SHERIFFS' SALES; RULE TO SHOW CAUSE-Continued.
2. A rule for writ of possession will be issued where the petitioners for the rule
-the owners of the property-are the grantees of the purchaser at the sheriff's
sale. It would be too narrow a construction of the statute, and defeat its reme-
dial character, if it were restricted to the purchaser at the sheriff's sale.
3. The sureties on a sheriff's official recognizance are not liable to a printer for
advertising notices of sale of real estate, although it was the duty of the sheriff to
cause such advertisement to be made. Gould vs. News Pub. Co., 548.
4. Case of Use of News Publishing Company vs. Gould, et al., 1 Pennewill,
366, overruled. Ibid.
SPECIAL APPEARANCE.-See APPEARANCE.
1. The action of quo warranto held to be local en the authority of Knight and
Kennedy vs. Ferris, 6 Houst., 283, decided by the Court of Errors and Appeals,
and State vs. Green, 1 Pennewill, 63, in Superior Court. State vs. Hancock, et
al., 231.
2. The case at bar not distinguished with such clearness from those cases as to
satisfy the Court that it is taken out of the rule of law there laid down. Ibid.
3. The case of State vs. Carberry (unreported) held to be decisive of the
question that the discharge of a jury in a criminal case rests in the discretion of
the Court. State vs. Gamble and Fitzpatrick, 368.
4. The rule stare decisis has for its object the salutary effect of uniformity, cer-
tainty and stability in the law. Daniels vs. State, 586.
5. The decisions of the Court of Oyer and Teuminer and the Court of Gen-
eral Sessions were not reviewable by the Supreme Court prior to the adoption of
the Constitution of 1897, and they will not be departed from by the Supreme
Court unless it be satisfied that they are clearly erroneous. Ibid.
6. The doctrine of stare decisis applies with peculiar force to decisions respect-
ing real property, vested rights, and those matters of general commercial import-
ance which tend to influence future business transactions; but questions, as where
personal liberty is involved, will be met by considerations which favor certainty
and stability in the law. Ibid.
STATE TREASURER.-See PUBLIC OFFICER.
1. The city has a right to block off a street for the comfort and well being of
sick residents, but it is the duty of the city when doing so to so place and mark
the obstruction as to properly guard the public safety, and give reasonable notice
that the danger is there. And in proportion as the character of the obstruction is
not manifest the duty on the part of the city becomes the more imperative to
plainly make known its existence. Anderson vs. Mayor and Council, 28.
2. The traveler is not bound to hunt for obstructions or pitfalls in the public
streets. He has a right to presume that the city has done its duty, and that the
streets are in a reasonably good condition. But it is the duty of the traveler to
proceed on said streets at a lawful rate of speed, and in the reasonable exercise of
all his faculties. Ibid.
3. In general, but not uniformly, it has been held that where the duty of con-
trol 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 Wil-
STREETS AND SIDEWALKS-Continued.
mington prior to the act of April 24, 1889. But if the statute either exprsslye
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. Mayor and Council vs. Ewing, 66.
4. While the maxim, 66
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. Ibid.
5. When the action is brought for injuries caused by an obstruction in the
streets of a city, in order to render the defendant liable it must appear that it had
notice or knowledge of the obstruction for such time as would have been sufficient
for its removal. But this notice or knowledge need not be express; it may be
implied or constructive. Downs vs. Com. of Smyrna, 132.
6. If the obstruction existed for a considerable time before the injury, the de-
fendant may be presumed to have had knowledge of it. Ibid.
16 Laws of Del., Chap. 449.
Rev. Code, Chap. 129, p. 944.
State vs. Board of Pilot Com., 16.
State vs. Hegeman, 143.
19 Laws of Del., Chap. 276. State vs. Hegeman, 147.
Rev. Code 482, Chap. 557, Sec. 2.
18 Laws of Del., Sec, 1, Chap. 663. Mayor and Council vs. Ewing, 66.
16 Laws of Del., Chap. 153. Foster vs. State, 111.
II Laws of Del., 772 Downs vs. Com. Smyrna, 132.
Rev. Code, 399. State vs. Butler, 127.
Rev. Code, Sec. 6, p. 770.
Rev. Code, Sec. 36, p. 839. Kent vs. Pyle, 242.
Sec. 2, Chap. 550, Vol. 14, Laws of Del. Black vs. Clements, 499.
Rev. Code, 814. Maxwell vs. Devalinger, 504.
Chap. 273, Vol. 21, Laws of Del., 461, and Chap. 147, Vol. 16, Laws of
Del, 214. Lupton vs. Hughes, 515.
Chap. 530, Vol. 14, Laws of Del. Forbes vs. Thompson & Co., 530.
14 Laws of Del., 638 and 15 Ib. 289. Larkin & Stites vs. Simms, 543.
Chap. 125, Rev. Code, 895, and Sec. 9, Chap. 24, Rev. Code, 237. Gould
vs. News Pub. Co., 548.
Rev. Code, 600. Vincent vs. Ireland, 580.
Chap. 15, Vol. 16, Laws of Del., as amended.
Rev. Code, 399. State vs. Butler, 127.
Rev. Code, 482. Hill vs. Ginn, 174.
Chap. 101, Sec. 6, Rev. Code, 770. Crow vs. Cann, 208.
Sec. 36, Rev. Code, 839. Kent vs. Pyle, 242.
Rev. Code, 841, Chap.
vs. Sharpe, 407.
542, Vol. 16, Laws of Del. P., W. & B. R. R.
Sec. 3, Rev. Code, 259. Smith vs. Simmons, 462.
Sec. 2, Chap. 550, Vol. 14, Laws of Del. Black vs. Clements, 499.
Rev. Code. 814 (Lien Law). Maxwell vs. Devalinger, 504.
Sec. 52, Chap. 273, Vol. 21 p. 461, Laws of Del. Lupton & Co. vs.
Hughes, 515.
STATUTES CONSTRUED-Continued.
Chap. 350, Vol. 14, Laws of Del. (Rev. Code, 600.)
& Co., 530.
14 Laws of Del., 638 and 15 Laws of Del., 289.
Simms, 543.
Chap. 111, Sec. 23, Rev. Code, 835; Chap. 125, Rev. Code, 895; Sec. 9,
Chap. 24, Rev. Code, 237. Gould vs. News Pub. Co., 548.
The statute of frauds held to apply to contracts which, according to the intent
and express understanding of the parties, cannot possibly be performed within one
year, or which, by the special terms thereof, are to continue for more than one
year; but not to such as may, by any possibility, be performed within a year, or
when the performance rests upon a contingency which may happen within a year.
Maxwell vs. Devalinger, 304.
1. In cases of official bonds, concealed fraud on the part of the principal will
deprive both principal and surety of the benefit of the statute of limitations; the
statute does not begin to run until the fraud is discovered. Lieberman vs. First
2. It is true that equity will not relieve against the bar of the statute in favor
of the party who has been in laches in not using the means in his power to discern
the fraud, but the rule is that it is good faith and not diligence which is required
of the creditor as a condition of his right to hold the surety; the creditor or
obligee in a bond is not obliged, for the benefit of sureties, to watch the principal.
Ibid.
3. Where the defendant had an option to purchase the article for which the writ
of replevin was issued, the statute of limitations would not begin to run against
the action until the expiration of defendant's right or option to purchase, because
until that time the plaintiff's cause of action would not accrue. Sewing Mach.
Co. vs. Frame, 430.
4. Statutes of limitation, when applicable, furnish a complete defense, and
Courts should not by judicial legislation or strained construction interpose obstruc-
tions to their effective operation. Larkin and Stites vs. Simms, 543.
Mayor and Council vs. Ewing, 66; Foster vs. State, 111; Forbes and Hart-
man vs. State, 197; Creswell vs. W & N. R. R. Co., 210; Lieberman vs.
First N't'l. Bank, 416; Tully's Admr. vs. P., W & B. R. R. Co., 537;
Gould vs. News Publishing Co., 548; Daniels vs. State, 586.
SURETY IN CERTIORARI.-See also PRINCIPAL ANd Surety,
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. McLaughlin & Bro., vs. Sentman, 565.
SURETY IN OFFICIAL BOND, ETC.-See PRINCIPAL AND SURETY.
SURPRISE.
1. Where a party produces a witness who takes him by surprise by making
statements different from those made elsewhere, such party will be permitted to
call witnesses to contradict the witness; and it will be for the jury to say which
testimony they will believe. State vs. Wright, 228.
2. A party will be permitted to introduce testimony in contradiction of his own
witness, on the ground of surprise. State vs. Quinn, 339-
1. When the law provides that no tax shall be collected after the expiration of
one year from the date of the warrant for its collection, and it appears to the
Court that the tax, for the enforcement of the collection of which the writ is
sought, has been levied and assessed, and the warrant for the collection of the
same delivered to the collector, more than a year, the petition for the writ of
mandamus will be dismissed, because it is not in the power of the collector to
collect the tax. The law will not attempt to enforce a person to do a thing
which by law it is impossible for him to do. Road Com. vs. New Castle, 466.
2. Papers purporting to be tax receipts for taxes upon the property in question,
paid by the person under whom plaintiff claims title, will not be admitted in
evidence in the absence of proof of their genuineness. Pleasanton vs. Simmons,
3. When the question to be determined, is to whom a certain conveyance was
made, it may be shown who paid the consideration money, and it may also be
shown how, after said conveyance, the respective claimants treated or dealt with
the property, and who paid the taxes, repairs and improvements on the property,
But such testimony is material only as it tends to prove to whom the con-
veyance was made. A mere equitable or beneficial title is not sufficient to main-
tain an action of ejectment in a court of law, a law, a legal title being essential.
Ibid.
4. Such legal title cannot be acquired by the payment of taxes, repairs and im-
provements, nor by dealing with the property as one's own, except he has the
exclusive, adverse and continuous possession for twenty years. Ibid.
5. Under the statutes of the State and the ordinances of the City of Wilmington,
adopted in pursuance thereof, the Mayor and Council of Wilmington, and not
the Board of Directors of the Street and Sewer Department, are entitled to have,
receive and dispose of the fees and charges collected from farmers, traders, deal-
ers and hucksters using the street markets in said city. The said The Mayor and
Council of Wilmington are also entitled to receive the taxes on electric light poles
in said city, and the rents collected from lessees of wharves along the river front
at the end of streets owned by said city. Street, and Sewer Dept. vs. Connell,
571.
TENANT.-See LANDLORD AND TENANT.
1. A tender of the amount due in current bank bills, or United States certifi-
cates, although not a legal tender, is sufficient, unless specifically objected to at
the time. Wood vs. Bangs, 435.
2. If a creditor refuse absolutely to receive money about to be tendered, an
objection that it was not produced is waived. Ibid.
Interest of in property sold under execution process. Smith vs. Simmons, 462.
I. In an action of ejectment the plaintiff cannot put in evidence declarations
of the person under whom he claims, which were not against interest but in sup-
port of title. Pleasanton vs. Simmons, 477.
2. Bills for lumber, found in possession of the person under whom the plaintiff
claims title, will not be admitted in evidence to show that such person treated the
property as his own, unless it clearly appears that he bought the lumber, and also
that it was used in the repair and improvement of the property in question. Ibid.
3. Papers purporting to be tax receipts for taxes upon the property in question,
paid by the person under whom plaintiff claims title, will not be admitted in evi-
dence in the absence of proof of their genuineness. Ibid.
4. When the question to be determined, is to whom a certain conveyance was
made, it may be shown who paid the consideration money, and it may also be
shown how, after said conveyance, the respective claimants treated or dealt with
the property, and who paid the taxes, repairs and improvements on the property,
et c. But such testimony is material only as it tends to prove to whom the con-
veyance was made. A mere equitable or beneficial title is not sufficient to main-
tain an action of ejectment in a court of law, a legal title being essential. Ibid.
5. Such legal title cannot be acquired by the payment of taxes, repairs and im-
provements, nor by dealing with the property as one's own, except he has the
exclusive, adverse and continuous possession for twenty years. Ibid.
6. Statements or admissions made by one having the legal title, adverse to or
inconsistent with such title, cannot operate to divest such title, although such
statements or admissions are proper for the consideration of the jury in determin-
ing who in fact had or has the legal title. Ibid.
7. The plaintiff in an action of ejectment must recover, if at all, on the strength
of his own title, and it is not enough for such recovery that the defendant has
failed to prove that he has a good title. The legal title of the plaintiff must be
proved by a preponderance of the evidence. Ibid.
8. By a sale and conveyance made under an order of the Orphans' Court for
the payment of the debts of a deceased party, nothing passes to the purchaser
except the estate and title of the deceased at the time of his death, with the ben-
efit of any acts done after the death for perfecting or securing such title. Ibid.
9. Titles to land can be acquired and lost only in the manner prescribed by the
law of the place where such land is situated. The provision of the United States
Constitution, which requires full faith and credit to be given in each State to the
records and judicial proceedings of every other State, applies only to the records
and proceedings of courts, so far as they have jurisdiction. The courts of a State
being without jurisdiction as to the title to lands in another State, this provision
of the Constitution does not make conclusive the probate proceedings in one State
in respect to a will devising lands in another State. Pritchard vs. Henderson,
10. The right of a State to prescribe the laws which shall regulate and control
titles to real estate within its borders necessarily requires that such State shall
have full power to determine whether those laws have been observed and obeyed.
Ibid.
11. By the act of 1873 a married woman's personal property, acquired from
any person other than her husband, is made her sole and separate property.
Where it is proved that personal property belongs to a married woman, it is not
necessary for her to prove that she did not acquire it from her husband. In such
case the general rule should prevail, that he who asserts an affirmative should
prove it. Where there is no direct proof upon the point, the jury may draw their
own conclusions from such proof as they have, as to the ownership of the prop-
erty and how it was acquired. Vincent vs. Ireland, 58.
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