Wollaston v. Phillips

1 Del. Ch. 271

• Court: Court of Chancery of Delaware
• Decided: August 15, 1823
• Status: Published

Opinion

The Chancellor

was of opinion that the attachment was not improvidently issued under the practice of the Court; but he did not consider the issuing of the attachment and the return of non est as alone laying a sufficient ground for an order to sell the defendant’s real estate in satisfaction of the decree. The order, therefore, was not granted on .the present motion.

*

On the next day an affidavit was filed by the complainant, and also one by the sheriff of New Castle county, David C. Wilson,—the two together shewing that the defendant was much involved in debt, that his personal estate was under execution to an amount greatly exceeding its value, that his real estate was largely encumbered by liens, that he had absconded from the State, that nothing had been paid toward satisfaction of this decree, and that by no other mode could the complainant obtain satisfaction but by a sale of the defendant’s real estate. The Chancellor, upon a motion supported by these affidavits, made an order for the sale of the real estate of the defendant by the sheriff. The sale was made, and the same being returned and confirmed, the proceeds were brought into Court and applied, under the order of the Chancellor, to the liens, according to their priority.

This view of the Chancellor is gathered very clearly from the course of proceeding actually taken in this cause, as shewn by the record. His man uscript note of the case is, from some cause, left incomplete. The argument of counsel is given and the Chancellor’s opinion is commenced, but left unfinished.