Volume 21 — Delaware Reports

The defendants were indicted jointly for larceny. Reinhardt, for defendants, moved for a severance, on the ground that the wife of the defendant Bird was a very important witness on behalf of the other defendant, Smith, and if the defendants were tried jointly and Mrs. Bird was prevented from testifying in the case by reason of being the wife of one of the defendants, it would be greatly to the prejudice of the defendant Smith.

Summons Case Motion for judgment notwithstanding affidavit of defense. Affidavit of demand filed February 1, 1904, with copy of cause of action, consisting of various items of book account entries charged against defendant from May 7 to November 26, 1901, amounting to $629.

Petition for a new election to be held for directors of the Alberti Consolidated Mines Company under Sec. 24, Chap. 147, Vol. 17, Laws of Delaware (Rev. Code, 579), conferring jurisdiction on the Superior Court in cases of contested elections for directors of corporations.

Mr. Cahall objected to the return of the commissioners on the ground that it failed to designate the width of the road, but only gave the courses, distances, adjacent land owners and the termini ; nor was the width shown on the plot which accompanied the return.

<p>Assumpsit—Contract Executed—Performance—Common Counts— Recovery Thereon—Pleading.</p> <p>It is a general rule (subject to certain exceptions) that a party cannot recover in an action upon a contract, without showing performance of his part of the contract; but in an action upon the common counts for goods sold and delivered, for money paid for the use of the defendant, and for work and labor, when the contract is executed, and nothing further remains to be done on the part of the plaintiff, he may sue and recover upon the common counts.</p>

At a Court of Oyer and Terminer for Kent County, beginning the second day of May, 1904, Mary A. Powell, a married woman, was tried for murder of the first degree for the slaying of one Estella Albin, at the home of the prisoner near Bowers’ Beach in said county, on the ninth day of February, 1904.

Action of Assumpsit for care and attention and board furnished Robert Coburn Dickson, from 1892 to 1900. At the trial testimony was adduced as to the time covered by the board furnished and services rendered to Robert Coburn Dickson by the plaintiff, and the acknowledgment of indebtedness therefor by said Dickson, as follows: Louise Schuehler, Jr., testified on direct examination as follows: By Mr. Whiteman: Q. What relation are you to Henry Schuehler? A. I am his daughter.

Action on the Case brought by Alexander L. MacFeat, administrator of Walter MacFeat, deceased, against the Philadelphia, Wilmington and Baltimore Bail-road Company, to recover damages for the death of said deceased which was alleged to have been caused by the negligence of said company, on the 26th of June, 1902, at its French Street Station in the City of Wilmington.

Issue from Register of Wills Motion to Dismiss Petition for Review. “Susan W. Davis, one of the legatees under the will of the said Philip Richards, deceased, and one of the parties interested, by her attorney, specially appearing in this proceeding for the purpose, hereby moves the Court to vacate and dismiss the petition for review of the said will and that the Court decline to hear the issue heretofore sent to this Court by the Register of Wills, for the following…

The defendant, Samuel E. Wilson, was indicted at this term for assault upon one Edward Damph with intent to murder the said Damph.

Assault and Battery The defendant, a young white woman, was indicted at this term for an assault and battery upon one Christopher Greer on the 17th day of June, 1904.

<p>Assault and Battery</p> <p>The defendant was indicted at this term for an assault upon, one Charles W. Griffenberg at Glasgow in Pencader Hundred on the 8th day of August, 1904, in the store of Samuel Alrichs, where-the Regular Republican primary election for delegates to the State convention was being held. The plaintiff testified that he was sitting on the counter in said store and that the defendant and two ■or three others were standing around near him conversing about the manner in which the ticket for delegates had been made up and that he, Griffenberg, became angry and remarked “ Do you Union Republicans think you have a right to vote here to-day ?” accompanying the remark with a gesture or wave of the hand towards a group of men including the defendant; that thereupon the defendant stepped up to the prosecuting witness and hit him a blow with his clenched fist on the left cheek from which he suffered pain for ¡several days. That the prosecuting witness then said to the defendant “ You will have this to pay for,” to which the defendant replied, “Well, if I’ve got it to pay for, if you say so I will give you some more and pay for it all together.” There was some conflict of testimony as to whether the defendant struck the prosecuting witness with his open hand or clenched fist. The defendant testified that when Griffenberg made the gesture towards him he immediately struck the former a light blow thinking Griffenberg intended to strike him and that the assault on his own part was merely to resent the insulting conduct of Griffenberg. The defendant could not say positively whether his hand was open or ■closed when the blow was delivered.</p> <p>The defendant’s counsel in the course of his cross-examination of the prosecuting witness asked the latter whether he had brought a civil action for damages against the defendant Ratledge for the same assault for which the defendant was being tried.</p> <p>This was objected to by the Attorney-General as irrelevant. Mr. Reinhardt contended that the testimony was admissible in mitigation of the fine which might be imposed should the defendant be convicted, also as showing malice on the part of the complainant, citing 3 Cyclopaedia of Law and Procedure, (title, “Assault and Battery”), 157; Tatnall vs. Courtney, 6 Houst, 434)</p>

<p> ■Criminal Law—Horse or Gelding—Misusing—Statute—What State must prove—Evidence. </p> <p>In the trial of a defendant indicted under the statute of this State for misusing .a horse or gelding; it is incumbent upon the State to show, in order to convict, that ■the death or injury, by reason of which the owner was deprived of the use of the horse, resulted from the misuse of the horse on the part of the defend mt; that within the terms of the statute he so rode, drove or negligently and carelessly used the same .as to cause the death or injury or damage complained of.</p>

Motion to open a Judgment and let defendant into a trial at the next term after the judgment was obtained, on the ground that the affidavit of demand was made before the suit was filed.

Indictment for pointing a Gun or Pistol The defendant pleaded not guilty and also filed a plea in bar setting forth a conviction before a Justice of the Peace of assault and battery, which charge he claimed included that of pointing the pistol, being a part of the same transaction; all the facts concerning which were before the Justice at the time. The State filed a replication denying that it was the same assault or was included in it and the defendant filed a similiter.

<p>The defendant, a colored man about 65 years of age, was indicted at this term (under Section 7, Chap. 132, Revised Code, 961) for pretending to exercise the art of dealing with spirits. The indictment consisted of three counts, the first of which charged “ That Lawrence M. Durham, late of Cedar Creek Hundred, in the county aforesaid, on the thirtieth day of March, in the year of our Lord one thousand nine hundred and four, with force and arms at Cedar Creek Hundred, in the county aforesaid, did pretend and represent to a certain John P. Fitzgerald and a certain Rachael A. Fitzgerald that she, the said Rachael A.Fitzgerald,was then and there under the influence of a certain pretended evil spirit which had placed what he, the said Lawrence M. Durham, then and there called a ‘spell’ upon her, the said Rachael A. Fitzgerald, and the said Lawrence M. Durham did then and there further pretend that he, the said Lawrence M. Durham, could cause the said pretended evil spirit to come forth and the said pretended spell to disappear; and the jurors aforesaid, in manner and form aforesaid, do further say that the said Lawrence M. Durham did then and there and thereby, in manner and form aforesaid, pretend to exercise the art of dealing with spirits, against the form of the 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 charged the defendant with pretending “ to exercise the art of conjuration,” and the third count charged that he had “ pretended to exercise the art of witch-craft.”</p> <p>John _P. Fitzgerald, the prosecuting witness, testified that he lived in Cedar Creek Hundred, Sussex County; that on the 30th day of March, 1904, the health of his wife, Rachael A. Fitzgerald, was in a poor state, that she was suffering from a skin disease and several other ailments, and that she had been an invalid for some seven years; that somewhere about the last of March the defendant Durham, having heard of Mrs. Fitzgerald’s illness came to the house to see her; that after examining her he said “ that she had a spell put on her; she was under the influence of an evil spirit and that if it was not taken off her she was going to die and would not be long about it. And he said ‘I,can take it off her and put it back on to the one that put it on her, and I can cure her.’ I asked him how long it would take him to cure her and he said, ‘ In forty-eight hours after going to work on her she will feel a great relief, will feel a great deal better, and in nine days time she will be perfectly well, up and going where she pleases and doing-her own work.’ I said, ‘ Do you think you can cure her in that time? ’ ‘Yes, indeed,’ he said, ‘I will cure her. I can do it and I will do it. Don’t you have the least doubt or be the least uneasy but what I will cure your wife.’ I asked him what he would cure her for. He said $50, and I said; ‘ I have spent so much on her; she has been sick so long and she has cost me so much that I am not able to pay that amount of money.’ In fact I told him that I did not have the money by me to pay that amount. Finally he agreed if I would pay him $10 in money that he would wait on me for the balance. It just upset my wife so; it scared her and my daughter for they thought every word that he said was so; my wife thought that somebody had put the spell on her and if it was not taken off she would die. He made her believe that. So she-was just crazy for me to let him go to work on her, and finally I consented to let him try it. I paid him $10 and gave him my note for the balance. I asked him when this note of $40 for the balance was to be paid, and he said, ‘ Hot until she is cured.’ I said,, ‘ all right then; ’ and when I handed him the note, I said, ‘ Old man, you keep this note until it is due and if my wife is well and cured you shall have your money, every dollar of it, and be perfectly welcome to it.’ The note was given for three months, but he was to cure her in nine days.</p> <p>“ After that he gave her medicine of some kind for the skin disease, to bathe in, and another kind to take inwardly. I do not know whether what he gave her to bathe in was horse liniment or what it was. I first saw him in Cedar Creek Hundred at Mr. Pettijohn’s, and then he wrote my wife’s name and I think my name and her age on a piece of paper, and the first thing I knew he had it in his mouth chewing it and pretended to swallow it. I don’t know what he did with it. He said he had that to go through with, and then he read a piece out of the Bible and sat and talked as though he was talking to a spirit. He claimed that he had supernatural powers; that he had different powers from most any one else. He then said that he had made arrangements to come over to my house and see my wife, and I said, * Very well, if you have, of course come ahead.’ He came over to my house the next day, as I have stated, and he came to see her about five times, but did not cure her. In the meantime he negotiated the note I had given him and got the money on it.”</p> <p>The prosecuting witness admitted on cross-examination that the defendant prayed at his house read from the Bible, and that he said to Mrs. Fitzgerald ‘ You have faith in the Lord and I will cure you.’</p> <p>David W. Mills, a witness for the State corroborated the testimony of the prosecuting witness as to what took place at the interview with the defendant at one Pettijohn’s house, the day before the defendant came to see Mrs. Fitzgerald, and stated that the defendant, among other things, blew in his hands, and when asked what he did that for, said, “ The disease will go into my hands and I will put it on the one that put it on her.”</p> <p>The defendant denied that he blew in his hands, or chewed the paper with the names upon it, at the first interview with the prosecuting witness, or that he pretended to talk with spirits, and also denied that he had said to the prosecuting witness that he could cure Mrs. Fitzgerald or that he had supernatural powers or could do what no other man could do, but stated that he plainly informed the prosecuting witness that his wife had been afflicted by God, and that unless she had faith in the Lord Jesus Christ, he (Durham) could not do her any good, but that if she had faith in the Lord Jesus Christ, he (Durham), by working with the Omnipotent One could help her. He further testified that the first thing he did upon going to see Mrs. Fitzgerald was to read the Bible and pray with her, admonishing her to have faith in the Lord Jesus Christ; that he then annointed her from head to foot with a liniment which he had prepared by boiling roots, herbs, bark and balm of Gilead. And that after working upon her for some time the scaly surface of the skin became softened and much improved in appearance. That he also gave her a medicine to take inwardly and after attending her for several days she showed signs of improvement. That about this time he had no means of reaching his patient, and learning that her condition was so much improved that it was unnecessary for him to attend her longer he discontinued his visits. The defendant also disclaimed any belief in evil spirits, conjuring or witch-craft.</p> <p>The defendant acknowledged on cross-examination by the Deputy Attorney-General that he had been convicted in Kent County, Delaware, upon the charge of obtaining money by false pretense. He further admitted that he had said that “ she had a spirit with her, an evil spirit, that through her misbehaviour God had afflicted her with disease; that she was afflicted with an evil spirit through God.”</p>

Action of Debt on a joint and several bond for $250 executed by Sally A. Hasten and Hezekiah Hasten on the 14th day of October, 1897, to John W. Hall, the plaintiff. The pleas were non est factum, payment, accord and satisfaction, release, set-off, plane administravit no assets ultra, and act of limitations. Reps and issues.

The record sent up by the Register was as follows: “Copy of the proceedings in the matter of the application for the removal of Rebecca P. Pepper, Administratrix c. t. a., of Harriet H. Cannon, deceased. To Daniel J. Layton, Esq., Register of Wills of the State of Delaware, in and for Sussex County.

The petition, among other things, set forth that the road passed through lands belonging to the estate of the late William W. Dashiell, deceased. It was admitted by the attorney for the petitioners that said real estate was under the control of John H. Elliott and Miranda H. Dashiell, trustees; that neither of the trustees signed the petition and notice was served upon one of the ■trustees only, namely, John H. Elliott.

At a Court of Oyer and Terminer in and for New Castle 'County, beginning October 21,1904, the defendant, a colored man, was tried upon an indictment for murder of the first degree, wherein he was charged with murdering a colored man named Samuel Still, ■at No. 17 Peoples street in the City of Wilmington, on the evening of May 28, 1904.

Habeas Corpus. The petition was as follows: “ To the Superior Court of the State of Delaware sitting in and for New Castle County, September Term, 1904. “ The petition of Alfred B. Phillips respectfully represents: That your petitioner’s son, Carl Marshall Phillips, aged fourteen years, is illegally imprisoned and illegally restrained of his liberty by Warren McClellan, Acting Superintendent of the Ferris Industrial School, in New Castle County and State of Delaware; that…

<p> Chattel Mortgage—Statute—Affidavit; Not signed by Affiant; Suficiency of—Mortgagor—Description of—Person named in the Mortgage—Must such Fact be sworn to—Practice. </p> <p>1. While it is almost the universal practice in this State for affidavits to be signed by the persons making them, and while this is the safe and better practice, the signature of the affiant is not essential in the absence of a rule of Court or statute requiring it. An affidavit, therefore, required by the statute to be endorsed upon and recorded with a chattel mortgage, is sufficient, although not signed by the affiant.</p> <p>2. The description of the affiant as “ George P. Knight, mortgagor,” is a sufficient designation of him as the person who made the mortgage, and it was not necessary that he should in express terms depose that he was the mortgagor named in the mortgage.</p>

<p>Indictment fob Embezzlement as Bailee.</p> <p>The prosecuting witness, Emory Scotten, testified that in the latter part of 1902 he delivered to the prisoner, who was then a tenant on Scotten’s farm in West Dover Hundred, a cart valued at about $12, which he told the prisoner he could use until he, Scot- " ten, could find a sale for the same; that about a year and a half thereafter he learned that the prisoner had sold the cart to a Mr. Edge for $12; that the prisoner received the money for the cart, but had never accounted to the prosecuting witness for it.</p> <p>The prisoner acknowledged the sale of the cart and that he had received the money for the same, but he and his three sons stated that the prosecuting witness had sold him the cart for $12, and at ths same time agreed that Seeney could pay for the same by doing certain extra work about the farm for the prosecuting witness, that such extra work had been performed by him, but there had never been a settlement between them.</p>

The prisoners,- being the mother-in-law, the wife, and the sister-in-law, respectively, of the prosecuting witness, were indicted for an Assault and Batteky upon the latter at his home in the town of Harrington. At the trial the prosecuting witness, Wilmore D. Harmon, was sworn and testified to the relations existing between himself and the prisoners and that Mary V. Harmon, one of the prisoners, was his wife.

The prisoner, a colored man, was indicted at this term charged with taking and using a female child (colored) for the purpose of sexual intercourse. At the trial the prosecuting witness, Margaret Williams, was asked in cross-examination by counsel for defendant the following questions: X. Did you bring a charge against Samuel Barrett for assault and battery, for choking you and beating you ?

Libel for Divorce The respondent, through her attorney, filed the following petition, namely: “ The petition of Mary V. Harmon, of Kent County and State of Delaware, respectfully represents: That her husband, Wilmore D. Harmon, has brought suit in divorce against her at this present term of Court and that she was duly served with the summons in said case at least 30 days before the beginning of the present term of this honorable Court; that she is a woman wholly without…

<p>Amicable Action.</p> <p>(The facts appear in the opinion of the Court.)</p>

Action on the case to recover ■damages for the loss of both legs and other injuries received October 12, 1902, occasioned by being struck by a north-bound passenger train of defendant, and thereby thrown against and under one of the defendant’s south-bound freight trains at the point where its tracks are crossed by Orange Street in Wilmington.

Action of Trespass The declaration contained one count which was as follows: “For that, whereas the said plaintiffs heretofore, to wit: on the-day of-A. D. 1902, at &c., aforesaid, were the owners of two mules of great value, to wit: of the value of five hundred dollars, lawful money of the United States, which said mules, to wit: on the said— -day of-A. D. 1902, at &c. aforesaid, were lawfully and of right standing and being within the close of one Henry A. Houston, at the…

Action on the case to recover for injuries alleged to have been received by the plaintiff, a fifteen-year-old boy, by being struck upon the leg by a rock hurled from a blast in the stone quarry operated by defendant in Brandywine Hundred near Bellevue, while plaintiff was driving his brother’s horse and cart which were being used in the service of the defendant company, in connection with said quarry.

Indictment for Murder of the First Degree At a Court of Oyer and Terminer in and for New Castle County, beginning December 8th, 1904, the defendant, a colored man, was tried for the murder of one Harvey Miller, also colored. The facts appear in the charge of the Court.

<p>Foreign Attachment Case</p> <p>Rule to show cause why judgment should not be opened and vacated.</p> <p>The affidavit on which the writ was issued was in the following form:</p> <p>“ In the Superior Court of the State of Delaware, in and for New Castle County.</p> <p>“Joseph S. Albright )</p> <p>vs. VBail $2500.00</p> <p>United Clay Production Co. J</p> <p>“ A corporation organized and existing under the laws of New Jersey.</p> <p>“ And now to wit: This twenty-second day of October, A. D. nineteen hundred and three, personally appears before me, Clifford Y. Mannering, a Notary Public for the State of Delaware, Joseph S. Albright, a credible person, who, being by me duly sworn according to law, deposes and says that he is the plaintiff in the above stated case, that the United Clay Production Company, the defendant in the above stated case, is a corporation not created by or existing under the laws of the State of Delaware and is justly indebted to the said plaintiff in the sum of money exceeding fifty dollars, to wit, the sum of twelve hundred and fifty dollars,</p> <p>“Joseph S. Albright.</p> <p>“ Sworn and subscribed to before me the day and the year first above named.</p> <p>“ Clifford V. Mannering.</p> <p> Notary Public. </p> <p>“ Clifford V. Mannering Notary Public.</p> <p>Appointed Feb. 21,1901 State of Delaware,</p> <p>Term 4 years.</p> <p>“ Commission recorded in Deed Record Y 0-18-384. No restriction.”</p> <p>Special appearance by defendant’s attorney to move to set aside the judgment and inquisition thereon and to quash the writ of foreign attachment and the execution issued on said judgment for the following reasons :</p> <p>First. That the alleged affidavit of the above named plaintiff, which was filed in said action and upon which said writ of foreign attachment was issued, is insufficient, illegal and void because it wholly fails to state or aver at what place the said supposed affidavit was made, or sworn to, or to lay any venue for the same.</p> <p>Second. That when said writ of foreign attachment was issued, the said defendant was not subject to the process of foreign attachment, because in compliance with an act of the General Assembly of the State of Delaware, entitled, “An Act in Relation to Foreign Corporations Doing Business in this State,” approved March 23, A. D. 1903, the said defendant did on or about the thirteenth day of April, A. D. 1903, filed in the office of the Secretary of State of the State of Delaware, a certified copy of its Charter or Certificate of incorporation, and the name of its authorized agent for this State, which said agent is the Delaware Trust Company, a corporation of the State of Delaware, and did also file in said Secretary’s office a sworn statement of its assets and liabilities, and did pay to said Secretary of State for the use of the State the sum of fifty dollars, and the said Secretary of State did deliver to said agent his certificate under the seal of his office of filing of such charter.</p>

Action on the case to recover damages for personal injuries. Demurrer.

<p> Writ of Error—Statute—Oity of Wilmington—Streets of City; Control of—Council—Police Power—Street and Sewer Department—Trolley Cars—Fenders—Power to Regulate; Where Vested. </p> <p>The power and authority to enact ordinances and resolutions requiring and regulating the use of certain safety appliances called fenders, on trolley cars operated in and upon the streets of the city of Wilmington, is vested in the Board of Directors of the Street and Sewer Department and not in the Council of said city.</p>

<p>Title of Act—Constitutional Requirement—Not more than one Subject —Taxation of Real Estate— Uniformity— Vested Rights—Contract—Repeal by Implication—Constitutional Provision Self-Executing—Payment of Taxes under Protest— What is Involuntary Payment under Law.</p> <p>i. The act entitled “An Act to Classify Real Estate for the purposes of Municipal Taxation, and to Exempt Certain Lands from Municipal Taxation within the City of Wilmington,” approved May 20, 1898 (Vol, 21, Laws of Delaware, Chap. 106) is not unconstitutional and void. It does not conflict with Section 16 of Article 2 of the Constitution, which provides that “ No bill or joint resolution, except bills appropriating money for public purposes, shall embrace more than one subject, which shall be expressed in its title.”</p> <p>2. If all parts of an act relate directly or indirectly to the general subject of the act, it is not open to the objection of plurality. The Constitution does not require that the title should do more than state in general terms the subject of the act; it need not go into details or furnish an abstract, synopsis or index of the contents of the act. The question whether an act embraces more than one subject must be determined, not from the title, but from the body of the act, and if that embraces but one subject, the fact that the title expresses more than one does not render the act objectionable on the ground of plurality; the subject mentioned in the title and not contained in the body of the act being treated as surplusage.</p> <p>3. It is not necessary that the title of an act should express the purpose to repeal another act (if it was an inconsistent act) or the purpose to repeal all inconsistent acts, as the repeal of inconsistent acts, by express words or by implication, is necessary, to render effective the general purpose of the act.</p> <p>4. It was not necessary that the title of said act of 1898 should refer to the exemption of certain lands from taxation, but having done so, this does not conflict in any way with the said provision of the Constitution.</p> <p>5. The exemption of real estate within certain bounds from taxation, at a rate exceeding one-fourth of the regular rate, given by the act of 1897, entitled “ An Act Relating to Taxation in certain parts of the city of Wilmington ( Vol. 20, Laws of Delaware, Chap. 353), was not a vested right, and was not founded upon contract, but was a pure gratuity which could be revoked by the Legislature at any time. This act was inconsistent with the said act of 1898, and was as such repealed by the latter act.</p> <p>6. The said provision of the Constitution was self executing, and proprio vigore annulled the said act of 1897, which was inconsistent and in direct conflict with the said provision, inasmuch as it was a special and not a general law, and provided a mode of taxation which was not uniform upon the same class of subjects within the territorial limits of the authority levying the same.</p> <p>6. The coercion or duress which will render a payment of taxes - involuntary, must, in general, consist of some actual or threatened exercise of power possessed, or believed to be possessed by the party exacting or receiving the payment, over the person or property of another, from which the latter has no other means, or reasonable means, of immediate relief, except by making payment. Unless these conditions exist, paying under protest will not, without statutory aid, give a right of recovery.</p>

<p>Railroads— Crossing—Accidents— Contributory Negligence—Error — Question for Review.</p> <p>1. Under the decisions in this Court, the action of the lower Court upon a motion for a nonsuit is not reviewable.</p> <p>2. The mere fact of an accident by which an injury is sustained, if not within the control of the defendant, does not in itself raise a presumption of negligence.</p> <p>3. The burden of proving negligence rests upon the plaintiff.</p> <p>4. Negligence defined.</p> <p>5. It is for the Court to say whether any facts have been established by sufficient evidence from which negligence can be reasonably and legitimately inferred, and it is for the jury to say whether, from those facts, when submitted to them, negligence ought to be inferred.</p> <p>6. If the plaintiff fails to produce evidence of negligence of the defendant, or if no fair inference of negligence can be drawn from the evidence favorable to the plaintiff, it becomes the duty of the Court to nonsuit the plaintiff.</p> <p>7. If there is evidence of negligence from which the jury can properly find a verdict, or if the conclusion to be drawn therefrom is debatable, or if the evidence is conflicting in regard to any material fact, it should be submitted to the jury.</p> <p>8. The burden of establishing contributory negligence whenever relied upon in defense of the action, rests upon the defendant, but proof of such negligence may arise out of the testimony of the plaintifl in the first instance.</p> <p>9. Whether contributory negligence is to be found, under the evidence, as a conclusion of law, or should be submitted to the jury as a question of fact, must necessarily be controlled by the facts and circumstances of the particular case.</p> <p>10. The law regards a railroad crossing as a place of danger.</p> <p>11. A person attempting to cross at a railroad crossing is required, at least, to look and listen for an approaching engine or train, before venturing to cross the track.</p> <p>12. A person attempting to cross at a. railroad crossing, failing to look and listen for an approaching engine or train, incurs the peril of whatever danger he could thereby have discovered and avoided, and for an injury arising from such fault he is left without remedy.</p> <p>13. The fact that the view of the railroad at the crossing is obstructed does not relieve the traveler from the obligation to look and listen for an approaching train.</p> <p>14. The observance of the legal duty to look and listen applies as well to a special as a regular train.</p> <p>15. The right of a railway company at a highway crossing is superior to that of a traveler upon the highway.</p> <p>16. The superior right of a railway company at a highway crossing does not relieve the company from reasonable caution to prevent accidents at such crossings. The degree of care may be affected by obstructions which prevent an approaching train from being seen.</p> <p>17. Both the traveler and the company are charged with the same degree of care—the one to avoid being injured, and the other to avoid inflicting injury. The care of each must be commensurate with the risk and danger involved.</p> <p>18. In the absence of direct testimony or rebutting circumstances, a person, n attempting to cross a railroad track at a highway crossing, and being injured, is presumed to have exercised reasonable and ordinary care in doing so.</p> <p>19. If negligence, in fact, existed on the part of the person injured, it must be shown by positive evidence, or from the attending circumstances of the accident.</p> <p>20. The testimony of a witness who says without qualification that he heard the whistle of a passing engine, at or near a point mentioned, is of much more weight than that of a witness who merely says that he did not hear the whistle, which might be reasonably attributable to want of attention at the time.</p> <p>21. A witness may be in any conceivable attitude of attention or inattention, which will give his evidence value, of leave it with little or no weight.</p> <p>22. The failure of a person to make any effort to ascertain whether a train is approaching a highway crossing at the time he is attempting to cross over will defeat his right to recover for injuries received as a result of his contributory negligence.</p>

<p>Case Stated—Sheriff—Salary and Emoluments of Office—Statute— Diminishing same—Constitution—Statute fixing Salary —Prisoners; Custody and Board of—Statute.</p> <p>1. The act entitled “ An Act to Establish the New Castle County Workhouse,” approved March 16, 1899; and the act entitled “An Act Fixing an Annual Salary for the Sheriff of New Castle County,” approved March 9, 1901, did not diminish the salary or emoluments of the Sheriff of said County in contravention of Section 4, Article 15 of the Constitution, which provides that “ No law shall extend the term of any public officer, or diminish his salary or emoluments after his election or appointment. ”</p> <p>2. The law of this State imposes no duty upon the Sheriff to board the prisoners, and whatever power or right he possesses in this regard is not a constitutional, common law or immemorial power or right attached to his office, but plainly and purely statutory,</p>

Action on the case to recover damages for the death of plaintiff’s husband, alleged to have been occasioned on October 17, 1902, at Third and King Streets in the City of Wilmington, through the negligence of the servants of the defendant company; said negligence being laid in the narr, in substance, as follows: First, excessive speed of the car; second, failure to sound the gong; third, that the car was not under proper control; fourth failure to keep a proper lookout ahead;…

Case Stated The facts agreed upon between the counsel for the plaintiffs and the counsel for defendant, were as follows : “1.

At a Court of Oyer and Terminer, in and for Sussex County, beginning March 16, 1903, the defendant, Elmer Collins, was placed upon trial upon the charge of Murder in the First Degree for the felonious killing of his wife, Alda Collins, on the twelfth day of April, 1902.

Mandamus The successive steps taken in the above case were as follows: A petition praying that a peremptory writ of mandamus issue, commanding the said respondent to sign and affix the official or corporate seal of “The Mayor and Council of Wilmington to the contract made by the council of said corporation with the relator on February 1st, 1903, for the removal of garbage and offal of Wilmington, was filed February 28, 1903.

Rule to Show Cause why a Judgment obtained by the plaintiff against the defendants on a certain bond for $27,456 (being Ho. 505, February Term, 1903) Should not be Stricken prom the Record.

Amicable Action, Case Case stated filed showing the following facts : First.

The prisoner, a married man, was indicted at this term for using a female child for the purpose of sexual intercourse.

Appeal Case Stated. The case stated filed by the parties set forth the following facts: “That on the thirteenth day of January, A. D. 1900, suit was entered before Lewis Sasse, Esquire, one of the Justices of the Peace, in and for Wilmington Hundred, Hew Castle County and State of Delaware, by Mary Roberta Black, the plaintiff below, against Phoebe D. Braunstein and Henry Braunstein, her husband the defendants below, for an alleged annual ground-rent of $9.60, sixteen years…

<p>Personal Injuries — Negligence — Railway Company—Infants— Trespassers—Contributory Negligence—Degree of Care Required Toward Infant Trespassers by Railway Company— Child Discovered on Platform of Car—Duty of Motorman—Inability of Company—Measure of Damages.</p> <p>1. The rule as to contributory negligence, as it affects the conduct of children is not the same as governs adults. It is the duty of the infant to exercise ordinary care to avoid injury, yet ordinary care for him is that degree of care which children of the same age, of ordinary care and prudence, are accustomed to exercise under like circumstances.</p> <p>2. A railway company is not required to anticipate the presence of a child on its cars who may not come on as passenger or by invitation, and if such child, while unobserved by the servants of the company because of their attention to their duties, voluntarily jumps off or falls while the car is in motion, and is thereby injured, without any negligence on the part of the company, the company is not liable. It is not an insurer of the safety of iniant trespassers, and is not required to use so high a degree of care for the protection of trespassers as would be required in the case of persons lawfully on its cars; or such care as would interfere with the usual and proper discharge of their duties by the servants of the company.</p> <p>3. If the motorman of a railway car sees a child of very tender years in a dangerous position upon the front platform of the car while it is in motion, and by an order or threat so frightens the child as to cause him to jump or fall from the car, and be thereby injured, the company would be liable.</p>

<p>Assumpsit — Stock Brokers — Margins — Contract — Set-off — Damages.</p> <p>1. In a suit brought by stock brokers against a customer for a sum claimed to be due from certain stock transactions ; if, under the agreement controlling the transaction, the defendant was not to be liable for any loss beyond the amount of the cash he deposited from time to time in the hands of the plaintiffs, and the plaintiffs assumed all the risks beyond such margins, the plaintiffs cannot recover.</p> <p>2. If under such agreement the stocks were to be bought and sold for the defendant, just as if the brokers were dealing for themselves and upon their recommendation and solicitation, and the defendant was not to suffer any loss in such stock transactions, the plaintiffs cannot recover.'</p> <p>3. If under such agreement the defendant had the right, at any time when his margins, coupled with the market valve of the stock held by the plaintiffs, were sufficient to save him from loss, to order the sale of the stocks then on hand ; that such a condition did exist at a certain time, and on that day the defendant ordered the plaintiffs to sell the stocks, which the plaintiffs failed to comply with, and from such failure the defendant suffered damage equal to, or in excess of, the balance claimed by the plaintiffs, they cannot recover.</p> <p>4. Measure of damages.</p>

Action on the case to recover damages alleged to have been sustained by plaintiff on November 11, 1903, by being caught and thrown upon a defective footway or crossing, on Chapel Street in the town of Newark. Plaintiff claimed that said defective footway was allowed to be and remain in such condition through the negligence of the defendant.

<p>Appeal in Bastardy.</p> <p>Counsel for defendant in the above stated case asked that the case be continued to the October Term, basing his application upon an affidavit of the defendant duly executed and filed, alleging the ab sence of a material witness and setting forth that said witness would testify that at or about the time the child was conceived the witness saw a man, other than the defendant, having sexual intercourse with the prosecuting witness.</p> <p>The Attorney-General objected to the sufficiency of the affidavit, contending that the name of the person alleged to have sexual intercourse with the prosecuting witness should be set forth in the affidavit.</p>

<p>Assumpsit—Contract—School District; Commissioners of—Teacher; Employment of—Meeting of Commissioners, When Legal— Employment of Teacher, When Binding—Condition of Employment.</p> <p>1. When two of the three commissioners of a school district, at a meeting of which the other commissioner had due notice, verbally employ a person as a teacher of the district, such employment is legal, and binding upon the district.</p> <p>2. Where one employed for service for a certain period, at a certain compensation, enters into the service of his employer, and is discharged without sufficient cause, before the expiration of the period, he is entitled to recover the wages he would have been entitled to had he been permitted to remain in the service to the end of said period.</p> <p>3. But if such discharge was for the failure or refusal of the employee to observe any material condition of his employment, such discharge would be justified, and the employee could not recover compensation for the residue of the period. An agreement on the part of the teacher, at the time of his employment, to take his dinner to the school, and remain on the school premises during the recess and noon periods, and not to board at a certain place, would be a material condition of the employment.</p>

The defendant was indicted at this term for Embezzlement as Bailee, as follows: “ Kent County, ss.

<p>Indictment for Selling Liquor Without a License.</p> <p>Statement of Facts.</p> <p>It is hereby agreed by and between Robert H. Richards, Attorney-General, who prosecutes for the State of Delaware, plaintiff above named, and Kenney and Magee, Esquires, attorneys for the defendant, that the following is a true statement of the facts relevant to the above stated case, viz.:</p> <p>The said Howard McNett on or about the first day of August, A. D. 1904, sold one quart of brandy (the same being intoxicating liquor) to George D. Cook, at the store of the said Howard McNett, at Blackstone’s Cross Roads, in Kenton Hundred, Kent County, Delaware, which said store was the store of the said Howard McNett individually.</p> <p>On the first day of September, A. D. 1903, Martin B. Burris, State Treasurer, did issue unto Elmer Bowdle and Howard McNett, the defendant, trading as Bowdle and McNett, a certain license in in the following words and figures, to wit:</p> <p>“No. 19.</p> <p>“ In the name and by the authority of the State of Delaware.</p> <p>“ The State of Delaware, ss:</p> <p>“ John Hunn, Governor of the said State.</p> <p>“ To All Persons Whom these Presents May Concern, Greeting:</p> <p>“ This license is granted to Elmer Bowdle and Howard McNett, trading as Bowdle & McNett, of the Hundred of West Dover, in the County of Kent and State of Delaware, to follow the trade, business, pursuit, or occupation of distilling or manufacturing spirituous or alcoholic liquors for sale ; and further authorizes the said Bowdle & McNett to sell his products so manufactured in quantities not less than one quart, not to be drunk on the premises, they the said Bowdle & McNett having paid the sum of forty dollars to the State Treasurer, the fee due the said State therefor, conformably to the provisions of an Act of the General Assembly of the said State, entitled ‘ An Act to encourage the consumption of grain and raise revenue for State purposes,’ passed at Dover, April 21, 1893.</p> <p>“ This License shall continue in force two months from the date hereof, and no longer.</p> <p>“ Given under my hand and countersigned by the Secretary of State, and sealed with the seal of his office, at Dover, the (Seal of first day of September in the year of our Secretary of State.) Lord one thousand nine hundred and three.</p> <p>“ John Hunn.</p> <p>“ Caleb R. Layton,</p> <p> Secretary of State. </p> <p>“ Issued by Martin B. Burris,</p> <p> State Treasurer.” </p> <p>That the “premises” referred to in said license where the liquors therein mentioned are by said license authorized to be distilled or manufactured are located in "West Dover Hundred, Kent County, aforesaid, and about ten miles from the said store of said Howard McNett. That the said brandy so sold, as aforesaid, was manufactured within the term of said license by said Bowdle and McNett at the “ premises ” aforesaid.</p> <p>It is further agreed that if the said license so as aforesaid issued to Bowdle & McNett is sufficient to authorize the said sale of brandy to said George D. Cook then the jury shall be instructed to acquit the defendant, otherwise the jury shall be instructed to find said defendant guilty, under the indictment in the case.</p>

At a Court of Oyer and Terminer held in Kent County beginning May 4, 1905, the prisoner, a colored man, was tried upon an indictment charging Murder op the First Degree of one James Lethrem, a white man, on the 11th day of June, 1904, in Clayton in said county.

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

to recover for nursing, care and attention, washing and mending, alleged to have been performed by the plaintiff for her brother-in-law, John F. Lodge, deceased, in his lifetime, during the year 1903,—52 weeks at $5 a week, amounting to $260, with interest from April 1st, 1904. At the trial, the plaintiff was produced and asked by her counsel the following questions: Q,. You have brought suit against the estate of John F. Lodge in this action.

to recover the sum of $135, being the amount alleged by the plaintiff to be due for services performed in the sale of a farm by the plaintiff for the defendant.

Certiorari Mr. Cooper:—This is a foreign attachment case. The record of the Justice sets out that “ five legal notices of attachment prepared and issued to William H. Wallace, constable,” etc. My first exception is,— That the record does not state that the Justice prepared the notices.

<p> Case Stated—Replevin—Conditional Sales—Exception—Goods sold for Purpose of Being Resold—Innocent Vendee without Notice. </p> <p>The plaintiff sold goods to A. B. for the purpose of being resold by, him as a retail dealer, within a specified territory. The sale was made within that territory by A. B. to C. D., bona fide for value and without notice of any conditions upon the right to sell. Held that C. D. took title to the goods as an innocent holder for value without notice, and in the usual course of trade,—the case being within the exception well recognized in cases of conditional sales/</p>

Action on the case to recover damages for injuries to plaintiff’s livery team, consisting of two gray mares harnessed to a landeau, by reason of a collision with defendant’s trolley car, at Fourth and Tatnall Streets crossing in Wilmington, April 27, 1904, alleged to have been caused through the negligent operation thereof by defendant’s servants.

Action on the case to recover damages for the value of a horse belonging to the plaintiffs, and which they alleged was so badly injured by a shock of electricity received by stepping upon one of the street car tracks of the defendant company in the City of Wilmington on Eighth Street between French and King Streets, on June 16, 1903, that upon the advice of a veterinary surgeon the horse was shot.

Action on the case to recover damages for personal injuries sustained, as alleged by plaintiff, on the 15th day of November, 1904, at Maryland Avenue and Beech Street in the City of Wilmington, through the negligent starting of a car while plaintiff was in the act of boarding the same, whereby she was thrown to the street and injured. Further facts appear in the charge of the Court.

Action on the case to recover damages for personal injuries to plaintiff received on the 7th day of April, 1903, occasioned, as alleged, by the negligent act of one of defendant’s servants in throwing a bale of straw from the loft of defendant’s stable at Second and French Streets in the City of Wilmington upon the head of the plaintiff, whereby two bones of his neck were fractured and he was otherwise greatly injured.

Action on the case to recover damages for personal injuries alleged to have been occasioned by reason of the negligence of the defendant. See facts in charge of court.

<p>Mandamus; Against Whom—Unnecessary Party—Not Fatal— By-Laws—Denial by Inference—Return—Alternative Writ; Sufficiency of—Writ; When Granted; For What Purpose—Prayer.</p> <p>1. It is a well settled rule in the law of mandamus that the peremptory writ should be issued against the person or persons who have the power to perform the duty commanded; but it is also well settled, and in this State, that the joining of some other party will not invalidate the writ.</p> <p>2. Where the right which the relator seeks to enforce by writ of mandamus is based upon a by-law of the respondent company, set out in the alternative writ, it is not sufficient for the respondent to deny its existence argumentatively or inferentially, by alleging the existence of an apparently inconsistent by-law at the time of the filing of the return. It is well settled that an argumentative return in mandamus, like any other argumentative pleading, is bad.</p> <p>3. Allegations contained in the alternative writ held sufficient to entitle the relator to the issuance of the peremptory writ.</p> <p>4. The peremptory writ of mandamus should not be granted for speculative purposes or to gratify mere idle curiosity, and the purpose for which it is asked must be a proper and reasonable one. The interest which the relator seeks to protect must be such as to warrant and justify the remedy he invokes.</p> <p>5. How general and comprehensive may the prayer for relief be ?</p>

<p> Cose—Personal Injuries—Pleading—Demurrer—Statute of Limitations Passed in 1897; Not Affected by G-eneral Statute of Limitations. </p> <p>The statute of limitations passed in 1897 (Chapter 394, Vol. 20 Laws of Delaware) does not purport upon its face to be an amendment of, or a supplement to the general statute of limitations (Chapter 123 Rev. Code). It contains no exception, but declares simply and baldly that thereafter “no action for the recovery of damages upon a claim for alleged personal injuries shall be brought after the expiration of one year from the date upon which it is claimed that such alleged injuries were sustained.” It is therefore not subject to the exceptions named in said general statute of limitations.</p>

<p> Affidavit of Demand—Claim for Commission on Sale of Real Estate—Statute—Judgment Refused. </p> <p>A claim for commissions on the sale of real estate is not a claim upon which, under the statute, judgment can be obtained at the first term by filing an affidavit of demand.</p>

Information for violation of Section 7, Article 5, of the Constitution of the State of Delaware, being for violation of official duty as primary election officers. (No. 11 February Term, 1905). Heard, tried and determined by the Court without the intervention of a jury.

Assault With Intent to Commit Murder At the trial, Columbus Smith, a colored man, the prosecuting witness, testified that about eleven o’clock on the night of September 9, 1905, while on his way to his home in the town of Seaford, as he approached Greenabaum’s Grove or Factory, the defendant ran up to him and said “ Give me your money ” and that he (the prosecuting witness) replied “ I will not give it to you,” and stepped back two or three steps; continuing, the witness…

Issue from the Court of Chancery The issues sent to the Superior Court by the Chancellor in the above case, are stated in the charge of the Court. At the trial, the defendant, in reply to a question asked him by his counsel, was proceeding to state certain conversations and transactions he had with Isaac N. Fooks in his lifetime relative to the alleged partnership.

Amicable Action Exceptians to award of arbitrators. Harriet H. Cannon died testate December 7, 1901. Under the provisions of her will, a certain tract of land was to be sold by her executor and the proceeds divided between her step-children, Edward F. Cannon and Amanda M. Hearne.

Long, a Justice of the Peace in and for Sussex County. The record of the Justice was as follows: “ To any Constable in said County, Greeting : “ Whereas, Elijah J. Farlow, of Baltimore Hundred, Sussex County, State of Delaware, has, upon oath, before me, a Justice of the Peace of said County, declared that on the fifth day of July, 1904, in Baltimore Hundred aforesaid, one Elijah W. Dasey, late of the County and State aforesaid, did then and there.wilfully enter into, upon…

John Marshall,” etc. White, for respondent, moved to dismiss the appeal on the ground that the above certificate was defective, in that it did not state that the transcript contained a true copy of all the docket entries in the case, as required by statute, and according to the decisions of the Court in such cases.

Certiorari The record of the Justice stated the cause of action as “Action on account. Plaintiff claims $7.00.” The first and second exceptians of the plaintiff in error were that the record did not state or show the cause of action in the suit, or the ground of the demand, or the nature of the indebtedness and promise on which the action on account was founded and in which the sum of $7.00 was demanded.

Indictment for Assault with Intent to Commit Rape. ... At the trial, one Celestine Lito, the prosecuting witness, testifled that on the fifth day of July, 1905, between eight and nine o’clock in the evening, while she was driving from her home to the town of Marydel, she saw a person lying across the road and stopped her horse, got out and told the person (who proved to be the defendant Truitt whom she knew) to get over on the side of the road, as he was in danger, if he…

Certiorari The record of the Justice, after the title of the case, was as follows : “ Be it remembered that on this seventeenth day of March, A. D. 1905, an action on book account was brought by Ralph B. Jarmon against Frank Patterson and Mrs. Frank Patterson for the sum of $10.75 with credit of $2.

Action of Assumpsit to recover for services, as real estate brokers, rendered to the defendant in and about the sale of a certain farm in Kent County.

Issue from Register of Wills in and for Kent County. Affidavit filed in regular form alleging the absence from the State of a material witness, upon which counsel for plaintiff asked for a continuance to the next term of Court.

The first above entitled case was an appeal from an order of the Register of Wills of the State of Delaware in and for Kent County, removing William Boyd as administrator of Joshua Boyd, deceased, being No. 96, October Term, 1905. The second case was an appeal from an order of the said Register of Wills removing William Boyd, administrator of Joshua Boyd, deceased, and appointing James Francis Wilds administrator of Joshua Boyd, deceased, being No. 97, October Term, 1905.

Action of Replevin to recover the price or value of six red dehorned cows, each of the value of twenty dollars, one brindle dehorned cow of the value of fifteen dollars, one gray mare and one colt by her side, the value of both together being forty dollars, and one iron gray colt of the value of thirty-five dollars.

Upon a petition for a Rule to Show Cause Why a Judgment (of Thomas O. Culbreth vs. George A. Millington, deceased, for $500, with interest from November 11th, 1887, being No. 304 to October Term, 1904; said judgment being entered April 29, 1905 upon a certain bond dated November 11, 1887 with warrant of attorney, given by said Millington to said Culbreth) Should Not be Opened and the Petitionee be Let Into Teial, the Court framed the following issue: “ Whether any and what…

Summons case. The defendant filed the following affidavit of defense, viz: “State of Delaware, “ Kent County, “ Be it remembered that on this twenty-sixth day of October, A. D. 1905, before me, Edwin F. Wood, a Notary Public for the State of Delaware, personally came Lydia C. Maloney, the de- ■ fendant in the above stated suit, who having been by me duly sworn, according to law, doth depose and say that she is the defendant in the above stated suit; that she verily believes…

This was an application of Effie Redmile to compel Alfred A. Redmile, Jr., to support his minor child, after the Superior Court had granted a decree divorcing the prosecuting witness from the defendant and awarding to said prosecuting witness the custody of said child.

Action on the Case to recover damages for personal injuries to the plaintiff alleged to have been caused by being run over by the automobile of the defendant by reason of the negligent running of the same by said defendant. Demurrer. The plaintiff’s narr consisted of five counts, the third, fourth and fifth of which were demurred to by defendant. Said third count, omitting the formal parts, was as follows : “ 3.

Action on the Case to recover damages for personal injuries alleged to have been sustained about noon on August 3, 1904, near the intersection of Elliott Avenue, Market Street and Vandever Avenue, and to have been occasioned by reason of one of defendant’s Eiverview cars negligently colliding with the horse and cart which plaintiff was then driving across Market street at that point, whereby the said plaintiff was thrown to the ground from the left shaft on which he was…

Action on the Case to recover for personal injuries to plaintiff by being knocked down and run over by an automobile, alleged to have been owned by and operated under the control and direction of the defendant, at Ninth and Market Streets in the city of Wilmington, about five o’clock in the afternoon of March 29, 1905.

Action of Trespass on the case to recover for an alleged failure to perform its warranty of an ice-making and refrigerating plant furnished by the defendant to the plaintiff.—See further facts in the charge to the jury, At the trial, Joseph Riggi, an expert candy maker and superintendent of the plaintiff at the time of the installation of the said plant, was produced as a witness on behalf of the plaintiff and questioned as follows: By Mr. Brady; Q. What is the custom of…

<p>Indictment foe Aboetion.</p> <p>The indictment consisted of four counts, the third of which was as follows: “And the jurors aforesaid, on their oath and affirmation, respectively, aforesaid, do further present that John A. Parm, late of Wilmington Hundred, in the County aforesaid, and John Viney, late of Brandywine Hundred, in the County aforesaid, on the twenty-fifth day of September, in the year of our Lord one thousand nine hundred and four, with force and arms, at Wilmington Hundred aforesaid, in the county aforesaid, unlawfully, feloniously, and with the intent to procure the miscarriage of one Kate M. Waters, she, the said Kate M. Waters, then and there being a pregnant woman, then and there supposed by the said John A. Parm and the said John Viney to be pregnant, did counsel her, the said Kate M. Waters, so intending to procure a miscarriage of her, the said Kate M. Waters (the same not being necessary to preserve the life of her, the said Kate M. Waters), 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>Mr. Handy:—I move to strike out the above count on the ground that it does not state the offense under the statute the indictment is drawn under.—Chapter 226, p. 523, Volume 17, Laws of Delaware (Rev. Code 1852, amended in 1893, p. 930). The section of the statute which applies is section 2. The third count of the indictment charges the defendant with counseling Kate M. Waters, alleged to be the pregnant woman. This is manifestly under the second clause of the second section of the statute which makes it a crime for anyone to “ aid, assist, or counsel any person so intending to procure a miscarriage,” etc. This does not include counseling the pregnant woman herself, but only counseling the person intending to procure a miscarriage of a pregnant woman.</p> <p>(The Attorney-General replied, stating that under the whole of section 2 he saw nothing to prevent a pregnant woman from using an instrument herself, and committing the offense under the statute, and that the indictment was therefore sufficient.)</p>

<p>Foreign Attachment Case</p> <p>The facts appear in the charge of the Court below, and in the opinion of Supreme Court following same.</p>

<p> Supreme Court—Judgment Affirmed. </p> <p>I. It is competent to impeach a witness by putting in evidence, as contradicti on of a material portion of his testimony, any written statement which he may have made out of court. Statements of a witness, sought to be introduced in evidence to discredit him, are inadmissible for that purpose, unless they are inconsistent with, or contradictory of, his testimony on the stand, in some material particular. It is unnecessary that the contradiction should be in terms. All that is required is that the statement previously made by the witness be substantially inconsistent with his testimony on the stand.</p> <p>2. A correct and proper statement by the trial court of what the plaintiff claimed at the trial, without any expression of opinion as to the justice or legality of the claim cannot be made a ground for the reversal of the judgment.</p> <p>3. While usually the words “the amount of the contract price for the erection of said houses,” might not include the cost of the ground on which the houses were to be erected, yet under the circumstances of the case, and the evidence of the plaintiff as to the agreement, there was no material variance between the declaration and the evidence. If there was a material variance it is too late to raise the objection when no-exception was taken to the admission of the evidence, and the matter of variance was not otherwise brought to the attention of the trial court.</p> <p>4. It is a rule of law that so long as the special contract continues executory, the plaintiff must declare speciall y ; but when it has been performed and executed on his part, and nothing remains to be done but the payment of the price in money by the defendant, which is nothing more than the law would imply against him, the plaintiff may declare generally, or in the common counts, upon the implied promise or he may declare specially on the original contract and express promise, at his election. This election to sue upon the common counts, where there is a special agreement, applies only to cases where the contract has been fully performed by the plaintiff.</p> <p>5 - It is not the province of the trial court to determine whether the special contract set forth in the declaration has been proved. That is a question to be submitted to the jury. If the jury were satisfied that the contract was proved, and that the plaintiff had fully performed his part of it, they would be satisfied in finding a verdict for the plaintiff on the special counts. But if thezcontract was not proved to the satisfaction of the jury, they would be justified in finding a verdict for the plaintiff on the common counts for such sum as his services to the defendant were reasonably worth.</p>

<p>Certiorari to a judgment rendered by Charles C. King, a Justice of the Peace for said county</p>

Action on the Case to recover damages for personal injuries alleged to have been occasioned by the negligence of the defendant company. Demurrer. The declaration contained six counts, the first four of which were demurred to.

This was an action of debt on a bond guaranteeing the construction of certain sewers in the city of Washington, D. C., and payment for the labor and materials supplied in the prosecution of the work; being Number 43 to the November Term, 1901. The principal in the bond having died, suit was brought against the surviving sureties, Joseph L. Carpenter, Jr. and John P. Allmond.* The fifth plea of the defendants was as follows: “ 5.

<p>Criminal Law—Intoxicating Liquor—Selling Unlawfully—Minor— Representation of Age by Minor— When a Defense—Diligence and Care on Part of Seller.</p> <p>1. In a trial for unlawfully selling intoxicating liquor to a minor the defendant is permitted to show that he was told by the alleged minor at or before the time of the sale, that he was twenty-one years of age.</p> <p>2. The seller of the liquor is not absolutely bound to know the age, that is, whether the purchaser is under twenty-one years of age, but he is bound to use all reasonable means for ascertaining the fact whether he is under the age of twenty-one years at the time of the alleged sale.</p> <p>3. It is for the jury to determine, (i) whether the intoxicating liquor was sold to the minor by the defendant and (2), if so, whether the defendant used all the means reasonably necessary to ascertain and know whether or not he was under the age of twenty-one years. If he did use all the reasonable means necessary under the circumstances to ascertain that fact, and honestly believed he was twenty-one years of age and was deceived, then the jury may render a verdict of not guilty.</p> <p>4. The law was made for the protection of minors against the use of intoxicating liquors ; and if the liquor dealer takes advantage of any information which he may have (without having exercised reasonable care and diligence in acquiring accurate information under all the circumstances), for the purpose of avoiding his duty or, as a cover for the violation of the law, then he would be guilty.</p>

The petition and motion of Herbert H. Ward, Attorney-General of the State of Delaware, and in behalf of said State, respectfully represents: That the Levy Court Commissioners for the County of New Castle, at their annual session in March, selected from the list of taxable citizens of such county the names of certain sober and judicious persons, to serve (if summoned) as petit jurors at and through the next term of the Superior Court and the Court of General Sessions of said…

Action on the case to recover damages from the Wilmington Malleable Iron Company for personal injuries to the plaintiff alleged to have been caused by the negligence of said company.