Opinion
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.
William Hooper, negro, applied to be discharged from imprisonment; one of his creditors filed allegations of fraud, which the court adjudged insufficient. The creditor then proposed to propound interrogatories to the prisoner, which was objected to on the part of the prisoner, on the ground that the allegations of fraud having been already decided in his favor, he was entitled to his discharge without further question. That the creditor having elected to rest his objections to the discharge on allegations of fraud which had been decided against him, he was not at liberty to make further objection.
But the Court said that though the fraud had been alledged and tried, and the issue found for the petitioner (which in this case had not been done, the court considering the statement as not amounting to an allegation of fraud,) yet they must proceed with the hearing of his petition to see whether in other respects he is entitled to his discharge; and that apart from any fraud they would, on a proper case appearing, adjudge him to serve his creditors.
The petitioner was discharged.