Volume 17 — Delaware Reports

Action of Debt founded on a contract entered into be-ween the plaintiff and the defendant, by which the plaintiff was to well and sufficiently erect and finish in a workmanlike manner all the different branches of work of every kind and nature as required in the erection and completion of a brick dwelling house, according to plans and specifications, for the sum of $5,069, to be paid in installments as set out in the contract.

The defendant in the above stated case was indicted for being concerned in interest in lottery policy writing.

This was a Mechanics Lien. The petition set out the usual facts and claimed $1,100 balance due. The defendants filed the usual pleas of payment, set off, releases, accord and satisfaction and in addition thereto the following plea: “Note under hand of William C. Guthrie for $150 on account of the claim of plaintiff extending under Mechanics Lien Statutes, the time of filing lien in above stated case until July 16, 1897.”

The following petition and issue were sent to the Superior Court by the Register of Wills for New Castle County: “That on the sixth day of July, A. D., 1897, the instrument in writing hereto attached, purporting to be the last will and testament of Matthew Spiegelhalter, deceased, having been presented to me as Register as aforesaid, by Thomas A. Brown, the executor named therein, for probate, the said Thomas A. Brown being one of the two witnesses only to said paper…

Appeal in bastardy; the issue for the jury being, whether Clarence C. Vail was or was not the father of the infant child of Anna M. Wolf. At the trial, while empanelling the jury, Mr. White inquired whether the defence would be allowed to exercise six challenges, • as in criminal cases, or only three as in civil cases.

A petition, in the usual form, for a private road in Mill Creek Hundred, having been filed by agreement between the counsel above named, Mr. Hayes appeared in court, October 2, and asked for the appointment of the freeholders.

<p>Action by a divorced wife for support of a fourteen-year-old child. See facts in opinion of Court below.</p>

■ Appeal from- a decision of a Justice of the Peace to the Superior Court, in which the matters in controversy were referred, under a rule of Court,by agreement of parties, to a referee to settle and determine same. The report of the referee was in favor of the plaintiff below.

<p> Ejectment—Pleading and Practice. </p> <p>1. J udgment will not be allowed in an ej ectment case where the counsel for defendants has entered his name on the appearance docket opposite the parties and has failed to enter into the consent rule and to lay pretentions, but the court will, in such case, order the defendant to enter into the consent rule at once and to lay his pretentions by the first rule day in vacation.</p> <p>2. The correct practice stated.</p>

<p> Motion for Judgment notwithstanding Affidavit of Defence—Refused. </p> <p>1. In an action of assumpsit on a book account, an affidavit of defence alleging payment simply is sufficient.</p> <p>2. No exception will lie to the decision of the Superior Court refusing motion for judgment notwithstanding such affidavit of defence.</p>

Salmon a Justice of the Peace in and for New Castle County. The record sent up by the Justice was in part as follows: “ And now to wit, this 12th day of April A,.

The defendant was indicted at this term for carrying concealed a deadly weapon. At the trial, the State proved that he was found by a police officer with a deadly weapon—to wit, a revolver—concealed upon his person. The defendant testified that he had purchased said revolver and was carrying the same home at the time of his arrest by the police officer.

<p> Certiorari—Practice. </p> <p>Recognizance examined by the Court, to ascertain to which of two judgments, bearing even date, and sent up at the same time, the exceptions filed referred.</p>

Action oe replevin, to recover from defendants $2016.00, being the alleged value of 96,000 tin cans, with interest, which cans plaintiff claimed were its property and which were unlawfully seized and sold by said defendants as the property of Morrow & Coulboum, a canning firm doing business at Seaford in this State.

Action of trespass vi et armis. The facts sufficiently appear in the charge ,of the Court. The defendant’s pleas were not guilty, son assault demesne and statute of limitations.

Action of . TRESPASS Quare Clausum Fregit, to recover damages for trespass by defendant upon plaintiff’s land, located in Baltimore Hundred, Sussex County; consisting in the cutting down of certain trees, the tearing away of a fence, the filling up of a ditch on one part, and the Opening of á ditch on another part of said land. For other facts see charge of court.

<p> Practice—Evidence. </p> <p>1. Where service has been made upon the owners or holders of land on the line of a proposed public road and the fact of such service accidentally omitted in the affidavit, oral proof may be made of such service. Such proof must be made before the order to lay out the road is granted.</p> <p>2. The correct practice stated.</p>

Rule to show cause why a writ of quo warranto should not issue. Rule granted returnable October 27th, 1897.

<p> Assault—Husband and Wife. </p> <p>1. An assault defined.</p> <p>2. If one who is a guest at the house of another is requested to leave said house and refuses to do so, the husband or head of the family is justified in using so much force as is necessary to eject him, but no more.</p> <p>3. Although the wife be the owner of the house occupied by the family and the guest has her consent to remain, that fact does not affect the rights or powers of the husband as the head of the family, who may use the necessary force to eject the said guest from the premises, after his refusal to leave when requested so to do.</p>

Jester, a Justice of the Peace in and for Kent County. The record of the Justice disclosed that the plaintiff below brought an action of debt against the defendant below for illegal distraint; demand $5 00. Both parties demanding trial by referees, the same were appointed by the Justice.

<p>At this term the defendant was indicted for bigamy. At the trial Mr. Cooper called Sadie Ryan to the witness stand and stated to the Court that he proposed first to prove by her that she was the legal wife of the defendant, and, second, certain facts to substantiate the charge of bigamy against the defendant.</p> <p>Dore, C. J:—The law makes a wife competent to testify against the husband in a civil action, but not in a criminal action. It is hornbook law that she cannot testify for or against her husband in a criminal case, and the enabling statute in this State does not cover it.</p> <p>After proving by Walter Witsil, State Detective, certain admissions made to him by the defendant as to his legal marriage with Sadie Ryan, his reasons for leaving her and the fact that he had subsequently married another woman in Wilmington, and by Deputy Clerk of the Peace Janvier, that he had issued a license to one Francis H. Ryan, colored, on the twenty-first day of August, 1897, permitting his marriage to Annie Bailey; the prisoner was allowed to take the stand in his own behalf and proceeded to give a detailed account of his life as the husband of Sadie Ryan, stating, among other things, that she had told him that he was not her husband; that her husband was still living and would kick him, the defendant, out if she desired it.</p>

Action of Assumpsit, (No. 182, to September T. 1896,) the cause of action being a certain policy of insurance made by the defendant to the plaintiff. The policy of insurance was for $700, which was placed upon two buildings in South Wilmington, one a frame dwelling house and the other a stable.

A rule was obtained at the November term by the defendant upon the plaintiff and the sheriff to show cause why the return of the sheriff in the above entitled cause should not be quashed and stricken from the record.

Issue from Register of Wills (No. 163 to Sept. T., 1897), to determine whether the paper writing bearing date February 12th, 1892, signed by Michael Kane and attested by John S. Rossell, Michael Hession and William H. Holland, is or is not the last will and testament of Michael Kane, deceased. At the trial, counsel for the caveators asked the witness William B. Carswell if he knew Michael Kane’s drinking habits.

Rule to show cause why the present sheriff should not be required to make a new deed, to the party holding the title under the grantee, to certain lands in Christiana Hundred. Deputy’s petition filed was in part as follows:

This was a scire facias on a judgment to extend a lien upon lands.

The defendant was arraigned at this term on a charge of desertion and non-support perferred by his wife.

Action on a promissory note against an endorser. The affidavit of defense filed set out that “ the said promissory note was never protested according to law.”

Action of assumpsit (No. 281, May T., 1896,) for work and labor alleged to have been performed, money loaned and goods sold and delivered by the plaintiff for the benefit of the defendant in the campaigns of 1892 and 1894 for the nomination for Sheriff of New Castle County. The amount claimed was a balance of $720.00 with interest on the several items from the time they were due.

Action of assumpsit (No. m to May T., 1896,) with the common counts and one special count for work and labor and one forjspecial damages. The pleas were non-assumpsit and reps, and issues. There was no bill of particulars filed. The special count set forth damages by reason of the non-performance of a contract on the part of defendant below.

<p>Action of assumpsit (No. 2 to Nov. T. 1897); narr; common counts with a bill of particulars. The usual pleas were filed.</p>

Appeal (No. 116 to May T. 1896.) The plaintiff filed a bill of particulars in which there were set out numerous charges on sundry dates for “Mdse.,” without specifying the nature, character or quantity of the merchandise.

A rule was issued (Spruance, J., dissenting,) at this term to show cause why a judgment entered by default in Kent County against the defendant company should not be opened and the defendant permitted to appear.

Action on the case (No. 250 to Feb. T., 1896,) for injuries alleged to have been inflicted upon the plaintiff, Mrs. Ella Eouth, by reason of falling through an open cellarway, on Delaware Street, in the City of New Castle, the defendant being the tenant of the premises. The other facts sufficiently appear in the charge of the Court.

Action of Assumpsit (No. 142 to May T. 1896,) to recover $81.00, balance due, as alleged by the plaintiff, for sick benefits, from the defendant corporation: The usual pleas were filed by the defendant and five special pleas, and special replications filed by the plaintiff. Before the jury was empanelled Mr. Knowles, on behalf of the plaintiff, asked the Court to excuse for cause from serving upon the jury any member of a lodge of Odd Fellows who might be called.

Rude to show cause why sheriff’s return to an execution should not be quashed and stricken from the record.

Rule to show cause why an award of referees should not be set aside. The following bill of particulars was filed by plaintiff. Wilmington, Del., April 1, 1897. Estate of Richard B. Duncan, Dr., To Mary E. Chandler.

<p>A case stated was filed in the cause December 18th, 1897, the facts of which fully appear in the opinion of the Court.</p>

Action on the case. Damages laid in the narr at five thousand dollars.

Action on the case, based upon two promissory notes for five hundred dollars each. The declaration contained two special counts and one general count for money paid.

AppEAD from a judgment of a Justice- of the Peace. The plaintiff below obtained a judgment against one Dennis Reardon, for money loaned on which an attachment was issued against the defendant below. The plaintiff alleged that at the time the attachment was laid in the hands of Brown, that he was indebted to Reardon in an amount about equal to the claim of the plaintiff against Reardon.

Action of Assumpsit. Narr in common counts, the claim being based upon an alleged verbal contract.

<p>Corporation—Election of Directors—Petition to Set Aside Notice— Transfer of Shares Voted— Validity.</p> <p>1. Notice must be served on the corporation of an application to set aside its election of Directors, as provided in Rev. Code (1893), 579, Sec. 24.</p> <p>2. Notice of the application for a rule to set aside the election of directors of a corporation having been given, it is unnecessary to issue a rule to show cause why the prayer of the petition should not be granted ; but the Court may, on the return day of the application, fix a time for hearing.</p> <p>3. Under Rev. Code (1893), 578, Ch. 70, Sec. 22, providing that at an election of corporate directors no shares shall be voted which have been transferred to the holder within twenty days of the time of such election, an election at which four shares were voted, which were transferred to the voters on the day of election, is void.</p>

On February 15, 1898, petition and affidavit of the plaintiff filed, and on motion of plaintiff’s attorney, a rule was granted upon the defendants to show cause why a writ of possession should not issue returnable on Saturday, the nineteenth day of February, 1898, at ten o’clock a. m. The above mentioned rule was issued on the sixteenth day of February, upon which the Sheriff made the following return : ‘ ‘ The within rule executed by summoning Susan T. Jones and James T.…

Action of Assumpsit (No. 41, May Term, 1896). Narr. in common counts for goods, wares and merchandise sold and delivered, work and labor performed, money expended and advanced for the use of the defendant, and an account stated. Bill of particulars filed.

An affidavit was filed by the Assistant General Manager of the defendant corporation, alleging the absence of a material witness for the defense, and stating what he proposed to prove by said witness. Upon such affidavit, motion was made by Mr. Saulsbury, counsel for defendant, for continuance to May Term.

Narr in common counts' for goods bargained and sold, and goods sold and delivered; two special counts setting out the contract, and one special count for use and occupation of a lot for storage of roofing slag sold, but not delivered. Bill of particulars filed. The plaintiff’s claim was for $974.89, being for five hundred and twenty-four tons of rejected roofing slag, at one dollar and fifty cents per ton ; and for storage and interest.

Action for damages for alienation of wife’s affections. (For further facts see charge of Court.) At the trial, Mr. Ponder, for the plaintiff, in opening the case to the jury, proceeded to read the second and sixth counts in his narr, they being the counts on which the plaintiff based his suit.

Appeae from a judgment of John A. Kelley, a Justice of the Peace in and for New Castle County. The facts and contentions appear in the charge of the Court. »,.■

The above entitled cause was brought to the September , term, 1897, and at the February term was placed at the foot of the list of the calendar of cases for trial by the general jury. Mr. Knowles also brought suit at the same term for the same plaintiff as Administrator of Johanna G. Wilcox against the Wilmington City Railway Company, which case was placed upon the list of cases for trial by special jury under date of March 9, 1898.

Action op assumpsit. Non suit having been entered in the above entitled cause at the November term, 1897, Mr. Cochran for the defendants, on March 4, asked that the plaintiff be required to pay the costs in the former suit before bringing a new action against the same defendants.

Action on the case (No. 79 to September Term, 1897),to recover damages for personal injuries alleged to have been sustained April 29, 1897, by reason of an accident resulting from the negligence of the defendant company in employing an incompetent fellow-servant to operate a steam crane.

The above case was placed upon the daily calendar on April 5th for trial on April 12th. The calendar was published April 6th. When the case came on for trial, counsel for plaintiff moved for a continuance, on the ground of the absence of a material witness. It was admitted that the said witness had gone to Philadelphia on Wednesday morning April 6th and was there in a hospital being treated for cancer.

<p>Certiorari directed to Frank C. Wiltbank, Esq:, one of the Justices of the Peace in and for Sussex County.'</p>

Certiorari directed to George T. Dodd, Esq., a Justice of the Peace in and for Sussex County, (No. 24 April Term, 1898). EXCEPTIONS. 1. For that it appears from the record that the case was adjourned three times by. the said Justice upon his own motion, and not upon the application of either plaintiff or defendant. 2. For that the Justice adjourned said case when no application had been made by either of the said parties. 3.

Action of Ejectment (310 April T. 1897), to recover possession of a certain lot of land 50 x 100 feet situate on Rehoboth Avenue in the town of Rehoboth, indicated on the plot as “lot No. 25.” plaintiff’s brief of title.

The defendant was bound over for his appearance at the April Term on the charge of desertion, preferred by his wife, Julia M. McCullough. He appeared on April 28, and was present during the taking of testimony, but absconded before the Court rendered its decision. Further facts fully appear in the following decision of the Court:

Indictment for Rarceny. At the trial the defendant’s counsel called as a witness Wiliam R. Reynolds, the Justice of the Peace by whom the defendant was committed for his appearance at Court to answer the charge preferred by the prosecuting witness.

The defendant was indicted for embezzlement. The facts and contentions of counsel appear in the charge of the Court.

The defendant was indicted for resisting a public officer. At the trial the State called David W. Cush, the prosecuting witness, who was asked by the Deputy Attorney-General what was the occasion of his going to the house of the defendant. The witness proceeded to state in reply that he had an execution against her husband.

At a Court of Oyer and Terminer in New Castle County, beginning May 24, 1898, the defendant was tried upon the charge of breaking a dwelling-house with intent to commit rape. When put upon the stand to testify in his own behalf Fisher was asked in cross-examination, by the State, the following question as affecting his credibility, viz : Have you ever been convicted in this Court of housebreaking ?

The prisoner was indicted for murder in the first degree, but at the trial the State asked for conviction of manslaughter only.

Action to recover a balance of $166, claimed to be due from the defendants to the plaintiff for services, with interest thereon from December 22, 1895. (See further facts in charge of Court.) At the trial plaintiff’s counsel sought to introduce testimony tending to prove certain statements made by- one of the partners, admitting his indebtedness to the plaintiff, after the dissolution of the partnership.

Action on the case (No. 69, Sept, term, 1897), to recover compensation for injuries to plaintiff’s horse, harness and furniture car, and losses and expenses incident thereto—see facts in charge of Court.

Action of Assumsit (No. 59, September Term, 1896), on the common counts, to recover for goods sold and delivered. Plaintiff’s claim was for 186 steel knuckles at three and three-quarter cents per pound, amounting to $348.20 with interest thereon from July first, 1895.

Certio7'ari to John A. Kelley, a Justice of the Peace in and for New Castle County. The Justice sent up the following record: “The plaintiff appears and makes oath there is danger of losing the benefit of his process by delay. I thereupon issue summons to Charles Green, constable, February 2nd, A. D. 1898, made returnable forthwith. Constable returns, served personally February 2nd, A. D. 1898, and this is verified by his affidavit in writing.

Foreign Attachment. See facts in charge of Court. At the trial, Mr. Emmons, counsel for plaintiff, offered in evidence a letter from the defendant to the plaintiff dated December 30th, 1896, in regard to inspection of piling at Jersey City. Said letter was admitted subject to objection. At a later stage of the trial, plaintiff’s counsel began to quote from the letter.

At the February Term, 1898, the following petition of certain citizens in St. Georges Hundred was present (under Sections 4 and 5, Chapter 60, Revised Code, 491) to the Court, viz : “That there is need of widening a public road in said St. Georges Hundred, for the convenience of the general public; s'aid road beginning on the easterly side of Catharine Street, in Middletown, at the western boundary of land owned by Charlotte Jones, and extending eastward through clear land…

Attachment Case. The contentions of counsel appear in the opinion of the Court. The plaintiff filed an affidavit which alleged, among other things, the following State of facts: That ‘ ‘the above named defendants, trading as aforesaid, are not inhabitants of the State of Delaware, but, to the best of the knowledge and belief of said deponent, reside in the State of Illinois.

Case Stated ; argued at the May Term, 1898. Narr in debt on recognizance of Pierce Gould, Sheriff, with the above named defendants as sureties. And now to wit, this fourth day of June, A. D., 1896, the said plaintiff and the said defendants by their respective counsel agree upon the following facts in the above stated cause, in the nature of a special verdict, upon which they request the. Court to enter judgment.

<p>Section i, Chapter 188, Volume 19, Laws of Delaware, provides: “Whenever it shall be deemed by the Directors" (of the Front and Union Street Railway Company) “necessary to enter upon and occupy any lands, tenements or hereditaments (for the use of said corporation) if the owner or owners of such lands, tenements or hereditaments be not known or be under the age of 21 years, or if the Directors and such owner or owners cannot agree upon the compensation to be made therefor, the Superior Court for New Castle County in term time, or any judge of the same, in vacation, shall, upon application by the Company, appoint, subject to the limitations hereinafter contained, five commissioners (who shall be freeholders), who shall go upon the premises,” etc. Held, that in. this proceeding for the appointment of commissioners the right to build a road is not involved; the only question for the Court to consider is, whether the petition shows upon its face that the petitioners have complied with the law, in setting forth therein such facts as the statute requires preliminary to issuing the commission. If such facts are set forth upon the face of the petition, it is mandatory upon the Court to appoint the commissioners.</p> <p>Spruance, J., dissenting.</p>

<p>Action of assumpsit, to recover amount alleged to be due on a protested check aggregating, with interest and protest fees, $550.19. See facts in charge of Court. The narr contained a count on a protested check, and the common counts. Pleas: Non assumpsit, payment, accord and satisfaction, release, set off, statute of limitations.</p> <p>At the trial, after proving by a subscribing witness the due execution of a certain paper and by another witness that said paper was an agreement signed by the parties at the time the sale of the ‘ ‘Peninsula Methodist’ ’ was consummated, Mr. Cooper offered said paper in evidence. Counsel for defendant objected, because the paper was a contract under seal and had not been declared upon in the narr, contending that while a plaintiff may recover upon the common counts where he fails to prove a contract declared upon, yet that it is absolutely contrary to the principles of evidence to allow a plaintiff to introduce in evidence a written contract not declared upon, and of which, by the pleadings in the case, the defendant has had no notice.</p> <p>Counsel for plaintiff contended that as he had declared upon a check, he should be permitted to show what the check was given for. That it was proof of the consideration, and part of the res gestae.</p>

<p> Breaking Into Dwelling House in Night Time—Intent to Commit Rape—Evidence—Harmless Error. </p> <p>In a trial for feloniously breaking and entering into a dwelling house in the night time with intent to commit rape, the prosecuting witness having testified that about midnight the defendant confronted her in her house, when she was alone, with his clothes undone, holding on to his person, shaking himself shamefully before her ; the officer who made the arrest a very few moments after the offence, having testified that the defendant’s flies were unbuttoned, and the defendant having admitted on the stand that he did break into the house, but for the purpose of stealing : Held, that the testimony of a witness who swore that almost immediately after the alleged offence, and about a square distant from the place, he was informed that a negro had broken into a house and tried to commit a rape on a white woman.worked no injury to the defendant.</p>

33, April Term, 1898). Counsel for the plaintiff stated that the parties plaintiff as laid in his declaration were Benjamin F. Collins, Hester Collins and Peter Riggs, trading as Collins and Riggs ; that it was after-wards discovered that Hester Collins was not a proper party.

Proceedings in Domestic Attachment, under Section 11, Chapter 104., p. 787. Revised. Code; being the first case of a report of auditors appointed by the Court in domestic attachment proceedings and order for the payment of the money in sheriff’s hands to Auditors. To the Honorable the Judges of the Superior Court of the State of Delaware now sitting at Georgetown in and for Sussex County.

The above action was originally brought against “Charles T. Wheatly and Daniel Hitchens, Commissioners, and John E. James, Clerk, the committee of School District No. 57 in Sussex County, Delaware.” Prior to the trial plaintiff’s counsel moved to amend their narr by striking out in the caption the words, “Charles T. Wheatley and Daniel Hitchens, Commissioners, and John E. James, Clerk, the Committee of.” Ency.

When the case came on for trial, plaintiff asked leave to amend its declaration by substituting for the word “first” where it occurs in the ninth line of said declaration before the words “day of July, 1895,” the word “ fifteenth.” 2 Greenleaf, Sec. 624, under “ Trespass.” Counsel for defendant opposed the granting of the amendment and after argument on both sides, the court rendered the following decision :

83, April Term, 1898). The cause of action was an open book account, the amount claimed as balance due being $206.32. The narr contained all the common counts and the quantum meruit and quantum, valebat. There were no pleas filed, when the case came on to trial, but by consent it was plead to issue by filing the usual pleas in assumpsit.

Petition to open judgment. The petition of Isaac G. Rofland set forth the following facts : That James R. Heverin in his lifetime obtained a judgment in the Superior Court of Kent County against Annie E. Gotland and Isaac G. Rofland, the petitioner, jointly for the sum of $125 debt with interest thereon from the 13th day of June, 1887 ; that said judgment was entered by warrant of attorney in said Court on June 13th, 1887, as of No. 101 to the April Term thereof 1887 ; that…

Prosecution for influencing a voter to register (information of Attorney General), under Section 7 of Article 5 of the Constitution of Delaware. Heard, tried, and determined by the Court, without the intervention of a jury. INFORMATION.

<p>The defendants were indicted at this term as follows :</p> <p>The Grand Inquest for the State of Delaware, and the body of New Castle County, on their oath and affirmation, respectively, do present, that Robert Stewart, late of Wilmington Hundred, in the County aforesaid, and John Norton, late of Wilmington Hundred, in the County aforesaid, on the twenty-eighth day of October, in the year of our Rord one thousand eight hundred and ninety-eight, with force and arms at the hundred aforesaid, in the County aforesaid, near the highway there leading from Poplar street to Rombard street, in the City of Wilmington at the County aforesaid, and known as Fifth street, in and upon one Chang Ree, there being, feloniously did make an assault and him the said Chang Ree, in bodily fear and danger of his life, at the hundred aforesaid, in the County aforesaid, the highway aforesaid, then and there feloniously did put, and sundry coins, the denomination of which is to the jurors aforesaid unknown, of the aggregate value three dollars, lawful money of the United States of America, of the money, goods and chattels of the said Chang Lee, from the person and against the will of the said Chang Lee, at the hundred aforesaid in the County aforesaid, near the highway aforesaid, then and there feloniously and violently did seize, take and carry away against the form of .an act of the General Assembly, in such case made and provided, against the peace and dignity of the State.</p> <p>At the trial, Mr. Hayes moved to quash the indictment on the ground that the defendant was not sufficiently informed thereby of the nature and character of the accusation against him, in that the description of the articles alleged to have been stolen was not given. Chapter 127, Revised Code, 925.</p>

Action on the case (No. 44, February T., 1896,) damages being claimed for injuries to the plaintiff Yetta Friedmann by reason of being bitten by the dog of the defendant.

Judgment No. 415 to February Term, 1898. Debt $59.63, with interest from September 15, 1896. Entered February 14, 1898. Upon above judgment a Fieri Facias was issued, and under the same the sheriff levied upon the unassigned dower right or interest held by Rebecca E- Chapman in certain real estate in the City of Wilmington, and afterwards an inquisition was duly held and returned.

Action of Assumpsit (No. 117, Sept. T., 1897) f°r work and labor done. Bill of particulars filed claiming a balance due, for services as road overseer for New Castle Hundred, of $381.25. Pleas, non-assumpsit, payment, set-off and statute of limitations.

<p> Dermirrer—Pleading—Negligence. </p> <p>1. The rules of pleading require the plaintiff to set forth in his declaration the facts of his claim with such certainty as to reasonably inform the defendant what is proposed to be proved, so that he may have a fair opportunity to meet such facts in preparing his defence. Time, place and circumstance, so far as relied on and within the knowledge of the party, must be specified with reasonable fullness. A general statement of facts, which admits of almost any proof tó sustain it, is objectionable.</p> <p>2. Counts specifying the circumstances relied on, such as, the car ran from the rail from the negligent running of the defendant, the car was thrown from the track-by reason of an improper and unsafe track, the car jumped from the track by reason of the defendant’s careless running ■ although meagre in the facts set forth, are sufficient in law. But a count that avers simply that the defendant so negligently and carelessly operated a car that the plaintiff was thrown from the car and was injured, is insufficient in law.</p>

<p>Demurrer. Action of Assumpsit (No. 222, May T., 1896). Facts appear in the opinion of the Court.</p>

Action -por Damages (72 to November Term, 1897) for personal injuries to the plaintiff, alleged to have been incurred in a collision between an electric car of the Wilmington City Railway Company, of which the plaintiff was then a motorman, and a loaded coal wagon of the defendant, then in charge of one of its drivers, at the intersection of Tatnall and Fourth streets, in the City of Wilmington, on the eleventh day of August, 1897.

Mr. Byrne asked leave to file the following affidavit, on which to base a motion for a rule for security for costs under Section 8, Revised Code, 791-2.

<p> Pleading—Demurrer—Duplicity. </p> <p>1. Where a plaintiff bases his claim on the ground that he has been unjustly deprived of the use of his dwelling house by the negligent conduct of defendant, and details in the several counts the facts or circumstances entering into and constituting that injury, it is sufficient in law. It is a principle of pleading that the union of several facts constituting together but one cause of action is not duplicity.</p> <p>2. Mere diversity of facts set up in a count will not render it double, when all the facts taken together tend to the statement of one point or ground of recovery.</p> <p>3. Case regularly plead to issue, placed upon the trial list, and continued at the first term with general leave to amend, under which leave to amend the pleadings went on to the eve of the next term, and when the case was published upon the trial list for the next term it was not at issue on the amended pleadings. Motion by defendant’s counsel that the case be stricken from the trial list as improperly placed thereon, there being no joinder at the time of publication of said list, refused: Held that it never having been off the list, but merely in process of amendment, it was properly on the list, and that a case when put upon the list rightfully remains there until it is stricken off by the order of the court.</p>

<p>Replevin—Fraudulent Representations—Rescisión of Contract— Execution Creditors—Charging Jury.</p> <p>1. The principles of law in relation to fraudulent sales and the right of the vendor to rescind the sale, as laid down in the case of Mears & Son vs. Waples, 3 Houst. 621, &c., reaffirmed and approved.</p> <p>2. The right of a defrauded vendor to avoid the sale of goods obtained from him by false and fraudulent representations of the vendee as to his solvency, cannot be defeated or impaired by a levy on the goods fraudulently obtained, while in the possession of the fraudulent purchaser, under execution process issued at the suit of a creditor whose debts were contracted prior to the fraudulent sale, although such creditor may be a bona fide creditor and without notice or knowledge of the fraud. Case of England vs. Forbes, 7 Houst. 306, overruled, so far as the same relates to the rights of execution creditors whose debts were contracted prior to the alleged fraudulent sale.</p> <p>3. A statement by a judge in charging the jury, of matters of fact which were uncontroverted and not in dispute nor in issue, where such statement may be material for the proper elucidation or application of the legal principles involved, would not be in conflict with the provisions of Section 22 of Article 4 of our lately amended Constitution.</p> <p>4. The maxim of stare decisis has generally been strictly applied where titles to real estate have been acquired or commercial usages have been established under decisions of the court, even where such decisions were erroneous. But where a decision contravenes a plain principle of" law, or where in such decision the law has been misunderstood or misapplied, and a reversal will not disturb property rights already acquired or make innovations on established commercial usages, it may then become the duty of the judges to reverse an erroneous decision of the same court.</p>

Action of Assumpsit (No. 90, May Term. 1898) based on a promissory, note brought by the endorser against the maker. The facts sufficiently appear in the charge of the court.

Demurrer, Action on the case (No. 179, May Term, 1897). The declaration, in substance, and the pleas are set out in the opinion of the court.

<p> Selling Intoxicating Liquors to Minors—Construction of Section 14, Chapter 418, Vol. 14, Laws of Delaware as amended. </p> <p>If a minor and an adult go together to a liquor saloon and the adult orders and pays for lager beer, which is subsequently drunk both by the adult and the minor, and it was sold by the bartender or proprietor to the adult in good faith, without intending to evade the law, then the proprietor of said hotel cannot be convicted under Sec. 14, Chap. 418, Volume 14, Laws of Delaware, of selling intoxicating liquor to a minor. But if the jury are satisfied from all the facts and circumstances of the case, that the sale was made-by the proprietor, his agent or servant, directly or indirectly to the minor, or to the minor and the adult, and not to the adult alone, or if they believe from the evidence that the proprietor knew or ought to have known from the circumstances that the person purchasing the beer was used simply as a screen to conceal the participation of the minor in the purchase, then they should find a verdict of guilty.</p>

<p>Appeal from a Justice’s Court (No. 240, May Term, 1897.) Action of assumpsit. The narr contained the common counts, and one special count for breach of contract. The contract was verbal.</p> <p>This case was tried at the February Term, 1898, on the common counts only, the narr containing no special count. The jury returned a verdict for the plaintiff for $73.62, which the court, on motion, set aside, on the ground that the verdict was against the law and the evidence.</p> <p>Bill of particulars filed claiming for two weeks’</p> <p>services at $35.00 per week.......................................$ 70 00</p> <p>Railroad Fare................................................... 3 62</p> <p>$73 62</p> <p>The total claim, with interest from May third, 1897, amounted to $81.47. Usual pleas filed.</p>

Action on the case (No. 87, November Term, 1897), to recover damages for personal injuries received by plaintiff in. assisting in harnessing the horse of the defendants, which horse was alleged to be vicious. The evidence of the plaintiff was that the defendants, who were engaged in the grocery business in the City of Wilmington, owned a certain gray mare which was driven, by a colored boy named Henry, to the defendants’ produce wagon.

Action on the case, being No. 29 to the September Term, 1898. The facts of the case and the contentions in the arguments of the respective counsel, sufficiently appear in the opinion of the court.

Action on the case (No. 122, February Term, 1898), to recover damages for the breach of a contract. The declaration contained one special count, and the common counts for money paid out and expended; work and labor done, and goods, wares and merchandise sold. The pleas were non assumpsit, payment, set off, statute of limitations and a special plea of tender. The facts sufficiently appear in the charge of the court.

Scire facias proceeding to revive judgment No. 281, to September Term, 1887, and to extend the lien thereof; the real issue being whether the judgment is a lien on the lands of Ananias Ennis, the terre tenant. Judgment was entered October 12, 1887.

Action on the case (No. 97, May Term, 1898), for personal injuries resulting to the plaintiff on January 25, 1897, by reason of the bending and slipping of a certain push-pole, which plaintiff, being then employed as a brakeman by the defendant company, was using at the time in staking cars of the defendant company, by means of which said slipping of said push-pole the right leg of the plaintiff was broken and he thereby sustained serious and permanent injuries.

The contract between the parties for the sale of the printing press, the subject matter of the action of replevin, was in the following form: “Wilmington, Del., Dec. 22, 1891. “ C. W. Edwards, Esq., “Manager ‘ Evening Journal.’ ‘ ‘ Dear Sir : “ The Duplex Printing Press Company, of Battle Creek, Michigan, submit to the Journal Printing Company, of Wilmington, Delaware, the following proposal: “We will build for you and have set up in running order in your press room by the…

<p>Action on the .case (Nos. 136 and 137—consolidated—Feb-ruary Term, 1898). See facts in the charge of court.</p>

<p>Action of trespass on the case (No. 9, November Term, 1897), Demurrer. See facts in opinion of court.</p>

The facts- of the case and the contentions m the arguments of the respective counsel sufficiently appear in the opinion of the court.