Clayton’s Notebook, 117
Court of Common Pleas of Delaware, Kent County.
November, 1818.
This was a question on the construction of the Act of Assembly, February 2, 1793, 2 Del. Laws 1071, to secure and protect the real estates of persons deceased against improper sales. The Act [of] 1792, 2 Del. Laws 1045, would have allowed a judgment before a justice of the peace to bind the real estate of all living and deceased, on a transcript’s being filed in the Prothonotary’s Office. The Act of 1793 virtually repeals so much of that Act as would bind the real estate of persons deceased, directing that all judgments to bind such estate must be on an award etc. The Court held, therefore, that as the latter Act repealed the first virtually, a judgment by a justice of the peace (a transcript of which had been filed in the Prothonotary’s Office) could not bind
Page 611
the real estate of a person deceased, and a similar decision was afterwards acknowledged by the opposing counsel (Thomas Clayton)
to have been made about four years ago in Sussex, semble, in the case of White and Laws.
Hall for plaintiff; Thomas Clayton for defendant.
Verdict for plaintiff.
(Note that although the Act [of] 1793 may repeal that of 1792, yet it cannot affect that of 1818, 5 Del. Laws 324, which enacts generally that the plaintiff, on failure of personal property, may on filing a transcript of the justice’s judgment in the Prothonotary’s Office, levy on the lands and tenements of the defendant or defendants. And query, if the Act of 1793 virtually repeals that of 1792, does not that of 1818 quoad hoc repeal that of 1793?)