OPINION OF COURT.

property of Wingate Short, and after inquisition and condemnation, a venditioni exponas was issued, being No. 68 to the April Term, 1899, under which the sheriff sold said premises to Daniel Short, and so made his return to this Court.

The deed from Wingate Short to Harrington P. Short for the said premises No. 10 was not recorded until the seventh of October, 1893.

On behalf of the said petitioner, Harrington P. Short, it is claimed that at and before the time of the entry of said judgment, Peter C. Short, the plaintiff therein, had full knowledge and notice of the said deed to Harrington P. Short, and on behalf of the said purchaser, Daniel Short, such knowledge or notice is denied.

Upon this question the testimony is very conflicting, and we find ourselves unable to reach a definite and satisfactory conclusion. On the other hand it appears to us from the evidence that the said conveyance to Harrington P. Short, was a bona fide transaction.

If we set aside this sale it must be on the ground that the plaintiff in the said judgment had notice of the said conveyance by Wingate Short, and that the lien of said judgment did not bind the land in question; and we would thus make it difficult, if not impossible, hereafter to raise the question as to the validity of said lien.

On the other hand, if the sale is confirmed, the conveyance to Harrington P. Short cannot be very serious. He is in possession of the premises and his title is not impaired by the sheriff's sale.

The sheriff could sell only the title which might lawfully be sold under the judgment, and it is open to him to show, if he can, that said judgment was not a lien upon the premises.

Without expressing any opinion as to the validity of the lien of said judgment, or as to whether the purchaser at the sheriff's sale took any title to the land, we deem it proper to confirm the sale, leaving the purchaser the opportunity to assert his title and right of possession in some more appropriate proceeding than this.

The rule is discharged and the sale confirmed.

SYLLABUS.

IN RE PETITION OF CALEB R .LAYTON, TO AMEND RETURN OF SHERIFF.

Amending Sheriff's Return-Lost Petition and Order-New Petition Filed in Place of Original, by Consent-Order Renewed.

When a petition to amend a sheriff's return has been presented to the Court, and an order made thereon, and the petition is subsequently lost, and the record has not been made up nor the proper entries made on the records in accordance with the order, the Court will order, with the consent of the attorney for defendant in the judgment, that a new petition be filed as and for the original, and that the order previously made be duly entered upon the records of the Court.

(April 12, 1899.)

JUDGES SPRUANCE, GRUBB and BOYCE sitting.

Joseph L. Cahall for petitioner.

Robert G. Houston for defendants in judgment.

Superior Court, Sussex County, April Term, 1899.

THE PETITION set forth the following facts: "That your petitioner at the October Term, 1895, filed in this Honorable Court a petition substantially in the following words, to wit:

'To the Honorable the Judges of the Superior Court of the State of Delaware now sitting at Georgetown, in and for Sussex County.

'The petition of the undersigned respectfully represents that Benjamin W. Carmean did, on the 23d day of October, A. D. 1886, obtain a judgment by confession in the Superior Court against Theodore M. Kreer and Flora Kreer for the sum of one thousand and five hundred dollars, said judgment being No. 37 to October Term, 1886.

'That the said Benjamin W. Carmean did, on the 8th day of November, A. D. 1894, assign the aforesaid judgment on the record thereof unto Dr. C. R. Layton.

STATEMENT OF CASE.

'That sundry executions were issued on the said judgment unto John H. Truitt, Sheriff, the last being 2nd Pls. Vend. Ex. No. 98 to April Term, 1895, upon which said execution the said sheriff made the following return, to wit:-" Goods advertised and remain unsold and this execution debt, interest and all costs settled to plaintiff. So ans. John H. Truitt, late Sheriff."

'That the prothonotary of this Court in pursuance to the statutes in such case made and provided has entered on the record of said judgment the words following, to wit-"Settled by Sheriff's returns."

'That the debt, interest and costs of the aforesaid judgment have not been paid and satisfied as by said return recited; and that your petitioner would suffer the loss of said judgment should the said erroneous return be not amended.

'Your petitioner therefore prays your Honors for a rule to show cause why the said return of said sheriff shall not be amended and the said sheriff be directed to make the return in accordance with the facts in the premises, and that the prothonotary make due entry thereof on the records of said judgment.

'And as in duty bound will ever pray, &c.

DR. C. R. LAYTON.'

"That Robert G. Houston, Esq., attorney for the defendants in said petition, waived the issuance of said rule, appeared gratis and agreed that said rule be made absolute and that in pursuance thereof this honorable Court did make said rule absolute.

"That the said petition was misplaced or lost and therefore the record has not been made up nor the proper entries made on the records in accordance with the order of this Court.

"Your petitioner therefore prays your Honors that this petition may be filed as and for the original petition, now lost, and that the order of the Court heretofore made may be duly entered upon the records of this honorable Court and that the prothonotary do make the entries in accordance with the said order of the Court. CALEB R. LAYTON."

SYLLABUS.

And now to wit this twelfth day of April, A. D., 1899, the within petition having been read and considered, and it appearing that the petition and order therein recited has been lost, it is ordered by the Court, Robert G. Houston, Esq., attorney for the defendants in said judgment, consenting thereto, that the within petition be filed as and for the said original petition, now lost, and that the said order of the Court heretofore made, be duly entered upon the records of this Court according to the prayer of the within petition.

THE MAYOR and COUNCIL OF WILMINGTON, defendants below, plaintiffs in error, vs. LUTHER W. EWING and SYDNEY E. EWING, his wife, plaintiffs below, defendants in error.

City Charter-Contract-Exemption from Liabilities-Vested Rights ·Construction of Statute-Constitutionality of Statute.

I. In the case of Coyle vs. McIntyre, 7 Houst., 44, it was decided that a municipal corporation may be controlled and its constitution altered and amended by the government in such manner as the public interest may require, and that such legislative interference cannot be said to impair the contract by which the corporation was formed because there is in reality but one party to it; and that there is in fact no contract in any just sense of the word for the reason that public municipal corporations are not founded on contract. In view of such decision it is difficult to see how the consent of the city to an amendment to the charter could be of any consequence; such consent is not material.

2. In general, but not uniformly, it has been held that where the duty of control over the streets is imposed upon a municipal corporation, there is an implied liability arising from default in the performance of such duty. Such has been the construction given by the courts of this State to the charter of the City of Wilming

SYLLABUS.

ton prior to the act of April 24, 1889. But if the statute either expressly or by necessary intendment, enacts that the corporation shall not be subject to liability, there is an end of the matter. The power to alter, modify or take away the liability of municipal corporations for injuries sustained from defective streets and sidewalks has been frequently exercised by State legislatures and sustained by courts.

3. There is no principle of constitutional law which prohibits the Legislature from granting to a city special privileges and immunities not enjoyed by all other cities in the State.

4. While the maxim, "That where there is a wrong there is a remedy," is in general true, it is subject to qualifications and exceptions. If injuries have been sustained by reason of defective footways in a city, the party injured has no vested right to sue the city. The liability of the city arises not from any implied contract between the city and the person injured, but in the absence of statutory exemption, is implied by law from the duty imposed upon the city.

5. The act of April 24, 1889, is valid and constitutional in so far as it relieves the city of liability, even though that part of the act should be unconstitutional which purports to make property owners responsible for damages resulting from the defective condition of footways.

6. The great burden imposed upon municipal corporations by their unrestricted liability for injuries occasioned by defective streets and sidewalks, has doubltless been the cause of the frequent modification or removal of such liability.

(April 18, 1899.)

NICHOLSON, CH., and SPRUANCE, GRUBB, PENNEWILL, and BOYCE, Associate Justices, sitting.

error.

Robert G. Harman for plaintiff in error.

Lilburne Chandler and William S. Hilles for defendant in

Supreme Court, June Term, 1898.

WRIT OF ERROR to the Superior Court of the State of Delaware, in and for New Castle County.

At the November term of the Superior Court of New Castle County, 1896, one Sydney E. Ewing and Luther W. Ewing, her