State Ex Rel. Jones v. Burton

2 Del. 465

• Court: Superior Court of Delaware
• Decided: July 5, 1838
• Status: Published

Opinion

The Court.

The case stands thus. It is an action on a sheriff’s recognizance, brought by the administrator of a defendant in a judgment for a balance of money in the sheriff’s hands, arising on the sale of lands after payment of all liens. The sheriff shows a recognizance in the Orphans’ Court, entered into on the acceptance of intestate lands, which, according to the decision of the Court of Errors and Appeals, in The State, use Ball vs. Jaquett, (a) is a lien on the lands of the cognizor from the caption. The sheriff sets up this recognizance in answer to the plaintiff’s claim for the money, and plaintiff must show that it has been satisfied, or it is a complete an swer. There are several entries on the record acknowledging satisfaction for shares of the recognizance, but these must be proved in like manner with other receipts, to wit: that they were made by the persons whose receipts they purport to be, and that such persons are interested in the recognizance and authorized to satisfy it.

Iluffington, for plaintiff. Frame, for defendant.

The plaintiff was nonsuited?

(a) The State, for the use of James Ball, p. b. plaintiff in error vs. Major Peter Jaquett.

June Term, 1819. Writ of error to fhé justices of the Court of Common Pleas of New Castle county.

The suit below was on a sheriff’s recognizance; and the judgment in appeal was as follows : — And now, to wit, this fifteenth day of June, in the year of our Lord one thousand eight hundred and nineteen; this cause coming before the court in the presence of counsel on both sides, and the record and proceedings aforesaid being inspected and examined ; and the errors assigned being seen and considered ; and it appearing to the court that there is no error in the record and proceedings aforesaid, or in the rendition of judgment aforesaid ; and the court considering that the recognizance of a sheriff, being a recognizance with a collateral condition, and not a lien upon land from the caption thereof, but the judgment obtained by the party aggrieved, upon proceedings to be had as directed by the act of assembly in that behalf provided, creates a lien for such sum as is recovered in such judgment by the party aggrieved and no more ; and from the date of such judgment and not before ,• such recognizance differing from a recognizance in the Orphans’ Court, taken to secure the payment of the valuation of intestate’s real estate, the same being for the payment of money absolutely, and a lien upon lands from the caption. It is, therefore, considered by the court, that the judgment aforesaid be in all things affirmed,” &c. &c.

Note. This is not altered by the subsequent acts of assembly except as to limitation. (See Dig. 324, 396.)