Donely v. McGrann and McClay , 1 Del. 453 ( 1834 )

The Court

said that paroi evidence of the payment of money may be given by a witness who actually saw it paid, though there be a receipt. 3 Stark. Ev. 1055, note.

The plff. in replevin contended—That the distress was illegally taken: the demise was for the south end of the house, and the narr and avowry were for rent due for the north end, where the taking was. That the assignment from Connel to McGrann of fourth May was fraudulent, being but two days before the attachment, and on the eve of absconding. That the payment to ground landlord was a good defence.

Bayard replied—That the attachment of Robinson, Carr & Co. could give them no title, as it was after the assignment; nor was it regular, as there was -no inventory and appraisement, which the law requires. [Note. There was an appraisement on the attachment before judgment; Mr. Bayard insisted there must be a second one after judgment and before sale, which the court thought not necessary. Dig. 348, sec. 32.] Second. That the distress was right, as there was a change from the south to the north end of the house with the full consent of all parties. This constituted a new letting.

The Court left it to the jury—First. Whether there was sufficient evidence to prove a demise in the north end; and second, whether they were satisfied that the assignment of Connel to McGrann, of fourth May, 1833, was a bona fide transaction.

Verdict for avowant, defts. in replevin.

The question arose on the return of the jury, whether it was necessary to find the value of the property distrained. The court said that, though formerly otherwise, the present act of assembly made it unnecessary. The condition of the replevin bond is to satisfy the judgment, whatever it may be, and not merely to the extent of the property distrained. Dig. 264, 365. The judgment is to be given for the sum found due, as debt, with costs, &c.