WINGATE v. NELSON, 2 Del. Cas. 98 (1798)

Rodney’s Notes.[†]

HENRY WINGATE v. JOSEPH NELSON.

Court of Common Pleas of Delaware, Sussex County.
April, 1798.

[†] This case is also reported in Wilson’s Red Book, 195.

Ridgely, Wilson [for plaintiff]. Peery, Miller [for defendant].

Page 99

Action brought 1796. Trespass for cutting pine and oak trees on a tract called Elbow Room.

Warrant from Penn to John Wingate for one hundred acres binding on Poor Choice, survey March 15, 1776. One hundred and fifty-six acres certified by Commissioners for John Wingate. Will, January 11, 1790, John Wingate devised to Henry Wingate. Patent, November 2, 1797, from State to plaintiff (since suit brought).

Wilson. Arbitration bond and award offered in evidence between the parties. Objected [to] by Peery an Miller. Court admitted it to go to jury.

CHIEF JUSTICE.

Difference in opinion of counsel. Defendant pleads non culpa
and liberum tenementum. If he cut or carried away the trees, and they were not on his freehold, you will find him guilty. Boundaries when proved are more certain than course and distance. When binding words in a grant or patent, as “by and with” or “down the branch,” it will go by the run, not the cripple of the branch.

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