Volume 19 — Delaware Reports

brought by the administrator of James F. Lawless, deceased, to recover from the defendant company damages for the death of the said deceased, alleged to have been caused by reason of the negligence of the defendant company in not providing a reasonably safe derrick with which to perform the work in which said deceased was engaged. - Further facts appear in the charge of the Court.

The Petition was in the following form: The petition of Samuel J. Levy, of the City and County of Philadelphia, and State of Pennsylvania, respectfully represents, That at the October Term, A. D. 1899, of this Court, a judgment upon foreign attachment proceedings at the suit of William F. Smalley, Jr. (the same being of record in the office of the Prothonotary of said Court in C. D. 17, page 162) was recovered against your petitioner for the sum of five hundred and…

Indictment for Larceny. At the trial, it was proved that on the 27th of March, 1900, while the defendant and another man were moving the household goods of Mary LeCompt, in the City of Wilmington, the latter missed a lady’s gold scarf pin, set with pearls, valued at five dollars. The pin was afterwards recovered and traced to the possession of Briscoe.

An affidavit of defense was filed stating that the defendant had a just and legal defense to the plaintiff’s cause of action, etc. Prickett for the plaintiff moved for judgment notwithstanding the affidavit of defense, on the ground that the statute provides that the affidavit must state whether the defense. is to the whole or a part of the cause of action, that the affidavit filed did not contain such a statement and was therefore insufficient.

Writ of Error to the Superior Court in and for New Castle County. Action of replevin was brought in the Court below by the defendant in error in which it sought to recover from the Journal Printing Company, plaintiff in error, the possession of a certain printing press, or the value thereof, basing its right to so recover upon the written instrument, as set out in the report of the case in the Court below. The jury rendered a verdict in favor of the plaintiff below for $4000.

<p>Petition for Divorce.</p>

Indictment foe Bub'ning A Babn. At the trial, George Krebs, a witness produced on behalf of the State, was asked by the Attorney-General if the accused made any statement at the preliminary hearing given him before the Justice of the Peace in Frederica, concerning the burning of the building and replied that he did.

In the trial, the State produced as a witness Annie Deputy, the wife of the defendant and mother of Lena Deputy the prosecuting witness, simply to prove the age oij the said Lena Deputy. Counsel for the defendant objected to the competency of the witness.

Kule to show cause why judgment should not be set aside The defendant, Willis C. Dickerson, alleged in his petition the following : That on the third day of July, A. D. 1900, at Clayton, Delaware, John S. Casperson, a Justice of the Peace, rendered judgment by default against your petitioner and in favor of Herman C. Wood in an action of assumpsit for the sum of fifty-five dollars and twelve cents and costs of suit.

<p>See facts in charge of Court.</p>

The defendants in this case were held by a Justice of the Peace upon the charge of violating certain of the election laws of the State of Delaware, same being a misdemeanor, and entered into recognizance for their appearance at Court. The case was sent up to the Court of General Sessions by the Justice during the November Term, 1900, but too late for the Grand Jury to act upon it, they having been discharged for the term. The defendants appeared.

The defendant was unrepresented by counsel at the trial— Henry C. Conrad having withdrawn as counsel. for damages to certain real estate, the title to which was in the plaintiff, said real estate being in the possession of tenants.

<p>Case—Demurrer; Special—Amendment—Discretion of Court— Constitution—Statute—Pleading.</p> <p>1. The Court will, in a proper case, and in the exercise of its discretion, permit a defendant to withdraw his pleas after issue joined, for the purpose of demurring specially.</p> <p>2. In an action for damages for causing a restraining order to be issued out of the Court of Chancery against the plaintiff, it is necessary that the narr should aver that said restraining order was procured maliciously and without probable cause. If the narr does not contain such an averment, and is demurred to, the demurrer will be sustained.</p>

brought by William Y. Ellison, to recover the sum of $335.81; being the amount claimed, including interest, for 439 bushels of wheat at seventy-five cents per bushel, claimed as plaintiff’s share, as tenant, of the wheat crop grown on a certain farm situated in Red Lion Hundred, New Castle County - said farm having been rented by the plaintiff from one William H. Morrow for the year beginning March 25, 1899, and ending March 25, 1900, said farm having been purchased at…

The following facts were admitted by the respective counsel: That the fieri facias went into the hands of the Sheriff on the third of November, and levy was made on the same day; that Court met on November 26, and the fieri faeias was returnable on that day, to which the sheriff’s return was, “Levied on the within named goods and chattels as per inventory and appraisement annexed and stayed by order of the plaintiff’s attorney.” That afterwards, on the thirtieth day of…

<p>for goods sold and delivered to defendants consisting of drugs and sundry supplies furnished them for their retail drug business, between the dates of July 1, 1899, and November 14, 1899, and amounting with interest to $303.64.</p> <p>The declaration was in the common counts and bill of particulars was filed with the same. The pleas were non assumpsit, payment, and statute of limitation, together with a special plea and affidavit denying partnership.</p> <p>The plaintiff proved his account and testified that the goods were furnished to the firm of Hertel & Company, consisting of the defendants above named, and that he had no notice of the dissolution of the partnership.</p> <p>The witness, Frank J. Williams, general manager of Dunn & Company’s Mercantile Agency of Wilmington, was then produced on behalf of the plaintiff and testified that the business of his agency was to investigate the financial standing of business firms and who composed the same, such information being for the benefit of their customers, of whom the plaintiff Mr. Danforth, was one; that a careful search of the newspapers was made by said agency between July 1, 1899, and December 30, 1899, and there was no notice of the dissolution of the partnership of Hertel & Company published during that time.</p> <p>The witness was then asked the following question by Mr. Hilles:</p> <p>“ When did you first learn of the dissolution, if there was a dissolution, of the firm of Hertel & Company ?”</p> <p>Objected to by counsel for defendants as inadmissible.</p>

Action op Assumpit on a book account. Bill of particulars filed. The narr contained counts for goods, wares and merchandise by plaintiff to defendant sold and delivered; for work and labor by the plaintiff done and performed in the business of defendant; for money advanced, paid and expended for the use of defendant; for money had and received by defendant for the use of plaintiff; also an account stated.

See facts in argument of Mr. Hughes. The plaintiff filed a mechanics’ lien against Edwin F. Kitson, contractor, and the defendant, for bricks furnished the said contractor for building an engine-house for the water works for the said town of Laurel.

Ceetioeaei to Charles W. Kelley, a Justice of the Peace in and for Kent County. A judgment note was given in this case by John H. Dickerson to F. L. Hardesty. There was afterwards an assignment of same by the obligee to one T. H. Kelley, and judgment was entered in the name of the said T. H. Kelley.

Heard, tried and determined by the Court. Counsel for defendant filed a plea in abatement; which plea (omitting the caption) was in the following form, to wit: “And now, to wit, this third day of November, A. D. 1899, the said Frank Reiman, by Walter H. Hayes and Herbert H. Ward, his attorneys, comes into court here and says that he, the said defendant, never was held to bail by Ezekiel V. Cooper, Esquire, a Justice of the Peace of the State of Delaware, in and for Kent…

<p>Demurrer to amended declaration. The facts, and the contentions of counsel appear in the opinion of the Court.</p>

<p> School Laws—LegislativeIntent—Statute; Construction of—Repeal by Implication—Taxation—Building School House. </p> <p>1. Authoritative adjudications clearly show that, in determining questions o repeal by implication, the legislative intention is the controling factor, and its ascertainment the paramount object.</p> <p>2. The enactment of a general system of government complete in itself, or the revision of a previous statute or statutes, covering the entire subject of such prior enactments, and the consolidation thereof, especially with new provisions, in a single act complete in itself, is regarded as evidence of the legislative intent and purpose to substitute the latter for the former, and consequently is a repeal thereof.</p> <p>3. The power to build a school house and to raise by taxation the funds necessary therefor are amply provided for by sections 14, 15, 17, 18, 19 and 20 of the act entitled “An Act Concerning the Establishment of a General System of Free Public Schools,” passed at Dover, May 12, 1898.</p> <p>4. The said act of 1898 was designed to provide a complete general system for the government and administration of the free public schools of the State, and was intended to be a complete revision of the prior general free public school laws, and a consolidation and codification of them with such new provisions as were deemed advantageous, in a single act desiged to cover the whole subject in all respects, and to be a substitute for all antecedent general free school legislation not incorporated therein, or continued in force thereby as essential to its effective operation.</p> <p>5. Section 3, Chapter 70, Vol. 12, Laws of Delaware (Rev. Code, 328, Sec. 3), limiting the amount which may be raised by tax for the purpose of building or repairing a school house to the sum of $500, has been repealed.</p>

<p>Facts appear in charge of Court.</p>

<p>upon a contract for the sale of Russian goat skins, which contract is fully set out in the charge of the Court.*</p>

Writ op Error to the Superior Court for New Castle County. The facts, contentions of counsel and authorities cited, sufficiently appear in the opinion of the Court.

Counsel for defendant, on affidavit filed alleging that the plaintiff was a non-resident, obtained a rule for security for costs.

on a contract for the delivery of 150,000 pounds of “11s carded peeler yarn on cones.” Plaintiff claimed,- including interest, $6728.52 as damages for the non-delivery of 137,039 pounds of the yam according to sample, under the terms of said contract. See further facts in the charge of the Court.

to Lewis Sasse, a Justice of the Peace, in and for New Castle County. The following exceptions to the record were filed in behalf of the defendant below: First. That the record does not state or show the cause of action upon which the suit was brought. Second. That the record does not show that the cause of action was within the jurisdiction of a Justice of the Peace. Third.

brought by Delia D. Hatton to recover for personal injuries alleged to have been occasioned by the negligence of the defendant. Held: or which she may hereafter acquire in any manner whatsover shall be her sole and separate property.” Section 4, Chapter 550, Volume 14, Laws of Delaware, provides as follows: “Any married woman may prosecute and defend suits at law or in equity for the preservation and protection of her property as if unmarried, or may do it jointly…

Rule to show cause why judgment should not be opened and parties let into a trial, The petition and affidavit of Hannah C. D. Foard, one of the defendants, set out the following facts: “ That she is the owner of a small house and lot in the City of Wilmington ; that on or about the day of September, A. D. 1900, she discovered that there was of record on said property a mortgage purporting to be signed by her and her husband ; that she immediately called upon her counsel and…

The information was in the following form: “ The information of Herbert H. Ward, Attorney-General of the State of Delaware, respectfully showeth and gives the Court here to understand and be informed that the term of office of former , Judge J. Frank Ball, who was City Judge of the Municipal Court for the City' of Wilmington, terminated and expired on the twenty-first day of October, A. D. 1900, and a commission to act and discharge the duties of City Judge of the Municipal…

Indictment for the Larceny of Two Horses, in the town of Milford, on March 1st, 1901, the said horses being laid in the indictment as the property of John M. Smoot.

Action of Assumpsit (No.—April Term, 1900) based upon a written guaranty for the payment of a book account for goods sold and delivered to another person.

<p>Court in Bane—Adams Tax Law—Constitution—Statute; Construction of—Act of Legislature; Title of to Express Subject—Amending Act—Repealing Act— Repealing Part of Act—Taxation.</p> <p>1. The title of the original act was “An Act to Equalize Taxation for State and County Purposes;” and of the amending act, “An Act to Amend Chapter 381, Volume 20, Laws of Delaware, entitled ‘An Act to Equalize Taxation for State and County Purposes.’ ” The original act provided for taxation for State and County purposes; but a section of the amending act provided for Municipal Taxation also. Held that so much of the amending act as related to taxation for municipal purposes "was unconstitutional and void, under Section 16, Article 2, of the Constitution of this State; because not embraced within the title of the act, which was confined to taxation for State and county purposes.</p> <p>2. When the repealing act is void and inoperative from the beginning, it does .not effect a repeal of the original act.</p> <p>3. But when an amending act expressly repeals a section, or part of an original act, and substitutes an unconstitutional section, or part, radically different in some of its provisions, in lieu thereof; the section, or part, of the original act so repealed, is not retained or restored; unless the repealing clause itself is void. In cases of express repeal, the old section remains valid, only where the amending act is totally void, including the repealing clause; and therefore the original act was never in fact repealed.</p> <p>4. Where the unconstitutional part of an act cannot be separated from the residue without emasculating the statute, the act is unconstitutional and void.</p> <p>5. Where the object for which a tax is levied is elimated from the original act, because of the invalidity of the amending act, the statute is left without a purpose, and is anullity.</p>

<p> Criminal Law—Larceny—General Reputation—Good Character; Evidence of—Reasonable Doubt. </p> <p>1. Larceny defined. What the State must prove.</p> <p>2. The evidence of general good character in a criminal prosecution must be confined to the trait of character in issue in the case, as general reputation for honesty and fair dealing in a prosecution for larceny. The evidence of such good character is to be considered by the jury in connection with all the other relevant testimony in reaching their conclusion.</p> <p>3. General good character for honesty and fair dealing is proved by evidence of general reputation in that respect. That is, by proof of what people in the neighborhood in which the accused dwells generally say of his conduct or character in regard to honesty and fair dealing.</p> <p>4. Reasonable doubt defined.</p>

<p>Indictment for Embezzlement as Bailee.</p> <p>At the trial, after the testimony on both sides had closed, the Attorney-General, in his argument to the jury, commented upon the fact that the defendant had offered no proof as to his good character. This was objected to by Mr. Priekett, counsel for the defendant, as improper. The Attorney-General insisted that the Court had allowed such comments notwithstanding objections by defendant’s attorney in the unreported case of State vs. Pullen, tried at the April Term, 1901, in Kent County.</p>

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

The plaintiff filed an affidavit of demand, the body of which was as follows: “ State of Delaware ) Vss.

<p> Ejectment—Deed; Delivery of—Husband and Wife—Statute of . Frauds—Verbal Agreements—Escrow—Conditional Delivery. </p> <p>1. The mere execution and acknowledgment of a deed is not sufficient to pass title. Delivery is essential to its operation, and it takes effect only upon its delivery. It need not be delivered at the time it is executed, but may be at any time afterwards, during the lifetime of the grantor. A delivery, however, arter the death of the grantor would not be sufficient.</p> <p>2. No formality of words or action is necessary to constitute a valid delivery of a deed. Anything which signifies the intention of the grantor to part with his control or dominion over the paper, so that it may become a muniment of title to the grantee, operates as a legal delivery. The question of delivery is purely one of intention, to be determined by all the circumstances in the case.</p> <p>3. The mere fact that a deed has been recorded, is not conclusive evidence of its delivery, but generally, in the absence of evidence to the contrary, such fact is prima facie evidence.</p> <p>4. A delivery of a deed to one of several grantees for the benefit of all, is equivalent to a delivery to all.</p> <p>5. When a deed, duly executed, is found in the possesion of the grantee, the law presumes a delivery to him, but this presumption may be rebutted by evidence to the contrary.</p> <p>6. A delivery of a deed by the grantor to the grantee is an absolute delivery, because the delivery as an escrow cannot be made to the grantee.</p> <p>7. Any qualifications of the terms of a deed, absolute on its face, and duly executed and delivered to the grantees, must be in writing. A delivery once complete and absolute, cannot be affected by anything the grantor may say or do afterwards.</p> <p>8. No verbal agreement or understanding between the husband and wife will prevent the husband—owner of the premises—from making and delivering a deed therefor at any time, so as to pass his title, subject to her right of dower. If she was not a party to such deed, or for any reason it was void as to her, it would not for that reason be void as to the husband.</p> <p>9. No verbal understanding or agreement between husband and wife can create a life, or freehold, estate in the wife.</p>

<p>Attachment for Bent—Landlord and lenant—Statute—Notice— f Waiver of Notice—Acceptance of the Premises.</p> <p>1. If neither the landlord nor tenant give the written notice required by the statute, the lease will be extended and the tenant will be liable for the rent for another i year, unless the landlord has waived such notice, and accepted the surrender of the premises.</p> <p>2. The acceptance of another person by the landlord as tenant, and the receipt of rent from such person as such tenant, would amount to such waiver and ac- y ceptance. j</p> <p>3. A verbal request for, and acceptance of, such written notice at a shorter / time than three months, accompanied by an actual acceptance of the premises by the 1 landlord, would operate as a waiver. But an oral request on the part of the landlord j that such written notice, at a shorter time, should be given by the tenant, and the giving of such notice, would not alone operate as a waiver of the statutory notice.. /</p> <p>4. A landlord may accept the key of the house, and take possession of the property for the preservation thereof; he may even attempt to rent it, on account of , the tenant. But such acts will not amount to a waiver of notice and acceptance of the ) premises. To relieve the tenant there must be some such action on the part of the landlord as clearly to indicate that he considered and treated the estate of the tenant at an end.</p>

The certiorari was brought to the February Term, 1901. The Justice returned a copy of his record properly certified. The plaintiff filed exceptions to that record and also filed The Justice returned the writs called for but they were uncertified. I therefore move that the judgment below be affirmed under the authority of the following cases: Turnie L. Webster vs. Trustees of Union A. M. E. Church, (New Castle County, Nov. Term, 1900—unreported).

<p> Case—Personal Injuries—Master and Servant—Infant—Duty of Master—Duty of Servant—Negligence—Contributory Negligence—Assumption of Risk—Damages. </p> <p>I. It is a primary duty of the master to provide for the servant a reasonably safe place to work in, and reasonably safe machinery and appliances with which to work. Such place, machinery and appliances need not be the latest, the most improved, or the best; but they must be so adapted to, and adequate for, the purposes for which they are to be used as to be reasonably safe under all the conditions of the employment. If the master fails to perform such primary duty, and injury results to the servant from such cause alone, the master will be liable.</p> <p>2. A servant assumes all .the ordinary and apparent risks of his employment.</p> <p>3. A master is not an insurer of the safety of his servant; but it is his duty to give such instruction and warning to his servant, as to the dangerous character of his employment, as may reasonably enable him to understand the peril to which he is exposed. Such instruction and warning should be measured in each case by the youth, inexperience or ignorance of the servant. The measure of such instruction in case of infancy would be modified according to the maturity and capacity of the infant, his ability to understand and appreciate the danger, and his familiarity with all the sursoundings and conditions in the particular case, at the time of the injury.</p> <p>4. But whether the servant was so instructed and warned or not, if he knew the danger to which he was exposed, or in the exercise of reasonable care might have known it, then he assumed the risk, and would not be entitled ,to recover; as in such case he would be guilty of contributory negligence.</p> <p>5- The measure of damages stated.</p>

was agreed upon and filed: 1. That the above stated action be docketed as of the November Term, A. D., nineteen hundred, with the same force and effect as if a summons had been regularly issued, served on the defendant, duly returned, and the appearance of the defendant duly entered. 2.

Irdictmert for breaking and entering the dwelling house of Ichabod A. Sellard, in East Dover Hundred, in the night time, with intent to commit larceny. The defendant at the trial admitted that he entered the house of the prosecuting witness, the door not being locked; but denied any felonious intent; claiming it was done through a mistake; that owing to his intoxicated condition he thought he was entering the house of his employer where he lived.

Indictment foe Fobgeby. The indictment contained two counts. The first count charged the defendant with making and forging a certain instrument purporting to be a promissory note, and set out said instrument. The second count charged him with uttering the same.

for taking and carrying away two cows, the same being laid in the narr as the property of Susan Coverdale, also as the property of Joseph Covington, administrator of Susan Coverdale, deceased.

Sci. Fa. Sur Judgment against the said executor. Said judgment was entered April 2,1883. Suit thereon was brought to the November Term, 1899. The defendants filed the following plea, which was demurred to in a general demurrer as not sufficient to bar the plaintiff’s action, viz.: “ 2.

To the above application the following remonstrance was filed, to wit: “We, the undersigned, respectfully remonstrate against the granting of a license to Cornelius Mundy, as applied for at this term of Court: “ Because he already has a retailer’s license, and because this license is not necessary for the accommodation of the public, there being already a large number of licensed places, both retail and wholesale, in the vicinity. “The Citizens’ League, “ By Geo.

<p>It was admitted by counsel that George J. Biederman, the applicant for a wholesale license, already had a manufacturer’s license for the manufacture of beer. (Rev. Code, 71, Sec. 1.)</p>

<p>Amicable Action.</p>

Mandamus (No. Nov. Term, 1900). The successive steps taken in the above stated case were as-follows; Petition filed Dec. 22d, 1900. Order for rule to show cause, signed by the Court, Dec., 22d, 1900. Rule issued Dec. 29th, 1900. Feb. 5, 1901, on motion of attorney for petitioner, rule for alternative writ granted, returnable February 23d, 1901. February 8th, 1901, alternative writ issued. February 23d, 1901, motion to quash alternative writ with ■reasons assigned, filed.

<p>The first count of said indictment was in the following form, to wit:</p> <p>“The Grand Inquest fob the State of Delaware, and the body of New Castle County, on their oath and affirmation, respectively, Do Present :</p> <p>“That Anton Norkewicz, late of Wilmington Hundred, in the County aforesaid, on the fifteenth day of July in the year of our Lord one thousand nine hundred, with force and arms at Wilmington Hundred, in the County aforesaid, then and there being an agent to the Polish Library Association, a corporation of the State of Delaware, did, by virtue of his said employment as agent then and there, and whilst he was so employed as agent as aforesaid, receive certain paper money, the kind and denomination of which is to the jurors unknown, of the aggregate value of thirty-two dollars and eighty cents lawful money of the United States of America, sundry coins the denomination of which is to the jurors unknown, of the aggregate value of thirty-two dollars and eighty cents like lawful money of the United States of America, then and' there belonging to the said The Polish Library Association for and in the name and on the account of the said The Polish Library Association and which was then and there in his custody as the agent to the said The Polish Library Association and the said money then and there unlawfully did embezzle; against the form of an act of the General Assembly in such case made and provided, and against the peace and dignity of the State.”</p> <p>The second, third and fourth counts of the indictment were similar to the first count, except that the defendant was described therein as a servant, instead of an agent to The Polish Library Association.</p> <p>At the trial, Ou/rley, for the defendant, at the conclusion of the State’s evidence, made a motion that the Court instruct the jury to find the defendant not guilty, because of a variance between the proof and the allegations in the indictment; in that the indictment alleged the embezzlement of “ certain paper money ” * * * “ of the aggregate value of thirty-two dollars and eighty cents, lawful money of the United States of America, sundry coins ” * * “of the aggreate value of” the same amount, etc., “belonging to the said The Polish Library Association,” making a total of $65.60; while the proof was that Norkewicz received from the secretary of the association certain aluminum checks worth in exchange for beer and other things on sale at the said association rooms the sum of $32.80. ' That there was therefore a variance as to the amount; also as to the description of the property, in the indictment; that sundry coin laid therein was not sustained by proof of alluminum checks.</p> <p>The proof is that the defendant sold these checks and received money for the same. I believe the testimony does not disclose whether he received coin or paper money. But I contend under this statute (Rev. Code, 94%), that is mere surplusage.</p>

The petition alleged: “ That the said Frederick T. Wagner, in violation of his marriage vows, from the 20th day of March, A. D. 1898, to the present, hath been guilty of cruel, barbarous and inhuman treatment toward your petitioner; that to wit, on the 24th day of February, A. D. 1901, and at divers times thereafter, the said defendant hath assaulted, knocked down and beaten your petitioner without just cause; that to wit, on the day of A. D. 1901, within said time, the said…

<p>Criminal Law— Using Instrument to Procure Miscarriage—Statute — What the State must prove—Intent; Evidence of.</p> <p>1. Procuring a miscarriage, within the meaning and purpose of the act, is the unlawful destruction, or the bringing or causing to be brought forth prematurely of the foetus or unborn off-spring of a pregnant woman, at any time before birth according to the course of nature.</p> <p>2. In order to warrant a verdict of guilty the State must prove—(I) That the prisoner used an instrument as alleged in the indictment. (2) That he used it with the intent to procure the miscarriage of a person who was at the time pregnant or supposed by the prisoner to be pregnant. (3) That the miscarriage was not necessary to preserve the life of the woman upon whom the instrument was used.</p> <p>3. The date of the alleged oflense stated in the indictment is not material, and the crime may be shown to have been committed at any time prior to the finding of the indictment.</p> <p>4. It is not necessary for the State to prove that the prisoner actually caused or accomplished the alleged miscarriage. It will be sufficient to prove that he used the alleged instrument with the intent to procure the miscarriage; and it is immaterial that the woman herself actually caused the miscarriage, or that it was by her consent or entreaty that the prisoner attempted to procure it.</p> <p>5. The intent may be shown by the confession or declaration of the accused, or by his acts, conduct, etc., from which the intent maybe reasonably inferred.</p>

Case submitted without argument upon the testimony, exhibits and briefs of counsel. The will bears date July 23, 1897 ; was admitted to probate April 22, 1898; petition for review filed August 18, 1900; allowance of the will affirmed by the Register June 28, 1901.

<p>What State Must Prove—Criminal Law—Indictment—Obtaining Money by False Pretense—Venue; Change of—Prejudice; Evidence of—Exceptions to Rulings; When Allowed— Rule to Show Cause—Practice—Judges and Jurors ; When Disqualified—Challenge; Waiver of— Statute ; Construction of—Intent to Defraud— Receiver of Taxes and County Treasurer; One Office—Powers of over County Funds—Character Testimony.</p> <p>1. In an application to change the venue in a criminal cause a rule to show cause is not necessary, because the State, being represented, takes notice of the motion. And it is the same with respect to an application to quash the indictment.</p> <p>2. The suggestion to change the venue is entered on the record after the decision of the Court and not before.</p> <p>3. The rule of law governing the change of venue upon the ground of prejudice is that the Court must be satisfied of such prejudice by facts and circumstances j mere opinion is not enough. What evidence is required to sustain the charge of prejudice ?</p> <p>4. Judges and jurors are disqualified to try a case in which they have a pecuniary interest, and a change of venue should in such case be granted; but an interest as inhabitants and taxpayers of the county is not such a direct, tangible and substantial kind as to disqualify them, even though the defendant might be liable to the imposition of a fine which would be payable to the county.</p> <p>5. Exceptions cannot be noted to the rulings of the Court refusing to change the venue, to quash the indictment, or to quash the array of the panel of the jury.</p> <p>6. Neither can an exception be noted to the refusal of the Court to instruct-the jury to return a verdict of not guilty, at the conclusion of the evidence for the State. The proper course is to ask the Court, when they come to charge, to so instruct the jury.</p> <p>7. If the State waives its right to challenge, it can only thereafter exercise its challenges as to those who are called after such waiver.</p> <p>8. In order to secure a conviction for obtaining money by false pretense, the State must prove (1) That the defendant knowingly made a false pretense. (2) That he made such pretense with intent to cheat and defraud the person from whom he obtained the money. (3) That by such pretense he actually did cheat and defraud such person, and did obtain from him thereby in coin or paper money, or both, lawful money the property of such person.</p> <p>9. A false pretense is such a fraudulent representation of a fact, past or existing, by a person who knew it to be untrue, as is adapted to induce the person to whom it is made to part with something of value. Such false pretense may consist in any act, word, symbol or token calculated to deceive another, and knowingly and designedly employed by any person with intent to defraud another of money or other personal property.</p> <p>10. A false pretense which has ultimately accomplished its purpose of fraudulently obtaining money or other property will follow and taint with fraud every step in the transaction from its inception to its conclusion, however circuitous its route or however many agencies it may use.</p> <p>11. Under the act passed April 28, 1891 (Code 89, etc.), the words 11 Receiver of Taxes and County Treasurer” do not describe two distinct offices, but con. stitute the proper legal title of the person occupying one office, who is properly described in the indictment as the “ Receiver of Taxes and County Treasurer.” Such officer is not only the Receiver of Taxes, with authority to receive and deposit moneys arising from taxes in bank, but he is also the disbursing officer of such funds, which can only be drawn and obtained under the law by warrants drawn upon him as such Receiver of Taxes and County Treasurer, made, signed and countersigned as required by law. As such disbursing officer, he has such control and possession of the county funds, and such property therein, as to sustain an indictment which lays the property in question in him as Receiver of Taxes and County Treasurer.</p> <p>12. When the county funds have been deposited in bank as prescribed by law, and when a specific sum is separated and appropriated by said bank or its agent, for the payment of a warrant to the holder thereof, in accordance with the direction or authority of the Receiver of Taxes and County Treasurer, it thereupon becomes—and is paid out, in contemplation of said act as—the money and property of the Receiver of Taxes and County Treasurer.</p> <p>13. The intent to cheat and defraud is not to be presumed in law, but must be proved, and is a question for the jury to determine from all the acts and representatations of the defendant in the transaction, as shown by the evidence.</p> <p>14. A. B., Receiver of Taxes . and County Treasurer is a person within the meaning of the word “ person” as employed in the act.</p> <p>15. Evidence of good character, like any other evidence tending to establish innocence, is entitled to just so much weight as under all the circumstances of the case the jury deem proper to give it.</p>

<p>Criminal Law—Certiorari—Wife-beating—Assault and Battery— Statute; Construction of—Municipal Court; Jurisdiction of.</p> <p>I. The Municipal Court of the City of Wilmington has no jurisdiction over an assault and battery committed by a husband upon his wife, under the statute entitled “An Act providing for the corporal punishment of wife-beaters,” approved Feb. 22, 1901.</p> <p>2. The assaults and batteries of which the said Municipal Court has jurisdiction are common law offenses, where the penalty is limited to fine or imprisonment or both, and not statutory assaults and batteries punishable by ignominious penalties usually inflicted upon felons.</p>

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

<p>Writ of Error—Case—Personal Injuries—Pleading—Evidence— Variance—Amendment—Motion to Amend; When Too Late—Discretion of Court—Practice—Directing Verdict for Defendant; When Justifiable.</p> <p>1. Evidence that the plaintiff, in order to escape threatened injury, jumped from a truck and was thereby injured, will not support an allegation in the declaration that because of a dangerous hole or excavation in the street, the plaintiff was violently hurled or thrown to the ground. Neither will such evidence support an allegation to the effect that the plaintiff was forced from the truck to the ground. Forced in such connection means impelled by physical force acting on the body, and not fear of danger, however imminent. In such cases the variance is material and fatal.</p> <p>2. The allowance or refusal of amendments is within the sound discretion of the Court. And an amendment may be refused after a motion for a nonsuit has been argued and the Court has pronounced, or is about to pronounce judgment.</p> <p>3. The trial Court is not bound to submit the case to the jury, but may properly direct a verdict for the defendant, when it appears that under the plaintiff’s declaration the evidence, with all the inferences the jury could justifiably draw from it, is not sufficient to support a verdict for the plaintiff.</p>

<p>Writ of Error to the Superior Court for New Castle County. Information in the nature of a writ of quo warranta.</p>

<p>Criminal Law—Indictment—Receiving Stolen Goods—Time Alleged not Material—What Necessary to Prove—Evidence— Charader—Confederate—Reasonable Doubt.</p> <p>1. In an indictment charging that the defendant did feloniously receive certain goods, knowing them to be stolen, the following are essantial elements of the crime and must be proved beyond a reasonable doubt, viz: (i) That the goods were stolen; (2) that the goods were the property of the person named in the indictment, and (3) that when the defendant received the goods he knew that they were stolen.</p> <p>2. Knowledge that goods are stolen may come from declarations made at the time, or from circumstances surrounding the transaction. In such matters the buyer is presumed to have ordinary intelligence, and the jury may consider the circumstances under which the goods were bought as affecting the knowledge of the defendant whether the person offering it for sale came by it honestly or not. Mere possession of stolen goods, standing by itself, does not establish such knowledge of guilt; but it is a circumstance to be considered with all the other evidence in the case.</p> <p>3. Good character of the accused, when proven, is like any other testimony tending to show innocence. The jury are the judges of its quality and weight.</p> <p>4. While a jury may convict upon the unsupported testimony of a participant or confederate in the same crime, the better rule is that conviction should not be had unless such testimony is corroborated in some material part by other testimony or by the circumstances of the case.</p> <p>5. Where the testimony on the part of the State showed that defendant received the stolen property on July 19, held sufficient to support the indictment charging it on the 22d of same month; evidence of a transaction on the 22d being admitted to throw light on the question of guilty knowledge.</p> <p>6. Reasonable doubt defined.</p>

Action on the Case for damages to the wheat drop of the plaintiff by reason of water being gathered along the embankment made by defendant road and discharged through trunks upon the lands whereon the plaintiff’s wheat crop was growing. Facts appear in charge of Court. The testimony of the plaintiff in response to interrogatories by his counsel, Mr. White, concerning his ownership and possession of the wheat crop was as follows : Q,.

<p> Criminal Law—Cheating—Indictment—Common Law—'Definition —Cheating by Using False and True Penknife. </p> <p>1. In an indictment for cheating it is incumbent upon the State to show that the offense was of a nature not only to deceive the particular individual, but that it was one against which common prudence and care are not sufficient to guard.</p> <p>2. If the defendant, either by himself or in collusion with another, obtained from the prosecuting witness certain money by using a false or trick penknife in connection with a true penknife, and in such a way as would deceive men of common prudence and care, it would be of such a character as to deceive people generally, and would come within the common law definition of cheating, and constitute an indictable offense.</p>

to recover damages for personal injuries, resulting in the loss to the plaintiff of his nose and both eyes. It was conceded that said in- ' juries were inflicted by a premature discharge of a blast in a stone quarry of the defendant located near Wilmington, and that at the time of the accident the plaintiff was engaged in assisting one Caparello, a blaster or powder man of the defendant, in loading or preparing said blast.

for personal injuries to the plaintiff while alighting from a car of the defendant company in the city of Wilmington, said plaintiff being a passenger upon the said car. Facts appear in charge of Court.

for damages for the loss of services of a minor son, Ereberick Strattner, through injuries to the latter while in the employ of the defendant company. Demurrer to plea.

Action on the Case, to recover damages for the death of Henry Tully, an infant, which death plaintiff alleged was caused by the negligence of the defendant company. The material facts were as follows: An engine and train crew of the defendant had shifted a box car, coal car, and stone car from the main track of the defendant’s road, in the City of Wilmington, to a side track, known as the corn track, leaving the end of the stone car projecting over the main track.

<p> Case—Personal Inju/ry—Electric Wire—Public Highway—Negligence—Contributory Negligence—Railway—Administratei—Damages for Death. </p> <p>1. Contributory negligence, like other negligence, cannot be assumed, It must be proved to to the satisfaction of the jury to have existed, in order to exempt the defendant from liability on that ground.</p> <p>2. A railway company is bound, under the law, to operate and manage its road and property with ordinary care and diligence. But the terms ordinary care and diligence must be understood to import all the care, prudence and diligence which the peculiar circumstances of the case, the conditions existing and the instruments employed, reasonably require; and such as a reasonably prudent and careful man would exercise under the circumstances. The care and prudence required will be increased or diminished according as the ordinary liability to danger and accident, and to do injury to others, is increased or diminished in the operation and use of the railway.</p> <p>3. When an electric wire has fallen from its position and is lying in or along the public highway in a dangerous position, it is the duty of the company to exercise reasonable care and diligence in removing the wire from such dangerous position; and reasonable care and diligence in such case would be such as a reasonably prudent and careful man would exercise under the circumstances, considering the dangerous character of the wire, the conditions existing and all the surrounding circumstances.</p> <p>4. The person injured was also bound to use ordinary care, prudence and diligence to avoid the accident which occurred to him; and the care and diligence he was bound to use was in proportion to the danger to be avoided.</p> <p>5. A traveler on the public highway has a right to assume that the same is in a reasonably safe and passable condition. And while it is not his duty to be searching for obstructions or dangers, nevertheless the law imposes upon him the duty to employ his natural and ordinary senses, and to use all reasonable care and caution, to avoid danger.</p> <p>6. If the negligence of the defendant was the proximate cause of the death or injury, it is immaterial that the negligence of some third person may have in some way contributed to the accident.</p> <p>7. Where the action is by the administrator, the damages for the death of the deceased is such a sum as the deceased would probably have earned in his business during life, and left as his estate, taking into consideration the age of the deceased, his ability and disposition to labor, and habits of living and expenditures. In ascertaining this the jury should be governed by the reasonable rules governing human experience in the acquisition and retention of property, under the circumstances and environments of such a life.</p>

<p> Case Stated—Statute ; Construction of—Board of Water Commissioners of Wilmington—Bower to Purchase Beal Estate for Reservoir and Pay for the Same out of the Income from Water Worhs in their Elands. </p> <p>Under the act entitled “An Act to establish a Board of Water Commissioners, for the City of Wilmington, and for other purposes,” passed at Dover April 18, 1883, being Ckaj>. 203, Vol. 17, Del. Laws, the said Board of Water Commissioners has power to purchase real estate to be used for the construction of a new reservoir for said city, and to pay for the same from the income, receipts and rents of the water works in the hands of said board.</p>

Eule to show cause why judgment should not be set aside, because, as claimed, no service had actually been had upon the defendant. The petition of the defendant stated, among other things, the following : “ 1.

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

<p>Assault and Battery.</p>

<p>Case—Personal Injuries—Negligence—Railway Company—Public Highway ; Use of—Crossing Railways—Care Required— Unavoidable Accident—Measure of Damages.</p> <p>1. An electric railway has a right to use the public highway in common with other travelers and persons who see fit to use it in vehicles drawn by horses or otherwise. The cars of necessity can use only those parts of the highway covered by the tracks, inasmuch as such cars move only upon their tracks within fixed limits. Within these lines the right of the company is superior to that of other users, and must not be unnecessarily interfered with or obstructed.</p> <p>2. The degree of care to be exercised by both company and traveler in using the public highway is such as the circumstances of the case reasonably require—an increase or care being required where there is an increase of danger. The right of each must be exercised in a reasonable and careful manner, so as not unreasonably to abridge or interfere with the right of the other.</p> <p>3. There is no absolute rule as to what precise acts of precaution are necessary to be done or left undone by persons who may have need to cross electric railways. Such acts must necessarily depend upon the circumstances of each particular case. The degree of care differs in different cases. Greater care is necessary in crossing a road where the cars run at a high rate of speed, and close together, than where they run at less speed and remote from one another. In like manner, where the view at the crossing is obstructed, or in a neighborhood where there is much noise and confusion, greater care is necessary than in places where the view is unobstructed and with quiet surroundings. And a railway company is held to greater caution in the more thronged streets of the densely populated portions of the city than in the less obstructed streets in the open or suburban parts. Persons crossing a railway track are bound to the reasonable use of all their senses for the prevention of accident; and a person approaching a crossing with which he is familiar, is bound to avail himself of his knowledge of the locality and act accordingly.</p> <p>4. A pure accident without negligence on the part of the defendant is not actionable. It would come under the head of unavoidable accident, and the plaintiff could not recover.</p> <p>5. The measure of damages stated.</p>

<p>Now-stjpport Case.</p>

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

<p>Case Stated—Devise—Will—Issue—Children—Words of Limitation—Of Purchase—Real Estate—Personal Property— Survivors—Estate Tail—Limitation Over—Intention of Testator—Rule of Construction—Case of Jamison vs. McWhorter, 7 Roust., 2J¡S¡, incorrectly Reported.</p> <p>1. A. devised real estate to each of [his three sons, their heirs and assigns forever ; and provided by a subsequent item of his will that, if either of his “ sons should die leaving no child or children, then and in that case the survivors or survivor should inherit the deceased one’s portion and portions, to them or either of them, their heirs and assigns forever.” Held, that each of the sons took an estate tail in the real estate so devised.</p> <p>2. The words “child or children” are ordinarily construed to be words of purchase and not of limitation; but there are many cases in which such words have been held to be words of limitation and synonymous with issue. They are often given such meaning in order to carry out the manifest intention of the testator as gathered from the entire will. Such words, unaided by the context and unaffected by other language in the will showing an intention to use them in a more comprehensive sense, would ordinarily restrict the failure of issue to the death of the first taker. But the courts will seize upon any other words employed by the testator which show that his desire and intention was that the failure of issue was to be a general and indefinite one; and that not only children, but grandchildren, and even remoter issue, should be the beneficiaries of his bounty.</p> <p>3. The case of Jamison vs. Me Whorter, J Houst., 242, is incorrectly reported. The opinion delivered by Judge Houston, and reported as the dissenting opinion, was in fact the opinion of the majority of the Court. The decree is in conformity with that opinion.</p> <p>4. The word “ survivor or survivors ” in the limitation over will not restrict the word “ children” to a failure of issue at the death, especially when words of limitation are added to these words.</p> <p>5. In construing the word “ children ’ ’ in wills, courts have recognized a distinction between bequests of personal property and devises of real estate. In the former it has been often treated as a word of purchase, when in a devise of real estate it would have been held to be a word of limitation.</p>

<p>Action on the Case,</p>

<p>Foreign Attachment—Plea in Abatement—Pleading—Demurrer— Statute; Construction of—Aliens—Widow of Deceased Employee—Right of Action—Damages—Married Women.</p> <p>1. Under Section 2, Chapter 31, Vol. 13, Laws of Delaware {Rev. Code, 788), which provides that “ wherever death shall be occasioned by unlawful violence or negligence, and no suit be brought by the party injured to recover damages during his or her life, the widow of such deceased person, or it there be no widow, the personal representatives may maintain an action for and recover damages for the death thus occasioned,” the widow of one who lost his life from an injury occurring to him whilst actually engaged in our city and State in behalf of one of our industrial establishments may maintain the action, although before and at the time of the injury, and of the commencement of the suit, she was an alien, and actually resident in a foreign country.</p> <p>2. The said statute nowhere in its terms, or by implication, excludes non-resident aliens, or restricts to citizens or resident aliens its operation.</p> <p>3. It should be, and is our true policy to invite to our country and State the industrious and worthy people of foreign lands and to do nothing calculated to repel or dircourage them. To promote it both national and State legislation has been enacted from time to time. Our legislation, both State and national, has been more liberal and progressive than that of foreign nations in respect to aliens; and in this and other States the legislation in regard to married women has steadily grown more liberal and enlightened.</p>

<p> Case—Personal Injuries—Negligence—Master and Servant—Machinery—Dangers—Assumption of Risk—Duty of Master ; of Servant—Damages. </p> <p>1. It is the duty of the master to provide for the servant a reasonably safe place in which to work, reasonably safe tools and appliances with which to work, and also to keep them in a reasonably safe condition. The care required is in proportion to the dangerous character of the employment, The place, tools, machinery and appliances need not be of the best, nor of the latest pattern, nor of the most improved kind, but must be reasonably safe and adapted to the purpose for which they are to be used. If the master fails to perform such duty and injury results from such failure ■ alone, he is liable.</p> <p>2. The servant assumes the dangers and hazzards which are ordinarily incident to the service which he undertakes, and is presumed to have contracted with reference to them. Where the employment is dangerous he also assumes the risk of danger from manifest peril. He also assumes the risk and dangers of devices and methods of work which are open and apparent, and equally well known to the servant and master. But he does not assume those risks which may not be seen and known.</p> <p>3. When machinery is defective in the knowledge of the employee, yet if the master promises to remedy the defect, and the employee, relying on that promise, continues to use it for a reasonable time, he does so at the master’s risk, inasmuch as he has a right to rely on such promise.</p> <p>4. Notice of defects given to the foreman having charge of the particular work and department is notice to the master; and the promise to remedy the defects made by such foreman is in law the promise of the master.</p> <p>5. If the servant at the time of the accident was acting outside of the scope of his employment, without the order of the master, he cannot recover, and it matters not how defective and dangerous the machinery may have been. Neither is he entitled to recover if the accident was caused by his attempt to do something which he was warned not to do. In either case he would assume the risk of danger.</p> <p>6. It is the duty of the servant as well as of the master to exercise care and prudence in all cases commensurate with the risk or danger of the employment. If the servant contributed to the accident by his own negligence he cannot recover. Where contributory negligence is relied on as a defence, however, the burden of proving such negligence is upon the defendant.</p> <p>7. The measure of damages stated.</p>

<p>Supreme Court—Writ of Error—Contract; Breach of—Delivery of Goods—Purchase of Goods— What is reasonable time for— Jury to determine, if facts are in dispute—Court to determine in other cases.</p> <p>I. When the seller fails to deliver goods according to contract, and the buyer is obliged to go into the market and purchase goods to replace those not delivered, he is entitled to a reasonable time to do so.</p> <p>2. As a general rule it is the province of the Court to construe written contracts, and when the time for the delivery can be ascertained by the mere construction of the written contract between the parties, this should be done by the Court. So also, where the time for delivery is fixed, the question as to what was a reasonable time within which to replace the goods not delivered, is generally a question of law for the determination of the Court; but where the facts are in dispute, the time for delivery and a reasonable time to replace goods not delivered, are often questions proper to be determined by the jury under all the circumstances of the case,</p>

<p> Case—Contract; Breach of—Performance; Prevention of—Readiness to Perform—Damages—Common Cownts. </p> <p>1. Where the work and labor that was to be done under a contract has not in fact been done, the plaintiff must recover, if at all, on the agreement proved, because he cannot in such case recover on the common counts.</p> <p>2. If one party to a contract tenders himself ready and willing to perform his part of the agreement, and is prevented from performing it by some act done or omitted to be done by the other party thereto, the latter would be guilty of a breach of the contract, and the former would ordinarily be entitled to recover.</p> <p>3. To entitle the plaintiff to recover, however, in such case, he must prove (1) a valid contract, reasonably definite and certain in its terms, (2) a breach thereof, and (3) the loss sustained in consequence of such breach.</p> <p>4. The contract must be sufficiently certain and definite for the jury to understand its provisions; and the damages to be recovered for the breach must be shown with reasonable certainty, and not left to speculation or conjecture. The law takes no account of any damage which is not the natural and direct result of the breach of the contract, and which may not be capable of ascertainment from the testimony.</p> <p>5. The damages for the breach of the contract would be the excess of the contract price for the work and labor, over and above what would be the actual cost thereof.</p>

<p>Debt—Demurrer—Pleading—Corporation; Foreign; Stockholder in; Liability of; Action Against in this State—Contract— Statutory Liability; Contractual—Actions Local; Transitory—General Incorporation Act.</p> <p>1. An action may be maintained in this state against a stockholder in a Kansas corporation to enforce the individual liability of such stockholder under certain constitutional and statutory provisions of the latter State, to an amount equal to the par value of the defendant’s stock, on account of the unpaid balance of the plaintiff’s judgment obtained in Kansas against said corporation.</p> <p>2. Such liability, though statutory in its origin, is contractual in its nature, and the cause of action is transitory, and may be enforced by an appropriate action in a court of general jurisdiction in any state where personal service is had on the stockholder.</p> <p>3. Section 49 of the General Incorporation Act of this State, and certain other provisions, apply to corporations created and organized by authority of this State, and not to the relations, liabilities, rights and remedies of stockholders and creditors of corporations created, empowered and organized solely by authority of another State.</p> <p>4. When the liability sought to be enforced is in the nature of a contract voluntarily entered into By the defendant with adequate opportunity at the time of obtaining the stock to learn and comprehend his liability under the constitution and laws of Kansas, and not being opposed to the legislation or public policy of this State, the courts of this State will give effect to it.</p> <p>5. Debt will lie upon a contract, express or implied, to recover a sum certain or capable of being reduced to a certainty by calculation, payable in respect of a direct and immediate liability by one to another. It is a proper form of action against a stockholder of a corporation in a case like that now presented by the pleadings in this suit.</p>

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

<p> Justice of Peace—Appeal; By Defendanl—Statute; Construction of—Set-off—Practice. </p> <p>Under the statute, {Rev. Code 754), a defendant has no right to take an appeal where the judgement against him is for the sum of five dollars, unless his counter claim or set-off, or a part thereof exceeding five dollars, has been disallowed by the justice.</p>

Motion that judgment be refused notwithstanding affidavit of demand.

Motion that judgment be refused, notwithstanding affidavit of demand.

<p>Indictment foe Subornation of Perjury.</p> <p>The first count of the indictment was as follows:</p> <p>“ That at the November Term, A. D. 1901 of the Court of General Sessions of the State of Delaware, in and for the County of New Castle, holden at the City of Wilmington, in the County of New Castle and State of Delaware, before the Honorable Charles B. Lore, Chief Justice, and the Honorable William C. Spruance and Ignatius C. Grubb, Associate Judges of the said State, and sitting in said Court, the said Court then and there being in session, and the said Court having then and there authority to hear and determine divers felonies, misdemeanors and other offenses against the laws of the State of Delaware, a certain indictment was presented and returned in due course of law by the Grand Jury for the said County against one John Lynn, the said indictment being No. 49 to the November Term, A. D. 1901, aforesaid, of said Court, and the indictment charging the said John Lynn with obtaining by certain false pretenses in said indictment set forth certain money, to wit, the sum of fifty-six dollars lawful money of the United States of America, from one Horace G. Rettew, the said Horace G. Rettew being then and there the Receiver of Taxes and County Treasurer of the said County of New Castle, and that afterward the said John Lynn was duly and legally arraigned upon said indictment and pleaded to the same that he was not guilty thereof; upon which issue such proceedings were had that afterward, to wit, at the said November Term, A. D. 1901 of the said Court of General Sessions in and for the County aforesaid, so held, as aforesaid, a trial was had and held, before a jury duly drawn and empaneled, between the said State of Delaware and the said John Lynn upon the said indictment, upon which said trial evidence was given on behalf of said State of Delaware against the said John Lynn that the misdemeanor in said indictment specified and charged, to wit, the misdemeanor of obtaining money by false pretenses, was committed by the said John Lynn as in said indictment set forth, and the jurors first aforesaid upon their oaths and affirmations respectively aforesaid do further present that Patrick Fahey, late of Wilmington Hundred, in the County of New Castle aforesaid, being a person of an evil and wicked mind and disposition and devising and intending as much as in him lay to prevert the due course of law and justice and to cause and procure the said John Lynn to be entirely acquitted of the said misdemeanor charged on him by the said indictment and to escape punishment for the same, did, before the said trial, to wit, on the first day of November in the year of our Lord one thousand nine hundred and one, at Wilmington Hundred aforesaid, then and there unlawfully, corruptly, wickedly, maliciously and feloniously, solicit, suborn, instigate and endeavor to persuade one Frederic Vansant to be and appear as a witness at the trial of the said issue, upon which issue the said State of Delaware was the plaintiff and the said John Lynn was the defendant, for and on behalf of the said John Lynn, the defendant in the said issue as aforesaid, and upon the said trial falsely to swear and give in evidence upon his corporal oath, taken upon the Holy Evangels of Almighty God, to and before the jurors which should be sworn to try the issue aforesaid, certain matters, material and relevant to the said issue and to the matters therein and thereby put in issue in substance and to the effect following, that is to say: That he, the said Frederic Vansant, upon some day in the month of October in the year of our Lord one thousand nine hundred, was at the house of the said John Lynn in Elsmere, in the County aforesaid, and while so at the house of the said John Lynn, on the said last mentioned day that he, the said Frederic Vansant, heard a certain conversation between the said John Lynn and a certain Lawrence M. Whiteman concerning the payment of the sum of fifty-six dollars in money by the said Lynn to the said Whiteman,and that he, the said Frederic Vansant, on the said last mentioned day, while so, as aforesaid, at the said house of the said Lynn, saw the said Lynn give to the said Whiteman certain money, and that he, the said Frederic Vansant, on the said last mentioned day, while so, as aforesaid, at the said house of the said Lynn, as aforesaid, saw a certain Caleb Johnson present at the said house of the said Lynn, and standing near the said Lynn and the said Whiteman during the said above mentioned conversation.”</p> <p>The second count was similar to the above, with a slight variation in the phraseology.</p> <p>At the May Term, 1902, Mr. Biggs, for defendant, moved to quash the indictment for the following reasons:</p> <p>The defendant moves to quash the indictment on the ground that it does not set out any offense against the laws of the State of Delaware.</p> <p>I.</p> <p>Thte crime of subornation of perjury has several indispensable ingredients which must be charged in the indictment, or it will be fatally defective.</p> <p>1. The testimony of the witness suborned must be false.</p> <p>2. It must be given wilfully and corruptly by the witness, knowing it to be false.</p> <p>3. The suborner must know or believe that the testimony of the witness given, or about to be given, will be false.</p> <p>4. He must know or believe that the witness will wilfully and corruptly testify to facts which he knows to be false.</p> <p>U. S. vs. Dennee, 3 Woods, 41.</p> <p>Subornation of perjury is, in its essence, but a particular form of perjury itself.</p> <p> 2 Bishop’s Crim. Law, Sec. 1197. </p> <p>Both counts of the indictment charge the defendant, Patrick Fahey, with having suborned or procured Frederic Vansant to swear that he “ Frederic Vansant, upon some day in the month of October,” in the year 1900, was at John Lynn’s house and heard a certain conversation.</p> <p>It is charged, in both counts of the indictment, that Frederic Vansant swore at the trial of John Lynn “That he, the said Frederic Vansant, between the hours of four and five o’clock in the afternoon, upon some day between the tenth and twelfth days of October,” heard the said conversation.</p> <p>In order to constitute a good indictment for Subornation of Peijury, the defendant, Patrick Fahey, must be charged with having suborned or procured the witness, Frederic Vansant, to swear falsely to that which he did falsely swear to.</p> <p>Same cases as under second objection.</p> <p>II.</p> <p>Though a party who is charged with subornation of perjury knew that the testimony of a witness whom he called would be false, yet if he did not know that the witness would willfully testify to a fact knowing it to be false, he cannot be convicted of the crime charged.</p> <p> Com. vs. Douglass, 5 Metcalf, 241. </p> <p>Therefore both counts of the indictment are bad, because there is no averment in either that the defendant knew that the witness knew that the testimony he was instigated to give was false.</p> <p> U. S. vs. Dennee, 3 Woods C. C., 41; Com. vs. Douglass, 5 Metcalf, 241; Coyne vs. The People, 124 Ill., 17; Com. vs. Smith, 11 Allen, 243; U. S. vs. Wilcox, 4 Blatchford, 391 and, 393; State vs. Simons, 30 Vt., 621. </p> <p>(After hearing argument, the Court sustained the indictment.)</p> <p>At the trial the State proved the formal allegations in the indictment as set out above, and produced Frederic Vansant, the alleged suborned witness, who admitted that his testimony in the case of State vs. John Lynn, tried at the November Term, 1901, as to seeing Lynn paying one Lawrence M. Whiteman money was false, and testified further as follows:</p> <p>“ I was working at Ninth and Girard, on Tatnall street, tearing down some houses. I think there were five houses there, if I am not mistaken, that we were tearing down, and Richard Fall and Oscar Comegys and Charles Collins were helping me tear them down; and Mr. Fahey and Mr. Lynn drove around there, and halloed for me to come across to them.”</p> <p>Q. Where were you when they halloed for you ?</p> <p>A. On the opposite side of Tatnall street. I went across to Mr. Fahey and Mr. Lynn, and Mr. Fahey said, “ Fred—”</p> <p>Q. (Interrupting witness) Where was Lynn when Mr. Faheystarted to talk?</p> <p>A. Why, I suppose maybe ten or fifteen feet, or a little further than that, down the street from him. Mr. Fahey said, “Fred., Johnson has been up before Bird and stated that he saw Lynn give Whiteman this money in the presence of you”—that is, myself. I said, “Mr. Fahey, I have not anything to do with that. I never saw Mr. Johnson there, never saw anything about it and know nothing about it at all.” He said, “I know you did not, but we have got to do something. Lynn is in a hole, and liable to go to the workhouse, and I may get in a hole, and you know how things-are, and we want to help him out if we can”. I said, “ Mr. Fahey,. I cannot do anything like that, it might get me in a hole;” and he said, “No, but you must do something for him; we have got to do-the best we can.” I said, “I cannot do it,” and then he walked down to Lynn and they both came back towards me, and of course, they both came at me, one saying one thing, and the other another. Of course, I cannot remember everything they did say at the time; it would be impossible, and I could not do such a thing. They made some suggestions what they would do, and what he would do, if I would do it.”</p> <p>Q. What suggestion did he make that he would do if you would do it ?</p> <p>A. Well, he said if I would say that I saw Johnson and Lynn and Whiteman have this transaction on the porch, that he would swear he had taken me out there. I said, “ Mr. Fahey, you did not take me out there, because I never was out there. I don’t know anything about it.” “Well,” he said, “if you say that you went out there with me, I will swear that I had taken you out there.” And of course, they talked on, and planned one thing and another, and finally, of course, I gave my consent that I would do it by him saying that he would swear that he had taken me out there.</p> <p>The defendant admitted being at the place mentioned by Vansant, together with Lynn, a short time before the trial of the latter, and that he called Vansant over from the buildings to the opposite side of the street and told him that Lynn wanted to talk with him, and then left Vansant and Lynn together, going further up the street and calling another man from the buildings; but denied that he ever had any such conversation with Vansant as the latter had testified to. The defense contradicted Vansant’s testimony (to the effect that Fahey talked to him while Lynn walked away) by testimony of one of the witnesses for the State, who was present at the buildings upon the occasion referred to by Vansant, and confirmed the statement of Fahey that he walked off and left Lynn and Vansant talking together.</p> <p>Vansant was also contradicted upon other material points by several other witnesses, and the defense closed by producing six witnesses, each of whom testified that the reputation of Vansant for truth and veracity was bad, and that they would not believe him on his oath.</p>