SPICER’S LESSEE v. CONAWAY, 2 Del. Cas. 195 (1803)

Rodney’s Notes

Court of Common Pleas Court of Delaware.
November 25, 1803.

On motion for a new trial on the ground that the plaintiff’s title was not sufficient in law. The sheriff’s deed [had been] made on petition by order of the Court by Seth Griffith, successor of Peter F. Wright, who sold the lands of John Conaway on an execution which did not correspond with the judgment.

Bayard, Wilson [for plaintiff]. Ridgely [for defendant].

Page 196

Bayard, plaintiff’s counsel, contended that there was only error in the proceedings and that defendant should have made his objection at the return of the writ or at least of the sale by [the] sheriff.

Ridgely. If such a practice as the counsel contends for obtains, a man may lie still for years, and when the party is sued and likely to be turned out of possession by ejectment under improper proceedings, is to be told that though his opponent’s title is not good, yet he is now too late to object. This is an ejectment, and the same rules will not apply that would on motion to set aside execution etc.

November 25, 1803. The Court were of opinion that the rule to show cause in the above case be discharged and new trial not granted.