Read’s Notebook, 5.[*]
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
Page 6
Fortune and cargo. Defendant pleaded non est factum,
payment with liberty etc.
At the trial plaintiff proved his bond, without proving any special damage. Defendant’s counsel would have rested here upon 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. 382, 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, 2 BLR. 1109, defendant should have craved oyer and demurred, if plaintiff was bound to assign a breach; but concluded by offering further evidence to the jury which was yielding the point.
The Court being divided in opinion about the admissibility of a witness, Ld.Raym. 494 was cited to show that court divided cannot do a thing or grant an order. 3 Morg.Ess. 113, 179; Str. 139. Defendant urged the bond was taken contrary to Delaware laws and void, and cited 1 Bl.R. 517, Doug. 262, 2 Salk. 468, and that sole corporations cannot be obligees, 3 Bac.Abr. 696, 4 Co. 65, 1 Bac.Abr. 502.
Verdict for plaintiff for £ [___].[1]
NOTE. Reasons in arrest of judgment, post [hoc].