side, the steam tug was suddenly dis-covered to be approaching it at full speed from the opposite direction, and only five or six hundred yards from it, but not in time for the sloop to be stopped before running into the bridge had the attempt been made to do it; and accordingly the proper signal having been promptly given on board of the sloop for the removal of the draw of the bridge which is not of sufficient width to admit two vessels abreast into it, and which was as promptly done by the keeper of it, the sloop was immediately passed through the draw, when the order was given by the captain of her to the driver of the team to cast off the tow line, and as soon as the sloop was clear of the fenders of the draw on the other side, she was sheered close in toward the bank of the canal and the tow path, the steam tug then being about two hundred yards from the bridge. The tug had in tow astern of her four empty barges, or canal boats bound through the canal to the city of Baltimore, attached to it in a row or single line coupled together in the usual method and with the usual lengths of tow lines between them. As soon as the sloop cleared the draw of the bridge he discovered the barges in tow of the tug and that there was no one on the deck, or at the tiller of either of the third or fourth one in the line, and that they were both veering or yawing very much from the course of the tug toward his side of the canal, and to avoid a collision with them, run the sloop as hard aground as he could on his side of the canal and as close to the towpath as practicable about a hundred and fifty yards from the bridge. It was also observed about the same time by the captain of the tug that there was no one steering either of the two hindmost barges, and he at once gave the signal from it for the men on the barges to steer them, but, before any one had appeared on deck and reached the tiller of either of them, the bow of the third barge came in contact with the bow of the sloop partly between it and the bank of the canal, carrying away the bowsprit and splitting her bows open down the stem from the deck to her keel, nearly, and dragging her round with her head toward the middle of the canal, sunk her beneath the water of it. In the mean while the engine of the tug had been stopped just after it had passed the sloop which was grounded immediately afterward by the captain of it. There was a strong wind blowing at the time from the northeast and partly across the canal and from the side of it on which the sloop was grounded. The barges in tow belonged to unknown and different persons living out of the State, and were all manned by crews employed and paid by the respective owners of them.</p> <p>There was considerable discrepancy and even conflict in the testimony of the witnesses, as is usually the case in collision of vessels, but the facts as above stated were substantially established without any material contrariety in the evidence adduced on behalf of the respective parties. It further appeared also in the evidence that there is what is termed by the men in the business, a suction of the water produced in the canal by the passage of a steam tug or by any other vessel drawing as much water and propelled in like manner through it, which has the effect both to lift and draw a vessel from the sides of the canal into the wake of it immediately after passing it; and so well was that fact and the force and danger of it known to men as familiar with the navigation of the canal as was the captain then in command of the sloop, that the captains of vessels towed as the sloop was when meeting a steam tug, frequently stop and make them fast with their lines to the side or bank of the canal until they pass, in order to prevent and escape it, and that the most prudent captains generally adopt this precaution to avoid the danger of it, when they have sufficient notice and time to do so on such occasions; also that there are snubbing posts set in the bank on that side of the canal from the bridge up to near where -the sloop was grounded, which afford peculiar facilities for that purpose. By the regulations of the canal company a tow drawn by horses or mules is required to keep on the side of the canal next to the bank on which the tow path lies and as close to it as practicable, and steamboats are always required to give the inner track to such a tow.</p>

<p>The agreement between the garnishees and the defendant in a ft. fa attachment to pre-pay his weekly wages weekly in advance, entered into a week before the attachment was laid in their hands, and afterward regularly paid by them weekly in advance, pursuant to the agreement, is not fraudulent and void as against the lawful rights of the attaching creditor, or the object and policy of the statute under which the attachment was issued.</p>

Action of ejectment for a farm in Hew Castle hundred in which the facts involved were found by a special verdict of a jury as follows: That Henry Hugg and Maria Hugg, his wife, by their deed of bargain and sale dated April 7th 1837, conveyed the premises in question to one Samuel McMullen upon the special trust and confidence that he, his heirs and assigns should and would from time to time and . at all times thereafter, permit the said Maria, wife of the said Henry Hugg, or…