Volume 20 — Delaware Reports

<p> Court in Baño—Case Slated—Constitution—Statute; Construction </p> <p>of—Public Office — Abolishment of—Salary;</p> <p> Diminishing of—Legislature ; Power of; Good </p> <p> Faith of—Function of Court. </p> <p>1. Whether the Legislature, in passing an act, acted in good faith, and for the best interests of the public is entirely between the members and their constituents, so long as they confine themselves within the limits of their authority. It is no function of the Court to pass upon the motives of the Legislature in the discharge of their duty. The Legislature represents the sovereignty of the people, and may pass any laws not inconsistent with the Constitution of the State or of the United States.</p> <p>2. Offices created by the Legislature are entirely within legislative control; the gift t f such an office is not a contract. Unless there be some constitutional limitation, such offices may be modified, abridged or abolished, as the Legislature may see fit.</p> <p>3. When an office is abolished the former incumbent has no right to compensation for the unexpired term. The salary is an incident of the office, and dies with it.</p> <p>4. The only constitutional limitation as to the term of office is, that *• No law shall extend the term of any public officer.” The inherent power of the Legislature to abridge the term or abolish the office is left untouched. There being no constitutional inhibition the right to create carries with it the right to abolish ; and when so abolished, there is no office to support a salary, which is a mere incident.</p> <p>5. That part of Article 15, Section 4, of the Constitution which prescribes that no law shall “ diminish his s tlary or emoluments after his election or appointment ” has no application where an office is abolished. It only applies to cases where an office continues in existence, and during such continuance the attempt is made to diminish the salary or emoluments.</p>

<p>Attachment Case</p>

Action on the case for damages for personal injuries to the plaintiff alleged to have been occasioned by receiving a shock of electricity whilst employed as a servant of the defendant company in cleaning a car of the said defendant at its car barn in the city of Wilmington. The narr consisted of eight counts.

Assault and Battery. The defendant was indicted at this term for assault and battery upon his wife and entered a plea of guilty.

<p> Criminal Law—Female Child ; Lasciviously Playing With—Indict- </p> <p> ment Must Specifically Inform Defendant of the </p> <p> Offense—Evidence—Other Lascivious Acts of </p> <p> Defendant Not Material. </p> <p>1. The indictment must definitely and specifically inform the defendant of the offense which he is to meet.</p> <p>2. In a trial for lasciviously playing with a female child it is not competent for the State to ask the prosecuting witness it there was anything the matter with her after the date of the alleged offense.</p> <p>3. Nor is it competent or material for the State to show that the defendant committed other acts of a lascivious nature with the prosecuting witness.</p>

<p> Case Stated—Will—Power to Sell Lands; Execution of. </p> <p>By his last will and testament A. directed that his executor B. should sell certain of his real estate and execute a deed conveying in fee simple said real estate to the purchaser thereof. The executor executed a deed of conveyance, referring therein to the power contained in the will, and to the land described in the will as being the same as that conveyed by the deed; but nowhere did the deed state that the estate conveyed was the interest of A., the testator. Held, that there was enough on the face of the deed to show an execution of the power, and that the deed conveyed to the grantee therein the fee simple title to the lands, described in the will.</p>

Action on the Case for malicious prosecution. The defendant filed two pleas to the plaintiff’s declaration, the second of which was a special plea, setting forth, in substance, that before the committing of the said supposed trespass, the defendant’s house had been broken into and entered by some person unknown to the defendant and that a sum of money and divers goods and chattels had been stolen from said premises; that the said defendant thereupon immediately notified one…

<p>Summons Case in Trover</p>

<p> Common Carriers; Duty of—Act of God or of the Public Enemy </p> <p> ¡—Inevitable Accident—Ordinary Wear and Tear, Loss </p> <p> or Deterioration—Death of Animat from Dis- </p> <p> ease—Negligence—Measure of </p> <p> Damages. </p> <p>1. A common carrier is bound to exercise the strictest care, and to deliver safely at their place of destination, the goods entrusted to him. He is regarded by the law in the light of an insurer; and in case the goods are injured, lost or destroyed, nothing will excuse or discharge him but the act of God, or of the public enemies. By the act of God, is meant such inevitable accident as cannot be prevented by human care, skill or foresight; but results from natural causes; such as lightning and tempest, floods, inundation, etc. Therefore, the inquiry is not whether the carrier has used due care, or been guilty of negligence, but whether he can show that the loss happened by inevitable accident or by the public enemies.</p> <p>2. The carrier, however, is not to be held responsible for ordinary wear and tear, and chafing of the goods in the course of their transportation, or for their ordi-. nary loss or deterioration in quantity or quality, or for any inherent infirmity or tendency to damage, depreciation or decay. If therefore the death of an animal received by the defendant for carriage was due to an attack of meningitis of which the defendant was not forwarned, and the defendant did all in his power to protect the animal' after being so attacked, the loss would be due to inevitable accident and the defendant would not be liable.</p> <p>3. The ordinary rule controlling the subject of damages, in case the article is lost, destroyed or injured during transportation, is the value of the article so lost, destroyed or injured. If, however, there is a rule of the defendant company, of which the defendant had notice when he shipped the goods, that the liability of the company was fixed by the rate of freight paid, and that for the purpose of obtaining a certain rate of freight he reported to the company a value of the goods, thereby limiting as it were by tacit agreement, the liability to such a sum as was named by him, that would be the amount of the liability of the company. But although there was such a rule, if the defendant had no notice of it, the measure of damages would be the fair value of goods at the time of shipment.</p>

Action on the case to recover damages for injuries to plaintiff’s wagon. Demurrer.

<p> Criminal Law—Barn-Burning—Infants—Malice—Criminal Ca- </p> <p> pacity—Former Ruling Corrected. </p> <p>1. Where the prisoner is under fourteen years of age, it is incumbent upon the State, before the jury may find a verdict of guilty, to show, (i) that the accused committed the act charged, and, (2), that he did it with a guilty knowledge that he was doing wrong. That guilty knowledge may be shown from the apparent intelligence of the accused; from his acts and conduct in connection with the crime, and any other circumstances that will throw light upon that subject.</p> <p>2. Until seven years of age an infant is conclusively presumed incapable of committing any crime whatever. From seven until fourteen the presumption continues, but is not conclusive, and grows gradually weaker as the age advances toward fourteen.</p> <p>At any stage of this period the presumption of incapacity may be removed by evidence showing intelligence and malice, but such evidence ought to be strong and clear beyond all reasonable doubt. All persons of the age of fourteen and upwards are presumed, in point of understanding, capable of committing any crime, until the contrary be proved.</p> <p>3. The case of State vs. Jackson, 3 Pennewill, ij, corrected.</p>

Indictment for Embezzlement as Bailees The testimony of Isabella Behringer, the prosecuting witness, as to the alleged embezzlement was, in substance, as follows: That she was a costumer, doing business at No. 303 Taylor Street in the city of Wilmington, and hired costumes to persons who desired to use them for balls, parties and theatrical purposes, and was engaged in said business on Sunday, February 9th, 1902.

The prisoner was indicted at this term upon the charge of Using a Female Child for the Purpose of Sexual Intercourse.

<p>Levari Facias,</p> <p>Motion to amend Sheriff’s return.</p>

<p> Personal Injuries—Railroad—Servant—Primary Duties of Master </p> <p>— Warning Inexperienced Servant—Assumption of Risk—</p> <p> Act of Congress Modifying, the Rule—Automatic </p> <p> Couplers—Interstate Commerce—Negligence </p> <p> per se—New Trial—Excessive Ver- </p> <p> dict; Application to Reduce. </p> <p>1. The duty of the master stated in respect to the place in which the servant is to work, tools with which he is to work, the promulgation of rules, the warning of inexperienced servant, etc.</p> <p>2. The rule stated respecting the assumption of risk on the part of the servant.</p> <p>3. The assumption of risk, however, on the part of employees of railroad companies which are common carriers, engaged in interstate commerce has been modified by an act of Congress known as “The Safety Appliance Act,” which makes it unlawful for any common carrier to haul or permit to be hauled or used on its lines any car used in moving interstate traffic, not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.</p> <p>3. If the car was, at the time of the accident, being used in moving local trafile only, from point to point within the State, it would not be engaged in interstate commerce. If, however, the car being moved had come from a point out of the State, with freight to be here delivered, it would be moving interstate commerce. This would be so even though the car to which the tender was being coupled was not the car used in interstate traffic, if the removal of such car was a necessary step in getting at and moving said interstate car.</p> <p>4. The tender of a locomotive engine, engaged in interstate commerce, is a car within the scope of the act of Congress, which uses the general terms locomotive, car or train. And even though the tender at the time of the accident was equipped with automatic couplers, but was so connected with the bullnose coupler that the coupling with other cars was not made automatically by impact, but so equipped that it made it necessary for men to go between the ends of the cars to couple and uncouple, then such coupling did not comply with the act of Congress, and was-unlawful.</p> <p>5. If at the time of the accident the defendant company was using such coupler, which was prohibited by the act of Congress, it was guilty of negligence per se ; and if the injuries complained of resulted from such unlawful use alone, then the defendant would be liable. The law manifestly contemplates that the car shall be so equipped that the coupling shall actually be made automatically, and if not so equipped, the plaintiff did not assume the risk arising therefrom, even though he continued in the employment of the defendant company after such unlawful use of the cars had come to his knowledge.</p> <p>6. If, however, in using such unlawful coupler the plaintiff contributed to the accident by his own carelessness, he cannot recover, notwithstanding the fact that the coupling was unlawful. In such case he must take the consequences of his own contributory negligence.</p> <p>7. If at the time of the accident the defendant company was not engaged in moving interstate commerce, but only local commerce, the said act does not apply. In like manner it does not apply if the cars in use were actually equipped with automatic couplers as contemplated by the act, and in compliance with its provisions.</p> <p>8. After verdict and motion for a new trial, the Court announced that it had determined that a new trial should be granted on the ground that the verdict was excessive, but upon the application of the plaintiff for a reduction of the amount of the verdict, the motion for a new trial was refused.</p>

<p> Criminal Lavj—Larceny—Stolen Property ; Possession of—Ac- </p> <p>counting for the Possession— When the Rule Applies—</p> <p> Evidence. </p> <p>One having in his possession stolen property may explain the circumstances under which he got possession of it, showing that his possession is an innocent one. But this rule has no application to a case where the circumstances under which a person actually obtains possession of property are proved.</p>

<p>The defendants were indicted at the May Term, 1902, for obtaining- money BY false pbetenses. The indictment contained two counts. The first count was as follows :</p> <p>“The Grand Inquest of the State of Deleware and the Body of New Castle County, on their oath and affirmation, respectively, do present :</p> <p>“That Samuel A. McDaniel, of the Hundred of New Castle, Harvey B. Wigglesworth, of the Hundred of Wilmington, and Walter Bash, of the Hundred of Wilmington, all in the County of New Castle and the State of Delaware, on the 31st of March in the year of our Lord one thousand nine hundred and one, at New Castle Hundred in the County of New Castle aforesaid, he the said Samuel A. McDaniel, then and there being the Sheriff of said County of New Castle, and he the said Harvey B. Wigglesworth, then and there being a warden in the county jail for said county and a deputy under him, the said Samuel A. McDaniel, Sheriff, as aforesaid, and the said Walter Bash, then and there being a warden in the said county jail and a deputy under him, the said Samuel A. McDaniel, Sheriff as aforesaid, and he the said Evan G. Boyd, then and there being Mayor of the City of New Castle in said county, and being persons of evil minds and dispositions, with force and arms, unlawfully and wickedly did conspire, combine, confederate and agree together, by certain false pretenses unlawfully to obtain for the use and benefit of the said Samuel A. McDaniel, from a' certain Horace G. Bettew, the said Horace G. Bettew then and there being the Beceiver of Taxes and County Treasurer of the County of New Castle aforesaid, a large sum of money, to wit, the sum of two thousand five hundred dollars, lawful money of the United States of America, the kind and denomination of which money is to the jurors aforesaid unknown, of the money, goods and chattels then and there, the property of .and in the ownership, possession and control of him the said Horace G. Rettew, Receiver of Taxes and County Treasurer for said New Castle County as aforesaid : the which said false pretenses, in pursuance of and according to the said conspiracy, combination, confederacy and agreement of the said Samuel A. McDaniel, Harvey B. Wigglesworth, Walter Rash and Evan G. Boyd so had as aforesaid, were thereafter, on and about the 30th of June, 1901, at the county aforesaid, embodied in a certain false, deceitful, fraudulent and padded bill of the said Samuel A. McDaniel as Sheriff as aforesaid for the three months ending on the said 30th day of June, A. D. 1901, which said false, deceitful, fraudulent and padded bill was in due course then and there presented by the said Samuel A. McDaniel as Sheriff as aforesaid to George D. Kelley, County Comptroller for the County of New Castle as aforesaid, and to the Levy Court Commissioners of New Castle County aforesaid, for the purpose of then and there obtaining the approval thereon by the said Comptroller for said county and by the said Levy Court Commissioners for said county, and the consequent payment thereof then and there out’of the funds and moneys which were then and there the property of and in the possession, ownership and control of him the said Horace G. Rettew, Receiver of Taxes and County Treasurer for said county, and by which said false, deceitful, fraudulent and padded bill was then and there falsely, untruly, fraudulently and knowingly stated and set forth the pretended and therein alleged number of vagrants lodging and prisoners being and remaining in the jail of New Castle County from day to day in and during the three months ending on the said 30th day of June, A. D. 1901, with intent then and there by means of the said false pretenses to cheat and defraud the said Horace G. Rettew, Receiver of Taxes and County Treasurer of said county as aforesaid of the said sum of money, to the evil example of all others in like case offending, and 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 count differed from the first only in that it set forth, after the charge that the defendants “ did conspire, combine, confederate and agree together,”—the words “ and with other evilly disposed persons whose names are to the jurors aforesaid unknown.”</p> <p>Counsel for defendants gave notice that they would move to quash the indictment and if that was refused they would move the Court to order the Attorney-General to file a bill of particulars.</p> <p>The Attorney-General asked that both the motion to quash the indictment and the motion for the bill of particulars be reduced to writing and that the counsel for the defendants furnish the State with a copy of the same.</p>

Indictment for Abortion The indictment contained four counts, the first three of which were relied upon by the State, and were as follows: “ September Term, 1902. “ New Castle County, ss. “ The Gband Inquest fob the State of Delaware, and the body of New Castle County, on their oath and affirmation, respectively, Do Present : “That Jesse K. Jones late of Brandywine Hundred, in the nounty aforesaid, on the seventh day of March in the year of our Lord one thousand nine hundred…

<p>Action of Covenant</p>

Indictment for Murder of the First Degree. At a Court of Oyer and Terminer in and for Kent County, beginning November 13, 1902, the defendant was tried for the felonious killing of one James Gilmore while he, the defendant, was attempting to shoot another colored man known as “ Orangy ” in a house in the town of Dover on May 28, 1900.

<p>Indictment foe laeceny of a gelding, the property of one John W. McCall, on the 9th day of December, 1902.</p>

<p> Criminal Law—Assault and Battery- - Wife-Beating; A Single </p> <p> Blow Sufficient—Statute. </p> <p>1. In the trial of a husband under the statute for beating his wife, the jury, to convict, must be satisfied from the evidence that the defendant is the husband of the woman alleged to be his wife, and that he did assault and beat her.</p> <p>2. The jury may find the defendant guilty even though they believe from the evidence that he struck his wife only a single unlawful blow. They should consider, however, the character of the blow, and whether it comes up to the measure of beating.</p> <p>3. An assault is an unlawful attempt to do violence to the person of another, and a battery is the actual accomplishment of such attempt. No mere words, however opprobrious or vexatious they may be, will justify even an assault, much less a battery. Where one is assaulted it is his first duty to get out of the way. If he cannot reasonably do so he may use just so much force as is necessary to stay the act of violence against him, or to protect his life or his person from injury. If he uses more force than is necessary for the purpose he is himself guilty of an unlawful assault.</p>

Indictment for the larceny of certain articles, the property of John Putzkus, in the City of Wilmington.

<p> Assumpsit—Corporation; Note of—Contract—By-law of Corpora- </p> <p> tion as to Borrowing Money—Implied Promise to Pa/y. </p> <p>Even though the note in question was not signed, nor the money borrowed or received, by the corporation defendant in pursuance of a special resolution of the Board of Trustees as provided by the by-laws of the corporation, yet it will not be a sufficient defense to the plaintiffs’ action, if the defendant did actually receive and enjoy the use and benefit of the money, and has not repaid the same. Under such circumstances the law, in the absence of a valid express contract, implies a promise on the part of the defendant to repay the plaintiff.</p>

<p> Trover—Deed of Conveyance—Effect of on Growing Wheat Crop. </p> <p>1. Where the owner of real estate executes and delivers a deed of conveyance therefor to another, without any reservation of the growing wheat crop, the said crop, and all the interest of the grantor, whether as tenant, owner or otherwise, passes to the grantee.</p> <p>2. Trover, in substance, is a remedy to recover the value of personal chattels wrongfully converted by another to his own use.</p>

<p>Personal Injuries—Corporation—Railway Company—Negligence—</p> <p> Public Highway—Street Crossings—Travelers; Duty of </p> <p> —Measure of Damages. </p> <p>I. A railway company and the public are required by law to use due and proper care in the exercise of their respective rights. The right of each must be exercised with due regard to the right of the other, and in a reasonable and careful manner, so as not unreasonably to abridge or interfere with the right of the other. It is the duty of the company to provide careful and competent motormen and servants; to see that they use reasonable care in operating the cars; that the cars move at a reasonable rate of speed, and that they slow up or stop, if need be, where danger is imminent. There is a like duty of exercising reasonable care on the part of the people who may otherwise use the highway, to stop, and, if need be, to turn out and keep out of the tracks of the cars in the presence of danger. Both must exercise such reasonable caution as an ordinarily careful and prudent person would use under like circumstances. What is due and proper care depends upon the facts of each case.</p> <p>2. Where the railway approaches the crossing at a steep down grade or where the rails are wet and slippery, or where the view of the railway from the crossing street is obstructed, greater care is required of the person in charge of the car than where the approach to the crossing is at or near the grade of the crossing, or where the rails are in their usual condition, or where the view is unobstructed. A person approaching a railway crossing with which he is familiar, is bound to avail himself of his knowledge of the locality and act accordingly. If the approach of the railway to the crossing be down a steep grade, the driver of the vehicle should exercise more care than might be necessary where the approach is by a slight decline, upon a level, or by an ascending grade. If, as he approaches the crossing, his line of vision is unobstructed, he is bound to look for approaching cars in time (if possible) to avoid collision; and if he does not look, and for this reason a collision occurs, he is guilty of negligence.</p> <p>3. While the right of a street railway company within its lines is superior to that of other users of the street, and must not be unnecessarily interfered with or ob. structed, nevertheless such superior right may be subject to abuse, and should not be understood as exempting the company in any case from the exercise of due and proper care. The public, using due care, have the right, in vehicles or on foot, to cross railway tracks, as well within the blocks as at street crossings. The railway company, however, has knowledge that at street crossings a larger number of persons and vehicles are usually found crossing the tracks than at other places, and this imposes upon the company the need of greater care at the crossings than where the danger is less. The company and the traveler are required to use such reasonable care as the circumstances demand—an increase of care on the part of both being required where there is an increase of danger.</p> <p>4. If the accident was not the result of negligence on the part of the defendant the plaintiff cannot recover; and. the burden of proving such negligence is upon the plaintiff. Even though the defendant may have been negligent, yet if the negligence of the plaintiff contributed to and entered into the accident at the time of the injury the latter could not recover.</p> <p>5. The measure of damages stated.</p>

<p> Trespass vi et armis—Assault and Battery—Damages: Nominal, </p> <p>Compensatory and Exemplary— Words as Justification ;</p> <p> In Mitigation—Previous Conviction. </p> <p>1. In an action for damages for an assault and battery where the defendant admits that he committed the assault and battery, the plaintiff is entitled, without further evidence, to recover a verdict for at least a nominal sum of six cents, or the like, although he may not have made proof of any actual injury; as it must be presumed in such case that he has sustained some damage.</p> <p>2. Compensatory damages are such as adequately measure the actual loss, suffering and outlay, and are allowed as a pecuniary equivalent therefor. Exemplary or punitive damages are such as exceed the loss etc. sustained, and are given as a kind of punishment to the defendant with a view of preventing similar wrongs in the future.</p> <p>3. Although it is true that no words merely, whether spoken, written or printed, however insulting or opprobrious they may be, will justify an assault and battefy, or an assault even; yet such words maybe given in evidence under the general issue in mitigation of exemplary or punitive damages. Such words may not, however, be given in evidence in mitigation of actual or compensatory damages.</p> <p>4. In a civil action for the recovery of damages for assault and battery, the previous conviction and fine of the defendant in a criminal action for the same assault and battery, is not admissible in evidence to mitigate the damages.</p> <p>5. The rule as to the measure of damages stated where compensatory damages only are claimed.</p>

<p>Action on the Case</p>

<p>Action on the case for Libel</p>

<p>Writ of error to the Superior Court for New Castle County.</p>

<p>Criminal Case—Statute—Carrying Concealed a Deadly Weapon—</p> <p> Razor—Lawful Purpose; Defendant Must Shaw It—In- </p> <p> tent not Material Otherwise. </p> <p>i. A razor is a deadly weapon within the meaning and contemplation of the act entitled “An act providing for the punishment of persons carrying concealed deadly weapons,” Chap. 54$, Vol. lb, Laws of Delaware.</p> <p>2. Where a jury is satisfied, beyond a reasonable doubt, from the facts before them that the accused had upon or about his person a deadly weapon, other than an ordinary pocket-knife, put there by him out of view, he is prima facie guilty under the law of carrying concealed a deadly weapon upon or about his person.</p> <p>3. But, although the accused is to be presumed guilty from the mere fact of having upon his person a deadly weapon out of sight, he may nevertheless show to the jury that he had put that weapon there and carried it there for a lawful purpose. It matters not, however, what may have been the intent and purpose of the accused, unless he shows that it was lawful. In order to convict it is not necessary for the State to prove that the purpose was unlawful; the burden is upon the prisoner to prove that it was lawful.</p> <p>4. The words “lawful purpose” defined and illustrated.</p>

Action of Trespass upon the case Demurrer to amended declaration. The facts and contentions of counsel appear in the opinion of the Court.

<p>Sci. FA. SUR. LE MORTGAGE</p>

Mandamus On September 24th, 1901, the relators asked leave to file a petition praying for a mandamus against the respondents under the general corporation act of 1901, to compel the latter to keep open at the principal office of the company in this State, the original or duplicate stock ledger or transfer books of the company.

<p> Mandamus—General Corporation Law ; Construction of—Effect of </p> <p> on Corporations Previously Created—Service of Pule and Al- </p> <p> ternative Writ—Proper Parties Defendant—Effect of </p> <p> Joining an Unnecessary Party—Sufficiency of Peti- </p> <p> tion and Alternative Writ—Demand and Re- </p> <p>fusal— When Demand is not Necessary—</p> <p> Pleading—Practice. </p> <p>I. Under the provisions of Section 3 of the General Corporation Law of this State, every corporation, whether formed under such law or previously formed under any other law of the State, is subject to the restrictions and liabilities of section 48 of said law, so far as the same are appropriate to, and not inconsistent with, the act of incorporation under which the previously existing corporation was formed.</p> <p>2. The service of the rule to show cause, and of the alternative writ, in an action of mandamus against a corporation, by leaving a copy at the dwelling house or usual place of abode of the president of the corporation, is good and legal.</p> <p>3. Where the material averment in the alternative writ is that certain books of the corporation are not kept at a particular place, in pursuance of the statute, and open to the inspection of the stockholders, an averment that the president of the company was the eus tas of the books is immaterial.</p> <p>4. What undisputed facts establish such demand or act as may be necessary, under the law, to entitle the petitioners to the relief sought.</p> <p>5. It is well settled in the law of mandamus that an actual demand and refusal are not necessary if the conduct of the defendant is equivalent to a refusal. When the office where the books are required to be kept is found to be closed, day after day for six consecutive days, so that admission cannot be obtained by a stockholder for the purpose of examining the books, if so /acta the books are not open to the examination of the stockholders, in accordance with the statute, and an actual demand is thereby rendered unnecessary and futile.</p> <p>6. The essential allegations of fact necessary to entitle the petitioners to the relief sought.</p> <p>7. In an action like the present the president of the corporation is not an improper party defendant with the corporation. It may be his duty to see that the desired act is performed. But, even though he be not a necessary party, it does not follow that his joinder would be improper or fatal to the writ.</p> <p>8. Section 29 of said corporation law is equally as applicable, as section 48 to corporations previously created. There is no difference in principle.</p> <p>9. Allegations in the alternative writ which are not denied must be taken as true.</p>

Action of Trespass vi et Armis for injuries inflicted upon the plaintiff by the defendant. The assault occurred at a wheat-threshing upon the defendant’s farm and was occasioned by a quarrel or dispute between the said plaintiff and the defendant, in which the latter struck the former over the head with a table leg, knocking him from the wheat-thresher, he falling insensible upon the ground.

<p>Appeal</p> <p>This was a criminal proceeding, commenced in the Municipal Court of the City of Wilmington, against the appellant for a nuisance • viz., for violating a city ordinance by obstructing King Street, a public thoroughfare of the said city.</p> <p>The appellant was arrested upon a warrant and upon information filed was tried, convicted and sentenced to pay a fine of one dollar and costs of prosecution. An appeal was taken to the Superior Court and the appeal duly entered.</p> <p>Thereupon the respondent filed an information as in the proceedings below.</p> <p>To this information the appellant demurred specially and alleges that such “ an information is not the proper and legal paper to be filed in this action.”</p>

Action on the case for damages for personal injuries, also for injuries to horse and wagon and loss of milk, occasioned by a collision of a car of the defendant company with the milk wagon of the plaintiff, on East Second Street in the city of Wilmington.

Action of Assumpsit The defendant filed an affidavit of defense, setting forth, inter alla, “ that he verily believes there is a legal defense to the whole of the cause of action in said suit, the nature and character of which defense is as follows: That the amount claimed to be due on the said book account sued upon in this action, is not owed to the said plaintiff by the said defendant, and no part thereof is due the said plaintiff by the said defendant.”

<p>Action of Trespass on the case</p> <p>for damages for false imprisonment.</p>

Action on the case to recover damages for personal injuries. Counsel for plaintiff, previous to the trial of the above stated cause, stated that they wished to procure a certain pension certificate, to be used by the plaintiff to refresh his memory, from the custodian of the same in the Pension Office at Washington, D. C., but that the pension officer refused to surrender the paper without the written request of the Court trying the case.

<p>Foreign Attachment—Corporation—Garnishee; How Attached— Answer—Certificate of Stock Held and Owned—Statute.</p> <p>The statute, which contemplates the attachment of shares of stock, is complied with when a certificate is obtained tram the proper officer of the corporation. The garnishee has answered when it gives the certificate provided for by the law. A</p>

Foreign Attachment case The plaintiff filed an affidavit in New Castle County, which defendant admitted to be in proper form, alleging that the corporation defendant was indebted to him, etc. One suit was docketed.

<p>Certiorari</p> <p>Foreign Attachment Case.</p> <p>This was an action brought in White Clay Creek Hundred, before a Justice of the Peace, in and for New Castle County. The record of the Justice set forth the parties as “ James F. White and H. C. White, trading as White Brothers, of Wilmington, Delaware, vs. Evan Lewis, of Pennsylvania.”</p> <p>The exceptions relied on were as follows :</p> <p>“ 2. That it does not appear that the defendant, Evan Lewis, was a resident of the Hundred in New Castle County and State of Delaware adjoining the Hundred of the Justice of the Peace before whom said cause was heard.”</p> <p>“ 3. That it does not appear that the plaintiffs, James F. White and Henry C. White or either of them were bona fide residents of the Hundred in New Castle County aforesaid, in which the Justice of the Peace before whom said cause was heard resided.”</p>

15, April Term, 1903). The transcript was filed between the adjournment of the October Term, 1902, and the beginning of the April Term, 1903, and the case was placed upon the trial list for said April Term.

Application to amend the report of referees. In the above stated case the referees were duly qualified and after hearing the proofs and allegations of the parties, two who favored the report signed the same, but the one dissenting, did not sign; the report failed to show that the three referees acted. Mr. Ridgely asked that the report be amended so as to conform to the facts and show that all of the referees acted.

Action of Assumpsit on a policy of insurance (made out to the said Schilanskys to the amount of $1,500) for a loss sustained in the total destruction of a saloon belonging to the Schilanskys, also the fixtures of the said saloon and stock of liquors.

<p>Loam, Association; Ascertainment of Value of Shares—Amount Due from Borrowing Members—Authority of Secretary to Receive Payment and Satisfy Mortgage— Presumption of Receipt—Evidence.</p> <p>1. Where a case was at issue on the pleas, insiere facias, held that plaintiff had waived his right to move to strike out such pleas.</p> <p>2. A paper purporting to be a certified copy or a private act of incorporation from the Secretary of State, it not being a certified copy of the recorded act or the record of such recorded act, is not admissible in evidence.</p> <p>3. A book purporting to contain the by-laws of a loan association, which had been recognized and used by the defendant and other members thereof, held to be admissible in evidence.</p> <p>4. It is competent for the stockholders of a loan association, for the purpose of winding up the business of the association, to make a final estimate of the value of the shares of stock, and to ascertain the amount to be paid by each borrowing member, in discharge of his indebtedness, after deducting therefrom the valuation of the shares of stock so estimated.</p> <p>5. Where the stockholders of a loan association, for the purpose of winding up its business, make a final estimate of the value of the shares of stock, and ascertain the amount to be paid by each borrowing member, and such member pays the amount so ascertained, he is discharged from the indebtedness; while, if such ascertainment is not final, but subject to modification by the subsequent disposition of the real estate belonging to, and the collection of the outstanding debts due the association, such payment by the borrowing member will not be a discharge.</p> <p>6. The possession by a debtor of the evidence of a debt, such as a bond or mortgage, or a receipt in full payment thereof, is prima facie evidence of payment, if unexplained.</p>

<p>Foreign Attachment.</p> <p>The petition was in the following form, to wit:</p> <p>The petition of John Warthman, of the Town of Port Norris, and State of New Jersey, respectfully represents:</p> <p>That at the October Term, A. D. 1902, of this Court, a judgment upon foreign attachment proceedings at the suit of Hezekiah Harrington was recovered against your petitioner for the sum of two hundred and ninety-two dollars and ninety-six centsj said judgment being of record in the office of the Prothonotary of this Court in Continuance Docket No. 18, page 29 ;</p> <p>That the writ of foreign attachment upon which said judgment was obtained was issued out' of this Court on the eighteenth day of March, A. D. 1902, the same being No. 39 to the April Term? 1902, of this Court;</p> <p>That your petitioner had no notice or knowledge of the said proceedings nor the issuance of the said writ of foreign attachment nor the recovery of the said judgment, and that he was not present in person or by attorney at the rendition of the judgment aforesaid nor at any stage of the proceedings;</p> <p>That your petitioner was never informed by the said Hezekiah Harrington, nor by anyone for him, of any claim against him, nor did he know that any such existed until after the rendition of the said judgment and the holding of the inquisition thereon;</p> <p>That to the best of his knowledge and belief he is not now, nor was he at the time of the issuance of the said writ of foreign attachment indebted to the said Hezekiah Harrington in any amount whatever;</p> <p>That your petitioner has a just and legal defense to the whole of the cause of action in the said suit;</p> <p>Your petitioner therefore prays that the said judgment may be opened, and that he may be permitted to appear in this Court and disprove or avoid the said debt or claim, and he will ever pray, etc.</p> <p>(The above petition was duly signed and sworn to.)</p> <p>The property attached was stock of the First National Bank of Harrington.</p>

<p>Appeal—Justice of Peace ; Jurisdiction of—Contract; Breach of— Damages; Nominal—Non-delivery of Property—Auction— Terms of Sale—Statute; Construction of.</p> <p>1. Where personal property is put up for sale at public auction and knocked off to the highest bidder, the purchaser, upon complying with the terms of sale, is entitled to have such property delivered to him, under the implied contract on the part of the vendor to make such delivery. It is a breach of such implied contract for the vendor to refuse to make such delivery. For such breach the purchaser may sue and recover whatever damages he may have sustained thereby.</p> <p>2. Where a breach of contract on the part of the defendant is proved to the satisfaction of the jury, and there is no evidence that the plaintiff has sustained actual damages, the plaintiff is entitled to recover nominal damages only; but the measure of damages for the non-delivery of goods sold is the difference between the contract price and the value of the goods at the time the defendant was bound to deliver them.</p> <p>3. An action for the non-delivery of personal property, although sounding in damages, purely, is within the jurisdiction of Justices of the Peace, upon a reasonable construction of Section z, Chapter go, Revised Code, page 340.</p> <p>4. Where, at a public auction, the terms of sale are that “All sums of ten dollars and under, cash on day of sale; on sums over that amount, a credit of eleven months will be given on notes, bearing interest with approved security,” the option is with the purchaser either to pay in cash the amount due or to take the credit.</p> <p>5- If the purchaser at such sale offers to settle in pursuance of the terms of sale, and the seller, or his agent, refuses to permit him so to do, and refuses to deliver the property purchased, such refusal will constitute a breach of contract on the part of the defendant.</p>

<p>Summons case</p> <p>Facts appear in the charge of the Court.</p>

<p> Criminal Law—Assault and Battery—Driving Horse against a Person—Public Highway—Rights of Persons on Foot, on Horseback or in Vehicles—Passing or Driving by—Accomplices. </p> <p>1. An assault is an attempt to do violence to the person of another with the means at hand of carrying that intention into execution. The battery is the actual infliction of the injury, however slight that may be.</p> <p>2. If a horse which is attached to a wagon is wilfully or intentionally driven into, or forced in contact with a person, walking in the public highway, by some person, that would constitute an assault and battery; and the person at the time having the control and management of the horse and wagon, or who is present aiding, procuring, commanding, counseling or assisting the person who actually had hold of the lines and who was managing the horse and wagon, would be guilty of the offense.</p> <p>3. The public highway is open in all its length and breadth to the reasonable, common and equal use of the people on foot or on horseback, or in vehicles.</p> <p>4. Where one undertakes to pass another, he who passes undertakes to go by at his peril. See case of McLain vs. Sharp, 2 Harr., 483.</p>

The prisoner was indicted at this term for an assault with intent to murder his wife, Marie G. Di Guglielmo, on April 14,1903, in the night time.

On May 26th, counsel for plaintiff stated that the above case had been continued from the February Term to the May Term ot court, and in the meantime there had been a change in counsel; that the same affidavit and notice which had been originally prepared to be served upon defendant’s counsel at the February Term for the production of certain papers, had been served upon Mr. Hayes at this term, and the application was upon said affidavit for the production of the same papers.

<p>Personal Injuries—Pleading—Demurrer—Declaration; Sufficiency of-—Brakes and other Appliances—Injury ; how Deceived— Particularity, of Description.</p> <p>x. Counts in a declaration averring insufficient brakes and' other appliances to stop the car, are too general. The narr must specify the particular appliance that caused the injury, and especially how the injuries were received—by falling, jumping, being struck, or otherwise, which is within the plaintiffs knowledge.</p>

Action on the case by the father of the deceased for damages for the latter’s death, alleged to have been occasioned by the negligence of the defendant.

<p> Case Stated—City of Wilmington—Taxes—Rate on Certain Lands Two Acts—Repeal of First Act—One Inconsistent with the Other. </p> <p>i. The Act of March 22, 1897 {Chap. SSSi Vol. 20, Laws of Del., 660), which fixes the taxes on certain lands in the City of Wilmington at one-fourth the regular rate for any year, is repealed by the subsequent Act of May 20, 1898 {Chap. 106, Vol. 21, Laws of Del., 244), to the extent that the two acts are inconsistent. The latter act fixes the lowest rate of taxes for any one year at one-half the regular rate. In that respect, therefore, the two acts are inconsistent.</p>

<p>Case Stated—City of Wilmington—Law and Order Society—Lines, Penalties and Forfeitures ; To Whom Payable—Statute — Charter— Ordinance.</p> <p>Under the statute passed May 26, 1897, the Law and Order Society of the City of Wilmington is entitled, in cases where evidence to secure the conviction is produced and furnished by said society, not only to one-half of the fines imposed for the sale of intoxicating liquors without a license, but also to one-half of other fines imposed under the charter and ordinances of said city, notwithstanding Section 148 of the City Charter.</p>

<p>Appeal—Chancery—Will; Construction of—Power of Appointment—Execution of—Common Law—Absence of Statute— Practice—Intention of the Testator.</p> <p>i. A, by his will, gave unto B a certain sum of money in trust to pay the income therefrom to the testator’s son for his sole use during his natural life, and upon his decease then in trust to dispose of said sum in such manner as the son, by his will, or by any writing executed as such, should direct and appoint, and in default of such appointment, then in trust, to pay, &c. The said son, by his will, provided as follows : “All my estate, real and personal, of whatever kind, and wheresoever situated, I give, devise and bequeath to my brother, etc. Held that by the will of the son there was not a valid execution of the power of appointment given to him by the will of his father.</p> <p>2. The rules of the common law in respect to the execution of powers were changed by the statute of i Victoria, Chap. 26, Sec. 27, passed in 1837, which provided that a general devise of the real estate of the testator should be construed to include all real estate over which such testator may have had a power of appointment, and should operate as the execution of such power, unless a contrary intention should appear by the will; and that a bequest of personal estate in like general words should operate as the execution of such power, under like circumstances. In many of the States the common law rules as to the execution of powers have been altered by statutes similar to that of 1 Victoria, but where not so altered, with very few exceptions, said rules appear to be in force in this country.</p> <p>3. At common law a power or authority was not considered as executed unless by some reference to the power or authority, or to the property which was the subject of it, or unless the provision made by the person entrusted with the power would have been ineffectual, * * * would have had nothing to operate upon except it were considered as an execution of such power or authority.</p> <p>4. The donor of the power being a citizen and resident of this State, and his will a Delaware will, and the trustee a citizen and resident of this State, the question as to the execution of the power is to be determined by the law of this State, and not by the law of another State, the domicil of the donee of the power. Questions as to the execution of a power of appointment of personal property are to be decided by the law of the domicil of the donor of the power, and not by the law of the domicil of the donee of the power.</p> <p>5. The case of Davis vs. Vincent, i Houst., 416, is a distinct recognition of the binding torce in this State of the common law rules relating to the execution of powers; and, even in the absence of any decision, should be adopted, because the practice here has been quite uniform, to adhere to the common law until altered by statute, and especially so in matters relating to title to property.</p> <p>6. The words, “of whatever kind and wheresoever situate” do not in any degree enlarge the meaning or operation of the words, “All my estate.” The latter words obviously refer to the testator’s own property, and not to that as to which he had only a power of appointment.</p> <p>7. The will of the donee of the power does not allude to the will creating the power, or to the power or to the trust fund, the subject of the power; and if its operation be limited to the testator’s own estate it will not be ineffectual, because he had a sufficient estate of his own to answer the provisions of the will.</p>

<p>Action on the Case, to recover damages for personal injuries to nervous system.</p>

Writ op Error to the Superior Court in and for New Castle County.

<p>Appeal from a judgment rendered by a Justice of the Peace in and for New Castle County</p>

<p>Ejectment</p> <p>Case stated.</p>

Petition for Divorce In the above case it appeared on the back of the writ that service was accepted for the defendant by Herbert L. Rice, her attorney. Whereupon the Court made the following ruling :

<p>Exceptions—Time of Filing Lien—Work and Labor of Architect— Contract Owner—Contractor—Plea in Abatement—Demurrer —Mechanics’ Lien—Statute—Defendant—Owner or Reputed Owner, At Time Contract was Made— Only Necessary Party Defendant.</p> <p>1. Under the mechanics’ lien law of this State, whenever the word owner or reputed owner is used, it means the owner or reputed owner with whom the contract was made, and he is therefore the only necessary party defendant, as such owner or reputed owner. While a subsequent owner may properly be made a party defendant, it is "not indispensable that he should be joined, inasmuch as he takes title at his peril, and subject to the lien created by the contract owner whenever such lien is properly enforced.</p> <p>2. Under the mechanics’ lien law, a person who may file his statement of claim within thirty days after the expiration of ninety days from the completion of the work and labor, must be (l) A contractor who made his contract with ¿he owner or reputed owner of the building; (2) A contractor who has furnished both work and labor, and material, in and for the building. Every other person entitled to a lién must file his statement “ within ninety days from the completion of the work and labor performed, or from the last delivery of materials furnished.”</p>

<p>Indictment for Lottery Policy Writing</p>

<p>Summons Case</p> <p>Motion for</p> <p>judment for want of affidavit of defense.</p>

Action on the Case by widow, to recover damages for death of husband.

<p>Action of Trespass on the case</p> <p>The facts appear in the charge of the Court.</p>

Summons in Debt. Plaintiff proved the amount of its claim against the firm of WilSdnson & Co. for drugs, etc., furnished said company to be $350; also that Howard M. Wilkinson, the surviving partner, proceeding under 19 Laws of Delaware, G/iap. 774, had had appraisers appointed, whose report showed the net assets of the firm to be $3481.50.

Action of covenant to recover damages for failure on the part of the defendant to perform the covenants contained in an agreement under seal, made and executed by and between the plaintiff and the defendant, on the seventeenth day of March, 1902. The said agreement is fully set forth in the charge of the Court.

Action of Trespass on the case for damages for False Imprisonment. Defendant proved by the Secretary of the town council of Milford that a certain book contained the ordinances of said town as regularly adopted at a meeting of the town council, and then offered the said ordinances in evidence.

Action on the case to recover damages for the loss of two horses, alleged to have been killed by coming in contact with an electric wire at Fourth and duPont Streets in the City of Wilmington on February 21, 1902.

<p>Trespass quare clausum, fregit—Possession by plaintiff must be shown—</p> <p>Legal title shown by conveyances or by adverse possession—</p> <p>Adverse possession must be exclusive and hostile—</p> <p> Inclosure of land not necessary—Right of </p> <p>way—Prescription— TJse for twenty</p> <p> years—License or permission </p> <p>Negatives adverse right—</p> <p> Damages, Nominal. </p> <p>I. To recover in an action of quare clausum fregit for breaking and entering plaintiff’s close, the plaintiff must show that he was in the actual possession of the premises where the trespass is alleged to have been committed, at the time of the trespass. He may show a legal title, either by a chain of paper title, that is, by deeds of conveyance to him and to those under whom he claims, or by an adverse possession. Such adverse possession must be exclusive, hostile to the right of ownership of all others. Inclosure of the land is not necessary to such possession; it may be proved by acts of ownership on the part of plaintiff.</p> <p>2. To establish a right of way by presumption, the defendant must show that he and those under whom he claims used the place or way in question continuously and adversely to the rights of the plaintiff, that is, under a claim of right for at least twéhty years next before the alleged trespass. If such use was not tinder a claim of right, but under a license or permission from the owner of the land, a right of way by prescription could not thereby be acquired, since a license negatives adverse right.</p>

<p> False imprisonment—Peace officer—County constable—Arrest with- </p> <p> out warrant; When made—Dru/nhenness—Probable or ■ </p> <p>reasonable ground for arrest—Damages—</p> <p> Exemplary or punitive damages. </p> <p>1. A peace officer, such as a county constable, may arrest a person without a warrant for an offense committed in the presence and view of such officer, for which he would have a right to make the arrest with a warrant, if committed out oí his presence. Such arrest, however, must be made at the time of the commission of the offense, or in the immediate pursuit of the offender.</p> <p>2. Section 16 of Chapter 646, Laws of Delaware, Revised Code 414, expressly authorizes arrest without warrant, of any person found drunk or excited by liquor and noisy, in the street, highway, or other public place of the county.</p> <p>3. Where an arrest is made without a warrant, the burden is upon the officer to show reasonable ground for the arrest.</p> <p>4. False imprisonment is the unlawful detention of the person of another against his will. The gist of the action is the unlawful detention.</p> <p>5. Measure of damages.</p> <p>6. Exemplary or punitive damages, when given.</p>

<p>Action on the case</p> <p>to recover damages for personal injuries to Mary E. Jarrell.</p>

Action on the case to recover damages for loss and injuries to the plaintiff’s horse, carriage and certain other property, alleged to have been caused by the negligence of the defendant company.

<p> Assumpsit—Goods sold and delivered—Contract; Breach of, as </p> <p>to time of delivery—Quantity—Acceptance— Waiver—</p> <p> Acceptance as agent of plaintiff-—Burden of </p> <p> proof—Acceptance independent of con- </p> <p>tract—Liability of defendant—</p> <p> Implied promise to pay. </p> <p>1. If there was a special contract for lumber as an entire lot, in which the quantity was specifically set forth, and the lumber actually delivered was deficient in some material portion, the defendants were not bound to receive it. And, if the time of the delivery of the lumber was fixed in the contract, and it was not delivered within that time, or within any extension thereof, they were not bound to receive it.</p> <p>2. But if the defendants unconditionally accepted and received so much of the lumber as was delivered, as purchasers, and dealt with it as their own property, they would be liable to pay the contract price for so much as they did receive. Such an acceptance would be a waiver of the time limit, and also of any deficiency in the quantity called for by the contract.</p> <p>3. If there was no special contract of sale, but the plaintiff delivered the lumber to the defendants, which the defendants unconditionally accepted and treated as their own property, the plaintiff would be entitled to receive such sum as the lumber was reasonably worth at the time of delivery. In such case the law implies a promise to pay.</p> <p>4. If the defendants accepted the lumber under an agreement with the plaintiff to hold and dispose of it as best they could for his benefit, and not to be paid for until sold by them, they would not be liable. The burden of proving such an agreement, however, is upon the defendants.</p>

<p> Replevin—Execution—Personal Property—Real Estate; Convey- </p> <p> ance of; Carries Fxtures, but not Personal Property, </p> <p>unless Named—Delivery of Personal Property—</p> <p>Subsequent Possession— When liable</p> <p> to Execution. </p> <p>1. A conveyance of real estate carries with it to the grantee the ownership of such articles as were then actually fixed or fastened to the freehold, as for example, bakers’ tables, trays, etc., fastened to the building by nails; and such articles so affixed to the freehold were a part thereof, and could not, after such conveyance, be seized under execution, as personal property of the grantor.</p> <p>2. A conveyance of real estate does not carry with it to the grantee the owner, ship of personal property, which may be on the premises, unless such personal property is named or referred to in such conveyance.</p> <p>3. If personal property be sold by A to B, it will continue liable to be taken in execution as the property of A, unless it was actually delivered into the possession of B as soon as it could conveniently be done after the making of such sale. And if sold and delivered to B, yet if it afterwards comes into and continues in the possession of A, it will be liable to be taken under an execution against him.</p>

<p>Indictment fob Assault with Intent to Commit Mubdeb.</p> <p>At the trial, Doctor James K. Mahaffy, a veterinary physician, the prosecuting witness, who was assaulted by the defendant on the thirteenth of October, 1903, testified in substance concerning the assault, as follows:</p> <p>That the defendant called upon him on the day of the assault, at his office No. 904 Jackson Street, in the City of Wilmington, and stated that he had a friend out at Blue Ball who had two horses hurt and asked if the doctor would go out to see them, stating that he had been at the office in the morning and was informed that the doctor was out but that he would be in about one o’clock, and that he had therefore come back for him.</p> <p>Mahaffy informed the defendant that he would be ready to go with him in about one-half or three-quarters of an hour and asked him where the place was located where his services were wanted. That Jack, the defendant, told him to “go out the Concord Pike, turn to your right at the blacksmith shop at Blue Ball, and then turn out the cross-roads.” That Jack then stated that if the doctor would go right away and come right back, he would go out with him, to which the doctor assented. That Jack then went with the doctor to the latter’s hospital where he was treating some horses, and when that work was finished they both got in the doctor’s buggy and drove down Washington Street, and out across Washington Street Bridge to the Concord Pike; Jack directing the doctor (after turning to the right at the blacksmith shop at Blue Ball) as to the road to the place where the alleged horses were sick, viz., one Mr. Miller’s. After making several turns they passed a certain farm-house and the defendant said, “It is the next farm down here” ; that they came to that farm and he then said, “I did not mean this one, I meant the next one on the left.” That the doctor started to drive to the next farm on the left and Jack said, “Wait a moment, I am a little mixed on this myself,” and started to get out of the buggy, but seeing some men working in a field near the road he called to them and asked where Mr. Miller lived, and they said, “The next farm on your right.” Witness then continued:</p> <p>“I could see the next farm further down on the right and I remarked about such a long greenhouse that was back of the house, and Jack said, ‘Yes, they are mainly truck farmers.’ We went on until we were almost to the gate, as I thought that I saw a gate, he pointed with his left hand, and said, ‘Here is where you turn in/ and I did not see any place there where I could turn in and I leaned a little bit forward and down to see what he meant, and my recollection is that he was indicating where we could turn down to go into the greenhouses, not the regular road, and I leaned a little bit forward to see, then the crash came and I felt as though somebody had run into us from behind and as if something had hit me in the back of the head. I remember dropping the lines and my face almost touching the dashboard. Then the second shot came and I felt a stinging sensation here on the top of my head and the thought flashed through my mind that he was shooting. And I straightened up, turned around a little and put my left arm around his neck, and as I did so I looked right into the muzzle of the revolver; I pushed the revolver and gripped it and twisted it out of his hand. When the third shot went off, it struck the mare on the spine or the side of the hip bone, and she started to run, and by that time I had taken the revolver away from him and the mare had run into the ditch and stopped, and as I had my arm around his neck and the revolver in my hand, he slipped his head from under my arm and jumped out and started to run down the road and I got out of the wagon and tried to fire the revolver at him but by that time my finger was feeling numb and the arm felt like your foot does when it is asleep, and it just dropped. I remember his turning around as I lifted the revolver up and he started to take his coat off as he was running, and then he ran into the ditch ’ the last I can remember is of his running towards the side of the road into the ditch. I walked a little ways back along the road and called and a man and a woman came out and said, ‘What is the matter ?’ and I said ‘somebody has shot me/ and he said, ‘You are sure you did not shoot yourself ?’ and I said, ‘yes ; what did I want to shoot myself for ?’ and said I wanted someone to take me to Wilmington with my team, and they said ‘You cannot go with your team, your horse has been shot’, and the lady took me in the house and bound up my neck; then the man hitched up a team and drove me to town. As we were going in there was so much blood coming down on this left side that I imagined the bullet had punctured the jugular vein, and I remember holding my finger up to it to try to stop it and I remember the warm blood running down my finger. The ambulance met us somewhere at the Blue Ball and took me to my home.”</p> <p>The doctor’s injuries were a wound made by a bullet which entered the neck and came out behind the ear, and another one on the top of the head toward the left.</p> <p>There was no denial of the actual commission of the crime by the defendant, but the defense set up was insanity by reason of certain injuries received by the defendant, and also of the excessive use of cocaine, and the evidence offered on the part of the defendant tended to show that he had used cocaine for some months prior to the assault, and that as a result thereof, he was subject to hallucinations and did many acts immediately preceding the assault tending to show that he was temporarily insane.</p> <p>When the defendant had rested, Dr. Mahaffy was recalled by the State, in rebuttal, and was asked by the Attorney-General, the following question:</p> <p>“You have already testified of the trip into the country and of the attack upon you. Will you give us in detail the conversation you had with the defendant during that ride (not going into the conversation you have detailed in your former examination), giving the topics of the conversation, and what he said ?”</p> <p>(Objected to by counsel for the defendant as not in reply and as improper in rebuttal, being part of the case in chief, and part of a conversation which the witness had already testified to and which he could not supplement at this stage of the case. The Attorney-General contended that the testimony sought to be elicited by the question was .strictly in rebuttal to the defense of insanity which could not have been anticipated by the State when putting in its case in chief.)</p>

<p> Pleading—Demurrer—Action by Father for Damages Accruing from Death of Son—Common Law—No right of Action. </p> <p>An action cannot be maintained in this State by a father for damages accruing to him by reason of the death of his son, and the consequent loss of services.</p>

<p> Mandamus—General Corporation Law ; Construction of; Effect of </p> <p> on Corporations Previously Created—Other Adequate Remedy </p> <p> —Retroactive Statute—Material Fact must be Sufficiently </p> <p>Averred.—Peremptory Writ too General—</p> <p> Pleading—Practice. </p> <p>1. In a mandamus to compel the performance of the duty enjoined by Section 23 of the General Corporation Law in respect to making and filing a certificate of payments of installments of calls of capital stock, the corporation is a competent party defendant, notwithstanding the statute provides that such certificate shall be made by the President with the Secretary or Treasurer of the corporation. Such officers are competent, but not necessary, or the only, parties defendant.</p> <p>2. Where there is any other plain, speedy, specific and adequate remedy at Jaw, mandamus will not lie. But the remedy is not adequate unless it reaches the end intended, and actually compels the performance of the duty which has been neglected or refused. It must apply to the case, and afford the particular right to which the party is entitled. Section 24 of said Corporation Law, wherein a penalty is imposed upon the officers for a failure to make and file the certificate, does not furnish an adequate remedy, and does not relieve either the corporation or the officers from the performance of the duty prescribed by section 23. Mandamus will lie against the corporation; notwithstanding the penalty upon the officers.</p> <p>3. Section 3 of said Corporation Law makes section 23 thereof applicable to corporations created by special act prior to the enactment of said law ; but such previously existing corporations can be required to furnish certificates only of payments of installments or calls of capital stock made after the enactment and approval of the corporation law.</p> <p>4. The fact that the statute applies to corporations previously existing does not make the law retrospective or retroactive, if it does not affect or concern the past acts or conduct of such corporations, but only its future acts and conduct.</p> <p>5. It was competent for the Legislature to impose upon a previously existing corporation the duty prescribed in section 23, notwithstanding the charter of such corporation had prescribed what its duties should be upon any increase of its capital stock While the duty imposed by section 23 may be an additional one, it is not an inappropriate or inconsistent one in the present case. Where the charter of the defendant company provides for a certificate in case of any increase of captital stock, and section 23 of the corporation law provides for a certificate in case of any payments of capital stock, there is no such inconsistency as will make the latter provision inapplicable.</p> <p>6. The payment of capital stock since the approval of the General Corporation Law being a material and essential averment, it must be averred in the petition and alternative writ with sufficient particularity. An averment ‘‘that more than thirty days have elapsed since the payment of installments or calls of the capital stock of the said Bay State Gas Company, and upon information and belief that stock has been issued and there have been payments of installments or calls since March 10th, 1899,” held insufficient.</p> <p>7. The peremptory writ which commanded the defendant company ‘‘to make and file a certificate stating the amount of the installments or calls of capital stock paid, whether paid in cash or by the purchase of property, stating also the total amount of capital.stock, if any, previously paid,” etc., held too general.</p> <p>8. The defendants in error must stand upon the. order as made in the Court below, and if it is too general there is no power in this Court to change or modify the writ.</p>

<p>Supreme Court—Submission of Facts to Jury— When Negligence is</p> <p> a Question of Law for Court—Reversal of Court Below—Per- </p> <p> sonal Injuries—Negligence—Duty of Master—Safe Place </p> <p> and Tools for Servant—Obvious Danger—Loose Pul- </p> <p>ley becoming Fast—Promulgation of Rules—</p> <p> Pleading—Declaration. </p> <p>1. Negligence is the failure to observe, for the protection of the interests of another person, that degree of care, precaution and vigilance which the circumstances justly demand. And while the obligation to exercise care in the conduct of one’s business varies under different circumstances, there always remains the duty to exercise such reasonable care as would be exercised by a person of ordinary prudence under like circumstances.</p> <p>2. It is the duty of the employer to provide for the employee a reasonably safe place in which to work, 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 purpose for which they are to be used as to be reasonably safe under all the conditions of the employment.</p> <p>3. The degree of care required of an employer in furnishing his employees with a reasonably safe place and apparatus for his work is largely dependent upon the danger to which the employee is or may be exposed. An apparatus which is suitable and safe for many purposes may be unsuitable and unsafe for others. A loose pulley for stopping machinery is doubtless in most cases entirely sufficient, but the question remains whether this device alone is sufficient and safe where its failure to remain loose will almost inevitably result in the death of any employee who may chance to be within the drum with which it is used.</p> <p>4. If it appears from the evidence that there were other and inexpensive methods by which the revolution of the drum might have been prevented; that it was the duty of the defendant to provide some more certain method of device than a loose pulley for keeping the drum at rest, and that by reason of the failure to perform that duty the defendant was guilty of negligence, it was improper for the trial Court to take the case from the jury because the plaintiff had failed to produce any evidence tending to show why the pulley became fast.</p> <p>5. And if there was testimony tending to show that the means provided by the defendant for preventing the revolution of the drum were inadequate, and that the drum as used was not a reasonably safe place in which to work, and that these things were known to the defendant, or, by the exercise of reasonable care, should have been known to him, the case should have been submitted to the jury.</p> <p>6. While the language of the narr, in this case, charging the defendant with negligence in not providing the employee with a reasonably safe place in which to work might have been more specific, it is held to be sufficient, and also held that there was evidence tending to support it.</p> <p>7. The question of negligence is one of law for the Court, only where the facts are such that all reasonable men must draw the same conclusion from them, or, in other words, a case should not be withdrawn from the jury unless the conclusion follows, as a matter of law, that no recovery can be had upon any view which can be properly taken of the facts the evidence tends to establish.</p> <p>8. It is the duty of the employer to mike and promulgate proper rules for the government of his servants and business whenever the business is so large or complicated as to make his personal supervision impracticable. In the present case the question whether rules should have been promulgated was a matter for the consideration of the jury.</p> <p>9. Where there is a question arising from the evidence whether the danger was obvious and should have been known to the servant under all the circumstances; or, if not, whether he had been properly instructed, the question of the liability of the master is one for the jury under proper instructions.</p> <p>10. Whether the danger, in the present case, of the loose pulley becoming fast was known to the deceased, or was so patent that it should have been known to him, was, under instructions by the Court, a proper subject for the consideration of the jury.</p>

Action on the case The defendant filed an affidavit alleging that the plaintiff, Johannes Ranche, was a non-resident of the State of Delaware; that the defendant had a good and sufficient defense to the above action, the nature and character of which defense was “ not guilty, in the manner and form as charged in plaintiff’s declaration ”; and upon said affidavit asked for a rule for security for costs upon the plaintiff.

<p>Criminal Law—Ijarceny ; Essential elements of—Time not Material —Recently stolen Property—Presumption of Law—Reasonable Account of the Possession—Good Character— Evidence.</p> <p>1. Where an indictment for larceny is found within the time limited by law, the time laid therein is not material; and proof of the larceny at any time before the indictment was found will sustain it.</p> <p>2. Larceny is the felonious taking and carrying away of the personal property of another with intent to convert it to the use of the taker, without the consent of the owner.</p> <p>3. There are four essential elements in the crime of larceny: the taking and carrying away, which constitutes the severance of the property from the possession of the owner, against his will; the property, which must be personal property such as described in the indictment, and of some value ; the ownership, which constitutes the legal right of possession of him from whom the property was taken ; and the intent to steal, which embraces the intent to permanently deprive the owner of the possession of the property stolen, and the intent to derive some gain or profit to the taker. In order to convict, it is incumbent upon the State to sustain each of these elements.</p> <p>4. Where recently stolen property is found in the possession of a person, such person is presumed to have stolen it, unless he accounts satisfactorily to the jury for his possession. Whenever a reasonable account of the possession is satisfactorily proven, it is incumbent upon the State to show that such an account is false.</p> <p>5. Evidence of good character, when offered, is to be considered by the jury, in connection with all the testimony in the case.</p>

Action on the case to recover damages for the death of Alfonzo Di Prisco (a minor eight years of age) by being negligently struck and run over by a car of the defendant company, as alleged in the declaration, on West Eighth Street near Lincoln, in the city of Wilmington, on the fourteenth of September, 1903.

Assault with Intent to Commit Murder. The testimony adduced at the trial tended to show that on the evening of Ju.y 4, 1903, between eight and nine o’clock, the defendant, and a number of others consisting of white and colored men, were gathered under or near an electric arc light in front of the Madison Street Station of the P., B. & W. Railroad, in the city of Wilmington, where they were then, or had been, engaged in a game of crap; that a man approached the crowd from the…

<p>Personal Injuries—Evidence—Expert Opinion of as to Rangei—</p> <p>Negligence—Due Care: of Master ; of Servant—Minor—</p> <p> Inexperience—Warning—Instruction—Assump- </p> <p>tion of Pish— Obvious Danger—Rules</p> <p> —Fellow servant—Proximate </p> <p> cause—Burden of Proof </p> <p> —Measure of </p> <p> Damages. </p> <p>I . A witness who has had large experience in the business or work in in question may give his opinion as to whether it was dangerous for a minor without experience in the particular method of doing the work, to perform the work in the way he was ordered. Such witness may also express his opinion as to what would be the proper course to pursue in operating or feeding the machine in question under such conditions.</p> <p>2. Where the employment is dangerous, it is the master’s duty to warn and instruct his servant as to the dangerous character of it, if by reason of his youth or inexperience the servant be unacquainted with such danger. The measure of such instructions must in all cases be gouged by such youth or inexperience. The particularity and extent of such instruction, is limited however, by the right of the master to presume, in the absence of knowledge to the contrary, that the servant has the knowledge, discretion and experience of the average servant of his age and intelligence. In like manner when a servant engages himself in any specific work, the master has a right to presume that the servant has the knowledge, experience and skill necessary for the performance of the work so undertaken, in a reasonably safe and proper manner, in the absence of knowledge to the contrary. And particularly, if the servant holds himself out to the employer as experienced in such work.</p> <p>3. It is the duty of the master to make and promulgate proper rules for the government of his servants and business, in cases where such business is so large or complicated as to make Ms personal supervision impracticable.</p> <p>4. The servant assumes all the ordinary and usual risks of his employment, and also all those risks which he knows or ought to know, however dangerous the employment may be which he engages in.</p> <p>5. If the servant was warned of the particular danger, or forbidden to do the dangerous thing, and Ms injuries resulted from a disregard or neglect of such warning or order, he cannot recover. In that case Ms injuries would be the result of his own carelessness.</p> <p>6. If the injuries happened to the plaintiff while in the performance of an act which was not in the line of his employment, and not a part of his duty, he assumed all the risk incident thereto and could not recover. And even if he was directed by the defendant to perform the act, he may not recover if the danger to which he was thereby subjected was obvious, and such as he knew or should have known under all the facts and circumstances of the case.</p> <p>7. The burden is upon the plaintiff to prove' negligence, and by a preponderance of the evidence. Where contributory negligence is set up as a defence, it must be proved by the defendant in like manner.</p> <p>8. Even though the plaintiff was guilty of some negligence, yet if the defendant was guilty of the negligence which was the proximate cause of the injury, the plaintiff would be entitled to recover.</p> <p>9. Measure of damages.</p>

At a Court of Oyer and Terminer, in and for New Castle County, held in May, 1904, the defendants, two colored men, were put upon trial for murder in the first degree, for the felonious • killing of one John R. Taylor, a colored man, in Wigglesworth’s livery stable, on Tenth street, near Orange, in the city of Wilmington, on the night of Sunday, January 3, 1904. The further facts appear in the confessions of the prisoners.

Indictment for Murder of the First Degree At a court of Oyer and Terminer in and for Sussex County, beginning April 10, 1902, the defendant, a colored boy seventeen years old, was tried for the murder of one William H. Mitchell, a white man, of Indian River Hundred in said county.

<p>Case Stated—Taxation—Real Propetry used for School Purposes—■ Exemption—Constitution—Statute.</p> <p>Real property used for school purposes, where the tuition is free, comes within the Constitutional exemption {Section j>, Article zo, Constitution of z8qj¿) and is therefore exempt from taxation.</p>