Clayton’s Notebook, 30
Court of Chancery of Delaware, Kent County.
August, 1814.
Bill for an injunction to stay proceedings at common law on a bond which had been given by complainant to the defendant’s testator in his lifetime.
The defendant, in her answer, admitted that the testator, her husband, had told her that he never expected anything from the complainant, and that he kept the bond merely for the purpose of protecting complainant’s property.
The testimony in the cause established these facts: that defendant’s[2]
circumstances were very embarrassed, that testator had said this embarrassment arose from his entering into partnership
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with one Seers by testator’s advice, and that he should therefore do something handsome for him in his will. By the depositions of two witnesses, “defendant had admitted” to them that one day during testator’s last sickness, and but a short time before his death, he desired her to bring this bond to him, that he might cancel it; that she did bring it into his bedchamber, but finding he had fallen asleep while she was searching for the bond, she put it back again. There was no averment of want of assets. The complainant was the testator’s nephew, and testator by his will had devised a tract of land to complainant for life, in trust to apply the rents and profits to the education and maintenance of his (the complainant’s) children and after his death to those children in fee, but took no notice whatever of the bond.
CHANCELLOR RIDGELY.
This case is very different from that in 4 Ves.Jr. 6. Here is no allegation of a want of assets, and here too the will of the testator corroborates the parol declarations which have been offered in evidence.
The bond was given in August, 1800. Some time after, D’s goods were taken in execution, and from the deposition of Cammins, a subscription was opened to raised money to purchase complainant’s goods for him. Ringgold, the testator, subscribed $20, which was a greater sum than had been given by any other person, and complained at the time that had D informed him of his difficulties, he might, by entering up judgment on the bond and taking out execution, have protected his property from sale. The defendant, in her answer, says that her husband told her he kept the bond uncancelled on account of the ill luck which attended the complainant.
Let a perpetual injunction issue, but let complainant pay the costs.
Hall for complainant. Clayton [for] defendant.
Defendant took an appeal.