HART v. WRENCH, 1 Del. Cas. 574 (1818)

Clayton’s Notebook, 78

Supreme Court of Delaware, Kent County.
October, 1818.

Page 575

Appeal from an order of the Orphans’ Court assigning Mrs. Wrench, the respondent, her dower under 5 Del. Laws 175, c. 95, s. 2. And the fact in dispute was whether the respondent was or not under the age of twenty-one years when she joined with her late husband in a deed of conveyance.

JOHNS, C. J.

Is this cause to be tried by the Court alone or by the Court and a jury? And can we hear any testimony that was not before the court below?

Hall. Appellate jurisdiction may order a question of fact to be tried by a jury. 1 Harr.Ch.Pr. 455. The Court must hear evidence, as that below was not in writing. On error from Common Pleas in exactly such a case, saving that was petition for freedom, the Court of Errors and Appeals held, after a term taken to consider, that they might hear evidence, but made an order that in future the testimony below should be reduced to writing.

JOHNS, C. J. The Court alone should try the appeal, and we do not wish to set a different precedent. The court below not having put the testimony before it in writing, we must hear the witnesses.