Volume 14 — Delaware Reports

In February, 1885, the name of the plaintiff was, on a general assessment, duly placed upon the assessment list for the Sixth ward of the city of Wilmington; and the levy court of New Castle county afterwards, in the spring of the same year, duly laid a poll-tax upon him.

The defendant in error brought suit against one Clayton C. Thackery, in the Superior Court of New Castle Couuty, being capias case No. 7, to May Term, 1883. The defendant, Thackery, gave bond to the sheriff for his appearance, afterwards perfected the .said bail, by giving as special bail, the said plaintiff in error, William D. Sedgewick.

<p>Rule to show cause why a writ of mandamus should not be issued.</p>

<p>Petition to take money out of Court.</p> <p>The defendant was tenant of the New Castle County Mutual Insurance Company. Before moving on the farm he gave a chattel mortgage to the plaintiff. Afterwards scire facias was issued on this mortgage, judgment recovered thereon, execution issued and sale made of the goods which were still on the premises and covered by the mortgage.</p> <p>The New Castle County Mutual Insurance Company had the money paid into court and petitioned as landlord to take out so much of it as would satisfy the years rent, claiming that the rent should be preferred to the mortgage.</p>

<p>Petition to take money out of Court.</p> <p>This proceeding is on a petition of Mrs. Hanson, the chattel mortgagee, to take the money out of Court as applicable to her mortgage, and is resisted by Mr. Burris who claims the same under the execution above stated.</p> <p>On June 3, 1889, El lie E. Cochran executed to Mrs. Hanson a chattel mortgage on said goods. The certificate of acknowledgement was materially defective in that it omitted the words “ party to this instrument of writing, known to me personally to be such.”</p> <p>This defect was corrected by interlineation of the omitted words by the notary on the evening of June 8, 1889 (after the lien of the execution attached) and the mortgage was recorded June 10, 1889.</p> <p>Judgment was entered June 8, 1889 by virtue of a bond and warrant of attorney, given by Elbe E. Cochran (prior to the execution of the chattel mortgage) to Sarah A. Hanson and Martin B. Burris for $2,000 and a ji fa was issued on the same day to wit, June 8, 1889, and placed in the sheriffs hands at 9.30 A. M. and became an unquestioned lien from that time.</p> <p>The petitioner,- Burris, also claims that the mortgage is void for want of a legal affidavit as required by the statute, for while the affidavit Accompanying the mortgage is sufficient in all other respects, it is without any jurat, or anything to show affirmatively by whom the oath was administered, or that it was administered by a duly qualified officer, etc.</p>

<p> Judgment—Collateral Attach—Jurisdiction—Foreign Attachment—Scire Facias—Defense. </p> <p>The judgment of a domestic court of record of general jurisdiction may be impeached in a collateral proceeding; and, if want of jurisdiction of the subject-matter or of the parties, or of the res in an action in rem, be manifest from an inspection of the record, it will be regarded as a nullity, without having been so adjudged by a formal and direct proceeding for its vacation or reversal.</p> <p>Where a judgment of a domestic court of record of general jurisdiction is void for want of jurisdiction apparent upon the record, it is, in legal effect, no judgment, and is unavailing for any purpose.</p> <p>Upon the return of nulla bona upon a writ of foreign attachment under the statute of this state, the suit is at an end, and the court has no authority to proceed further. In such case, want of jurisdiction is manifest upon inspection of the record; and for this reason the original judgment is a nullity either as a judgment in rem or in personam.</p> <p>Want of jurisdiction manifest upon inspection of the record of the judgment of a domestic court of general jurisdiction is a proper defense to a scire facias or other kindred proceeding for reviving and executing such a judgment, and may be taken advantage of under the plea of nul tiel record.</p> <p>The rule that in a scire facias to revive a judgment no defense can be availed of which existed anterior to the judgment, is not applicable where want of jurisdiction appearing upon the record is urged against the validity of the judgment; and it is immaterial whether such want of jurisdiction be urged in the first or in a subsequent scire facias proceeding.</p>

<p>Summons Case for personal injuries occasioned by the fright of a horse (driven by the plaintiff) occasioned by a dog.</p>

<p>Ejectment for the undivided two-thirds of about two hundred acres of land in Dagsboro hundred.</p>

<p>Sale of Goods—Place of Delivery—Inability of Purchaser— Carriers Liability.</p> <p>In a sale of goods not present at the time of the bargain, the place <5f delivery and payment, there being no agreement to the contrary, is the place where the goods are at the time of the sale.</p> <p>Where goods are sold by sample and received by the purchaser he must pay the price agreed upon, without deduction, unless there be a breach of express warranty of them by the vendor.</p> <p>The vendor of goods to be delivered should send them to the purchaser within a reasonable time after the sale and by some carrier which will be most convenient to the purchaser,'there being no agreement to the contrary; and when so shipped the goods are legally delivered to the purchaser and the vendor thereby loses his lien on the same and the purchaser becomes liable for the price thereof. If the purchaser notifies the vendor before delivery to the carrier of his intention not to accept the goods he becomes liable for damages for refusal to accept.</p> <p>The earners responsibility for safe carriage and delivery of goods is to the consignee and not to the consignor 'unless the consignor agreed to deliver them to the place of the consignee.</p>

Case Stated reserved from the Superior Court, New Castle-County. Amicable Action of Trespass. It is hereby agreed by and between the above named parties,, by their respective attorneys, as follows, to wit: 1. That the above action be docketed as of the May Term, A, D., 1891, with the same force and effect as if a summons had been regularly issued, served personally on the defendant and duly so returned and the appearance of the defendant duly entered. 2.

<p>Appeal from Justice of the Peace.</p>

<p>Appeal from Justice of the Peace.</p> <p>Heard before Comegys, C. J., and Grubb and Cullen, J. J.</p>

Action of replevin. In this case the following plea and replications thereto were filed; viz: “ 5th.

<p>Action of Assumpsit for the price of certain timber.</p>

Issue from Register of Wills of New Castle county. In this case there were two wills probated; one dated Trenton, January 20, 1890, and a subsequent will dated Wilmington, Del., January 9, 1891. Under the first mentioned will, Hannah Bennett bequeathed one-fourth of her estate, amounting to some eight thousand dollars, to Wm. J. Fisher and the remainder to Wm. J. Pyle and his wife, all of Wilmington, Delaware.

<p>Action for personal injuries resulting to the plaintiff from coming in contact with a live electric wire of the defendant company. (Facts fully appear in charge of the Court.)</p> <p>Heard before Houston and Cullen, J. J.</p>

<p>Replevin. The facts appear in the charge of the Court.</p> <p>Heard before Grubb and Cullen, JJ.</p>

Action on the case for damages for the death of plaintiff’s husband caused by injuries incurred while in the employ of defendants. The facts appear in the opinion of the Court. This case was first tried at the February term, 1892, at which trial, Benjamin Uields, for the defendants, offered strict legal proof of a marriage of Joshua Williams and Jane Tate prior to the marriage of Joshua to the plaintiff in this case.

<p> Construction of Statutes'—Colored School Fund—Distribution of. </p> <p>By the terms of the statute passed May 13, 1891, the colored schools of the City of</p> <p>Wilmington are excluded from a share in the distribution of the State appropriation to colored schools.</p>

<p>Action on the case to recover damages for personal injuries to Harry E. Peace, deceased. Said injuries were caused, as alleged by the plaintiff, by the slipping from the slow to the fast gear of a crane owned by the defendant company, while Peace and another employe of the defendant were raising a heavy weight, and while in rapid motion one of the cranks struck Peace knocking him senseless and inflicting the injuries complained of. Suit was brought by Peace during his lifetime, and the same was continued by his administrator after his death.</p> <p>Heard before Houston and Cullen, JJ.</p>

<p>Action on the case brought by a tenant against a landlord to recover damages for injury to the tenant’s property alleged to have been caused by the negligent and wrongful acts of the landlord or his servants.</p> <p>The facts appear in the charge of the Court.</p> <p>Heard before Houston and Cullen, J. J.</p>

Action to reéover the value of certain shares of Building Loan Stock. The facts appear in the charge of the Court. Heard before Houston and Cullen, J. J.

Action on the case for damages arising from the flooding of a cellar by reason of failure on the part of the proper authorities of the City of Wilmington to complete the filling in of a certain sidewalk after the curb had been set, etc.' Facts appear in the charge of the court. Heard before Houston and Cullen, JJ.

<p>Murder-—Defense—Drunkenness—Insanity— Cause for setting aside verdict.</p> <p>The continued visits of another to one’s house after he has been forbidden to come there, or the belief or suspicion that he was guilty of adulterous intercourse with the wife of the occupant of the house, or odious comparisons made by him or an offer to fight, is no justifiable provocation for the act of shooting the intruder.</p> <p>Evidence of the mental condition of the prisoner several months before the homicide committed by him is part of the history of the case and may be taken into account by the jury when considering the defense of insanity.</p> <p>Drunkenness is no excuse for crime ; but actual insanity produced by continued dissipation is a good defense, as insanity from any other cause, and will relieve the prisoner from criminal responsibility.</p> <p>In law the sanity of the accused is presumed and so continues until rebutted by proof to the contrary satisfactory to the jury.</p> <p>Every irregularity which would subject a juror to censure-7-such as the drinking of ardent spirits, or separating without permission, or the approach of or conversations with strangers,—there beingmo reason to suspect that the irregularity had any influence on the final verdict, will not be sufficient grounds for setting aside the verdict.</p>

<p> Larceny—Pleading—Indictment—Proof-—Bill of Exchange. </p> <p>Larceny is the wrongful or fraudulent taking and carrying away of the personal goods of another with a felonious intent to convert them to the taker’s own use without the consent of the owner.</p> <p>In an indictment for larceny the ownership of the property must be averred and, being a material and traversable fact, must be proved as alleged: But where said</p> <p>ownership is in an incorporated railroad company of this State it need not be averred that said company was a corporation of this State, nor proof made by the production of its charter or a legal copy thereof that it was such at the time the offence was alleged to have been committed.</p> <p>A bill of exchange becomes the property of the payee as soon as endorsed by him; and if at once handed back to the drawer for purposes beneficial to the payee, the general property therein, or the cash obtained thereon, remains in the payee and the drawer becomes a bailee thereof.</p> <p>Taking one’s own property from the possession of a bailee, who has an interest therein, with fraudulent and felonious intent of charging the bailee with having applied or converted it to his own use, is larceny. Publicity of the wrongful taking repels the idea of a felonious intent.</p>

<p>Indictm:ent for a nuisance in maintaining a certain factory.</p> <p>The facts sufficiently appear from the charge.</p>

<p> Murder—New Trial. </p> <p>"Where the prisoner waives his right to put the juror upon his voir dire and ask him whether he had formed and expressed an opinion of his guilt or innocence, he cannot afterwards make use of the fact that the juror had formed and expressed an opinion against him as a ground for a new trial; especially without evidence that the verdict of the juror, or of his associates, was influenced by such expression, or without dissatisfaction on the part of the Court with the verdict itself.</p>

<p>Indictment for murder.</p>

<p>Indictment for murder.</p>

<p>Indictment for murder.</p> <p>On the morning of January 12, 1886, Wesley Hanby started with a load of calves to Edgemoor. The road in front oí the farm of Isaac Talley was filled with snow and impassable, and it was necessary to pass through Talley’s field. There had been previous quarrels between the men, and on the previous day Talley’had told Hanby he should not pass through his wheat field., Hanby started from home with a loaded gun, and when he arrived at the bars through which he wished to pass into the wheat field he there met Talley who resisted his entering the field; a fight ensued in which Hanby raised his gun to fire at Talley, but the gun failed to fire. Talley drew a pistol from his pocket, fired and killed Hanby.</p>

On petition for habeas corpus. The petitioner was convicted of burglary with intent to commit larceny, and sentenced by the Court of General Sessions of the Peace and Jail Delivery for New Castle county to imprisonment for 10 years, to commence December 10,1873, and to end December 9,1883. Six months after sentence he escaped.

<p>Indictment for murder.</p>

<p> Homicide—Murder—Insanity—Proof—Experts—Doubt. </p> <p>To make a deliberate killing, done with a deadly weapon prepared for the purpose, murder in the first degree, the prisoner must have been capable of knowing, at the time, but his act was a wrongful one, and have not the power or control over his will to prevent his doing it.</p> <p>The burden of proof is upon the defendant to show insanity, or inability to control his actions.</p> <p>In questions of sanity or insanity, proof made by expert witnesses is of much greater value than that of persons who have no scientific or experimental knowledge of the subject of insanity, and who can only speak from observation of outward signs or appearances.</p> <p>Upon an indictment for the murder of his wife, if the harmonious relations existing at all times between the prisoner and his wife, together with the testimony of experts that the prisoner had, at the time of the homicide, the disease of melancholia, impairing his will power, and likely to be manifested in such an act as he committed, and the fact that he exhibited no remorse, but, rather, calm satisfaction, raises a reasonable doubt of the prisoner’s sanity, which the testimony of witnesses of his appearance and conduct does not remove, the jury should acquit.</p> <p>That the prisoner has asserted, since his arrest, that he was perfectly sane at the time he did the deed, is not conclusive, as it is a common delusion of insane persons to believe themselves sane.</p>

Indictment, manslaughter for the shooting Harvey Turner, a colored boy, on Sunday afternoon, December 9, 1888, near Newport, in Christiana hundred. Goodley, Turner and several others were engaged in shooting at a target with a pistol. Goodley jestingly, and not knowing that the pistol was loaded, pointed it at Turner, saying that he would shoot him. The pistol was fired and Turner dropped, mortally wounded. He died on the evening of • the same day.

<p>Indictment for murder.</p>

<p>Indictment for assault with intent to, kill.</p>

<p>Indictment for murder.</p> <p>Motion for new trial.</p>

Indictment under Sec. 9 of Chap. 15 of the Rev. Code, for refusing to accept a legal vote at the Gen. Election held on the fourth day of November, 1890, at the 12th District of the 5th Ward of the City of Wilmington : to wit, that of Louis De Stepanes, an Italian by birth.

Indictment for conspiracy to burn a barn 1'ocated near the City of Wilmington and belonging to the Messrs. DuPont. The testimony was Jargely that of detectives and was very sensational, disclosing a plot among the conspirators to burn the barns and blow up the powder manufactories of the DuPont’s located on Brandy-wine Creek, in the-vicinity of the City of Wilmington.

Indictment for murder of the second degree for the felonious killing of Martha I. Evans, a white married woman, in Indian River Hundred in said Connty, in the month of July, 1891. The evidence adduced was entirely circumstantial, and tended to show that deceased came to her death by reason of an operation .to produce abortion, which said operation the State contended was performed by the prisoner.

<p>Indicted for taking and using a female child under fifteen years of age for the purpose of sexual intercourse.</p>

Indictment for murder ot .the first degree, for the felonious killing of one Noah Benson, a colored man, living at Delaware City in said County, whose headless body was taken from the basin of the Delaware and Chesapeake Canal at that place on the morning of December 26, 1891.

<p>Indictment for carrying concealed a deadly weapon. (The facts appear in the charge of the Court below.)</p>

James Corbett Smith (colored) was indicted for assault with intent to commit a rape upon Emma D. Middleton, a little girl about four and a half years old.