
    THOMAS BABB v. CALEB PERKINS.
    Court of Common Pleas. New Castle.
    1795.
    
      Rodney’s Notes.
    
    Levy, Bayard [for plaintiff]. Bedford [for defendant].
    
      Bayard, for plaintiff,
    was going on to open the cause. Defendant objected, and objection overruled. Offered a plot to the jury which had an addition of two lines laid down by plaintiff, with only one day’s notice to defendant; defendant did attend without dissenting or assenting.
   Court are of opinion that it would be irregular to admit the plot to go to the jury.

Deed, October 12, 1709, Peter Baynton to James Thomas, beginning at Stoney Creek. Survey dated 1759 read to the jury in order to prove a boundary, hickory in the line from B to Sulkey corner near the corner white oak of plaintiff’s land.

Robert Coram, surveyor, to explain the plot.

Jacob Broom. Caleb Perkins and the father of Thomas Babb and other owners of the adjoining lands present when the stone line was run — at the expense of, and he believes it was a joint agreement between, all parties in order to establish the lines of their lands. There was a black oak about two perches nearer the river than the stone line, about two thirds of the line from B. The stone line was not run agreeably to the usual but real variation.

William Fotwell, seventy-one years of age, was present when Broom etc., and also when Coram ran it. Black oak is about thirty perches to southeast of Babb’s corner. A hickory stands near Stoney Creek. In ’55 Thomas Cartmel rode with him to a corner marked white oak and told him it was a corner of Thomas Babb, and his line bounders on the run near stone line; then showed him a black gum, said it was his head boundary southeast of the stone line to a spring. Stapler told him he was present when the black oak was marked as a line tree of Thomas Babb and Caleb Perkins, and said it was a good old witness. Thomas Babb and his ancestors in possession of that plantation ever since he remembers.

Thomas Perkins, sixty years of age. Fifty years ago he lived with the great-grandfather of plaintiff. He had a son called Phillip, who showed him a black oak, a line tree between Thomas Cartmel and his land, about forty rod from Stoney Creek, fallen gum is below it, the south side of the stone line.

Richard Kellarny. Corner of Druitt’s and this patent land is at a chestnut; his resurvey calls for the chestnut. It has been taken and acknowledged as the corner of Druitt’s tract. That survey for vacant land was run down to Sulkey Corner.

David Kellum. He was present when the stones were set.

Samuel Lodge’s deposition read. Says Thomas Babb claimed down to the stone line, a line of marked trees from Babb’s corner. In said line there was a fallen gum Cartmel told him was his corner.

Mr. Bedford. Patent 1673, Franess etc. July 20, 1686, deed to Peter Baynton from Milles Nelson. June 21, 1692, deed to Thomas Nixon from Peter Baynton. 1693, deed to Joseph Perkins from Nixon and wife. Joseph Perkins’ will November 4, 1706/7. Joseph Perkins to Caleb Perkins May 1724, deed. Caleb Perkins’ will dated July 7, 1749. Plot and survey of Druitt’s tract dated January 25, 1684. 1742, plot of a surveyor of land sold by John Ford to Richard Grubb.

Philip Ford. I helped to cut the black oak at north [comer], and [it] was blocked, do not know how old it was, did not count it.

John Bird. Thomas Babb’s father called on him to see the stone line settled. He saw no stone set but at Sulkey Corner. That W. Perkins said he would never consent for a stone or corner to be set there for him. That when the rum came Perkins would not drink any, upon which W. Broom broke the jug against the stone and said he would christen it Sulkey Corner. We saw.

Josiah Davis. I was with W. Stapler and Mr. Broom three days. Perkins was hunting line trees upon Babb, and Babb was hunting them upon Perkins. All parties agreed to the setting of the stones but Perkins, who said he would not agree unless they were put in the right place. Caleb Perkins said he would spend both his hands full of white money before it should be a line for him.

Verdict for defendant.  