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OPINION OF COURT.

the parties in any other English Court, it does not follow that this decision would be held to be conclusive upon the parties in a Court of another country in an action relating to the title to land in that country. If said will had contained a devise to T. and G. of land in Delaware, they would not, in an action of ejectment in Delaware brought to determine the title of said land, be estopped from denying that said will was a forgery by reason of the finding of the English Chancery Court, because that Court had no jurisdiction to decide the question of forgery so far as it concerned the title of land in Delaware.

All of the other cases cited in support of the claim of estoppel are subject to like criticism. In none of them is the estoppel held to apply where the finding was in respect to a matter not within the jurisdiction of the Court.

No case is known to us where the finding of a Court that a deed or will purporting to pass real estate situate in another State, was forged, or procured by fraud, or that the maker was mentally incompetent, has been held to be conclusive in the courts of the State where such real estate was situate.

In Rice vs. Jones above cited, the executor named in the alleged will devising lands in Virginia was not held to be estopped in the Virginia Probate Court from denying the finding of the North Carolina Probate Court, in proceedings to which he was a party, that the testator at the time of executing said paper was incapable of making a last will and testament.

For the purposes of this case it is wholly immaterial whether the defendant in said action of ejectment was or was not a party to the said proceedings in Maryland. While the Maryland Court had full jurisdiction to find that the alleged will so far as it related to the testator's personal property and her lands in Maryland, was procured by fraud and undue influence, and that she was not of sound and disposing mind and memory, it had no jurisdiction whatever to make a conclusive determination as to these facts or any other facts touching the validity or invalidity of the paper, so far as the same relates to the title to the land in Delaware. The

OPINION OF COURT.

defendant therefore is not estopped from denying in said action any or all of said findings of the Maryland Court.

We are therefore of the opinion that the said defendant, Henry Henderson, is not estopped by the said probate proceedings in Maryland, or by anything therein contained, from claiming in said action of ejectment that said alleged will of said Caroline C. Pritchard is the valid last will and testament of the said Caroline C. Pritchard as to the lands specified in the consent rule, situate in the State of Delaware.

It is ordered that the Prothonotary certify this opinion to the Superior Court for New Castle County.

SYLLABUS.

FRANKLIN MCLAUGHLIN, who was sued as FRANK MCLAUGHIN, and ROBERT MCLAUGHLIN, trading as MCLAUGHLIN & BRO., d. b., vs. CLINTON G. SENTMAN, p. b.

Certiorari-Special Appearance; How Made-Surety in Certiorari -Attorney at Law-Rule of Court-Practice.

1. Although leave to appear specially has been granted without the reasons being set out in writing, yet it has been where there was no objection. The better practice is to embody the reasons in a petition, for then there is a specific question before the Court.

2. While it is very bad policy for Section 5 of Rule 1 of this Court, relative to attorneys becoming surety, to be violated, yet it did not authorize the Court to quash the writ.

(September 18, 1900.)

LORE, C. J., and BOYCE, J., sitting.

Charles B. Evans for plaintiff in error.

L. Irving Handy (special appearance for purpose of making a motion).

Superior Court, New Castle County, September Term, 1900.
CERTIORARI (No. 27, April Term, 1900).

Mr. Handy asked leave in open Court to appear specially in the above case, for the purpose of making a motion to quash the writ for want of sufficient surety.

Evans, for plaintiff, objected, contending that the application to appear specially should be by a petition, disclosing the reasons for such application.

LORE, C. J.:-Although leave to appear specially has been granted without the reasons being set out in writing, yet it has

1

OPINION OF COURT.

been where there was no objection. In this case it is objected to, and we think the better practice is to embody the reasons in a petition. We then have a specific question before us.

The following petition was then filed by Mr. Handy, viz:

"To the Honorable the Judges of the Superior Court of the State of Delaware in and for New Castle County:

"I, Levin Irving Handy, attorney at law, respectfully petition the Court for permission to appear specially in the above mentioned case for Clinton G. Sentman, for the purpose of moving to quash the writ of certiorari, for the reason that the records show that the writ was issued upon a recognizance in which Charles B. Evans, Esq., an attorney of this Court, was sole surety, and that the Court had not granted leave for him to be taken as said surety in accordance with Section 5 of Rule 1 of this Court, and that the surety is insufficient."

The Court thereupon made the following order:

"And now, to wit, this eighteenth day of September, 1900, the above petition having been read and considered, it is hereby ordered that the permission be granted to Mr. Handy to appear as requested therein."

NOTE.-On September 25, 1900, the motion to quash the writ of certiorari, for the reasons stated in the petition, was argued before Lore, C. J., and Pennewill and Boyce, J. J. The Court held that while it was very bad policy for the rule of Court mentioned in the above petition to be violated, and while it was not intended in any way to encourage such violations, yet it did not authorize the Court to quash the writ, and the motion to quash the writ on that ground was refused.

SYLLABUS.

JAMES B. STIDHAM, for the use of FRANCIS E. GALLAGHER, v8. SARAH K. THATCHER.

Courts-Jurisdiction-Conclusiveness of Records of Justices of Peace -Court of Record-Service of Process-Judg

ment-Vacating Judgments.

The Justice's Court is a Court of record, and has been so held by this Court; and the statute of this State with reference to the docket entries required to be made by the Justice expressly requires that the return of service shall be made a part of the record. And in the case of a judgment by default the statute also requires that the service of process shall be verified by the officer making the service. In matters over which the jurisdiction of the Justice extends under the statute clothing him with authority in the premises, a safe rule is to make no distinction in the conclusiveness of presumption between recitals contained in the records of this Court and courts of justices of the peace.

(September 26, 1900.)

LORE, C. J., and PENNEWILL and BOYCE, J. J., sitting.

Robert Adair for plaintiff.

Herbert H. Ward for defendant.

Superior Court, New Castle County, September Term, 1900.

PETITION AND MOTION TO VACATE AND SET ASIDE JUDGMENT (No. 401, September Term, 1899), because, as it was contended, no service was had upon Sarah K. Thatcher, under the law, in the suit, before the Justice. (Argued June 11, 1900).

The petition of the defendant set forth the following:

"That there remains on the records of this Court a certain judgment of James B. Stidham for the use of Francis E. Gallagher, against her the said Sarah K. Thatcher, being No. 401 to the September Term, 1899, for the real debt of eighty-one dollars and

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