Wilson’s Red Book, 7[*]
Supreme Court of Delaware.
April, 1793.
Debt on bond taken by the plaintiff as Judge of the Admiralty from defendant who acted as marshal for the sale of the schooner Fortune
and cargo. Non est factum. Payment with liberty.
At the trial plaintiff proved his bond, without proving any special damage. Defendant’s counsel would have rested here upon
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the point before the jury that a verdict could not be for the penalty (2 Wils. 377) that when there is a collateral condition verdict must be for the damages sustained (Cowp. 357) which must be proved. (Esp.N.P. 332, 2 Bl.Comm. 341.)
Plaintiff insisted that they could not go into proof of a breach which they had not assigned, that they had not been put to such proof by the issues, by 2 Bl.R. 1109, [that] defendant should have craved oyer and demurred, if plaintiff was bound to assign a breach; but concluded by offering further testimony to the jury, which was yielding that point.
Court were divided about a witness. Ld.Raym. 494 cited to show, court divided cannot do a thing nor grant an order. Vide
3 Morg.Ess. 113, 179, Str. 139.
Defendant urged the bond was taken contrary to 2 Body Laws 343 and void, and cited 1 Bl.R. 517, Doug. 242, 2 Salk. 468; and that sole corporations cannot be obligees, 3 Bac.Abr. 696, 4 Co. 65, 1 Bac.Abr. 508.
Verdict for plaintiff for £ ___[1]
Reasons in arrest of judgment post hac.