Jones' Ex'rs. v. Murphy

3 Del. 334

• Court: Superior Court of Delaware
• Decided: July 5, 1841
• Status: Published

Opinion

^a Memorandum. — In the winter vacation, to wit: on the 19th day of January, 1841, the Honorable Richard H. Bayard having been elected to the Senate of the United States, resigned his office of chief justice of this State; and the Honorable James Booth, of New Castle, was appointed in his place on the 12th of March, 1841, and took his seat at the commencement of this term.

An amicable action was entered on the 18th of February, 1836, in vacation; and by agreement of parties the matters in controversy in the cause were referred to three referees chosen by the parties. At the May term, 1840, the referees returned an award in favor of plaintiff for the sum of fifty dollars; and judgment was rendered on the award.

Mr. Hamilton, for defendants, now asked the court if this judgment carried the costs; the sum found due being within the jurisdiction of a justice of the peace; and he referred to section 37 of the act providing for the recovery of small debts. (Digest 351.)

Mr. Gilpin said that this act referred to adversary suits, as was apparent from the exception where the plaintiff makes oath as provided by that act before issuing the writ; and he said it had been heretofore held, that this section did not apply to amicable actions docketted for the mere purpose of reference, where the whole matter, including the costs, is the subject of the reference. such had been the decision in the late Supreme Court, and it was held accordingly.