Volume 16 — Delaware Reports

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, it was alleged of its incapacity to carry off the same. At the trial below the jury returned that they were “ unable to agree ” and were discharged.

On January 22,1895, William J. Morrow, the defendant below appellant, was convicted before a justice of the peace of a violation of the provisions of Chapter 507, Volume 17, Laws of Delaware-Section 1 of said act makes it unlawful for any person in the State of Delaware “ to hunt, kill, take or destroy, sell or expose for sale, after the same has been killed, any partridge, quail or pheasant, except between the first day of November and the first day of January in each year…

It appeared from the record and the facts agreed upon that the plaintiff is a corporation existing under the laws of the United States, located and having its place of business in the City of Wilmington, in this State; the defendant was and is a citizen of the State of South Carolina; the Liverpool, London and Globe Insurance Company is a corporation of Great Britain, having its principal office for the United States in the City of New York, and having agencies in other…

This case came up from the Superior Court in and for New Castle County on a casejrtated and questions of Jaw reserved for a hearing before all the Judges in the Court of Errors and Appeals.

This was an action of covenant to recover damages for a fail-are on the part of the defendant to perform the covenants contained in an agreement made and executed by and between the plaintiff and defendant on the twenty-ninth day of March, 1892. The writ of summons was issued February 3, 1894.

This was an action of debt on an administrator’s bond. At the trial it appeared that the administrators had passed two accounts before the Register of Wills, the first one on the 26th day of March, 1891, which showed an overpaid balance due the administrators of $2.61; the second and final account was passed on the 9th day of December, 1891, which showed a full settlement of the estate.

This was an action of replevin, brought by John D. Brown, the plaintiff, against Benj. F. Dickerson, Constable, the defendant, to recover the value of a portable steam saw-mill, tools and fixtures.

This was an action on the case brought by William C. Martin, the plaintiff, against the Baltimore & Philadelphia Railroad Company, the defendant, to recover the sum of $192.00, the undisputed amount of damage to the horse, harness and carriage of the plaintiff, in a collision which occurred at or near the City of Wilmington, where the Concord Turnpike road crosses said railroad.

This was an action on the case, brought by William D. Wilkins, the plaintiff, against the Mayor and Council of Wilmington, the defendant; to recover damages for injuries to himself, his horse, carriage and harness, received in an accident at the intersection of Broome Street and Pennsylvania Avenue, in this City.

This was an action of covenant, commenced by foreign attachment, upon a lease under seal for the term of five years, dated May 6, 1891, under and by virtue of which the lessee was to erect on the leased premises a carrousel with a building over it and the necessary appurtenances, and to run it for the period of five years and to pay twenty per cent, of the net profits to the lessors.

This was an action on the case, brought by an employe of the Wilmington City Railway Company, to recover damages for injuries sustained while engaged in his duties as motorman. The narr contained three counts. The first contained an allegation of negligence generally.

<p>This was an appeal from the record of John A. Kelly, one of the Justices of the Peace for New Castle County.</p>

This was a certiorari directed to Thomas Deakyne, a justice of peace of New Castle County. The record shows that a judgment on a bond was entered on his docket on the 19th day of October, 1889 ; that on the same day a ft. fa. was issued returnable January 20th, 1890. And that execution was returned January 20th, 1890.

<p>Practice, New Trial,—The fact that counsel mentioned in argument to the jury that the justice had given judgment for the plaintiff is no ground for a new trial where there is no allegation that the words spoken influenced the jury.</p>

This was an application for a rule upon a non-resident plaintiff to enter security for costs or suffer non-suit.

Action on a guarantee. Samuel B. Bendler who was about to engage in employment under David Garrick This agreement Morrison signed on Sunday. Some time in the week following the agreement was filled out and signed in Philadelphia by David Carrick Company and Samuel B. Bendler. Morrison had no notice that the blank contract had been filled up and executed until after Bendler had failed to. account.

This was an action of trespass, in which the following'case stated was agreed upon and filed : And now, to wit, this eighteenth day of December, A. D. 1895, it is hereby agreed by and between the attorneys for the plaintiff and defendants in the above stated cause, that the following case be stated for the opinion of the Court in the nature of a special verdict, either party to have the right to sue out a writ of error on the judgment to be entered in the cause. First. That.

<p>Slander. Malice, Burden of Proof,—In an action of slander the plaintiff must show by a preponderance of proof that the words in substance as charged, when not actionable in themselves, were uttered with intent to wrong or injure; actual malice must be proved.</p> <p>Slander.—All defamatory words spoken which occasion loss or damage, though not actionable in themselves, become so when special damage result therefrom.</p> <p>Same. Privileged Communication.—A communication made in good faith, without malice, upon any subject matter, by one who has an interest in it, or a duty, legal, social, or moral, with reference to it, is privileged and the burden of proving the existence of malice is cast upon the person who claims to have been defamed.</p> <p>Same, Physician.—The relation of physician and patient is privileged, and communications between them made without malice are protected.</p> <p>Slander. Damages.—If in such a case the plaintiff is entitled to recovery the damages are limited to those which naturally and necessarily result therefrom; there are no exemplary damages allowed.</p> <p>Slander. Publication.—Proof of the repetition of slanderous words by one who heard them is inadmissible to charge the defendant.</p> <p>Slander. Evidence. Bes Gestae.—In an action of slander by a druggist against • a physician who criticised the method of compounding a prescription, the effect of the medicine and the purpose of administering it may be proved as part of the circumstances of the case.</p> <p>Slander. Evidence.—When words are actionable malice need not be proved,—it is presumed. If, however, the plaintiff does not rest on this presumption, but introduces evidence in addition, then the defendant may meet it by counter proof.</p>

This was an application to set aside a sheriff’s sale upon the ground that the sheriff did not give notice of the sale to the defendant, Sayers. At the hearing of the rule it appeared that the plaintiff Hawthorn, held a mortgage on land then owned by Sayers, who sold it to Etheredge, subject to the lien of the mortgage.

This was an action of assumpsit. The narr contained three counts; one for money had and received j one for money laid out and expended] and one for an account stated., The following bill of particulars was filed: 99,136 gallons water gas tar @ 2£ cts. per gal....... ......$2,726.24 Interest from Jan. 29, 1894,................................. 339.51 $3,065.75 At the trial it appeared that an agreement had been entered into by the Wilmington Coal Gas Company January 29, 1889,…

This was an action on the case to recover damages for injuries received by Mary A. Seward, one of the plaintiffs, which were oc-casioned by her stepping into a hole or excavation in the sidewalk on Fifth Street, West of Harrison Street in the City of Wilmington.

This was an action on the case to recover damages for injuries received by the plaintiff while he was employed by the defendant. At the trial it appeared that the defendant had purchased the the factory formerly owned by the Walton & Whann Company, for the manufacture of phosphate, in the city of Wilmington. In one of the factory buildings were several acid chambers which had never been used by the defendant, and for which it had no use in its business.

This was an action for waste. At the trial it appeared that the plaintiff had purchased the farm owned by the defendant and upon which he lived, at Sheriff’s sale, and that before confirmation of the sale by the Court, the defendant had cut down a ■number of peach and apple trees. This action of waste was brought to recover the value of the trees cut.

This was an action of ejectment brought by Peter Pepper, James N. Pepper, David T. Pepper, Levin A. Pepper and Sallie E. Headburg, the plaintiffs, against Mary E. Pepper, the defendant, to recover possession of their undivided interest in the lands described in the pretensions, consisting of about eighty acres, lying partly in, and partly adjoining Georgetown, in Georgetown Hundred, in Sussex County.

This was an appeal taken from a finding in the case below by Isaac I. Smith, one of the Justices of the Peace in and for Sussex County.

<p>This was an action of assumpsit for goods, wares and merchandise, sold and delivered.</p>

This was an issue from the Register of Wills of Sussex County under an order for a review of the will of John Steele, deceased. The facts as stated in the charge of the Court were as follows: John Steele, late of Baltimore Hundred, in Sussex county, according to the testimony, was torn June 5, 1805, and died in October, 1892, in his eighty-eighth year. He was twice married. By his first marriage he had eight children. By his second marriage he had no -children.

This was an action of assumpsit by the indorsee against the indorser on four promissory notes. The narr contained a special count upon each note and the common counts were also added. The defendant refused to plead until the plaintiff should have filed full particulars of his demand under the counts in indebitatus assumpsit.

In 1891 judgment was entered in favor of plaintiff below before a Justice of the Peace in said county on a judgment note for $150.00, with warrant of attorney. In 1895 execution was issued; and levy made thereunder. The defendant under the provisions-of Section 12, Chap. 99 of the Revised Code (1893) filed an affidavit with the Justice stating that there was nothing due upon the judgement.

This was a certiorari to the Municipal Court of the City of Wilmington. The following statement of facts agreed upon, to be considered as if a case stated had been filed in the Municipal Court for the purpose of placing the facts agreed to upon the record of that court.

This was an appeal from a decree of the Orphans’ Court of Sussex County, imposing upon the widow of John M. Houston, deceased, the entire costs for the assignment of her dower.

This was an appeal in an action of debt in a lost note under seal. Pleas, non est fectum, payment, set off, statute of limitations, release, and accord and satisfaction. At the trial the plaintiff below appellant, produced evidence to show that the note was under seal, given September 1, 1892, for $93.28, without interest, payable September 1,1893, with a warrant of attorney.

This was a rule to show cause why a judgment'against Nancy J. Derrickson should not be opened and the amount due ascertained. At the hearing it appears that Jehu F. Derrickson borrowed from the Farmers’ Bank at Georgetown, $125, the note given therefor being endorsed by Charles M. Cullen.

This was an appeal from judgment of a justice of the peace, on a claim for work and labor. The defendant below appellant claimed to have made payment in full, a part of such payment having been made in liquor. The facts appear in the charge of the Court

This was a certiorari to Peter L. Cooper, Alderman of the town of Dover.

This was an action of assumpsit to recover the amount due on a promissory note; a copy of cause of action and affidavit of demaud was filed; an affidavit of defence was filed to which the notary public, George W. Cavender, had omitted to affix his seal.

This was an action of assumpsit to recover the sum of $2000.00 for work and labor performed. Narr with the common counts. The plea of payment filed was at the request of the plaintiff’s counsel drawn out and alleged that “ before the commencement of this suit; to wit on the-day of-A. D. 18— at” etc., “she, the said Mary Mulvena, administratrix of John Mulvena, deceased, well and faithfully paid to the said plaintiff the said sum of money,” etc.

This was an action brought to recover back $10, amount paid for license under what was termed the milk ordinance, which provided : Section 3. Each and every person or persons desiring to engage in the business of selling milk or cream in the City of Wilmington shall apply to the Board of Health for a license. Section 5.

This was an action of assumpsit to recover the amount due on a promissory note.

This was an appeal to recover the sum of $10.50 with interest from July 1, 1896, an alleged balance due plaintiff below respondent for work and labor performed. It appeared at the trial that Draper V. Bell, plaintiff below respondent, began work for the Diamond State Iron Company on. June 8th, 1896, and worked until June 30, 1896, when he left without giving the said company any notice or making any arrangements with it.

This was an action on the case brought by George W. Pierce, the plaintiff, against the Mayor and Council of Wilmington, the defendant, to recover damages for alleged injuries to himself and his wagon caused by an accident at Sixteenth and Scott streets, in the City of Wilmington, on the fifteenth day of March, 1895.

This was an action on a promissory note, dated March 23, 1889, made by Abner H. Woodward and Elwood Woodward, payable to the order of Stephen Mitchell, twelve months after date, the amount of note being $650, with interest from date; maturing March 26, 1890. The plaintiff declared as administrator, but did not plead letters of ád ministration with a proferí. The declaration contained one count only, which was upon the note, in which the promises were laid to the intestate.

This was an action of trespass brought by the Norfolk Lumber Company against William Simmons. The defendant was the late Sheriff of New Castle county. While he was holding the office ¿f Sheriff he seized under a writ of foreign attachment a lot of piling on the banks of the canal near Delaware City as the property of the defendant in the writ.

This was an action of assumpsit upon a promissory note. The defendant pleaded the statute of limitations; to this the plaintiff replied first, that the defendant, in less than six years had acknowledged that he owed the plaintiff the amount he sought to recover and promised the defendant to pay the samej second, that at the time when the right of action declared on, accrued to the plaintiff, the defendant was out of the State of Delaware at places unknown to him, and…

This was an action brought by Robert Rex to recover damages from the Pullman’s Palace Car Co. for injuries which he alleges that he received through the negligence of the company while in its employment. The narr contained five counts. The first alleged that the defendant caused a locomotive to run into and strike with great force, the car in which he was employed by the company to work. The second, that he permitted the locomotive to strike the car.

This was an action on the case to recover damages for the bite of a dog. At the trial Benjamin C. Barclay, a witness for the plaintiff, in his testimoney said, “ Mrs. Hartman stated that she kept the dog to keep tramps away.

This was a rule to show cause why a sheriff’s sale should not be set aside. The reason assigned was that the advertisement did not describe the improvements. It was admitted that the levari facias and the advertisement followed the description in the mortgage.

This was an action on the case to recover damages for the death of Oliver H. Courtney. At the trial it appeared that on the night of November 2d, 1896, Oliver H. Courtney the plaintiff’s intestate, was killed while he was driving the Phoenix steam fire engine on Market street in the City of Wilmington just over the north side of the bridge across the Brandywine River.

<p>Practice, Costs,—Where in a former suit between the same parties there was judgment for the defendant, and the plaintiff commences a new suit, without paying the costs, the second suit will be stayed until the costs in the former suit are paid.</p>

This was a Certiorari directed to Justice F. C. Wilbank. The charge before the Justice was that of being guilty of maintaining a common nuisance by not removing a hog pen, after notice by the Board of Health in the town of Lewes. The record showed that the complaint was made by Hiram R„ Burton, for the Commissioners of the town of Lewes.

This was a motion for continuance. In this case the jury disagreed at the first trial and when it was called for a second trial, Harman, City Solicitor, produced affidavits setting forth the illness of three witnesses whose evidence was material in the cause, and asked for a continuance.

<p>Practice. Jury.—Where a special jury is asked for and a list of names submitted by the prothonotary, and, the case being continued at the next trial, a special jury is again asked, the prothonotary is not confined to the old list.</p>

The defendants, Daniel Brown, John J. Swan and Michael Lynch were indicted for murder in the second degree, upon the charge of killing Leon Pisa, an inmate of the Delaware Hospital for the insane at Farnhurst. The first and second counts of the indictment charged that all three of the prisoners feloniously assaulted Leon Pisa, the deceased.

The defendant was indicted under section 33, chapter 39, volume 19, Laws of Delaware, providing for the registering of voters in the city of Wilmington, the charge being for registering 11 unlawfully and knowingly in two election districts, to wit, the Third Election District of the First Ward and the Third Election District of the Third Ward of the said city of Wilmington.”

The defendant was indicted under Sec. 49 of Chap. 39, Vol. 19, Laws of Delaware, the charge being that he “ Did then and there unlawfully destroy certain ballots which had then and there been deposited in a certain ballot-box at a certain election for governor, senators, representatives, sheriff and coroner * * *, the said ballots which were then and there destroyed haying been then and there deposited at the election aforesaid at the duly appointed voting place in and for…

<p>The defendant was indicted for resisting John W. Parris, a public peace officer in the town of Harrington.</p>

This was an application of Bettine McKean Rogers to compel William H. Rogers to support his minor children under the statute of this State. At the session of the Legislature in 1895, upon the petition of Bettine McKean Rogers an act was passed divorcing her from her husband, William H. Rogers, and giving to her the custody of her children.- There was no resistance to the divorce made by the husband.

Isaiah Christie, a citizen of Wilmington Hundred, was indicted for an assault with intent to commit murder.

<p>The defendant was indicted for indecent exposure. At the-trial, Miss Ettie McCabe, the prosecuting witness, testified that on the 24th day of September, 1895, the defendant met her on the-public highway in Baltimore Hundred, this county, and started towards her with his private member exposed to her view; that this took place within plain view of a farmhouse about one-quarter of a mile distant; that she screamed and. ran away from the prisoner, but that he did not continue to follow her.</p>

This was an indictment, under the statute, for pointing a pistol at Lorenzo B. Hearne. At the trial, the defendant having testified in his own behalf, under the statute, was asked by Nicholson, Attorney-General, in cross-examination, the following question: “ Have you ever been convicted for pointing a pistol at a man ?”

<p>The defendant was indicted under the provisions of the statute as contained in Revised Code (1893) 944. The indictment charged, inter alia, that he “ did unlawfully and without having first obtained the consent of the owner and legal proprietor thereof, then and there take possession of, use and drive off a certain mare.”</p>

<p>There were two indictments for making a false return of the election by an election officer. The allegation in one indictment was that he did u wilfully and maliciously make a false return of the number of ballots cast at said election at” etc., “ knowing the same to be false.” Th.e offence was described in the statute as making “ a false return of the election.</p> <p>The other indictment charged that the defendant did “ falsify the certificate of the number of ballots cast at said election ; ” a second count charged that he “ altered ” the said certificate; and a third count alleged that he did permit persons unknown to alter the certificate.</p>

<p>Election. Negligence. Presumption.—Under the election laws the inspector is sole custodian of the ballot-box, with the ballots, tally list and one certificate of election from the close of the election until the meeting of the Board of Canvass, and if the proof shows that the certificate was altered, and that by carelessness and negligence he enabled and permitted some other person to make such alteration, the law presumes that he permitted it and his assent thereto is implied.</p> <p>Same.—An election inspector may not enable or permit another to alter a certificate of election, and then shield himself from liability behind his own negligence or carelessness.</p>

“ That the said Michael Kumpel, Jr., is a butcher doing business in Middletown, County and State aforesaid, that he buys his cattle as is customary with such butchers, that he kills and prepares them for market on his own premises and that after being so bought, killed and prepared he sells the meat from his wagon to his customers or to whoever he can.

This was an application for a writ of mandamus to be directed to the inspectors of election of the several hundreds and election districts of Kent County, constituting the Board of Canvass of that… Held: and that in the latter it was also averred, as above, that if a proper canvass had been made of the votes cast therein, each of the said relators would have had a plurality of at least ten votes. 6.

This was a writ of error to the Superior Court for Kent County for the hearing of which a Special Term of this Court was called for December 28, 1896, in accordance with this provisions of Chapter 775, Yol. 19, Del. Laws. The facts and pleadings are fully stated in the report of the trial in the Superior Court, supra.

After the decision of the Court of Errors and Appeals in the case last reported, further proceedings were taken in the Superior Court, intended to cure the defects in the previous proceedings, as pointed out by the opinion in the Court of Errors and Appeals.