Volume 18 — Delaware Reports

to recover damages for personal injuries alleged to have been received by plaintiff August 8th, 1895, on the easterly side track of the defendant company, at Townsend, Delaware. The facts sufficiently appear in the charge of the Court. At the conclusion of plaintiff’s testimony, the defendant moved for a nonsuit on two grounds, viz: First. That the plaintiff had not shown that there was any negligence on the part of the defendant company. Second.

<p> Mandamus—Board of Pilot Commissioners—Power toMake Buies —Apprentices—Construction of Statute. </p> <p>1. The Board of Pilot Commissioners, under the statute creating the said board, is clothed with full power to make rules for the government of pilots while employed in that service, to decide all differences which may arise between masters, owners and consignees of ships or vessels and pilots, except in certain cases; but this authority of the board in terms applies only to pilots when employed in that service.</p> <p>2. The statute assumes the existence of the relation of master and apprentice, entirely outside of its provisions, and refers to such apprenticeships as then rightfully subsisting.</p> <p>3. If the Legislature intended that the power of the board to make rules should control the relation of master and apprentice, it is reasonable to suppose that such intent would have been in some manner expressed; but it has expressly limited the power of the board to make rules, to the government of pilots while in that service. Under the well settled rules for the interpretation of statutes, the expression of one is the exclusion of the other.</p> <p>4. The rules set up by the board as a justification for their refusal to accept and register the indenture of apprenticeship of the relator, viz: that the master never obtained permission of the board to take the relator as a pilot’s apprentice, nor did the said apprentice name the pilot boat to which he wished to be attached; were adopted without warrant of law, and are void, inasmuch as they impose conditions and limitations with respect to apprentices other than those named in the statute, and are inconsistent with the rights and privileges of master and apprentice, properly growing out of that relation.</p>

<p> Mandamus—Legal Effect of Motion to Quash Return—Analogy to Demurrer—Sufficiency of Return. </p> <p>1. In mandamus proceedings, the motion to quash the return to the alternative writ has not the effect and scope of a demurrer in reaching back to the first defective pleading on either side, but is restricted in its operation to the return; and under such motion advantage cannot be taken of any material or substantial defect in the alternative writ.</p> <p>2. The ancient rule as to the degree of certainty required in the return has been somewhat relaxed, and it is now the generally received doctrine that the same degree of certainty required in declarations and other pleadings at law is sufficient. An argumentative return, like any other argumentative pleading is bad. A return is faulty which states mere conclusions of law; and upon a mandamus to correct an improper amotion from an office, the return should set out all the facts necessary to show the court'that the relator was removed in a legal and proper manner and for a legal cause.</p> <p>3. When the respondent justifies his removal or expulsion of the relator, by fhe authority of the rules of Masonic government, and of the charter, constitution and by-laws of the corporation, such authority must be set out in his return in order that the Court may properly determine whether the removal was proper and legal.</p>

to recover damages for personal injuries alleged to have been received by plaintiff while riding upon his bicycle westwardly on Third street in the City of Wilmington, by running into a small wire between Jefferson and Madison streets which it was claimed the defendant or its agents had negligently stretched across the said Third street for the purpose of blocking it off, and had negligently permitted the same to remain for two or three weeks without flag, guard or other…

Scire facias issued, being number 82 to the November Term, 1898. Affidavit of demand and abstract of mortgage also filed.

<p>moved to amend the original process, so that the title of the plaintiff would be “William F. Seeds for use of Edward T. Bellah, Trustee.”</p> <p>At the time of said motion the defendant had appeared by putting in special bail; the declaration was filed. It was contended by Mr. Hilles that it being a proceeding by foreign attachment which was purely a statutory remedy, it had been uniformly held that the statutory proceedings must be strictly adhered to, and that there was no statutory authority for amendment in such case.</p>

A writ of replevin to the October Term, 1894, was issued at the suit of Benjamin M. Jones against George Harmon for a lot of cord-wood, under which said property was delivered to the said Jones, he, with the defendant in this action, Elijah W. Collins, executing to the sheriff a replevin bond in the penal sum of four hundred dollars with condition, in substance, that if the said Jones should appear before the Judges of the Superior Court for Sussex County at the October Term…

Action of Covenant, brought to recover damages for the breach of a written contract. The facts appear in the charge of the Court.

Demurrer. at the argument on the demurrers, stated to the Court that the above stated case was continued at the last term of Court, being the October Term, 1898, with general leave to amend; that as the ease stood at that time, there were certain pleas in bar filed, but since the last term the defendant had filed three additional pleas, two of which were pleas in abatement, and one, a plea in bar.

<p>Rule to show cause why the sheriff’s sale of a tract of land designated as No. 10 should not be set aside.</p>

<p> Amending Sheriff’s Return—Lost Petition and Order—New Petition Filed in Place of Original, by Consent—Order Renewed. </p> <p>When a petition to amend a sheriffs return has been presented to the Court, and an order made thereon, and the petition is subsequently lost, and the record has not been made up nor the proper entries made on the records in accordance with the order, the Court will order, with the consent of the attorney for defendant in the judgment, that a new petition be filed as and for the original, and that the order previously made be duly entered upon the records of the Court.</p>

Writ of Error to the Superior Court of the State of Delaware, in and for New Castle County.

<p> Embezzlement—Agency—Construction of Statute. </p> <p>1. Embezzlement is a purely statutory offense, unknown to the common law, and is the wrongful conversion of property where the taking and possession are lawful, the person of the wrongdoer and the property converted being within the terms of the statute.</p> <p>2. Chap, ij3, Vol. 16, Laws of Delaware, as amended, dispenses with the necessity for authority from the master to the servant to receive the money or property, being the subject of embezzlement, to bring the wrongdoer within the terms of the statute.</p> <p>3. Length of employment is immaterial, and a casual as well as a continuous employment of one as servant or agent falls within the contemplation of the statute.</p> <p>4. The word “others,” in the title of the act, construed.</p> <p>5. The constitutional requirement that the subject of a bill should be expressed in its. title, has the effect to make the title a part of the enactment.</p> <p>6. The rule requiring a penal statute to be construed strictly, does not prevent the ascertainment of the legislative will, that being the primary consideration, and is not violated in giving the words of the statute a reasonable meaning, according to the sense in which they were intended.</p> <p>7. The gist of the offense of embezzlement is the breach of the trust reposed in the class of persons enumerated in the statute.</p> <p>8. If an agency be created for the negotiation or disposal of a promissory note, then the endorsement thereof by the agent is a mere incident to the relation or undertaking; and is the result of the extrinsic agreement between the parties with reference to the negotiation of the note.</p> <p>9. A person who is employed by the maker of two promissory notes for the purpose of negotiating them and turning the proceeds thereof over to the maker of the notes, is an agent within the meaning of the statute, and is guilty of embezzlement for fraudulently converting the proceeds, or any part thereof, to his own use.</p> <p>10. When there are facts and circumstances disclosed by the evidence, from which it is competent for the jury to infer the existence of the relation of agency, it is the duty of the Court to submit the question to the jury, under proper instructions.</p> <p>11. An agreement to pay commissions is a fact of great weight tending to prove the existence of the relation of agency within the statute.</p>

<p>A dog registered under the charter of the Town of Dover, is not the subject of larceny; but would be if registered with the Clerk of the Peace for Kent County, under the act of February 25, 1897 {Rev. Code, 399), which expressly makes any dog so registered personal property and the subject of larceny.</p>

<p>Rule to show cause why an addition to a judgment, being No. 45 to the October Term, 1897, should not be stricken off and the execution issued théreon, being No. 82 to the April Term, 1899, set aside.</p> <p>The petition of George W. Flach set forth the following facts:</p> <p>That prior to March, 1899, there was of record in the Superior Court for Kent County a.certain judgment at the suit of Franklin Temple, assignee of Thomas S. Clark, vs. George W. Flach, the petitioner, being No. 45 to the October Term, 1897, to wit; “D. s. b. and now to wit, this eighteenth day of November, in the year of our Lord one thousand eight hundred and ninety-seven, the defendant, George W. Flach, by Richard R. Kenney, Esq., his attorney, comes and confesses judgment unto the plaintiff, Franklin Temple, assignee of Thomas S. Clark, for the sum of two thousand dollars, lawful money of the United States of America, with costs of suit, release of errors, as follows, to wit: the interest to be paid annually and the principal debt of one thousand dollars on or before the seventeenth day of November, 1899.</p> <p>“Attest: William T. Hutson, P’ry.”</p> <p>That sometime in the month of March, in the year A. D. 1899, the record of said judgment was altered, without leave of this Court first had and obtained, and without notice to, or the knowledge or assent of, your petitioner, the defendant in said judgment, by adding upon the record thereof the following, to wit: “For 60-day forfeiture clause see bond.” That execution was subsequently issued thereon by the plaintiff in the judgment.</p> <p>The question presented to the Court and argued on the return of the rule was whether the amendment was properly made or made without authority, and the application was that said amendment or addition to the record of the judgment be stricken off, and the said writ of fieri facias be set aside and declared absolutely null and void.</p> <p>After hearing argument by the respective counsel, the Court rendered the following decision:</p>

for damages for personal injuries to the plaintiff, and also to his horse, carriage and harness, by reason of coming in contact on July 20, 1895, with a mowing machine on the streets of Smyrna, which mowing machine it was claimed was negligently permitted to remain in said street by the defendant. After the plaintiff had closed his testimony, counsel for defendant moved for a nonsuit on three grounds.

Summons Case. A case stated was agreed upon by the respective parties, in which the facts were set forth substantially as follows: Cornelius Deweese died in 1851 seized of a farm or tract of land in Murderkill Hundred, Kent County, and left to survive him, a widow, Sarah C. Deweese, who afterwards married J. Wesley Stevens, and two children, Anna Deweese and Cornelia. Deweese.

The defendant was indicted at this term for bribery. The indictment contained three counts.

The defendant, Emmet D. C. Hegeman, was indicted at this term of Court for forgery, the first count of the indictment alleging: “That Emmet D. C. Hegeman, late of East Dover Hundred, in the county aforesaid, on the thirteenth day of March, in the year of our Lord one thousand eight hundred and ninety-nine, with force and arms at the hundred aforesaid, in the county aforesaid, feloniously did forge the hand of one B. F. Sheppard to the endorsement of a certain bill then and…

The defendant, Emmet D. C. Hegeman, was indicted at the said term of Court for unlawfully and feloniously adding an endorsement to a certain bill, then and there known as Senate Bill No. 62, etc., (for the substance of which indictment see the opinion of the Court),—under Chap. 876, Yol. 19, Laws of Delaware, Rev. Code, 974.

An affidavit of défense was filed, which contained the following: “ That the defendants have never received any moneys or benefits for $3,000 of the alleged consideration in the said above stated mortgage, or cause of action, and having paid all of the remaining part of the alleged consideration, there is nothing due and payable to the plaintiffs by the defendants, said mortgage (so far as the defendants are bound thereby) having as aforestated been fully paid.

Demurrer to the narr was filed October 21, 1898. The trial list went to press on November 2d, and was delivered to the prothonotary November 7th, twenty-one days before the convening of the November Term of Court. Rule No. 13 of the Rules of the Superior Court, requires the prothonotary to have the trial list in the hands of the Bar, with the cases advertised twenty days before the convening of Court.

Two indictments for criminal libel (Nos. 26 and 27) were found against the defendant at this term.' By consent, said indictments were consolidated and tried together. The indictments charged the defendant with uttering and pub-listing, or publishing, certain defamatory statements with respect to two citizens of New Castle County, implicating them in the election frauds practiced at the general election of 1896.

At the trial it was proved that the defendant, about May 28, 1897, impounded the five horses of the plaintiff, taking them from his farm to the farm of his son, some four or five miles distant. That the plaintiff thereupon recovered possession of the horses by writ of replevin; and the action was brought to recover damages for injuries to, and the loss of services of, the horses while in the possession of the defendant.

for the recovery of the balance due on a promissory note and book account indebtedness and interest thereon, amounting in the aggregate to $984.42. The plaintiffs, while claiming that the above amount was due and owing to them from the said alleged co-partners, sought to hold William J. Maxwell liable to them for the said entire indebtedness as a co-partner with the said Stuart.

<p>should not be vacated.</p>

for personal injuries alleged to have been received through the negligence of the defendant company, in furnishing an unsafe platform or1 scaffold for the plaintiff to work upon on the tugboat Gem, being built by said company, by means of the breaking of which platform or scaffold, the defendant was hurled into the hold of the said boat, a distance of ten feet, injuring his back and leg.

The following affidavit of defense was filed : “ Be it remembered that on this thirty-first day of May, A. D. 1899, before me, Lewis Basse, a Notary Public for the State of Delaware for New Castle County, personally comes Samuel D. Forbes, the defendant above named, who, being by me duly qualified according to law, deposes and says that he verily believes there is a legal defense to the whole of the cause of action in the said suit, the nature and character of which defense…

Writ of Error to the Superior Court, for New Castle County. The assignments of error substantially appear in the opinion of the Court. The judgment was entered and decision rendered in this case at an adjourned January Term of the Supreme Court, 1899-—April 18, 1899.

<p>The declaration contained two common counts; one for money had and received, and one on an account stated. The defendant refused to plead until plaintiff filed a bill of particulars. The plaintiff filed the following bill of particulars:</p> <p>“For the following personal property sold by the defendant to the plaintiff on July 15, 1898, to wit:</p> <p>“(1.) 8,300 shares of the Beneficial Certificates, so called, of the Delmarvia Telephone Company.</p> <p>“ (2.) 4,560 shares of the Actual Certificates of the said company.</p> <p>“ (3.) A promisory note for $10,000 of said company given for the benefit of C. E. Phelps, Jr., & Co.</p> <p>“ (4.) The rights to 2,000 shares of said company held by said company itself, to secure itself against liability upon said note; for the following consideration, to wit:—</p> <p>“$5,000, in cash on or before July 20, 1898, and $20,000, in the first mortgage bonds of said Delmarvia Telephone Company of the original issue of $100,000, par value, and also the payment and delivery of other of said bonds of the amount of $31,500; and the stock or Beneficial Certificates of said company to the amount of $20,000, (either the one or the other at said plaintiff’s option) which latter bonds and stock were to be held by the said defendant as collateral for the payment of $31,500, the said plaintiff to have the right at any time or times within two years from the fifteenth day of July, 1898, to take up any part or all of said bonds at their par value, receiving at the same time so much of said stock as shall be proportionate to the amount of said bonds so taken up; and the said defendant to have the right at any time or times during said two years from the fifteenth day of July, 1898, to take at par any part or all of said bonds that might still remain in his hands as aforesaid, in part or full payment of said sum of $31,500, returning at the same time to said plaintiff a proportionate part or the whole of said stock as the case might be; and if said plaintiff should not pay the whole or any part of the said $31,500, within the two years aforesaid, then the stock and bonds remaining in the hands of the said vendor at the end of the said two years shall become his own absolutely, and the said consideration should be held to be paid.”</p> <p>On May 10, 1899, the defendant, by one of his counsel (Charles M. Curtis, Esq.), came into Court and asked that the plaintiff be ordered to file a fuller bill of particulars, for. the following reasons: First, because three of the four items in the bill of particulars did not state the price or sum of money claimed for the particular items; second, because there were two common counts in the declaration and it did not appear to which of the said counts the bill of particulars applied, or whether it applied to both; thirdt because the items in the bill of particulars were not applicable to any of the counts in the declaration.</p>

to Albert N. Sutton, a Justice of the Peace in and for New Castle County.

<p>Case—Personal Injuries—Negligence—Damages—Fellow Servant— Master and Servant—Harmless Error.</p> <p>1. If the conductor of a shifting crew, when about to couple engine and car omits to give the proper signal to the engineer when he sees the engine approaching at a dangerous speed, or attempts the coupling when the engine and car are approaching each other at an unsafe speed, or makes the attempt in an unskillful manner, he is guilty of such negligence as would defeat recovery. But in the absence of any direct evidence as to what he did, or omitted to do, the inference of his negligence from the position in which his body was found after the collision would not alone be sufficient to justify the withdrawal of the case from the jury.</p> <p>2. The rule of law which makes the master liable when the injury is caused by the negligence of a fellow servant combined with the negligence of the master must be limited to cases where there has been negligence on the part of the master in the selection of the negligent fellow-servant, or some other negligence of the master for which he would be responsible if it had been the sole cause of the injury.</p> <p>3. It is not incumbent on the defendant to show that the accident was not caused by his negligence. The ground upon which a servant recovers against a master for injuries sustained ,in his service is, that such injuries were caused by the violation or neglect of some duty which the master owed to the servant. If there was no such duty there can be no such liability. It is not the duty of the master to furnish appliances of the best and most improved kind.</p> <p>4. While the servant by entering into a hazardous employment assumes its ordinary risks, and while by the continued use, without complaint, of apparatus known to him to be defective, he assumes the risks of the apparatus, he does not assume such risks when the defects are latent, unknown to him, and not discoverable by the exercise of due care. Whether the servant is chargeable with such knowledge and consequent assumption of risk, depends upon the facts of each case. Direct proof of such knowledge is not always necessary. It is often to be inferred from the character of the apparatus or defect, or from the age, experience or employment of the servant. The assumption of risk arising from an insufficient number of men for the conduct of the work rests upon the same ground as the assumption of risk arising from the use of machinery known to be defective and dangerous.</p> <p>5. Where the servant had been engaged in the same kind of work for years before his injury under like circumstance and conditions as at the time of injury, and made no complaint, he must be presumed to have known the character of the apparatus and to have assumed the risk.</p> <p>6. A servant cannot recover from the master for injuries caused by the negligence of a fellow servant, in the selection of whom the master had used due diligence; and it is well settled that trainmen engaged in operating the same train are to be regarded as fellow servants.</p> <p>7. One cannot be liable for the combination and co-operation of any number of causes for no one of which he is liable. If none of the alleged causes of the accident are sufficient to render the defendant liable, it is impossible that the combination of some or all should produce this result.</p> <p>8. No judgment should be reversed in a court of error when it is clear that the error could not have prejudiced the rights of the party against whom the ruling was made.</p>

The indictment charged, “That Alfred Spencer, late of Wilmington Hundred, in the County aforesaid, on the thirteenth day of May, in the year of our Lord one thousand eight hundred and ninety-nine, with force and arms at Wilmington Hundred, in the County aforesaid, one mileage book on the Philadelphia, Wilmington and Baltimore Railroad Company of the' five dollars lawful money of the United States of America, one pair of men’s shoes of the value of two dollars like lawful…

<p>Criminal Law—Indictment; Sufficiency of—Practice—Contradicting Witness when taken by Surprise—Receiving Stolen Goods— What State Must Prove—Evidence—Reasonable Doubt.</p> <p>1. Where a party produces a witness who takes him by surprise by making statements different from those made elsewhere, such party will be permitted to call witnesses to contradict the witness; and it will be for the jury to say which testimony they will believe.</p> <p>2. In a trial for receiving stolen goods, in order to convict, the jury must be satisfied from the evidence beyond a reasonable doubt, first, that the goods were stolen, second, that they were the property of the person laid in the indictment, and, third, that the defendant, when he bought and received them, knew that they were stolen. Such knowledge may come from declarations made at the time, or from the-circumstances surrounding the transaction.</p> <p>3. Reasonable doubt defined.</p>

Rule to show cause why an information in the nature of a writ of quo warranta should not issue against the above named defendants, assuming to act as a corporation under the name of “ Delaware Electric Railway Company Company” (No. 3., Nov. Term, 1899).

<p>Assumpsit—Demurrer—Estoppel — Corporation, — Pleading — Insurance Policy.</p> <p>1. When a defendant corporation which at one time had a legal existence, has contracted with the plaintiff as such corporation, and in the apparent exercise of corporate franchises and powers, and from time to time thereafter reaffirmed its existence and powers ¡by the acceptance of premiums due and owing on the policy, is sued on such policy, it will not be permitted to deny its own existence, and thus escape liability for its contract. It will be estopped from denying its corporate liability, and pleas setting up such defense will be held bad and insufficient in law.</p> <p>2. When the matter which operates as an estoppel appears by the record, the plaintiff may demur to the pleas by which the defendant attempts to set up such matter as a defense.</p>

by Martha A. Reed, the widow of the decedent, to recover the value of a certain dwelling house resting on blocks, being situated in or near the town of Lewes. The grant of letters of administration to the defendant was admitted. It was also admitted by the defendant that the house was personal property and subject to be replevied.

While the jury was being empaneled, Mr. White, of counsel for the opposers of the will, announced that he wished to reserve his right to challenge, so far as the jury as then constituted was concerned, so that he might exercise his challenge in case a juror objectionable to him might be subsequently called; contending that such was the practice as laid down by the Court in State vs. Brown, et. al., 0 Marvel, S81.

Information in the nature of a writ of quo warranta. Omitting the caption, the information was as follows: “ Kent County, ss. “Robert C. White, Attorney-General of the State of Delaware, who sues for the said State of Delaware in this behalf, comes here before the Judges of the Superior Court of the State of Delaware in and for Kent County on this 24th day of October, 1899, at the October Term of said Court, and for the said State of Delaware gives the said Court here to…

The indictment was as follows: “ The Grand Inquest for the State of Delaware and the body of Kent County, on their oath and affirmation, respectively, do present: “ That Mary Barrett, late of Little Creek Hundred, in the County aforesaid, on the twenty-third day of May in the year of Our Lord one thousand eight hundred and ninety-nine, with force and arms at the hundred aforesaid, in the county aforesaid, a certain dwelling house, the property of one John A. Nicholson and…

<p>Iufobmatiok filed for violating the provision of Section 7 of Article 5 of the Constitution by influencing certain persons to register as qualified voters, (No. 1 April Term, 1899).</p> <p>The information filed by the Attorney-General was demurred to on several grounds. The Attorney-General thereupon asked leave to file the following amendments to the information:</p> <p>“ And now to wit, this thirtieth day of October, A. D. 1899, comes Robert C. White, Attorney-General of the State of Delaware, and prays leave of the Court to file the following amendments, to wit, by adding to the first paragraph of the first count in said information the following words and names, to wit, Elijah M. Gregory, John Seeney and John Wilmer, and by adding to second and third counts in said information, and before the commencement of said counts, the words following, to wit: And the said Robert C. White, Attorney General as aforesaid now here in the Court of General Sessions of the said State, now sitting in the County aforesaid, further information makes that the said Thomas C. Moore late of Duck Creek Hundred in the county and State aforesaid was on the eighteenth day of April, A. D. 1899, held in bail by Ezekiel V. Cooper, Esquire, a Justice of the Peace of the said State in and for the county aforesaid in the sum of one thousand dollars for the appearance of the said Thomas C. Moore, at the next term of the Court of General Sessions in and for said county, to answer the charge of using money to influence certain persons to register as qualified voters in Representative District, No. 1, in Kent County aforesaid, to wit: Elijah M. Gregory, John Seeney and John Wilmer.”</p> <p>The effect of this amendment is simply the addition of the names, Elijah M. Gregory, John Seeney and John Wilmer. The information charges the defendant, in the first paragraph, with influencing certain persons, without naming those persons.</p> <p>Lore, C. J.:—They are not set out in the information ?</p> <p>Mr. White:—We do name them in the counts, but not in the first paragraph of the information. In each count we do state that these certain persons were influenced, naming them.</p> <p>This isa case of first impression in this State, as to amending this information—in the case of State vs. Collins, 1 Pennewill, 420, there was no question raised as to the proceedings.</p> <p>The only difference between an information and an indictment is that one is found by a grand jury and the other is presented by the Attorney-General. We object to any amendment being made to the existing information. As to filing a new information, that is something else. We are not discussing that question at this time; and if an amendment is allowed, we think it should be allowed on certain terms.</p> <p>Deputy Attorney-General:—This information is filed under the provisions of Section 8, Article 5, of the amended Constitution; Section 7, of of Article 5, enumerating a number of offenses for a violation of the election laws, and Section 8, of Article 5, providing the mode in which persons charged with the commission of the offenses enumerated in Section 7, shall be tried.</p> <p>Count number 2 sets out the offense without reciting, as it does in count number 1, that the defendant had been held to bail by a Judge or a Justice of the Peace. The amendment which is offered in no manner changes the substance of the indictment; it only alleges certain matter which gives the Court jurisdiction, in the subsequent counts of the information.</p> <p>I take it that unless the defendant had been held to bail by a Judge or a Justice of the Peace, the Attorney-General would not have the power to file the information, and it would be beyond the jurisdiction of the Court to try it until he was so held.</p> <p>So that the effect of the amendment goes to the jurisdiction of the Court, to show that the defendant has been held to bail by a Judge or a Justice of the Peace, which was set out in the first count, but not set out in the subsequent counts.</p> <p>It is true that an indictment ordinarily cannot be amended as to a matter of substance, because an indictment is the finding of a grand jury. It is the finding of the peers of the accused, and it is their finding upon which he is tried. The grand jury is discharged, and if their work is imperfect, of course it cannot be corrected either by the Court or by the Attorney-General.</p> <p>But an information is filed by the officer representing the government, or as some of the old cases say, “ filed by the king ” —the government being the party on the one side and the defendant on the other; that the government (as in this case the Attorney-General) may amend its pleadings at any time as a matter of right and not a matter of discretion of the Court.</p> <p>I find in the states of Kentucky, Vermont, Connecticut, Colorada and Michigan there are informations for certain offenses,—I think all being misdemeanors as this is. Those states have now laid down a uniform line of procedure, and I could not find any case where any of these states using informations had refused to permit an amendment. I do find, however, where some of the states that permit a prosecution for a crime by information, allow amendments.</p> <p>State vs. Wright, 24 Atl., (Vt.) 250 ; King vs. Wilks, 4 Burrows, 2568.</p> <p>I have been unable to find any case in which an amendment to an information at common law has not been allowed.</p> <p>Lobe, C. J.:—Are we to understand, Mr. Hayes and Mr. Ward, that your position is that an amendment could not be granted; or that if granted, it must be upon terms ?</p> <p>Mr. Ward:—We take both positions.</p> <p>Mr. Cooper:—Now upon the matter of terms. This is the information of the government; not an information in a civil proceeding in which the Court ought to impose terms. As was said by Justice Mansfield in the case which I cited, the Attorney-General pays no costs, and therefore there can be no imposing of terms so far as costs are concerned.</p> <p>First, the Court understand that so far as the common law and the practice of this State are concerned, the matter of an amendment by substance could not be considered, because under the practice an amendment in criminal pleading has never been allowed in this State, except in matters of form and not of substance.</p> <p>Second. We have a provision in our Constitution, the one under which these informations are filed, which infringes most strongly upon the common law rights of a defendant.</p> <p>In this provision of the Constitution is laid down a certain method and process for prosecuting certain crimes, and what the Constitution expresses is the chart for this Court; anything not expressed cannot be a guide to this Court.</p> <p>I would say generally about the authorities cited by the learned counsel on the other side, that so far as shown in any of the cases cited, where the amendment was allowed, it was as to matters of form and not of substance.</p> <p>Mr. Cooper:—Lord Mansfield said they could add whole counts.</p> <p>Mr. Ward:—Lord Mansfield said if the amendment had not been allowed the defendant would have been acquitted. We all know that under the extreme application of technical rules in criminal, as well as civil proceedings in those old days, it took a very little thing in the record, even where it was a matter of form, -to acquit a person.</p> <p>Some of the amendments referred to by Justice Mansfield were like this : He allowed an amendment in an information from the words “ tenor, etc,” to the words “ purport, etc,” which must be, it seems to me, purely and simply a matter of form and not of substance. The learned counsel on the other side cite but one • American authority, and that was a case where an amendment was permitted in the averment of time, to bring it within the statute of limitations. In that case there is nothing to show that the amendment that was allowed was a material amendment.</p> <p>In one breath the prosecuting officer says this is not a material amendment, and before he completes his period he says that without it he has not shown the jurisdiction of this Court.</p> <p>Judge Rowell, in the Vermont case argues from that provision of the statute law of Vermont permitting amendments in indictments, and not referring to informations, that he could not exclude the common law in amending informations. I contend that that averment is not applicable to this. There was a reference by that Judge to that provision in criminal prosecutions only; and it was in a statute; here there is a reference to a provision in the Constitution giving certain powers to amend, and I contend that by clear and plain arguments the power to amend in one, by giving power to amend in the other, is excluded.</p> <p>Our Constitution is based upon our own institutions; it is based upon what we have considered in the past to be proper. If the makers of this Constitution have in their own minds decided that there should be permitted amendments in criminal pleadings, the Constitution should have so stated.</p> <p>It expressly says that amendments may be made in civil actions, and gives no power to amend in criminal actions because the makers of our Constitution chose to give the power to amend in civil proceedings and limited it to that, then we have a clear conclusion necessarily drawn from that fact that the makers of this Constitution determined that amendments in criminal proceedings ought not to be allowed, and they did not authorize it. It is the application of the old rule, that the expression of the one excludes the other.</p> <p>Section 28, p. 981, of the Revised Code, which is a general provision concerning crimes and punishments, provides: “In a criminal case, judgment shall not be arrested, or reversed, for any clerical misprision, or, formal defect, if the record contain substantial ground for judgment.</p> <p>“ The omission of the words ‘ with force and arms ’ shall be deemed a defect in form merely.”</p> <p>Although that is not directly or expressly to the power to amend, it is, however, a clear indictation as to the extent that our statute recognizes the power to amend in a criminal case. That is to say, it might amend in case of a clerical misprision or formal defect, and we contend that that must be the whole, complete and clear extent of the power to amend in a criminal ease, given in this State.</p> <p>Our Constitution gives a' limited jurisdiction to this Court to try this class of cases, by a certain method, and unless the Court is given authority to allow this amendment somewhere in the Constitution, or upon the practice in this State on winch the Constitution is based, then the Court ought to refuse this amendment.</p> <p>So far as the power of amendment generally is concerned, it is unnecessary to bring a lot of cases here, because you will find many varying rules in the different states. I wish to cite, however, 1 Bishop’s Criminal Procedure, 127, Sec. 714 (Ed. of 1895).</p> <p>We contend that it is an interference with the due order of judicial proceedings, to amend this paper under these circumstances, at this time, because the defendant has been arrested, the information has been filed and the information discloses that this Court has no jurisdiction of this case; and we contend that it not only interferes with the due order of judicial proceedings, but that it also interferes with the rights of this defendant to be prosecuted according to law, under the Constitution of this State.</p> <p>White, Attorney-General:—This is not a matter of such substantiality as that it affects the rights of the defendants in these cases; it does not affect the case, neither does it affect the right.</p> <p>is informed in the remaining portion of this information of the nature and character of the charge against him. The name of each person is stated in each of the counts. This amendment is simply to insert those names in the first instance, in what I would call the preamble to the information.</p> <p>The Supreme Court in their rules have prescribed the form for a bail bond to be taken by a Justice of the Peace, and in a note say : “ The above form may be used by Justices of the Peace by making necessary changes.” The form of bail bond is as follows :</p> <p>“................County, 1 The State of Delaware /</p> <p>“Be it remembered, that...............of...............County in the State of Delaware aforesaid, personally appeared before me .....................one of the Judges of the State of Delaware, and acknowledged to owe to the State of Delaware the sum of............ dollars, to be levied on their goods and chattels, lands and tennements, respectively, for the use of said State.</p> <p>“ Upon the condition, that if the above bound be and appear before the next Court of General Sessions to be held at............... for the county aforesaid, there to answer such matters and things as shall be objected against him, and particularly touching a charge of violating the provisions of Section 7 of Article 5 of the Constitution of this State, said to have been committed by the said ............in............county on or about the........................day of...........A. D.............. and shall not depart the Court without leave thereof, then this obligation to be void, otherwise to be in full force and virtue,” etc.</p> <p>That is the form of the bond that the Court have suggested and prescribed. When that bond is sent to the Attorney-General of the State, what other information has he than that bond, that the defendant was held to bail for violating Section 7, Article 5, of the Constitution? We would base our argument on that.</p> <p>When the members of the Constitutional Convention prescribed this mode of prosecution by information, they of course meant the common law information, as contradistinguished from an indictment, and they meant to, and did use the word “ information ” with all of its common law characteristics and powers, and there can be no other idea than that of the common law information; they had no reference whatever to indictment at common law, but took it with all the characteristics, as I say, and habiliments of an information at common law, and the common law process.</p> <p>Rev. Code, 981, Sec. 28, relates entirely to indictments; must refer exclusively to indictments.</p> <p>Loee, C. J.:—We understand, Mr. Attorney-General, that your application is to add to the first clause of your first information, at the end thereof, these names: Elijah M. Gregory, John Seeney and John Wilmer.</p> <p>Mr. White:—Yes, sir; stating that they were the parties influenced.</p> <p>Loee, C. J.:—That was your application in the first instance, and the other was to add to the second and third counts a new paragraph—Do you mean that as a substitute for the first paragraph of these counts ?</p> <p>Mr. White:—No, sir.</p> <p>Loee. C. J.:—(Referring to proposed amendments) “ And the said Robert C. White, Attorney-General as aforesaid, now here in the Court of General Sessions of the said State now sitting in the county aforesaid, further information makes,” etc.—is this to be in lieu of that ?</p> <p>Mr. White:—No sir • that is to give the Court jurisdiction.</p> <p>Lobe, C. J.:—You retain this and add the other too ?</p> <p>Mr. White:—Yes; this allegation that he was held to bail, and we state the fact that he committed the offense. We think they are both absolutely necessary.</p> <p>Lobe, C. J.:—The Court have considered the arguments made by the respective counsel, and have examined the authorities so far as it was possible in the limited time we had at our disposal, and have reached the conclusion that these amendments ought to be allowed, and we therefore so order.</p> <p>The defendant excepted.</p> <p>Lobe, C. J.:—The case has come before us in a rather fragmentary way, and we allow the separate amendments, but insist that a new information be filed embodying the amendments—We have the case of Thomas C. Moore before us now.</p> <p>Upon application of the Attorney-General, the Court then allowed the following amended information to be filed, and defendant excepted.</p> <p>“ Robert C. White, Attorney-General of the State of Delaware, now here in the Court of General Sessions of the said State, now sitting in and for the county aforesaid, information makes, that Thomas C. Moore, late of Duck Creek hundred, county and State aforesaid, was on the eighteenth day of April, A. D. 1899, held to bail by Ezekiel V. Cooper, Esq., a Justice of the Peace, for said State in and for the county aforesaid, in the sum of one thousand dollars for the appearance of Thomas C. Moore at the present session of the said Court of General Sessions, being now here holden in and for said county to answer to the charge of using money to influence certain persons, to wit, Elijah M. Gregory, John Seeney and John Wilmer to register as qualified voters in Representative District, No. 1, Kent County and State of Delaware.</p> <p>“And the said Robert C. White, Attorney-General as aforesaid, further information makes that the said Thomas C. Moore, late of the hundred, county and State aforesaid, on the fifteenth day of October in the year of our Lord one thousand eight hundred and ninety-eight, with force and arms at the hundred aforesaid, in the county aforesaid, did unlawfully, by the use of money, to wit the sum of one dollar, lawful money of the United States of America, influence one Elijah M. Gregory, who was then and there a resident and citizen of the said State of Delaware, and possessing all the qualifications to register in the First Representative District of the county aforesaid, as an elector at the General Election to be held on the Tuesday next after the first Monday in the month of November, in the year of our Lord one thousand eight hundred and ninety-eight, as provided by Section 1, of Article 5, of the Condition of the State of Delaware, by then and there giving to him, the said Elijah M. Gregory, the sum of one dollar, as aforesaid, to pay the registration fee of him the said Elijah M. Gregory, in order to enable him, the said Elijah M. Gregory, then and there to register and qualify as an elector in the district aforesaid, in the county aforesaid, and did, then and there, by giving unto him, the said Elijah M. Gregory, the said sum of one dollar as aforesaid, influence him, the said Elijah M. Gregory, to become registered as a qualified voter in the district aforesaid, in the county aforesaid, and for the election to be held as aforesaid, contrary to the provisions of the Constitution of the State of Delaware, in such case made and provided, and against the peace and dignity of the State.”</p> <p>The remaining two counts in the information were similar to the first except in name of person influenced.</p> <p>A demurrer was filed to the amended information, and the State filed joinder. The substance of the demurrer sufficiently appears in the argument of counsel.</p> <p>ARGUMENTS ON DEMURRER BY COUNSEL FOR DEFENDANTS.</p> <p>First. Causes of demurrer numbers 1, 2, 3 and 4 raise practically the same question. That is, the Court of General Sessions had jurisdiction, if at all, to try on information without a jury, persons charged with committing any of the offenses mentioned in Section 7, Article 5 of the Constitution, only after such person had been either committed or held to bail by a Judge entitled to sit in the Supreme Court of this State, to appear and answer such charge in said Court of General Sessions.</p> <p> Constitution, Article 5, Section 7. </p> <p>This appears on the face of the information.</p> <p>Second. Causes of demurrer numbers 5, 6, 7, 8, 9 and 10 raise practically similar questions; that is, it does not appear in and by said information that the defendant has been examined and committed, or held to bail by a Judge or Justice of the Peace to appear and answer the several offenses alleged in the several counts of said information.</p> <p>An examination and commitment or holding to bail of the defendant to appear and answer the offense informed against, is a jurisdictional prerequisite to the filing of the information; and it must appear to the Court by the information, that there has been such examination and commitment or holding to bail. It is necessary not only to give jurisdiction of the person, but also of the offense alleged in the information.</p> <p>Constitution, Art. 5, Sec. 8; Cooley’s Const., Lims.,(6th Ed.,) 500, N. 21; Work on Courts and Jurisdiction, 88, 89, 91, 95 and 163; 1 Smith’s Lead. Cases (8th Ed.), 1124, 1127,1128 and 1129; Rex. vs. Fraser, 1 Moody, C. C., 407; Reg. vs. O’Connor, 5 Ad. & E. (48 A. O. L.), 16 and 34; Reg. vs. Stowell, 5 Ad. & E. (48 E. C. L.), 44; Challan Min. Co. vs. Wilson, 66 Cal., 374 and 6; Galpin vs. Page, 85 U. S., 350, 365, 370 and 372; McCarty vs. State, 16 Ind., 310; Justice vs. State, 17 Ind., 56; Kreigh vs. State, 17 Ind., 495 ; Broadhurst vs. State, 21 Ind., 333 ; Walker vs. State, 23 Ind., 61; Cobb vs. State, 27 Ind., 133; Davis vs. State, 69 Ind., 130; Iter vs. State, 74 Ind., 188; State vs. Helton, 32 N. H, 285.</p> <p>It must be proved that there was either an examination and commitment or a holding to bail, in the manner required by the Constitution, to appear and answer the same several alleged offenses in order to convict this defendant. It cannot be proved unless alleged in the information.</p> <p>Third. The question raised by the 11th cause of demurrer is that several separate and distinct offenses are alleged in the same information. It affirmatively appears by the information that the Attorney-General has not attempted to describe the same offense in different ways in separate counts, but has alleged separate and distinct offenses in each count.</p> <p> People vs. Quivise, 56 Cal., 396; Tiedke vs. Saginaw, 43 Mich., 64; People vs. Jackman, 96 Mich., 269, 275; People vs. Rohrer, 100 Mich., 126. </p> <p>Point of 12th cause of demurrer is that the proceeding in this case is by information and not by presentment or indictment. This is not due process of law in this case in view of the proposed method of actual trial.</p> <p> Hurtado vs. California, 110 U. S., 516, 538, &c.; Mo. vs. Lewis, 101 U. S., 22-29; Hallinger vs. Davis, 146 U.S.,314; Holden vs. Hardy, 169 Neb., 360-77, 380-1-2. </p> <p>ARGUMENT ON DEMURRER BY COUNSEL FOR THE STATE.</p> <p>We shall take up the causes of demurrer in the same order in which the counsel for the defendant presented them. There is a reason why the Constitutional Convention said the Judge should hold the accused to the Court of General Sessions, and why the Justice of the Peace was not named in the latter part of that section.</p> <p>A new power, by Section 8, had been imposed upon the Court. Never in the history of this State before has it been within the power of a Judge or any of the courts of record to examine the accused, give him a preliminary examination, and hold him to bail for the upper Court. The Constitutional Convention imposed a new duty upon the Judges, and . therefore had to provide some mode by which the Judges of the Supreme Court should fulfill and carry out the duties imposed upon them.' That they have done in the latter part of Section 8.</p> <p>It was entirely unnecessary that the Constitutional Convention should say that Justices of the Peace should hold to the Court of General Sessions because there is a general statute which says, that they should hold to the court having cognizance of the case, all offenders against the laws of this State.</p> <p>The second objection which is to the information, and not to the jurisdiction of the Court, is a more serious one. It is that the information does not set out an offense of which this Court had jurisdiction in the jurisdictional clause of the information.</p> <p>It was not intended by the Constitutional Convention that the Attorney-General of this State, in framing his information, should set it out in duplicate; first setting it out in all its minutiae and detail for the purpose of showing jurisdiction in the Court, and then that the offense should be restated so as to inform the defendant of the nature and character of the offense charged against him.</p> <p>It was not incumbent upon the Attorney-General to set out the jurisdiction in a special jurisdictional clause. To ascertain the offense therein committed you are not confined to what is termed the jurisdictional clause.</p> <p>While they may be paragraphed, they are not two counts. They stand together as one count, and the Court must take all the facts set forth in that count.</p> <p>The offense is set forth with all the precision and all the particularity which can be required of the Attorney-General, and does show jurisdiction of a crime committed within this county, and within the jurisdiction of the Justice of the Peace.</p> <p>After all, is this a jurisdictional matter at all?</p> <p>What was the origin and purpose of the provision of the Constitution which required that information should only be filed after a hearing and commitment before a Judge or a Justice of the Peace, or holding to bail ? Why, as all the courts of this country with the possible exception of Indiana, have said, not for the purpose of giving jurisdiction, but as a curb upon the power of the Attorney-General. This Court has absolute and conclusive jurisdiction ; no jurisdiction anywhere else; they must be punished here or punished not at all; punished by one mode, or not at all.</p> <p>It will be observed that there were two courts in Indiana having jurisdiction of the same offenses. With the exception of Indiana the other states are all in accord that it is not a matter necessary to be alleged or proved, but must be taken advantage of, if at all, by a plea in abatement.</p> <p> Washburn vs. People, 10 Mich., 372; People vs. Hoffman, 59 Mich., 1; State vs. Bailey, 32 Kan. 83; State vs. Finley, 6 Kan., 366; State vs. Barnett, 3 Kan., 250; State vs. Grier, 48 Kan., 753 ; Cowen vs. State, 22 Neb., 519 ; Latimer vs. State, 55 Neb., 609; Weisbroght vs. State, 50 Ohio St., 192 ; State vs. Anderson, 5 Wash., 350; State vs. Peterson, 45 Wis., 541; Martin vs. State, 79 Wis., 165; State vs. Munison, 7 Wash., 239; State vs. Thompson, 20 N. H., 250 ; Butler vs. Commonwealth, 81 Va., 159 ; Brown vs. People, 20 Col., 161. </p> <p>It seems that that law has been recognized in this State too long for counsel to raise an objection to it now for the first time. It has been the practice of this Court during the whole history of this State for indictments to be filed setting forth more than one offense provided they be set forth in separate counts.</p> <p>In nearly all the indictments in this State separate and distinct offenses are set out in different counts in the indictment. Take the case of indictments for using a female child for immoral purposes; true it is the same act in that case, but in one count of the indictment it is for taking for the purpose of using, and in another count, it is for using. Or take an indictment for embezzlement; A. B. as a clerk for C. D., alleged as servant and agent, all in separate and distinct counts, but separate and distinct offenses are alleged.</p> <p>Not only has it always been the practice in this State but it is authorized by law. We have found no State, except Michigan (and it may be under statute there), which holds that separate charges in indictments for misdemeanors cannot be joined.</p> <p>They could be, and are joined at common law.</p> <p> 1 Chitty’s Crim. Law, 254; 1 Bishop’s New Crim. Procedure, 458. </p> <p>The last and final ground of demurrer set' forth being the twelfth ground of demurrer, is a challenge of the right of the Court to hear this information and pass upon the facts, without the intervention of a petit jury.</p> <p>It is expressly stated in two cases that we shall cite that in the 14th Amendment (which is the constitutional restriction upon the States that no person shall be deprived of life, liberty or property, without due process of law)—the words “due process of law,” do not mean a trial by jury, nor an indictment by grand jury in criminal cases.</p> <p> Hurtado vs. California, 110 U. S., 518, and Holden vs. Hardy, 169 U. S, 366; Walker vs. Sauvinet, 92 U. S., 90. </p>

Petition for a public road in Duck Creek Hundred, in said County.

<p>The indictment was under Sec. 2, Chap. 226, Vol. 17, Laws of Delaware, which provides, that “ every person who, with the intent to procure the miscarriage of any pregnant woman or women supposed by such person to be pregnant, unless the same be necessary to preserve her life, shall administer to her, advise, or prescribe for her, or cause to be taken by her any poison, drug, medicine, or other noxious thing, or shall use any instrument or other means whatever, or shall aid, assist, or counsel any person so intending to procure a miscarriage, whether said miscarriage be accomplished or not, shall be guilty of a felony,” etc.</p> <p>The indictment, omitting the formal parts, was as follows:</p> <p>“ That George W. Quinn, late of Wilmington Hundred, in the county aforesaid, on the twenty-first day of August, in the year of our Lord one thousand eight hundred and ninety-nine, with force and arms, at the hundred aforesaid, in the county aforesaid, unlawfully, feloniously and with the intent to procure the miscarcarriage of one Rose Haughey, she, the said Rose Haughey, then and there being a pregnant woman, then and there supposed by the said George W. Quinn to be pregnant, did administer to her, the said Rose Haughey, certain medicine, the kind of which is to the jurors aforesaid unknown (the same not being necessary to preserve the life of her, the said Rose Haughey), and against the form of an act,” etc., * * * * “did counsel her, the said Rose Haughey, so intending to procure a miscarriage of her, the said Rose Haughey (the same not being necessary to preserve the life of her, the said Rose Haughey), against the form of an act,” etc. * * * * * * “ did use a certain instrument, the kind of which is to the jurors aforesaid unknown, upon her, the said Rose Haughey, so intending to procure a miscarriage of her, the said Rose Haughey (the same not being necessary to preserve the life of her, the said Rose Haughey) against the form of the act,” etc.</p> <p>moved to quash the iijdictment as insufficient.</p> <p>The statute makes the attempt to produce a miscarriage a criminal act, unless the miscarriage is necessary to preserve the life of the woman. The exception is so incorporated with the enactment as to constitute a part of the definition of the crime, and should therefore be negatived, which the indictment failed to do.</p> <p> Bassit vs. State, 41 Indiana, 303; State vs. Stokes, 54 Vermont, 179; Moody vs. State, 17 Ohio St., 111; Cheadle vs. State, 4 Ohio St., 477; People vs. Pendleton, 79 Mich., 317; Jensen vs. State, 60 Wis.,577; 1 Chit. Crim. Law, 283, 557; 1 Greenleaf Ev., Secs. 74, 78; State vs. Lodge, 9 Houst., 542. </p>

The defendant, Montyiaoo A. Cole, was indicted by the grand jury in September, 1899, and the case was postponed to November, on account of the absence of a material witness for the defense. The prisoner was charged with murder of the first degree of William A. Montague, of Wyoming, Delaware, on May 17, 1899, on East Second Street in the City of Wilmington.

for damages for personal injuries alleged to have been occasioned by the careless and reckless driving of a pony to a dog-cart by the defendant on May 24, 1899, whereby said pony was driven in and upon plaintiff while he was lawfully engaged in digging a trench in the bed of Washington street between Twentieth and Twenty-first streets for the Water Department of the City of Wilmington.

<p> Case—Distress—Attachment—Rent—Landlord and Tenant—Reasonable Oare—Malice—Damages—Exemplary Damages. </p> <p>1. A distress will lie for rent in arrears without any prior demand of payment. It may be made by the landlord personally, or by his bailiff—who is not required to be a public officer—but if he is, the landlord is responsible for his acts as though he were a private person.</p> <p>2. The property distrained may remain on the premises, or be impounded there, or elsewhere in the county.</p> <p>3. If a reasonable distress is made in a lawful manner it is a lawful act, and malice will not make the defendant liable for a malicious distress.</p> <p>4. An unreasonable distress is such that a reasonable man—taking into consideration a sale of the property—would know to be materially more than enough to satisfy the rent and expenses.</p> <p>5. If the distress is unreasonable and without malice, the measure of damage is the loss sustained; but if unreasonable and malicious, exemplary damages may be recovered.</p> <p>6. A person holding goods as a distress must use such care as a prudent man would use with regard to his own property of like character. The care to be used when the property consists of cattle, horses, milch cows, etc. As a general rule, the party holding goods distrained has no right to use them for his own benefit. If the property is injured while in his custody, the burden is on him to rebut the presumption of negligence.</p> <p>7. There can be no distraint for rent until it is due. The landlord’s remedy as to rent not yet due is under the statute which provides for an attachment.</p> <p>8. If the attachment is taken without probable cause, it is unlawful, and the plaintiff is entitled to recover for loss of the use of the property, etc. The party taking the attachment must, on good grounds, have believed, that the tenant had intended to remove his effects, etc. If he did believe it, and had good grounds for believing it, the attachment was lawful, no matter what his motives may have been; good grounds would be such as would justify a reasonable man in such belief.</p> <p>9. If the attachment was both unlawful and malicious, the plaintiff might recover exemplary damages; and malice could be inferred from the want of good or probable .cause to believe the allegations of the affidavit.</p>

Divorce. At the taking of the testimony in the above stated case before the Commissioner, Baldwin T. Springer, Esq., J. Albert Oliver, letter carrier, a witness produced and sworn on behalf of the complainant, was asked by Mr. Harman certain questions, which the witness declined to answer, although held to be admissible by the Commissioner, the witness stating that he believed it to be against the postal regulations, and that he had been so advised by the United States…

On November 22d, the prisoners were tried in said Court on an indictment for larceny. Upon the report of the jury that they could not agree the Court discharged them without the consent of the prisoners. subsequently moved for the discharge of the prisoners on the following grounds : First. A person cannot twice be put in jeopardy or on trial for the same offense.

The plaintiff put in his proof and rested, and the defendant moved for a nonsuit, the grounds for which motion are stated in the opinion of the Court.

Fi. fa. attachment was laid in the hands of Lewis H. Ball, State Treasurer.

<p> Case Stated—Mortgage—Seire Facias—Parties Defendant. </p> <p>1. In a scire facias on a mortgage, the only necessary party defendant is the mortgagor, if he be living, whether he continues to be the owner of the mortgaged premises or not. If the mortgagor be dead, his executor or administrator, if there be one, is the only necessary party defendant, whether the mortgaged premises be owned by heirs, devisees, or assigns subsequent to the mortgage.</p> <p>2. All persons acquiring title to or right in mortgaged premises subsequent to the mortgage, take title subject to it, and such title or right is liable to be barred and divested by a sale and conveyance under proceedings by scire facias duly served upon the mortgagor, if living, or upon his executor or administrator if he be dead.</p>

to recover from the defendant company damages for personal injuries alleged to have been sustained by the plaintiff, and also for injury to his baker wagon, by reason of the negligence of the defendant company, on the second day of June, 1898, at the railroad crossing near Landlith Station in the City of Wilmington.

<p>This was an action</p> <p>of assumpsit on a book account, the sum demanded being $6.26.</p>

the prisoner was placed on trial on an indictment charging murder of the first degree for the killing of his common-law wife, Mary E. Perry, on the sixth day of November, A. D. 1899. The fact of the killing by the prisoner was not disputed.

Appeal. Action op Assumpsit. The narr consisted of two counts. The first count was for work and labor and the second count for wages. The amount claimed was $50.79.

filed the following affidavit and application: “Be it remembered that on this, twenty-seventh day of November, A. D. 1899, before me Henry R. Draper a Notary Public for said State and County personally appears Frank H. Thomas and Mary H. Thomas, who being by me first duly sworn according to law, do depose and say that they are the plaintiffs in the above entitled cause; that the said action is brought by the plaintiffs to recover from the defendant the value of a certain…

<p> Parties—Practice. </p> <p>Where the real plaint® is a child of tender years the father is the proper person to sign the petition asking for the appointment of a next friend.</p>

<p>Appeal—Equity—Official Bond—Teller of Bank—Surety in Bond —False Bepresentations by Cashier—Published Beport of Bank—Concealed Fraud—Statute of Limitations— Principal and Surety—Duty of Surety— Duty of Bank—Laches.</p> <p>l. In a suit by the bank against the surety on the official bond of the teller, it is no defense that the defendant was induced to become surety because of the false representations of the cashier “that the teller’s accounts were all straight; that there would be no risk on going on his bond, as he was a good, reliable and honest man, and as paying teller could not take anything,” etc.; it not appearing that the cashier was authorized by the bank to make any representations in the matter, or that it was in the line of his duty as cashier. Such representations could not bind the bank, and the surety would take them at his own risk as the individual judgment of the cashier.</p> <p>2. Neither is it any defense that the surety was induced to become such surety by reason of the published report of the bank immediately before he became surety, showing its resources and liabilities, which were false. Such publication has no relation to such suretyship, nor does it disclose whether the teller is honest or dishonest.</p> <p>3. In cases of official bonds, concealed fraud on the part of the principal will deprive both principal and surety of the benefit of the statute of limitations; the statute does not begin to run until the fraud is discovered.</p> <p>4. It is true that equity will not relieve against the bar of the statute in favor of the party who has been in loches in not using the means in his power to discern the fraud, but the rule is that it is good faith and not diligence which is required of the creditor as a condition of his right to hold the surety; the creditor or obligee in a bond is not obliged, for the benefit of sureties, to watch the principal.</p>

<p>Replevin—foreign Corporations—Doing Business in Stale—Statute; Taking Advantage of—Contract—Pleading—Evidence— Statute of limitations—Lease—Option, to Buy.</p> <p>1. If a person who is able to read signs his name to a paper, the presumption is that such person understood the meaning of the instrument, or by the exercise of reasonable care might have done so. In order to avoid the contract the burden is placed on the defendant to show that she was so ignorant that she did not, and could not, understand what she signed. If she was able to understand it, or by the exercise of reasonable diligence might have understood it, the contract is valid and binding.</p> <p>2. Where a person has contracted with a corporation, such person is estopped from denying that the corporation was authorized by its charter to make the contract.</p> <p>2. Where the defendant had an option to purchase the article for which the writ of replevin was issued, the statute of limitations would not begin to run against the action until the expiration of defendant’s right or option to purchase, because until that time the plaintiffs cause of action would not accrue.</p> <p>4. A State may prevent foreign corporations from ¡doing any business in the State until they have fulfilled all the requirements imposed by the Legislature. Advantage of the plaintiffs failure to comply with such requirements, however, is generally taken in other States by plea in abatement, other special plea or by answer. Where there is nothing in the pleadings or evidence showing that plaintiff had not complied with the requirements of the statute, held the statute was not applicable.</p>

When the plaintiffs had rested, Mr. Higgins, on behalf of the defendant, moved for a nonsuit; contending that under the pleas in the case and the proof (viz., deed under seal containing the receipt for the full consideration money), there was evidence of the payment and release of the consideration which had not been rebutted by the evidence offered by the plaintiffs; that the testimony of the plaintiffs upon the matter of payment was hearsay and therefore incompetent, and…

<p> Debt—Bond—Agency—Contract—Construction of Written Agreement—Principal and Surety. </p> <p>1. In a letter to defendant the plaintiff agreed to allow him a certain amount per week in cash in consideration of certain services to be rendered by defendant, it being agreed that as collateral security for the repayment of said allowances all commissions and other compensation of the defendant as agent of the plaintiff should be retained by the plaintiff till said allowances were fully paid. Held that any advances made in pursuance of such letter were not as compensation. or wages, but were advances to such agent to be repaid; and that the plaintiff might recover such advances in an action on a bond given by defendant, the condition of said bond covering money received by loans or allowances made to the defendant during his present or any future agency, for the purpose of enlarging his business or otherwise, and whether advanced under the terms of the agency agreement or otherwise, and whether under an express promise to repay or otherwise.</p> <p>2. The liability of a surety is not to be extended beyond the terms of his contract. To the extent and in the manner and under the circumstances pointed out in his obligation he is bound, and no further.</p>

At the trial Jacob E. Frantz, the brother of the plaintiff, testified that he was president of the Wilmington Dental Manufacturing Company a corporation of the State of Delaware, from the time of its incorporation in 1882, until the appointment of the receiver for said company on the 27th of July, 1893; that at the last mentioned date the defendant company was appointed receiver.

This was a case stated, the material facts of which were as follows: At the May Term, 1880, of the Superior Court for New Castle County, the firm of Platt & Elkinton recovered a judgment against… Held: the land condemned, and the property sold by William Simmons, sheriff, on the 17th day of November, 1892, to Michael R. Reedy for $3,000, which sum of $3,000 came into the hands of William Simmons as sheriff, as aforesaid.

Motion to quash rule to show cause why mandamus should not issue and to dismiss petition. The petition was in the following form : To the Honorable, the Judges of the Superior Court of the State of Delaware, in and for New Castle County. The petition of Arthur R. Kee, Thomas Greer and Samuel T. Landers respectfully represents: 1. That your petitioners are residents of New Castle Hundred, New Castle County and State of Delaware. 2.

<p>The prisoners were indicted at this term for assault and battery upon one Thomas Willey. .</p>

The defendant was indicted at this term for embezzlement. on behalf of defendant, upon an affidavit in the usual form made by the defendant, alleging the absence from the State of a material witness, moved for a continuance to the next term of Court.

The facts appear in the charge of the Court. At the trial Sarah A. King, a witness for the plaintiff, was asked the following question : “ Q,.

Larceny. At the trial the State proved that on the evening of January 4,1900, one John W. Ennis, while paying some money to a colored man in a store in Clayton, laid upon a safe in said store seventeen dollars in paper money, that he had no recollection of picking said money up, and on the following morning found it was not in his pocketbook where he had been keeping the same. That there were ten or twelve men in the store at the time, the defendant being among the number.

Action on the case for damages for the loss of a gray mare owned by the plaintiff. It was claimed by the plaintiff that the defendant negligently permitted the foot of the mare to be cut while shoeing her at his blacksmith shop in the town of Milford, and that from the wound caused thereby blood poison set in, resulting in the death of the mare. The plea was not guilty. The narr consisted of three counts.

<p>Appeal—Criminal Law—Recognizance; Forfeiture of—Practice— Contract; Conditional or Absolute; Consideration for.</p> <p>1. Under the law and practice in this State, although a recognizance which was entered into for the appearance of the principal at the next term of Court may at such term be declared forfeited, yet such forfeiture may, in the discretion of the Court, be taken off at the following term.</p> <p>2. Such being the law, the surety in such forfeited recognizance has an interest in having the principal produced at the term of Court next following the forfeiture, and such an interest as would be sufficient to support a contract or promise to pay another whom he had induced to go beyond the State or county for the purpose of finding and producing the principal.</p> <p>3. Whether such a contract was conditional or not, that is, whether the principal should pay only in the event that he was liable under the recognizance, is a question of fact to be determined by the jury.</p>

Appeal. amount claimed being $82.00 with interest from September 28, 1897, for professional medical services rendered the defendant, alleged to have been at her request and charged to her personally, she promising at the time the services were rendered to pay therefor. The pleas were non assumpsit, payment, discount, release, set-off, statute of limitations and coverture.

<p>The facts appear in the charge of the Court.</p>

Caps. Case. The plaintiff, on May 22, 1900, filed in the Superior Court an affidavit in the above stated action on the case for libel, alleging that the “defendants above mentioned, did on the sixth day of March, A. D. 1900, file an answer in the case of Margaretta M. May vs. Geo.

tried by the Court without a jury, by agreement of the parties. By indenture of lease dated January 3, 1899, the plaintiff demised certain premises to Clement H. Congdon for the term of one year from March 25, 1899, with covenants against subletting, etc. Congdon took possession and placed therein certain personal property belonging to him consisting of a printing press and other goods and chattels.

<p> Case—Personal Injuries—Damages—Demurrer—Pleading. </p> <p>The declaration in an action for damages for personal injuries alleged that the defendant negligently and carelessly omitted to provide for the repair and keeping in repair of a certain machine, whereby it became dangerous, unsafe and improper, and the plaintiff was injured, etc.: Held that it should have been alleged in what respect the defendant omitted to provide for the repair and keeping in repair of the said machine.</p>

<p>Case—Personal Injuries—Damages—Negligence—Master and Servant—Primary Duty of Master—Assumption of Risk— Conflicting Testimony—Measure of Damages.</p> <p>i. Primary duty of the master stated. If he fails to perform such duty and injury results from such failure alone he is liable. And a master may not relieve himself of this duty by delegating it to a fellow-servant of the person injured.</p> <p>2. An employee assumes all the ordinary risks of-his employment, and such dangers as are patent, but does not assume those risks which may not be seen and known. Where machinery is defective in the knowledge of the employee, yet if the master promises to remedy the defect and the employee, relying upon that promise, continues to use it for a reasonable time he does so at the master’s risk. Two or three days would be such reasonable time. Notice of defects given to foreman is notice to the company and the foreman’s promise to remedy the defect is the promise of the company.</p> <p>3. In order that the plaintiff may recover in an action for personal injuries he must show by a preponderance of proof that they were caused by the negligence of the defendant, and of the defendant only; for if the plaintiff contributed proximately in any way to the accident, he may not recover.</p> <p>4. If the plaintiff at the time of the accident was acting outside of the scope of Ms employment, without the order of the defendant, he cannot recover, and much less if he disregarded the warning of defendant.</p> <p>5. What jury must do when testimony is conflicting.</p> <p>6. Measure of damages stated.</p>

<p>Rule to show cause why sheriff’s return should not be set aside. Motion to strike off the return and quash the writ.</p>

<p>Writ op Error to the Superior Court for New Castle County.</p>

<p>Exceptions to Account op Administrator.</p>

<p> Writ of Error—Case Stated—Sheriff’s Recognizance—Liability for Printer’s Bill—Statute; Construction Of. </p> <p>1. The sureties on a sheriff’s official recognizance are not liable to a printer for advertizing notices of sales of real estate, although it was the duty of the sheriff to cause such advertisement to be made.</p> <p>2. Case of Use of News Publishing Company vs. Gould, et. al., i Pennewill, 366, overruled.</p>

<p> Court in Banc—Ejectment—Case Stated—Will; Probate in Another State; Effect of in this State—Evidence—Constitution of United States—Statute—Real Estate ; Title to—Foreign Court; Findings of Fact by—Estoppel. </p> <p>1. Titles to land can be acquired and lost only in the manner prescribed by the law of the place where such land is situated. The provision of the United States Constitution, which requires full faith and credit to be given in each State to the records and judicial proceedings of every other State, applies only to the records and proceedings of courts, so far as they have jurisdiction. The courts of a State being without jurisdiction as to the title to lands in another State, this provision of the Constitution does not make conclusive the probate proceedings in one State in respect to a will devising lands in another State.</p> <p>2. The right of a State to prescribe the laws which shall regulate and control titles to real estate within its borders necessarily requires that such State shall have full power to determine whether those laws have been observed and obeyed.</p> <p>3. While the statute of this State makes a duly verified copy of a will proved hi another State and probate, or the record thereof, “sufficient evidence,” in courts of this State where such evidence is pertinent to the issue, it does not make such evidence conclusive, and the statements contained in such copy or record may, in an action in this State in relation to the title of land here situated, be contravened.</p> <p>4. As to immovable property the law of the place where it is situated governs both as to the capacity of the testator and the requisites to the will’s validity. The validity of a will of lands situated in Delaware made by a non-resident, and not proved here, may be tried in ejectment, if the will be given in evidence, by one claiming under it in an action by the heir. And where such will of lands here has been proved abroad the foreign probate is not conclusive here, but may be controverted.</p> <p>5. The probate in another State of a will devising land here not being conclusive, it follows that the refusal of a Court of another State to admit such a will to probate is not conclusive, for in both cases the reason is the same.</p> <p>6. While the Court of another State has jurisdiction to find that an alleged will, so far as it relates to personal property and lands in that State, was procured by fraud and undue influence, and that the testator was not of sound and disposing mind and memoiy, it has no jurisdiction to make a conclusive determination as to these facts or any other facts touching the validity or invalidity of the paper, so far as the same relates to land in Delaware. The defendant in an action of ejectment in this State would not be estopped from denying any or all of said findings of fact by the courts of such other State.</p>

asked leave in open Court to appear specially in the above case, for the purpose of making a motion to quash the writ for want of sufficient surety. objected, contending that the application to appear specially should be by a petition, disclosing the reasons for such application.

because, as it was contended, no service was had upon Sarah K. Thatcher, under the law, in the suit, before the Justice. (Argued June 11, 1900).

This was a case stated, the point at issue being, whether the Board of Directors of the Street and Sewer Department were entitled to have, receive and dispose of the fees and charges collected from farmers, traders, dealers and hucksters using the street markets in said city, or whether such fees and charges ought to be paid over to the Mayor snd Council of Wilmington for the general fund and uses of said city.

<p>Criminal Law—Assault with Intent to Mu/rder—Homicide—Mu/rder of First Degree—Second Degree—Manslaughter ; How Proved—Reasonable Doubt.</p> <p>1. In a trial for assault with intent to commit murder, it is necessary for the State to satisfy the jury from the evidence in the case, beyond a reasonable doubt, first, that the prisoner committed the assault on the prosecuting witness, and, secondly, that he committed the assault with intent to murder. The intent is as material and essential to be proven as any other ingredient in the offense.</p> <p>2. Assault defined.</p> <p>3. Manslaughter—voluntary and involuntary—defined.</p> <p>4. Murder, and the different degrees thereof, defined.</p> <p>5. Malice is not restricted to spite or malevolence towards the deceased in particular, but, in its legal sense, is understood to mean that general malignity and recklessness of the lives and personal safety of others which proceed from a heart void of of a just sense of social duty and fatally bent on mischief. Malice is implied by law from every deliberate cruel act committed by one person against another, no matter how sudden such act may be.</p> <p>6. The intent to commit murder may be shown by direct evidence of the intent, that is, by the express confession or declaration of the accused; or, if there be no such direct evidence, the intent may be proved by the acts or conduct of the accused, and other circumstances, from which the jury may naturally and reasonably infer the intent charged.</p> <p>7. Reasonable doubt defined.</p>

The action was brought to recover under a special contract for boarding the defendant from November, 1895, to May, 1896, at seven dollars per month, which contract was made by the defendant and the plaintiff, while the latter was living with her husband.

<p>Writ of Error—Criminal Law—Charging Jury—Stare Decisis— Character Evidence.</p> <p>1. It is not error for the Court to refuse to instruct the jury under a request which assumes the existence of a fact to be established by evidence.</p> <p>2. The rule stare decisis has for its object the salutary effect of uniformity, certainty and stability in the law.</p> <p>3. The decisions of the Court of Oyer and Terminer and the Court of General Sessions were not reviewable by the Supreme Court prior to the adoption of the Constitution of 1897, and they will not be departed from by the Supreme Court unless it be satisfied that they are clearly erroneous.</p> <p>4. The doctrine of stare decisis applies with peculiar force to decisions respecting real property, vested rights, and those matters of general commercial importance which tend to influence future business transactions; but questions, as where personal liberty is involved, will be met by considerations which favor certainty and stability in the law.</p> <p>5. The question respecting the proper relation of character evidence to the other evidence in the case does not involve any of those essentially important rights and interests favored by the doctrine of precedents.</p> <p>6. While character evidence is not a defense, it is a circumstance in the antecedent conduct and habits of the accused, its purpose being to strengthen the legal presumption of innocence.</p> <p>7. Character evidence is to be weighed and estimated by the jury according to the weight of the testimony by which it is supported in connection with that to which it is opposed.</p>