Volume 15 — Delaware Reports

This was a writ of certiorari issued in vacation by the Clerk of the Court of Errors and Appeals to the Superior Court for Newcastle county. The cause of action in the Superior Court was a mechanics’ lien claim filed, upon which a scire facias was issued. At the return term of said scire facias the defendant appeared and suffered judgment by default.

This was an action on the case against the city of Wilmington for injuries received by the plaintiff below while walking on the streets of the city. The cause of the injury, as alleged in the declaration, was that the street was obstructed and made dangerous by coasting and sledding which was permitted by the city, and the neglect of corporate duty to keep the streets unobstructed and free from danger to persons lawfully passing thereon.

This was an action of assumpsit in which the plaintiff sought to charge Grier as a partner in the defendant firm. At the trial there was evidence introduced tending to show the fact of partnership by general reputation. Exception was taken and the admissibility of such testimony was the question raised by the first error assigned.

This was a suit similar to the last case, in which, however, only one of the questions involved in that case arose. The only error assigned was to the admission of evidence of general reputation to prove the partnership in a suit against the firm by third persons.

This was a writ of error taken in a case tried at the April term, A. D., 1892, in and for Kent County, being an action of replevin brought to recover a crop of hay, corn, and fodder grown upon the lands of a certain Mrs. Trumpeller. From the facts in the case, which were not disputed, it appeared that Mrs. Trumpeller was the owner of certain real estate situated in Kent county.

This was an action of covenant on an insurance policy covering both real and personal property in which, after it was pleaded to issue, a case stated was agreed upon and filed, and the questions of law therein contained were reserved to be heard in this Court.

Questions Reserved on Case Stated.—The facts agreed upon were substantially as follows: On Nov. 20, 1891, the plaintiffs recovered judgment in the Superior Court of New Castle County against John Appleton for the real debt of $373.93, with interest from' Sept. 1, 1891.

This was an action on the case brought by the plaintiff against the city of Wilmington to recover the amount of salary alleged to be due to him for services to the city in the capacity of Registrar of Deaths, Births and Marriages and Secretary of the Board of Health.

<p>Master and Servant. Infancy.—Where the employment is such as is usually followed by youths of sixteen years of age, the master has a right to presume that a servant of that age is possessed of the average intelligence and capacity; and, on the servant’s statement that he had been employed at the same work in another factory, that he had a competent knowledge of the employment which he sought.</p> <p>Same.—It is a question for the jury whether the servant should have known of the danger attending his employment, taking into consideration his age, the nature of the machine, the fact that he had operated it more than two months, and all the other facts attending his employment.</p> <p>Same.—The duties of the master to his servant vary with the known age and expe- . rience of the latter.</p> <p>Master and Servant. Vice Principal.—Within the scope of the agent’s authority, the master is bound by his acts.</p> <p>Negligence.—Contributory negligence may be imputed to a servant where he should have known the danger, and has failed to exercise ordinary care in the course of his employment.</p> <p>This was an action on the case to recover damages for injuries sustained by the plaintiff while operating a pony-planer in the factory of the defendant. The facts are sufficiently stated in the charge of the court.</p>

<p>Highway.—A street railway company which has the right to the use of a street for its cars, is not guilty of negligently obstructing the street by allowing one of its cars to remain on a spur track for a reasonable time.</p> <p>Same.—Persons are not bound to keep in motion every instant they are on the public highway; they may stop temporarily for business or pleasure, provided that they do not unreasonably interfere with the rights of others.</p> <p>Negligence.—One who places himself in the public street is bound to exercise all the care ordinarily required to prevent injury to himself; but even if he is negligent in standing on the street without looking about him, such negligence on his part will not defeat a recovery, where there is a failure on the part of the servant of the defendant to use reasonable care.</p> <p>Same.—In order to defeat a recovery for personal injuries, there must be shown a casual connection between the negligence of the plaintiff and the accident.</p> <p>Master and Servant.—Within the scope of his employment, a master is responsible for the acts of his servant, and will be liable for injuries to a third person caused • by the negligence of such servant.</p> <p>Measure Of Damages.—Exemplary damages should only be allowed where the act causing the injury has been wilfully done, or where circumstances show that there was a deliberate, preconceived, or positive intention to injure, or that reckless disregard of the safety of persons or property which is equally culpable.</p> <p>Same.—In an action for personal injuries, the recovery may embrace compensation for nursing and medical expenses, loss of time from inability to work and incapacity to earn money, loss of bodily and mental powers, and for that actual suffering of mind and body which is the immediate and necessary consequence of the injury; but he may not recover for any malady from which he suffers which is not the natural and necessary result of the injury complained of.</p> <p>Evidence.—A witness, not an expert, may testify whether the defendant appeared well or sick, but he may not give his opinion as to whether or not such defendant was shamming.</p>

This was an action of assumpsit against an alleged partner in a fruit canning firm of Milford, Delaware. The active partner, Harris, having absconded and left many of the firm’s debts unsettled, the creditors brought suit against George S. Grier as a partner.

The defendant having been arrested under a capias ad respondendum in a civil action and having given bail for his appearance, Richard R. Kenney, for defendant, moved to quash the writ upon the ground that the affidavit upon which it was issued was insufficient. The objections urged are stated in the opinion.

Case Stated.—This was an action on a promissory note by Arnold Kohn and others against Susan F. Collison, an indorser on-the note for the accommodation of her husband. The facts were agreed to and stated for the opinion of the Court, as follows : The parties mutually agree that this case shall be tried by the Court without the intervention of a jury.

This was an appeal from a judgment rendered by a Justice of the Peace in a suit upon an award made by arbitrators, acting in accordance with a verbal agreement made between the parties. The award was in the following words: “We, the undersigned, find Dr. Fooks indebted to Daniel L. Lawson in the sum of $102.54,” signed B. C. Prettyman, J. M. Godwin, H. L. Barker.

This was an action on the case to recover damages for the flooding of a storehouse and premises with water which backed up from a public sewer by reason, as was alleged, of its incapacity to carry off the same. The .tacts were that on the 29th day of July, 1891, the plaintiff was the owner and occupyer of a storehouse and premises, No. 817 Lancaster avenue, formerly known as Front street, in the city of Wilmington.

Issues Framed for Trial by Jury.—This was an application to take money out of the Court, the money being the proceeds of property which had been sold under executions issued against the defendant, which money was paid into court by the Sheriff, it béing claimed by junior execution creditors that the money was-applicable to their judgments and not to those under which the sale was made which were alleged to be without consideration and fraudulent.

Action of assumpsit for services rendered as a nurse during the sickness of Benjamin Purnell.

This was an action on the case to recover damages done to the plaintiff’s property by fire, which it was alleged originated through the negligence of the defendant. The plaintiff in his declaration described the close or land upon which the injury was done as “ contiguous and next adjoining ” the land upon which a mill of the defendant was located. Upon that issue was joined.

<p>-Conditional Sale, Rescission,—In a case of a conditional sale or exchange the party desiring to rescind must return or tender a return of all the property received by him under the terms of the sale or exchange, and within a reasonable time.</p> <p>Same. Contract.—The question as to what is a reasonable time within which the rescission of a contract shall be made is a question for the court under the circumstances of such case.</p> <p>Same.—A detention of the property for four days after deciding to rescind, is an unreasonable time where the parties live within two miles of each other.</p>

<p>Practice. Justice of the Peace. Record. Certiorari,—A party may file an affidavit setting forth the fact of the alteration of the record of a justice of the peace, after exceptions are filed, even though there was no affidavit appended to the exceptions; and at any time pending the certiorari. And upon such affidavit the Court will order up the original record.</p> <p>Same.—When the record of a justice has been changed, the Court will order him to correct it and then to send up a copy as it originally stood that a true transcript may be entered. Then the party may file his exceptions to the transcript of the record as it originally stood.</p> <p>Same. Judgment.—When a justice of the peace has once entered a judgment in his docket, and it is a complete record, he has no right to alter or change it in any manner whatever, and is punishable by law if he does so.</p>

This was a certiorari to the judgment of a Justice of the Peace. The facts of the case and the exceptions will appear from the opinion.

This was an action of replevin for goods which had been sold by the plaintiff to the defendant, Topkis, who, shortly after receiving the goods and before payment therefore, became insolvent, and the plaintiff claimed the right to rescind the contract and retake the goods, upon the ground that the sale was procured, as they alleged, by false and fraudulent representations which gave them the right to rescind the same.

<p>Pleading. Amendment,'—Leave to amend will not be granted after a case is called for trial, where the amendment is a plea in abatement.</p>

This was an application for an order upon the defendant to produce the application for insurance, upon which a life insurance policy had been issued and upon which policy this suit was brought, based upon an affidavit alleging that the application for insurance contained matter pertinent and material to the time and was in the possession of the defendant. The narr had not been filed.

This was an appeal from the Municipal Court of the City of Wilmington, taken by Samuel D. Forbes, against whom judgment had been rendered under a complaint of violating a city ordinance providing for the construction of vaults of every privy within the city limits.

This was an action of assumpsit to recover funeral benefits. The facts will sufficiently appear in the charge of the Court.

—This was an action on a promissory note, given by McComb Clayton to Joseph L. Cavender as commissions for effecting an exchange of a farm of said McComb Clayton for certain stocks. The defence set up was a total failure of consideration, in that the stocks proved to be of no value; and fraud on the part of Cavender in misrepresenting the value of the stocks.

<p>Common Carrier,—A common carrier of freight is regarded by the law in the light of an insurer, and is liable for the safe delivery of freight received by it, and in case the goods are injured, lost or destroyed nothing will excuse or discharge him but the act of God or the public enemy.</p> <p>Same, Corporation,—Where two corporations created by different States exist-under the same name, one maintaining a steamboat line as a common carrier and renting and occupying land owned by the other, the latter is not liable as a common carrier for property delivered to the former unless it permitted some other company to use its corporate name, and held itself out to the general public as transacting said business.</p>

This was a scire facias upon a mechanics’ lien in which exceptions to the statement of claim were filed. The first and second exceptions contained specifications of items included in the bill of particulars which, it was alleged, were not properly the subject of a mechanics’ lien.

This was an action on the case for damages for the death of Robert S. Maxwell, resulting from a collision with electric car No. 41, operated by the defendant. The trial of the case by a special jury was commenced on February 1, 1894.

This was a certiorari from the record of Charles H. McWhorter, a Justice of the Peace for Hew Castle County.

<p>Gift, Contract,—One who has made a gift of money to another or who has advanced money upon the consideration of being furnished a home in the house of the donee during the life of the donor, cannot afterwards change the terms of the gift or contract without the consent of the other party.</p>

<p>This was a case stated to determine the priority of liens upon real estate sold by the defendant as Sheriff. The land sold was subject to a mortgage held by the plaintiff recorded March 5,1881. There was also a judgment by default recovered against the defendant in the execution under which the land was sold, which had been taken for want of an appearance upon narr filed December 6, 1880, amount to be ascertained by inquisition. An inquisition was held and the amount ascertained May 24, 1881. The proceeds of the sale of the land were applied by the Sheriff to the judgment which the plaintiff claimed were properly applicable to the mortgage held by it.</p>

The plaintiff was the owner of a dwelling house in the city of Wilmington, against which proceedings were taken by the Board of Health for the abatement of an alleged nuisance resulting from a wet cellar.

This was an action of ejectment by which the plaintiff’s lessee sought to recover the property, described in the declaration, which was situated in the city of Wilmington, New Castle County. She claimed title under the will of her late husband, Hugh Patton, deceased, and deeds of conveyance to her from the children and residuary devisees of the said decedent.

This was an action of assumpsit upon a fire insurance policy covering both real and personal property. The suit was brought to the April Term, 1892, and on October 6, 1893, a case stated was agreed upon and filed.

<p>Sale. Execution. Fraud.—Goods regularly and bona fide sold under execution at a constable’s sale, although covered by a chattel mortgage, are sold free and discharged from the lien of the mortgage; but if such constable’s sale be fraudulent, no title vests in the purchaser of goods thereat.</p> <p>Sale. Execution.—An irregularity committed in good faith in the proceedings under an execution or sale, will not invalidate the title to any property bought thereunder by a bona fide purchaser.</p> <p>Fraud,—Fraud vitiates every proceeding and transaction into which it enters, but, as all persons are presumed to be honest until the contrary is shown, fraud must always be [established by proof and, in the absence of competent and satisfactory evidence thereof, can never lawfully be presumed.</p> <p>Yerdict,—Where a jury in reporting its verdict discloses the fact that the conclusion was reached by a calculation of interest contrary to the instruction of the Court the verdict will be set aside.</p>

This was a suit upon a promissory note brought to this term, in which the following affidavit of demand was filed by the plaintiff: “ State of Pennsylvania, ss.

This was an action on the case brought by Benjamin Mills against the Wilmington City Railway Company, to recover damages for injuries to his right leg while traveling upon the public highway, alleged to have been caused by a rock hurled against it from blasting done by the defendant company on or near said public highway.

This was an action upon the case for the loss of the left arm, which the plaintiff alleged resulted through the negligence of the defendant company. The facts of the case will more fully appear from the charge of the Court.

This was a mechanics’ lien for materials furnished and work and labor done in and for the erection and construction and upon the credit of two brick houses situated in the city of Wilmington. The plaintiff furnished the stone work for the buildings, and had fully performed his contract on May 1, 1894. On August 24, 1893, the statement of claim was filed, although the buildings were not at that time completed.

This was a rule to show cause why a peremptory writ of mandamus should not issue to compel John F. Henry, the Registrar of West Election District of Little Creek Hundred, Sussex County, to place the name of the relator, Clarence W. Hastings, on the registration list of the said district as a qualified voter of said hundred.

This was a certiorari to George T. Dodd, a Justice of the Peace, in an action for a balance ascertained on settlement of account. The Justice rendered a judgment by default on November 4, 1893, the record of which was to that point regular. Subsequently the record was as follows : “ The above judgment was opened November 17, 1893, for a new trial.

This was a certiorari to George T. Dodd, a Justice of the Peace, in an action of trespass for “ taking and carrying away a horse.” There had been a trial by referees and it appeared from the record that on the day of hearing all the parties were present; the witnesses all sworn and the referees after hearing the proofs and allegations adjourned to Monday next for further proofs the 30th ■day of March.

•This was a certiorari to a judgment rendered by T. Wells, a Justice of the Peace, in an action on book account. The record of the Justice showed that “the defendants appeared and are heard ” and judgment rendered against the defendant and in favor of the plaintiff.

This was an action brought by Hannah Wheatley, the widow of William B. Wheatley, to recover damages for the death of her late husband, caused as she alleges by the negligence of the defendant company.

This was a scire facias to the May term, 1894, upon a judgment entered September 30, 1854, for the real debt of $3,291.70. A fi. fa. had been issued to the November term, 1854. The pleas were nul tiel record, payment, satisfaction, set-off, act of limitations. 1 Thomas Davis, for the plaintiff, moved for an order upon the defendant to draw out the pleas of payment, satisfaction and release, and that the pleas of set-off and act of limitations be stricken from the record.

This was an action brought by the Parvis & Williams Company against A. J. Wright and Amanda Wright before a Justice of the Peace on a negotiable note, a judgment being recovered there by the Parvis & Williams Company. Under the provisions of the statute there was an appeal taken, and the case then came up to this court to be tried de novo. It appeared from the proof that the parties signing this note were husband and wife.

<p>This was an application for a rule to show cause why a Sheriff’s sale should not be set aside.</p> <p>On November 29, 1894, which was a legal holiday, Francis N. Buck, President of the defendant company, made before George W. Bright, a notary public, an affidavit alleging that property of the defendant which had been sold by the Sheriff on November 7, 1894, for $33,000 was worth at least $60,000, and upon a resale of the lot it would bring a sum largely in excess of the price at which it was sold, which was therefore grossly inadequate. The affidavit was indorsed as follows :</p>

<p>This was an action of assumpsit upon a promissory note as follows:</p> <p>“ Seaford, Del., January 10, 1894.</p> <p>“ Thirty days after date I promise to pay to the order of George E. Smith, at the First National Bank at Seaford, the sum of ninety-five dollars, without defalcation for value received.</p> <p>“ Samuel I. Roop.”</p> <p>This note was indorsed as follows:</p> <p>(1.) “ G. E. Smith,</p> <p>(2.) “ Pay to the order of Union National Bank. The Standard Sewing Machine Company. By T. D. Brown, Attorney.</p> <p>(3.) “ For collection and credit of Union National Bank of' Wilmington, Del. J. H. Dan by, Cashier.</p> <p>(4.) “ For collection and credit to Sussex National Bank, Sea-ford, Del. H. M. Wright, Cashier.”</p> <p>The suit was by the plaintiff company, the holder and second indorser of the note against Smith, the defendant, who is the payee and first indorser. The sum claimed was $101.83, being the face-of the note, $95.00, costs of protest, $2.11, and interest from February 12, 1894, to date, $4.72,</p> <p>The evidence of the plaintiff was to the effect that on the 12th day of February, 1894, the day of maturity, the note was presented at Seaford, Delaware, by the Sussex National Bank to the First National Bank at Seaford, the place of payment named in the note, that payment was there demanded and refused, and on the same day the note was duly protested by Nathaniel H. Brown, a Notary Public. On the next day, February 13th, the note and copy of protest were sent by mail, by the Sussex National Bank, the then holder and fourth endorser, to the Union National Bank of Wilmington, Delaware, the third endorser. On the next day, February 14, the note and protest were sent by mail by the Union National Bank to the Standard Sewing Machine Company, the second endorser, at Philadelphia. On the next day, February 15th, the Standard Sewing Machine Company sent a letter or notice to Samuel I. Poop, the maker, at Laurel, Delaware, which reads as follows:</p> <p>“ Philadelphia, Pa., February 15, 1894.</p> <p>“Mr. S. I. Poop,</p> <p>“ Laurel, Del.</p> <p>“ Dear Sir:—</p> <p>“You note to the order of George E. Smith, and by him endorsed, for ninety-five dollars, due February 9-12, has been returned to us protested; protest fees and costs, $2.11. Total, $97.11. Please write us at once what you propose doing with the note.</p> <p>“Yours truly,</p> <p>“The Standard Sewing Machine Co.</p> <p>T. D. B.”</p> <p>This letter was received by Poop on February 16, 1894, he then and there acting as agent for the plaintiff Company. On the same day he called upon and left the letter with the defendant, George E. Smith, and asked him to help him about the note. Smith took the letter for the purpose of answering it as it is alleged, and kept it in his possession and produced it at the hearing of this cause.</p> <p>It is also claimed that Roop told Smith on February 16th that the. note was protested, and that at Smith’s instance he went over to Seaford to see what had become of the note and reported to Smith that it had been protested.</p>

This was a certiorari to John A. Kelley, a Justice of the Peace, on a judgment rendered on a forthwith summons, May 30, 1894. The Justice’s record showed that “ the plaintifi makes statement satisfactory to the Justice of the Peace that there is danger of losing the benefit of his process by delay. I thereupon issue summons to Thomas Reardon, constable, May 30th, A. D. 1894, made returnable forthwith.

The libellant in this case filed her libel, alleging therein as a ground for divorce that the respondent had been guilty of adultery with (the co-respondent), “ which adulterous practices have extended and continued from the year 1887 until the present time, the said adulterous'practices having been engaged in at Brandywine Hundred New Castle County and State of Delaware; at No. 247 South Seventeenth Street, in the City of Philadelphia and State of Pennsylvania ; at the…

<p>Landlord and Tenant. Distress.—A landlord may distrain personally upon the goods of his tenant, to recover rent, or he may empower a bailiff to do so for him.</p> <p>Same.—If the goods of a stranger are upon the demised premises at the time the distraint is levied, the bailiff may-take the same and sell them.</p> <p>Same.— But if, before the distraint is levied, the stranger having property upon the demised premises, removes that property off those premises, it is then no longer subject to a lien for rentiand cannot be followed.</p> <p>Same. Highway.—The pavement or street in front of a house is not of such a nature as to be demised to the tenant by the landlord, and a stranger’s goods placed thereon are severed from the demised premises, and in such case they cannot be taken under a landlord’s distress warrant.</p> <p>Evidence.—Where there is such a diversity of testimony that it cannot be reconciled by the jury, they are to take into consideration the relative positions of the parties with regard to the transactions, their connections therewith, their means of knowledge, the opportunities each had of best knowing and the interests of the parties; and give weight to that testimony, which in their minds is the strongest.</p> <p>Landlord and Tenant.—The demised premises are the premises occupied by the tenant as delivered to him by the landlord to be used for specified purposes.</p>

<p>This was an action on the case to recover damages for injuries to his horse and wagon, which the plaintiff alleged were caused by the negligence of the defendant.</p> <p>The case made by the plaintiff was that on the 30th day of October, 1892, his horse and milk-wagon were temporarly stopped in front of the Dragon. Run Dairy, on Delaware Avenue, just west of Jefferson Street, in the city of Wilmington, for the purpose of taking the milk out of the wagon and putting it in the cellar of said dairy; that the horse was fronting west with the hind wheels of the wagon in an easterly direction, near the car-track of the defendant company’s road; that two cars had previously passed, but afterwards, while the hind-wheel was so near the track as to make it dangerous for any other cars to pass, car No. 32 of the Wilmington City Railway Company came up, running rapidly, ran into and injured the horse and wagon of the plaintiff. The damage to the horse was placed at $275.00, and the amount of the repairs to the wagon, rendered necessary by the accident, at $67.73, making $342.73 the total amount of damages claimed.</p>

<p>The facts are sufficiently stated in the charge of the Court.</p>

This was an application for a rule to set aside a judgment and execution which were alleged to be void because the judgment was entered after the cause of action was barred by the statute of limitations.

<p>Jurisdiction. Bond. Forgery.—Where a surety on the bond of a tax collector denies that he signed it the Court will entertain an application to open the judgment, but where it is claimed that the signature was procured by fraud it will not take jurisdiction, but leave the party to his remedy in Chancery.</p> <p>Jury, Issue.—In such case where the signature is denied the Court will not determine the question of fact, but will direct that an issue be framed so that it may be passed upon by a jury,</p>

This was an action on the case for damages caused by an accident to the plaintiff while in the employment of the defendant, by which he lost the fingers of his right hand, as he alleged, by reason of the negligence of the defendant. The material facts are stated in the charge of the Court.

<p>Judgment. Practice.—A judgment may be kept alive, where the defendant is absent from the States by two returns of nihil</p> <p>Judgment. Presumption Of Payment.—If twenty years or more, are allowed to elapse without any steps being taken to revive a judgment, the jury may take that fact into consideration as tending to show that the judgment has been paid,</p>

This was an action of replevin brought by an infant who claimed to have been emancipated by his father. He sued by his next friend to recover a horse to which he claimed to have acquired title by trading for it a mare, formerly owned by the plaintiff’s father, and alleged to have been given to him prior to the death of the father. The question of fact involved was whether the plaintiff was the owner of the mare.

This was an action on the case brought to recover damages for slanderous words alleged to have been uttered by the defendant against the plaintiff in respect to the burning of a school house in the town of Milton, in this county, on September 20, 1892.

This was an action of debt for legacy in which the defense was payment. At the trial the plaintiff offered in evidence the records of the Begister of Wills, showing the will and the interest of the plaintiff thereunder, the executors’ bond and the first administration account, passed before the Begister March 2, 1892, showing an unappropriated balance of $4,697.89.

This was an action of replevin for the recovery of the value of a sorrel mare colt which the plaintiff claimed that he had bought of his sister-in-law, the wife of his brother, Frederick C. Stock-well. The facts are sufficiently stated in the charge of the Court.

This was an appeal from the Register of Wills of Kent County, admitting to probate the. will of George W. Cummins, deceased. The will bears date December 28,1888. It was signed by the testator, witnessed by W. H. Janney, John E. Collins and William Faries, with a codicil dated May 28th, 1889, signed by the testator and witnessed by O. B. Voshell, Samuel J. Reynolds and Charles J. Allen.

<p>This was an application for a writ of peremptory mandamus based upon an affidavit setting forth the following facts: That Eben Lurtz was on the fifth day of October, A. D., 1894, a citizen of the State of Delaware, above the age of twenty-two years, resident in Kent County and East Election District of Duck Creek Hundred; That he had resided in said state for-years, and in said county for more than one month prior to the said sixth day of October, had paid a county tax within two years prior to the sixth day of November, A. D., 1894, which had been assessed against him more than six months before the said sixth day of November; that the petitioner’s residence was not acquired by being stationed in any garrison, barrack, or military or naval station within said State, and that he was not on said sixth day of October and never was, an idiot or an insane person, pauper, or a person convicted of a crime deemed by law a felony. That on the said sixth day of October he appeared before William H. C. Hardoastle, Registrar for an election district of Duck Creek Hundred, in Kent County, at the place duly appointed and advertised for the registration of voters, and applied to be registered as a qualified voter, and that after establishing his qualification as above stated, and producing a receipt properly signed and stamped for the payment of a county tax within two years prior to the sixth day of November A. D. 1894, which had been assessed against him at least six months before the said sixth day of November, he was then and there registered by said William H. C. Hardcastle, Registrar, as a qualified voter ; that being so registered, an affidavit was presented on the twentieth day of October A. D. 1894, to the Board of Registration aforesaid, setting forth that in the opinion of the affiant that the petitioner was illegally registered in said election district as a qualified voter, for the reason that in the opinion of the affiant the tax receipt upon which the petitioner was qualified as aforesaid, was not a receipt for a “ tax ” such as is contemplated by the constitutional provision respecting the payment of a “county tax” to qualify an “ elector ” to vote in this State for State and County officers, and that upon such affidavit the petitioner was notified to appear before the Board of Registration aforesaid, on Saturday, the twenty-seventh day of October, A. D. 1894, to show cause why his name should not be stricken from the voting books of qualified voters of said Duck Creek Hundred; that by reason of the receipt of said notice the petitioner appeared before the said Board of Registration at the time and place specified, and insisted that his name was properly entered in the register as a qualified voter, and that it should not be stricken from the voting books of qualified voters. Whereupon the said Board of Registration, upon the production of the said affidavit and inspection of the same, and for the reason therein set forth, and for no other or further reason, notwithstanding the protest of the petitioner, and in derogation of his rights wrongfully, wilfully and illegally declared itself satisfied that the petitioner was not a qualified voter and did draw a line through the petitioner’s name, as written in the column beaded “ Qualified "Voter;” and did also, in the column headed “Remarks,” opposite his said name, write the words, “adjudged disqualified on revision by the Board,” and did also draw a line through his name as first entered.</p> <p>Wherefore he prayed that a peremptory writ of mandamus of the State of Delaware be issued directed to the said respondents, constituting the said Board of Begistration of Duck Creek Hundred, commanding them and each of them as follows, to wit.:</p> <p>1. To expunge the line drawn in ink through the name of the petitioner as written in the column headed “ Qualified Voter,” and also to expunge the words “ adjudged disqualified on revision by the Board,” written in the column headed “ Bemarks,” opposite to the petitioner’s name and to expunge the line drawn through the petitioner’s name as first entered, and also to expunge the causes of the petitioner’s disqualification as stated in the column headed “ Disqualified,” and also to expunge the entry of the date when his disqualification was ascertained.</p> <p>2. And that his name should be restored to the list of qualified voters and remain and appear thereon in the same manner as it was originally entered by the Begistrar.</p> <p>The respondents in their answer admitted that the facts set forth in the petition were substantially correct except that the said petitioner had paid a county tax within two years prior to the sixth day of November, A. D. 1894, which had been assessed against him more than six months before the said sixth day of November, A. D. 1894, and was thereby qualified to enjoy the right of an elector at the general election to be held on the said sixth day of November, A. D. 1894, which allegations were expressly denied.</p> <p>The respondents averred that the said Board of Begistration of which they, the said respondents, were members, did, acting in their judicial capacity, to decide and determine the qualification of electors^ at the coming general election in this State, after a full hearing, examination and inquiry, having taken careful legal advice, and after due consideration, being satisfied that the relator was not a qualified voter, did adjudge the said relator to be improperly registered as a qualified voter, the reason for said decision being that the said alleged tax receipt upon which the said relator secured the registration of his name as a qualified voter, was not a receipt for a tax such as is contemplated by the constitutional provision respecting the payment of a tax as a qualification of an elector at the coming general election, the tax assessed to the said relator for the year A. D. 1892, having been returned to and allowed by the Levy Court of Kent County, in March, 1893, as delinquent, and thereby extinguished as a tax and thereafter uncollectable, and did draw a line through the said relator’s name as written in the column headed “ Qualified Voter,” and did also in the column headed “Remarks” opposite his said name, write the words “ Adjudged Disqualified.”</p> <p>As a further answer the said respondents averred that they have completed their work as a Board of Registration; have compared their books of registration after their last day of sitting, to wit: October 27th, 1894, have signed their said books and have made the necessary affidavits and certificates thereto, as had also the other members of said Board of Registration, and the same have been by the said Registrar delivered to the Sheriff of Kent County, as by law directed to be done, and that the same are no longer in their custody nor subject to their powers as members of said Board of Registration, and were already delivered as aforesaid prior to the service of the rule in this case; and that the said Board of Registration, having performed all the duties enjoined upon it by law, has already adjourned, and had, before the service of the rule in this case, and are therefore functus officio; and that to make any alterations in any of said books of registration at this time, would ■entail upon them the penalties of the law as set forth in Sec. 20, of Chap, 38, Vol. 19, Laws of Delaware.</p> <p>• The answer of the said respondents further represented that having acted in their judicial capacity as members of the said Board of Registration, they are advised and believe that this honorable Court had no jurisdiction in the premises.</p> <p>The question whether the receipt was for such a tax as was •contemplated under the Constitution arose out of the following provisions of the Constitution and Statutes.</p> <p>Art. IV, Sec. 1, Constitution of Delaware, provides that every citizen “ of the age of twenty-two years or upwards, having resided in the State one year next before the election, and the last month thereof in the county where he offers to vote, and having within two years next before the election, paid a county tax, which shall have been assessed at least six months before the election, shall enjoy the right of an elector; ****** Provided, that no person in the military, naval or marine service of the United States, shall be considered as acquiring a residence in this State, by being stationed in any garrison, barrack, or military or naval place or station within this State; and no idiot or insane person, pauper, or person convicted of a crime, deemed by law felony, shall enjoy the right of an elector.</p> <p>Chapter 371, sections 9 and 10, volume 14, Laws of Delaware, provides as follows:</p> <p>Section 9. That it shall not be lawful for any assessor or any Levy Court, upon the personal application of any one or otherwise to place upon the assessment in any hundred the name of any person who having failed to pay the county tax assessed against him or her for the preceding year was returned and allowed as a delinquent until after the expiration of the twelve months from the time such allowance as delinquent was made by the Levy Court-</p> <p>1 Section 10. That it shall be the duty of the Clerk of the Peace of each of the counties of this State to certify, under his hand and official seal, and deliver to the Sheriff of his county in the month of August, an alphabetical list for each of the hundreds of his county of the delinquent list so made and returned by the Collector at the March session of the levy court in the -year of holding the general election.</p> <p>Chapter 372, Sec. 1, Vol. 14, Laws of Delaware, provides that the Levy Court, upon its appearing to it that a collector has complied with the law in giving notice in January of each year of his sittings to receive taxes, and that he did attend at the times and places in accordance with said notice for the reception of taxes “ to allow said collector as delinquencies the taxes uncollected by him, and the names of such delinquents shall be dropped from the assessment list by the Levy Court and shall not be placed thereon again for a period of twelve months from and after the date of such allowance, Provided, that the provisions of this Section shall apply to persons assessed and liable to pay poll tax.</p> <p>Chap. 30, Vol. 19, Laws of Delaware, repeals the above Sec. 9 and Sec. 10, of Chap. 371, Vol. 14.</p> <p>Chap. 31, Vol. 19, Laws of Delaware, repeals Sec. 1, of Chap. 372, Laws of Delaware, and provides also that the collectors shall sit on days of registration to receive taxes.</p> <p>Chap. 567, Vol. 19, Laws of Delaware, passed March 23, 1893, repeals Chap. 30, Vol. 19, and re-enacts Secs. 9 and 10 of Chap. 371 of Vol. 14, Laws of Delaware.</p> <p>Chap. 568, Vol. 19, Laws of Delaware, passed March 31, 1893, provides:</p> <p>That the Levy Courts of the counties of Kent and Sussex, in this State, at their March session in the year A. D. 1893, or at any adjourned term thereof during the month of April thence next succeeding, are hereby authorized and directed, upon proof being made to them by the affidavit of the several collectors of said counties for the year A. D. 1892, to be filed in the office of the Clerk of the Peace for the respective counties, that be had given public notice as by the then existing law required, stating therein the times and places at which such collector would attend for the purpose of receiving taxes then due and unpaid, and that in pursuance thereof he did attend at the times and places so specified for the reception of taxes, to allow as delinquencies the taxes uncollected by the said collector, and the names of the delinquents so allowed shall be dropped from the assessment list by the said Levy Courts and shall not again be placed thereon for the space of one year from and after the date of such allowance; Provided, That this section shall apply to poll taxables only.</p> <p>Chapter 569 Vol. 19, Laws of Delaware, passed April 14th, 1¿93, is as follows:</p> <p>Whereas, it is not the desire of the General Assembly by the passage of the act entitled “ A supplement to an act entitled ‘ An act in relation to the collection of taxes in Kent and Sussex Counties/ passed at Dover, March 23, 1893,” passed at Dover? March 31, 1893, to deprive any taxable of Kent or Sussex county of the opportunity to pay his tax for the year 1892, should he wish so to do, nor to deprive either of said counties of the revenue to be derived therefrom.</p> <p>And Whereas this General Assembly proposes to give every of such taxables an ample opportunity to pay his said taxes, therefore be it enacted.</p> <p>Section 1. That the Clerks of the Peace of the counties of Kent and Sussex shall make a certified copy of each of the lists of delinquent taxables for the respective hundreds and collection districts of said counties which were or shall be allowed by the respective Levy Courts of said counties in settlement with the collectors of county taxes for the year 1892 at their March session in 1893, or at an adjourned session thereof, within ten days after the passage of this act, and after the said Levy Courts shall have allowed the said delinquents. Said certified copies oí delinquent taxables for the year 1892, together with the collectors’ seals shall, within the ten days above specified, be delivered by the said Clerks of the Peace to the collectors of county taxes for the year 1893, giving to each of said collectors the certified list and collector’s seal of this particular hundred or collection district. To the name of each taxable on said lists shall be annexed the amount of tax due and ^unpaid by him for the year A. D. 1892. ******</p> <p>Each of said collectors to whom the said lists of delinquent taxables shall be delivered shall immediately thereafter give five days public notice by advertisement posted in ten or more of the most public places in his hundred or collection district, stating in said notice the time and place at which he will attend for the reception of the delinquent taxes for the year A. D. 1892, as required by this act. The time specified in said notice shall be prior to the Saturday next preceeding the third Tuesday in May, A. D. 1893, and the place shall be some convenient and suitable place in his hundred. Each of said collectors, in pursuance of said notices, shall sit for two successive days and for eight hours each day, at the time and place designated in said notices for the purpose of receiving and shall receive such delinquent taxes as shall be tendered to him in person by any of the said delinquent taxables and shall receipt for the same in the manner provided by law in the collection of other county taxes. Each of said collectors shall be liable on his official bond for the payment of the taxes collected by him under the provisions of this act.</p> <p>Every of said collectors shall make return of his said delinquent list, together with the moneys collected thereon, to the Levy Court of his county at a special meeting thereof on the third Tuesday in the said month of May, A. D. 1893, which the said Levy Courts are hereby required and directed to have and hold, and the said Levy Courts shall then receive the said returns and make proper settlement with the said collectors for the said delinquent lists so returned; and it shall be the duty of the Levy Court of each of the said counties of Kent and Sussex, upon proof being made to them by the affidavit of the collector of his hundred or ■collection district and filed in the office of the Clerk of the Peace for the respective county, setting forth that such collector has given notice, as required by this act, and in pursurance thereto he did attend for the reception of taxes at the times and places designated in such notices, to allow said collector as delinquencies the taxes uncollected by him, and the names of every such delinquent taxable who shall have failed to pay his said taxes for the year 1892, as herein provided he may, shall be dropped from the assessment list by the said Levy Court and shall not be placed thereon again for the period of one year from and after the date of such allowance. *******</p> <p>The collectors’ duplicates for the collection of county taxes for the year A. D. 1893 shall not be delivered to the respective collectors of county taxes for the counties of Kent and Sussex till they shall have made full settlement with the Levy Court of their respective counties for the delinquent taxes collected by them respectively, as hereinbefore provided. And the name of every such delinquent taxable who shall pay his taxes for the year 1892, as herein provided he may, shall be placed on the assessment list and also on the duplicate to be issued to the collector of county taxes for the year A. D. 1893 by the Levy Court of his county. Said additions may be made in the form of supplements to said assessment lists and duplicates; provided however that this act shall apply to poll taxables only.'</p> <p>Chap. 38, Vol. 19, Laws of Delaware, providing for registration of voters, provides that the registrars shall within three days after their last sitting, compare their books of registration, make and affix the proper certificates, and within one day thereafter to deliver one copy of said books to the sheriff, who should deliver them to the election officers, the registrar retaining duplicate copies.</p> <p>At the hearing it appeared that the petitioner, Eben Lurtz,, had been dropped from the assessment list by the Levy Court under the provisions of chapter 368, vol. 19, Laws of Delaware. That he was on the certified list of delinquent taxables for the year 1892, which was made and delivered to the collectors under the provisions of chapter 569, vol. 19, Laws of Delaware, and had paid the delinquent tax to the collector, and had his receipt for the same according to the provisions of said act.</p> <p>That the Board of Registration completed the registration on-Saturday, the 27th of October, and on the same day compared the books, affixed certificates as prescribed by law, and that the Registrar delivered the books to the Sheriff before proceedings in mandamus were begun.</p>

This was an indictment for murder by putting poison into a well.

The prisoner was indicted for the crime of murder of the first degree, but at the trial the Attorney General in the exercise of the discretionary powers conferred upon him by virtue of his office, under the proof, withdrew the charge of murder of the first degree and asked for a conviction of murder of the second degree. The facts sufficiently appear in the charge of the Court.

At a Court of Oyer and Terminer held in Wilmington on-September 24, 1894, Michael Faino was indicted and tried for the-crime of murder in the first degree for the felonious killing of Carlo Euvo on the 20th of April, 1894.

The defendants were indicted for an attempt to obstruct public justice.

<p>Felonious Assault.—In order to constitute the crime of assault with intent to commit murder, it must be shown that the defendant intended at the time the assault was made to kill his victim, and that had the assult resulted fatally, the defendant would have been guilty of murder.</p> <p>Same. Intent.—Such intent may be proved by^such facts as the character of the assault, the weapon used, the danger of producing death and the means used to produce or avoid death.</p> <p>Same. Verdict.—Under an indictment for an assault with intent to commit murder, the defendant may be convicted of the felonious assault, or of simple, assault, as the evidence may warrant.</p> <p>Reasonable Doubt.—Reasonable doubt is one which arises naturally out of the evidence, andnot one which has to be sought for and in a manner created. It must |be one which spontaneously forces itself upon you and compels your judgment to hesitate.</p>

<p>This was an indictment for the larceny of chickens which were alleged to be the property of Benjamin F. B. Woodall.</p>

<p>Indictment. Variance.—It is not a fatal variance where the indictment alleges the larceny on one person’s waterproof coat whereas the proof is that the prisoner stole one gum coat.</p> <p>Same.—The case will also be allowed to go to the jury if the indictment alleges the larceny of a pound of tobacco, while the proof is that less than a pound was stolen.</p> <p>Confession,—A jury is not bound to accept the whole of the prisoner’s statement, it may accept or reject such portions as it may deem proper.</p>

The defendant was indicted for assault and battery upon an inspector of elections in the City of Wilmington, the indictment being drawn under Sec. 2, of Chap. 727, Vol. 19, Laws of Delaware.

The defendants were indicted for attempting to commit larceny.

The defendant was indicted for being “ concerned in interest in keeping and exhibiting a gaming table on which certain games of cards were played for money.” The facts of the case are sufficiently stated in the charge of the Court.

<p>The defendant was indicted for libel at the October term 1893. On October 4th upon application of the defendant the case was continued on the April term, 1894, a recognizance being taken in $1,000 and acknowledged in open court. On April 3, 1894, it being then the April term, the case was continued by consent with the understanding that the recognizance should be respited. At the October term 1894, the defendant failed to appear and Nicholson, Attorney General, asked that he be called and that the recognizance be forfeited.</p>

The defendant was indicted for embezzlement of funds belonging to the Prudential Life Insurance Company.

<p>larceny,—Under our statue, a berry check, where the person issuing same has made an agreement with others to redeem it, is a subject of larceny.</p>

The defendant was committed at this term for burning a barn of his brother in Brandywine Hundred, this county, on June 20, 1892. The State relied for a conviction upon the proof of the confession of the prisoner that he had burned the barn, and also upon circumstantial evidence tending to corroborate sai'd confession.

<p>Indictment.—Where an indictment under a statute prohibiting the intentional pointing of a gun at another, either in jest or otherwise, alleges that it was done ' “ in jest,” it must be proved.</p> <p>Same.— Quere, Whether it is a necessary averment.</p>

The defendant was indicted and tried at this term for the larceny of one dollar.

The defendant was indicted for registering “ knowingly in two election districts/’ in the City of Wilmington, to wit; in the first First Election District of the First Ward, and in the Sixth Election District of the Sixth Ward, the indictment being .drawn under Section 33 of Chapter 39, Volume 19 Laws of Delaware, providing for the registering of voters in the City of Wilmington. Frank A..

The defendant was indicted, under the provisions of an Act of Assembly, for unlawfully and fraudulently registering in two election districts.