Reed v. Fiddeman , 7 Del. 408 ( 1862 )

Rule to show cause wherefore an inquisition and sale of lands should not be set aside on judgments and executions levied upon the lands of James H. Reed at the suit of Henry B. Fiddeman and others. The affidavit of the plaintiff in the rule on which it was granted, alleged that ten days written notice had not been served upon him prior to the holding of the inquisition, and that he had no knowledge of the holding of it until after the last term of this court to which it was returned.

The proof was that it was held on the 24th day of September, 1861, prior to the last term of the court, and that the sheriff served written notice on the defendant in the execution by leaving such a notice at his house at least ten days before that time, which was the time that had been appointed and designated by him for holding the inquisition in the case. But upon the production of the written notice so left by him, it appeared that he had erroneously inserted the 24th day of October instead of September in it, so that as it read, it was written notice that the inquisition would be held on the 24th of October, instead of on the 24th of September, 1861; and that would have made the holding of it two days after the adjournment of the court at the last term. It was further proved, however, that on the same day on which he left the notice at the defendant's residence, he met the latter in the town of Milford and informed him that he had left a written notice at his house that day for him, of the time of holding the inquisition upon his lands and then also expressly informed him that it would be held on the 24th of September, but not that there was any error in the written notice so left, for he was not aware until it had been produced in court by the defendant, that there was any error in it, and that the defendant then inquired if he should produce his receipts, and when he informed him that he should, he replied that he would be on hand with them at that time.