Clayton’s Notebook, 71.[*]
High Court of Errors and Appeals of Delaware.
June, 1818.
[BILL OF EXCEPTIONS.] New Castle County, ss.
Henry Colesberry, late of the county aforesaid, executor of the last will and testament of Levi Colesberry, deceased, was summoned to answer Charles Anderson of a plea that he render to him one hundred and twenty dollars, which from him he unjustly detains etc. And whereuponPage 566
the said Charles says that whereas the said Levi in his lifetime, to wit, on the nineteenth day of February in the year eighteen hundred and eight, at the county aforesaid, by the name of Levi Colesberry made his last will and testament in writing, bearing date the same day and year aforesaid, and thereby gave and bequeathed to his sister, Mary Anderson, the wife of the said Charles the sum of one hundred and twenty dollars to be paid at the end of one year and three months after the decease of the said Levi, and of his said will did appoint the said Henry executor, as by the same will, remaining of record in the office of the Register for the probate of wills and granting letters of administration at New Castle for the county aforesaid, more fully appears. And the said Charles in fact saith that afterwards, to wit, on the eighteenth day of April in the year eighteen hundred and eight the said Levi Colesberry died, to wit, at the county aforesaid, and the said Henry then and there duly proved the said will and took upon himself the burden of the execution thereof and then and there possessed himself of the personal estate of the said Levi at the time of his decease, sufficient to satisfy all debts and legacies of the said testator. Nevertheless the said Henry (although often requested and tendered a bond to refund the same in case it should be necessary, according to the provisions of the Act of Assembly in such case made and provided, which said bond is filed of record in the office of Prothonotary of the county aforesaid) the said one hundred and twenty dollars the said Henry hath not paid, but the same to him to pay hath hitherto altogether refused and still doth refuse, to the damage of the said Charles three hundred dollars, and therefore he brings suit etc.
Defendant pleads nil debet, payment, discount, plene administravit and no assets ultra; and issues.
And afterwards come a jury, etc. who etc. “do say that they find for the plaintiff and assess damages at one hundred and sixty-six dollars and twenty cents with six cents costs besides costs expended” and judgment.
And now, to wit, this 19th day of December in the year of our Lord one thousand eight hundred and fifteen, at the trial of the issues joined in the above cause, the said Charles Anderson by his counsel learned in the law, to maintain and prove the said issues on his behalf, then and there produced and gave in evidence the testament and last will of Levi Colesberry, deceased, prout the same and the testamentary bond of Henry Colesberry, executor of Levi Colesberry,
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prout the same and gave in evidence by Jacob Ball, a witness produced and sworn, that Mary Anderson was the sister of the said Levi and the wife of the said Charles at and before the decease of the said Levi. And further to maintain the issues aforesaid on the part of the plaintiff, it was proved by James Foster that a refunding bond was executed and tendered by the said Charles, according to the Act of Assembly in such case made and provided, prout the said bond.
And the said defendant to maintain and prove the issues on his part, by the said Henry Colesberry, produced and sworn, gave in evidence that a certain book, produced and shown, was the book of original entries of the said Levi, deceased, that the same was in the handwriting of the said Levi, that the account against Mary Walraven was in his handwriting, and that the paper writings, produced and shown, were found in the said book and belonged to the same, and further to maintain and prove the said issues on the part of the said defendant further gave in evidence by John Crow, a witness produced and sworn, that he knew Levi Colesberry in his lifetime and also Mary Walraven, who was the sister of the said Levi, that the said Mary intermarried with Charles Anderson in 1802, that Levi Colesberry was one of the executors or administrators of Walraven and had the agency and management of the farm on which Mrs. Walraven lived, that the accounts between Mrs. Walraven and Levi Colesberry, as to that agency, were settled about the first of May, 1800, that he, the said John Crow, drew the last will and testament of the said Levi. And the said defendant, further to maintain the issues aforesaid on his part, offered to prove by the said John Crow that the said Levi Colesberry intended and declared, by giving the legacy aforesaid in the said will contained, to extinguish or release a certain debt due from the said Mary Walraven, afterwards Mary Anderson, and contained in the book of accounts of the said Levi. And the said justices did thereupon reject the said testimony and refused to admit the same in evidence on the trial of the said issues, and the said defendant further to maintain the said issues on his part offered in evidence the book of original entries aforesaid of the said Levi, prout the said book, and the Court thereupon did reject the said book of original entries, and refused to receive the same in evidence.
And at the trial of the said issues, the counsel for the defendant further insisted and argued before the said Court,Page 568
that the said plaintiff was not by law entitled to recover in the said action, inasmuch as the said legacy appeared to be bequeathed to Mary Anderson, wife of the said plaintiff, and she the said Mary was not joined in the said suit; and prayed the said justices so to declare the law in and upon the premises to the said jury. Nevertheless the said justices then and there at the said trial did declare the law to the jury in the words following: to wit, that the plaintiff was entitled to recover in the said action without his wife being joined in the same; and with the said charge left the same to the jury.
And thereupon the said jury then and there gave their verdict for the plaintiff for the sum of one hundred and sixty-six dollars and twenty cents. Whereupon the said defendant, by his counsel, because the matters aforesaid in his exception offered do not appear in the record of the verdict aforesaid, did allege and write his exception aforesaid to the opinion of the said justices, and require that the said justices would put their seals to the bill of exception according to the provision of the Statute in such case made.
JAMES BOOTH, C. J. (seal)
ASSIGNMENT OF ERRORS.
And the said Henry Colesberry, executor of the said Levi Colesberry, deceased, by Nicholas Vandyke, his attorney, comes and says that in the record aforesaid and in the rendition of judgment on the plea aforesaid by the court below there is manifest error in this, to wit: First. For that by the record aforesaid it appears that the legacy for which the said action was brought was bequeathed and given by the testator, Levi Colesberry, in and by his last will and testament to Mary Anderson, wife of the said Charles Anderson, and yet the said action for the recovery thereof is brought in the name of Charles Anderson alone without joining the said Mary therein.
Second. There is also manifest error in this, to wit, for that the declaration in the said action is insufficient in law in this, to wit, that it does not aver that the said Mary was in full life at the time of issuing the original writ in the said action.
The other assignments in substance were: Third, that the declaration averred no liability or promise, or assent to the
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legacy. Fourth, that the declaration charged no debt or sum due from defendant below to plaintiff below or any person. Fifth, that the action was for a legacy in a court of common law without referring to the Act authorizing it. Sixth, that the declaration demanded $120, which it is alleged defendant unjustly detains, and the verdict and judgment were for $166.20 with six cents costs besides the costs expended. Seventh, that the declaration demands a debt $120 etc., and the jury say they find for the plaintiff and assess damages at $166.20, and judgment rendered for damages. Eighth, it also appears by the record that plaintiff brought debt in the detinet for a legacy, and the verdict and judgment are for damages without noticing the debt or legacy demanded. Ninth, the testimony of J. Crow to prove that testator intended to release the debt of M. Walraven, now plaintiff’s wife, by giving the legacy, was rejected. ([By Clayton.]Semble defendant meant to show too that the legacy was intended to convey nothing more than a mere release of that debt.) Tenth, Levi Colesberry’s original book of entries was rejected. Eleventh, judge charged the jury that plaintiff was entitled to recover without his wife being joined in the same. ([By Clayton.] Note as to this and the first point, that nothing can be assigned for error which might have been pleaded in abatement below. Bac.Abr. semble “Abatement”.)
Twelfth, judgment should have been for defendant.
“For all which and other errors in the record and proceedings aforesaid appearing the said H. Colesberry, executor of L. Colesberry, deceased, defendant below and plaintiff in error here, prays that the judgment aforesaid in manner and form aforesaid rendered by the justices of the court below may be reversed and annulled etc.”
PER CURIAM.
(After argument.) This suit was well brought by the husband alone because the legacy accrued during the coverture. Com. Dig. titl “Baron and Feme,” letter X. There is nothing in any of the errors assigned unless it be that the verdict and judgment are for damages alone when they should have been for debt and damages, and we will take time to consider whether the record may not be so amended as to answer the intention of the jury.
On the last day of the term, the Court said the verdict might be so amended and affirmed the judgment.
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