Volume 22 — Delaware Reports

<p> Assumpsit—Husband and Wife—Joint Defendants—Conflicting Testimony. </p> <p>Joint action against husband and wife for professional services. Held that plaintiff could not recover except upon a joint cause of action, binding both the husband and wife. If in making the agreement with the plaintiff the husband acted for himself and wife, and was authorized so to do, or if the wife subsequently by her words or conduct directly or indirectly adopted or ratified the agreement, it would bind her; but if she neither was a party to the alleged agreement, or subsequently ratified or adopted the same she would not be liable jointly with her husband.</p>

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

<p> Supreme Court—Writ of Error—Case—Action for price of Machine—Breach of Warranty—Injury to Defendant’s Servant—Damages paid by Defendant—Recoupment thereof; When available as defense. </p> <p>1. In an action brought to recover the price of a machine sold to the defendant with a warranty, the defendant cannot avail himself of a breach of the warranty as a defense, by way of recoupment, for damages which he paid to the widow of a deceased servant whose death was caused by the failure of the machine to perform the service it was warranted to do.</p> <p>2. The doctrine of recoupment has attained a wider and more extended application in this country than in England. American Courts have allowed the defendant to recoup damages not only for the purpose of affecting the value of goods sold or of work done, but also damages suffered by him from any fraud, breach of warranty, or negligence of the plaintiff, growing out of and relating to the transaction in question for the purpose of avoiding needless delay and litigation.</p> <p>3. When the character of the defendant’s defense involves, among other things, its liability to the widow of a deceased servant, and there is in his claim for special damages the element of fault or negligence on its part, it is not practicable to adjust the defendant’s claim in the plaintiff’s action. Such damages, if recoverable at all, must be recovered in a separate action.</p>

<p>Case—Damage to Piano in Transportation—Common Carrier; Liability of— General rule—Exceptions—Special Agreement; Limiting Liability; Effect of—Damages— Interest.</p> <p>1. A common carrier is one who undertakes and exercises, as a public employment, the transportation or carriage of goods for persons generally, from place to place, whether by land or water, and to deliver them at the place appointed, for hire or reward, and with or without a special agreement as to price. He 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.</p> <p>2. The carrier, however, is not held responsible for loss or injury, occasioned by bad or imperfect packing, or other carelessness or negligence of the shipper; or for ordinary wear and tear and chafing of the goods in the course of their transportation,, or for their ordinary loss or deterioration in quantity or quality, or for any inherent natural infirmity or tendency to damage, depreciation or decay, etc.</p> <p>3. Where goods are injured during transportation, under such circumstances as to render the carrier liable, the measure of damage is the difference between the value of the goods in their damaged state and what would have been their value if delivered in good order, unless there was a special agreement between the parties fixing some other mode for the ascertainment of such damages.</p> <p>4. Where there is a contract fairly made between the shipper and common carrier, whereby, in consideration of a reduced rate of freight, it is agreed, that in case of loss or injury, the carrier shall be liable only to the extent of an agreed valuation of the goods, such contract is valid and will operate as a limitation upon the liability of the carrier. But it is incumbent on the carrier to prove such special agreement to the satisfaction of the jury, and upon failure so to do, the said common law rule prevails.</p> <p>5. If such special agreement is in writing it must be expressed in such manner and form as to be understood by a person of ordinary intelligence; or if not so expressed, it must be shown to have been explained to the person to be bound, unless such person himself had such knowledge of the subject as would enable him to understand the meaning of the writing.</p> <p>6. Save under very exceptional circumstances, before a shipper can be bound by a condition or regulation in the bill of lading limiting liability, of which he has not actual knowledge, it must positively and particularly be brought to his attention.</p> <p>7. There can be no recovery for any injury to the property after its arrival at destination and refusal to accept,</p> <p>8. The jury may allow interest on the amount assessed as damages from the time the property arrived at place of destination and was tendered to the plaintiff.</p>

<p>to recover damages for personal injuries.</p>

<p> Appeal—Agency; By Holding out—Actual Agency; Not necessary to bind Principal—Secret Instructions. </p> <p>When the action is between the agent and principal it is necessary to prove the actual existence of the agency, in order to bind the parties. But such proof is not absolutely necessary where the principal is dealing through an agent with third persons. If a principal holds out a person and places him in such a position in the community that he is apparently authorized to deal with persons as agent, without any known restrictions or limitations upon his authority, he may be so held out as to bind the principal. And if a person is held out to third persons, or to the public at large by his principal as having a general authority to act for him in a particular business or employment, he cannot limit his authority by private or secret instructions.</p>

to recover damages for personal injuries to plaintiff and for injury to his automobile alleged to have been occasioned by the negligence of the defendant.

the defendant above named was put on trial upon an indictment charging that on the third day of November, 1903, he, the said defendant, shot and killed one Pasquale Diabelle near Delaware City, in said county, and that he was guilty of Murder of the First Degree and of felony.

<p> Appeal—Administrator—Sale by; Money found in Table sold; Not known to be there at time of Sale—Suit by administrator to recover the Money—Conflicting testimony—Evidence. </p> <p>1. The rule stated in laying ground for contradiction of a witness, as to the time when a certain conversation referred to occurred.</p> <p>2. When an administrator sells a certain article, the property of his intestate, and at the time of the sale neither the administrator, the auctioneer or the purchaser, knew or had any reason to believe that there was anything concealed in the article sold, and therefore the sale of a pocketbook and its contents, subsequently found in the article sold, was not, and could not have been within the contemplation of the parties, the sale passed to the purchaser no right or|title to the, pocket'book and its contents.</p> <p>3; The rule stated as to conflicting testimony.</p>

to recover the value of 350 cords of pine wood alleged to have been burned and destroyed on June 21, 1905, on and along the road leading from Marvel’s Tan Yard to Stockley Station, in Dagsboro Hundred, through the negligence of the defendant in using an improper and insufficient spark arrester on his traction engine, whereby, while passing along said road, sparks were emitted from the smoke stack of said engine, setting fire to and destroying said cord wood.

Appended to the said application were the signatures of 35 persons, alleged to be freeholders residing in United School Districts Nos. 163 and 163J in said county, the place where the said Stone House was located. Among the exceptions filed was the following: “10.

the prisoner, a young colored woman, was placed upon trial for the murder of her husband, one James E. Tilghman, at their home near Frederica in Milford Hundred on the night of November 11, 1905. The following written statement, dated November 14, 1905, signed by the defendant, Annie E. Tilghman, was offered in evidence by the State and admitted over the objection of counsel for defendant: “My husband and me was in Frederica on Saturday night Nov. 11th, 1905.

on the common counts to recover brokers’ commissions for alleged sale of a farm, in East Dover Hundred, owned by defendant. At the trial, plaintiff proved the facts as set out in the following charge of the Court, and rested. The defendant then moved for a nonsuit on two grounds, viz.: First. Because the plaintiffs had failed to prove a sale of the farm before their agency was revoked by the defendant. Second.

to re- cover the sum of $100, with interest from July 13, 1897, for work and labor done by the plaintiff for the defendant under a promise to pay. The action was based upon the common counts, and also on the special count for the sale of a farm in Mispillion Hundred by the plaintiff, for which the defendant, it was alleged, promised to pay the plaintiff the above mentioned sum for his services in and about effecting said sale.

<p>Certiorari to William E. Davis, a Justice of the Peace in and for Kent County.</p>

to recover damages for the killing of a foxhound belonging to the plaintiff. The facts appear in the charge of the Court.

<p> Case Stated—Collector's Sale of Real Estate—Notice of Sale—To whom given—Deed of Collector—Does such sale divest the Lien of Municipal Taxes—Duty of Assessors. </p> <p>1. Under sec. 17 of the Act entitled “An Act in relation to the collection of taxes for New Castle County,” the collector is required, in making a sale of real estate, to give notice to any person having an interest therein, other than the person to whom the taxes are assessed, provided such interest appears upon the records of said county. The words “records of New Castle County” embrace only the records of said county and not the records of the City of Wilmington. They have a definite and well settled meaning, commonly known and accepted, and that is just what the words themselves express—county records, the records of the county, and not all the records in the county.</p> <p>2. It is the duty of assessors to use care and diligence to discover the actual owner of the property to be assessed; and if the name of such owner is known to the assessor, or might be ascertained by him from the public records or other available sources of information, it is his duty to make the assessment in the name of the actual owner.</p>

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

to recover from the defendant the sum of $157.68, with interest from July 20, 1904, alleged to be due as a balance on a book account for certain building material sold and delivered to the defendant*

<p>Motion by respondent to dismiss appeal.</p>

to recover for personal injuries received by the plaintiff by being thrown from a coach which he was driving in a funeral procession at Fourth and Tatnall Streets in Wilmington on April 27, 1904, through a collision of one of the cars of the defendant company with said coach, which collision the plaintiff claimed was due to the negligence of the servants of the defendant company.

<p>Demurrer to special pleas.</p>

<p>Criminal Law—Indictment—Charging Illegal rate of Interest in Violation of Chapter 149, Vol. 23, Laws of Delaware—Demurrer—Constitution of United States; Construction of— Equal Protection of the Laws—Due Process of Law— Constitution of Delaware; Construction of— Laws of the Land—Violation of the act by Agent of Company,—Violation by Company.</p> <p>1. The act entitled “An Act Licensing Brokers or other persons to make small loans and charge interest in excess of the present rate,” being Chapter 149, Vol. 23, Laws of Delaware, is constitutional and valid.</p> <p>2. The averment in an indictment of the violation of the provisions ofja statute by the defendant, acting at the time as the agent of the company, is a sufficient averment, within the meaning of the act, of the violation of the law by the company he represents.</p>

to recover damages for the loss of a finger alleged to have been occasioned by the negligence of the defendant company. See facts in charge of Court:

the defendant, a negro, was indicted and tried upon the charge of murder in the first degree, for the felonious killing with a deadly weapon, to wit a pistol, of one Clarence Morgan, also a negro, in the town of Odessa, on the night of August 29, 1906.

the defendant was put on trial upon an indictment for Murder of the Second Degree, the indictment charging that on the 30th day of January, 1906, at Broad Creek Hundred, Sussex County, the defendant caused and procured one Flossie Messick to miscarry, abort and bring forth a child, with which she was then and there pregnant, and by him so supposed to be, by the use of a certain instrument then by him used, and that he thereby inflicted upon her injuries of which she died in…

the prisoner, a young negro, was placed upon trial upon an indictment charging murder of the second degree, for the killing of William H. Passwater, a white man, in Seaford Hundred.

Action to recover on insurance policies for the value of certain sewing machines of the plaintiff destroyed by fire in a building or factory in the town of Georgetown, on April 7, 1904. The plaintiff’s evidence disclosed the following facts: That the policy, which was for $1,000, was dated December 12, 1903, and issued for one year.

<p> Petit Jurors; When to be Drawn—Illegally Drawn—Panel Quashed by Court—•Thirty Persons Ordered by the Court to be Summoned to Attend as Jurors. </p> <p>Petit jurors must be drawn at least twenty days before the commencement of the term which they are to attend. If not so drawn the panel will be quashed by the Court. The Court, however, may order the sheriff to summon thirty certain sober and judicious persons selected from the various hundreds in the county, to attend as jurors.</p>

<p>the defendant was tried on an indictment charging Murder of the First Degree.</p>

<p> Criminal Law—Homicide—Murder—Malice—Defendants Jointly Indicted—Accomplice—Dying Declarations—Drunkenness as Excuse for Crime—Flight of Accused; Effect of—Deadly Weapon. </p> <p>1. Murder, manslaughter and malice defined.</p> <p>2. If the jury is satisfied from the evidence that one of the defendants actually inflicted the rhortal wound, and that the other defendant was at the time present abetting, procuring, commanding or counseling him in so doing, the one so abetting would be an accomplice and equally guilty with the principal under the law. The jury should be satisfied, however, that such accomplice did or said something showing his consent to the felonious purpose and contributing to its execution.</p> <p>3. The credit to be given by the jury to dying declarations.</p> <p>4. The general rule is that drunkenness is no excuse for crime. The question of the degree of the alleged intoxication of the defendant at the time of the alleged murder, as well as the condition of mind, and mental capacity from that cause, to form a specific intent or deliberate design to kill, is to be decided by the jury upon all the evidence before them on that subject.</p> <p>5. It is for the jury to determine how much weight and credit is to be given to any confession of the accused, after considering all the circumstances connected therewith; and in like manner it is for them to determine the weight of the evidence as to the alleged flight of the defendant from the State immediately after the homicide, considering therein his motive and reason therefor as disclosed by the testimony.</p>

<p> Appeal—Contract—Damages for Failure to Accept and pay for Crop of Corn—Tender—Measure of Damages. </p> <p>1. In an action for damages for failure to accept and pay for a crop of corn raised under an alleged agreement, if the jury believe the corn was raised, but there was no tender on the part of the plaintiff, and no refusal on the part of the defendant to receive it, they should find for the defendant.</p> <p>2. If there was a time fixed for the planting of the corn and it was not planted at that time, but on some other day which was suggested by the plaintiff and agreed to by the defendant, it would be the same as if it were planted at the original date.</p> <p>3. The measure of damages for refusal to accept and pay for the corn would be its value at the price agreed to be paid less whatever the corn was subsequently worth to the plaintiff, who kept it and who would be liable for whatever would be a fair value for it, using it for other purposes.</p>

<p>Motion for nonsuit.</p>

<p>Replevin—Contract—Conditional Sale-—Note of Different Date— Another Note Subsequently Given—Payment or Renewal of Original Note—Conflicting Testimony.</p> <p>1. A certain instrument in writing made by the plaintiff and defendant held to be a conditional sale of the property therein mentioned.</p> <p>2. It is of no consequence when, or for what purpose, the note was originally made, if both parties agree that it is the note referred to in the agreement. The jury should treat it precisely as if it bore even date with, and was made at the same time as the agreement, and for the sole purpose stated therein.</p> <p>3. It is for the jury to say, under the evidence, whether another note given by the defendant to the plaintiff was given and accepted in payment or renewal of the note originally given.</p> <p>4. Where the testimony is conflicting the jury should reconcile it if possible, but if this cannot be done, they should accept that part of it which they deem worthy of credit, and reject that which they deem unworthy of credit, having due regard to the intelligence or ignorance and impartiality or bias of the witnesses, and their opportunity to know the facts to which they testify.</p>

<p>Appeal—Sale of Wheat—Refusal to Accept—Refusal to Deliver— Resale at Market Price—Recovery of Loss—No Recovery if Purchaser tendered Himself ready to Receive.</p> <p>Where goods are sold at an agreed price, to be delivered at a future time, and the purchaser refuses to receive the same in accordance with the contract of sale, the seller may re-sell the same at the market price, if the commodity has a market price, and recover from the purchaser the loss on such re-sale. But if the purchaser tenders himself ready to receive the goods in accordance with the conditions of sale, the seller cannot recover for any loss upon a resale thereof.</p>

<p> Assumpsit—Sale of Horse—Warranty—Words necessary to create—Breach of the Warranty—What defendant must prove—Damages. </p> <p>1. No particular words are necessary to create a warranty. Every affirmation made by the seller, as a fact, at the time of a sale, and as an inducement to the sale, if relied upon by the buyer, amounts to a warranty. Whatever representations are made by the seller at the time of the sale as to the quality of the article offered for sale is an express warranty.</p> <p>2. To defeat the plaintiff’s right to recover on a note given for the price of a horse, on the ground of a breach of warranty, the defendant must prove, (1) That at the time of the sale the horse was warranted to be sound; (2) That there has been a breach of the warranty,—that is, that the horse was not then sound; and (3) That he has sustained damages by reason of such breach.</p> <p>3. Any disease or infirmity of a horse, not visible and palpable, at the time of sale, which impaired his value or usefulness, would constitute unsoundness, and, whether known to the plaintiff or not, would constitute a breach of a warranty of soundness. The measure of damages would be the difference between the value of the horse in his unsound condition, and his value if he had been sound, at the time of sale.</p>

<p>Assumpsit—Fire Insurance Policy—Proofs of Loss; Waiver of— Adjuster of the Company—Duties and Powers—Waiver of Conditions—Waiver need not he in Writing or attached to or indorsed upon Policy—Contract; How Construed.</p> <p>1. Where the adjuster of a fire insurance company who is clothed with authority to adjust and settle claims said to the insured, after the fire—“make a list of the goods, with the cost and value as near as possible, and I will come back in a week or two and settle;” and so spoke and acted as to induce in the mind of an ordinarily reasonable person the belief that no further steps were necessary to be taken in the matter of proofs of loss; and the insured relied upon such statements of the adjuster and for such reason did not furnish proofs of loss, such facts and conditions would amount to a waiver, on the part of the company, of proof of loss.</p> <p>2. By the acceptance of a policy of insurance the provisions thereof, including the furnishing of proofs of loss, become a part of the contract, and the measure of the rights and liabilities of the parties thereto. It is competent, however, for the company to waive such proofs of loss, and it is not in all cases necessary that such waiver should be in writing and endorsed upon or attached to the policy. Such waiver may be proved by, or inferred from the acts and conduct of the insurer, or its duly authorized agents.</p> <p>3. In considering the provisions of policies of insurance relating to matters required to be done by the insured, subsequent to the loss, which do not alter the risk of the insurer or increase the liability, it is the prevailing practice of the courts to give to such provisions a construction favorable to the insured so far as the same can be reasonably done.</p>

<p>Case—Injuries to Person and Property—Railway Company— Frightening Horse of Plaintiff—Negligence—Damages.</p> <p>1. No presumption of negligence on the part of the defendant com-pony arises from the mere fact that the plaintiff or his property were injured by the car of the defendant. The burden of proving it rests upon the plaintiff.</p> <p>2. If a motorman in charge of a car sees, or by the exercise of due diligence might have seen, a frightened and unmanageable horse attached to a vehicle on the street near the railway in front of his car, it is his duty to use every reasonable means in his power to prevent a collision with such horse and vehicle; and for this purpose it is his duty, in due time, to check the speed of his car, or stop it entirely, if it be necessary so to do to avoid a collision, and if he fails to do so, he is guilty of negligence, and the company whose servant he is, is liable for any injury occasioned by such negligence.</p> <p>3. If, on the other hand, the motorman under these circumstances, in due time, uses all the means within his power to check or stop the car, and he is not able to do so by reason of the slippery condition of the track, the steep incline of the track or other cause beyond his control, he is not guilty of negligence.</p> <p>4. Measure of damages.</p>

At the trial, Atonio Destafano, a witness called on behalf of the State, having testified that he was at the house of the prisoner and saw his wife previous to the shooting, and that about three-quarters of an hour'later he returned, and there was a crowd going in the prisoner’s house and the witness went in too, and upon going to the bed-room, found the prisoner’s wife lying on the bed, having been wounded by a pistol shot in the left side of the abdomen; was asked by the…

<p>Case—Damages for Obstructing a Right of Way—Private Way— Public Way—Right of way Appurtenant to Land—Map showing Street—Dedication of Street to Public Use—Measure of Damages—Motion to set aside the Verdict—Damages Excessive—Amount Reduced.</p> <p>1. A right of way may be defined generally, to be a right to pass over the land of another. It may be a private way or a public way. It may belong to one or several persons, or to the entire community.</p> <p>2. Where the owner of land makes a map of it, showing a street upon it, and sells lots abutting on and calling for said street; the purchaser acquires a right to use the said street, against such original owner and subsequent purchases under him. ,</p> <p>3. Such a right of way is appurtenant to the land, and will pass by a deed of the land without express mention of such right. In such case the grantee has a right of way which the grantor cannot modify, restrict or interfere with by subsequent conveyance of the fee in the land over which the right of way extends, or otherwise. Such subsequent conveyance will be subject in all respects to the prior right of way as granted. The subsequent grantee will take the fee with that burden.</p> <p>4. Where the owner of land has plotted, marked out and fixed the width and boundaries of a street by well defined bounds, as shown by a plot made by him, and by selling lots abutting thereon, such action on the part of the owner of the land will clothe every purchaser of lots, abutting upon and calling for such street, with the right to the free and unobstructed use of the said street.</p> <p>5. In an action to recover damages for obstructing a right of way, the plaintiff must show, (1) That he had at the time of the obstruction a right to use the street or way, as claimed; (2) that such right of way was wrongfully obstructed by the defendant as set forth in the declaration, and (3) that thereby the plaintiff has been injured and sustained damage.</p> <p>6. Measure of damages stated.</p> <p>7. Upon a motion to set aside the verdict on the ground that the damages awarded were excessive, the plaintiff consented that the damages should be reduced to a certain amount, and thereupon the Court ordered that the verdict'be entered for such sum..</p>

to recover damages for personal injuries alleged to have been sustained by reason of being run into, knocked down and run over by an automobile operated by the defendant.

to recover damages to carpets placed by the plaintiff in the storage house of the defendant, said damages being alleged to have been occasioned through the negligence of the defendant.

<p> Libel—Action for Damages—Newspaper Publication; Claimed to be Privileged—Judicial Proceeding—Preliminary and Ex Parte Proceeding—What Words are Libellous per se —Damages Implied by Law—Special Damages—Exemplary Damages, when Awarded—Express Malice; How Proved—What may be Considered in Mitigation of Damages—Motion to set aside Verdict —Amount Reduced. </p> <p>1. However much publicity may have attended the proceedings, the publication of which by the defendant constitutes the basis of the present action, they were from their inception to the execution and delivery of the bail bond wholly preliminary and ex parte, and afforded no opportunity to the defendant, who is the plaintiff in this suit, to be heard in his defense to the charge contained in the affidavit. It must be held both upon authority and sound public policy that the doctrine of privilege cannot be extended to the publication of such proceedings.</p> <p>2. Words which represent a person as dishonest or dishonorable, and guilty of such disgraceful conduct as would bring him into public contempt, are libellous, and actionable per se. When such words are published the law presumes malice, and that the person to whom they refer has sustained damage from the publication of the libellous matter. It is not necessary to a recovery by the plaintiff that he should prove any special damages, or any actual intent or desire on the part of the defendant to injure the plaintiff by the publication.</p> <p>3. Exemplary damages are given only where express malice is proved. Such malice exists where, in addition to the publication of the libellous article, it is shown that the publication was made wantonly, maliciously, and with intent to injure, degrade or destroy one’s reputation. Express malice is never presumed, but must be proved. In determining whether there was express malice the jury may consider all the circumstances surrounding the publication, as disclosed by the evidence, which tend to show the motive or spirit which actuated the publication, including any information or knowledge which the defendant possessed or had the means at hand of obtaining, touching the truth or falsity of the charges made.</p> <p>4. Even though the publication complained of is libellous, and unjustifiable in law, the jury may take into consideration, in mitigation of damages, any and all facts and circumstances disclosed by the evidence, which tend to show that the article was published with a proper motive, and without intent or desire to injure the plaintiff.</p> <p>5. A motion being made to set aside the verdict on the ground that it is excessive, the amount thereof was reduced by .agreement of the plaintiff.</p>

<p>to James W. Robertson, a Justice of the Peace in and for New Castle County.</p>

by the administrator of Timothy Coughlan, deceased, to recover damages for the death of said deceased claimed to have resulted from the negligence of the defendant company.

<p>Indictment for obstructing a public road.</p>

<p> Criminal Law—Indictment—Breaking and Entering a Store in Night Time—Intent to Steal—Possession of Stolen Property —Presumption of the Stealing and Also of Breaking and Entering—Joint Possession of Accused and Another—Stolen Goods Found on Premises of Which Accused Was Tenant and Occupant. </p> <p>1. W-here a store has been recently broken and entered into in which goods are kept, and such goods, or any part of them, are then and there stolen, the subsequent possession, soon thereafter, of such goods by a person is prima facie evidence of the commission of the breaking and entering as well as of the intent for which such breaking and entering was committed—that is,that the possessor of such goods is presumed to be the taker and therefore committed the whole crime, unless he satisfactorily accounts for the possession.</p> <p>2. In order that an inference of guilt may be drawn from the unexplained possession of goods recently stolen, it must be an exclusive personal possession on the part of the accused. This does not mean that the goods must be actually in the hands of the accused, or on his person; but possession of the requisite character may be established by the fact that the goods were found on premises, or in a place, of which the accused was in the exclusive occupancy and control. If, however, the place where the goods were found was accessible to others capable of stealing, the inference cannot be drawn, though the fact is entitled to consideration in connection with the other facts in the case.</p> <p>3. If the stolen goods were found upon the premises of which the accused was the tenant, and it is proved that he was on said premises the morning next after the alleged offense was committed, the jury may infer that the goods were upon the premises with the knowledge of the accused, and that they were in fact in his possession, unless the evidence warrants the jury in inferring the contrary.</p> <p>4. If shortly after the commission of the alleged offense, the stolen goods, or any part of them, were found in the joint possession of the accused and another who was indicted with him, the jury may draw from such possession the same inference of guilt as to the accused, as if they had been found in his sole possession.</p>

<p>to recover assessments paid on certain fire insurance policies held by the defendant.</p> <p>Demurrer to plea in abatement.</p>

<p> Assumpsit—Partnership—Action by Plaintiff against former Partner; When it Can be Maintained—Partnership must have Been Dissolved—Also adjustment of Partnership Accounts and Balance Struck. </p> <p>In order that a plaintiff may maintain his action at law with respect to a partnership account or balance, it must appear that the partnership has been dissolved, and that there has been an adjustment of the partnership accounts, and a balance struck, showing a sum due to him from the defendant.</p>

At the trial plaintiff’s counsel asked to be allowed to read to the jury the depositions of two witnesses, examined and cross examined before the examiner in the Court of Chancery in the same case in which the issue had been framed,—said deponents having since died.

<p> Amicable Action—Administratrix Assenting; and Giving Testimony for Plaintiff—Interested in Award—Fraud Inferred. </p> <p>1. When the administratrix of a deceased person, interested in an award in favor of the plaintiff, assents to an amicable action, and gives testimony favorable to the claim of the" plaintiff said testimony being necessary to warrant the award,—and makes no defense whatever to the action, she places herself in a position in which her interest is in conflict with her duty.as such administatrix. This the law will neither encourage nor permit. And in such a case upon the facts proved, fraud and collusion will be inferred.</p>

<p> Foreign Attachment—Sale of Lumber—Acceptance—Refusal to Accept—Opportunity to Inspect—Waiver of Defects. </p> <p>1. If after a fair opportunity for the inspection of a car-load of lumber the defendant unconditionally accepted the same as in conformity with the contract, he could not afterwards repudiate such acceptance and refuse to pay the contract price for the lumber so accepted, even though the said lumber was not fit for the use for which it had been ordered, or not in conformity with said order, as such acceptance would be a wavier of all such defects.</p> <p>2. On the other hand, the defendant was not bound to accept, nor bound to pay for said lumber if he did not accept it, unless it was reasonably fit for the use for which it was offered,and unless it was substantially of the quality described in the order.</p>

<p> Ejectment—Legal Title; How Proved—Adverse Possession for Twenty Years; Effect of—Mixed Possession—Natural and Known Boundaries, Preferred to Courses and Distances. </p> <p>1. A legal title to land may be proved (1) by proving or producing the deeds, wills and descents under which said title is claimed, or (2) by proving that the claimant and those under whom he claims had adverse, exclusive and continuous possession of the premises for at least 20 years next before the commencement of the action; in which case the law presumes that he has the legal title to the premises.</p> <p>2. Exclusive, adverse and continuous possession for twenty years is ground, upon which the law presumes a legal title. But where the possession relied upon is for a less period than twenty years, or where it is of a mixed character, as where the possession has been shared with some other person or persons, no conclusive presumption arises as to the ownership of the legal title from such possesion.</p> <p>3. Where the defendant claims right by adverse possesion of twenty-years against the legal title of the plaintiff, the burden of establishing it is upon the defendant; and if in such case the defendant fails to prove such adverse exclusive possession for twenty years, and the plaintiff has proved a legal title, the verdict should be for the plaintiff.</p> <p>4. The nature or kind of possession from which the law presumes legal title depends in a great degree upon the nature and character of the property, and the acts of ownership exercised.</p> <p>5. If it appears from the evidence that there was a mixed possession of the premises; that is, if acts of ownership have from time to time been exercised by both parties, the law adjudges the right of possession to be in that party who has shown a legal title.</p> <p>6. When a deed calls for natural and known boundaries which are inconsistent with the description given in the deed by courses and distances, such natural and known boundaries control the boundaries by courses and distances. But if on the contrary the deed describes the land by courses and distances, and not by natural or known boundaries, the description by courses and distances is to be adopted.</p>

<p>Argument had at the October Term, 1906. Opinion handed down at April Term, 1907.</p> <p>Case stated filed, showing the following facts, viz:</p> <p>“(1) That Wilbert Hasten and Daniel R. B. Hasten are the duly qualified executors of the last will and testament of Hezekiah Hasten, deceased.</p> <p>“(2) That John W. Herring is the duly qualified administrator de bonis non cum testamento annexa of Sallie A. Hasten, deceased.</p> <p>“(3) That on or about the fourteenth (14th) day of February, A. D. 1887, the said Hezekiah Hasten and the said Sallie A. Hasten were lawfully married; and the said Hezekiah Hasten thereby became the husband of said Sallie A. Hasten and said Sallie A.Hasten thereby became the wife of said Hezekiah Hasten.</p> <p>“(4) That said marriage continued in force until the day of April, A. D. 1899, at which time the said Sallie A. Hasten died.</p> <p>“ (5) That said Hezekiah Hasten died on the day of</p> <p>Harch, A. D. 1901.</p> <p>“(6) That on the twenty-third day of October A. D. 1897, during the existence of the said marriage relation between the said Sallie A. Hasten and the said Hezekiah Hasten,the said Sallie A. Hasten executed and delivered to the said Hezekiah Hasten a certain paper purporting to be a bond, under her hand and seal, a true copy of which said paper is attached hereto and marked ‘Exhibit A’ and is to be taken as a part of this case stated.</p> <p>“(7) That neither the amount secured by said bond, to wit, the sum of Three Hundred and Fifty Dollars with lawful interest theron from the date thereof, nor any part thereof, was paid by the said Sallie A. Hasten in her lifetime unto the said Hezekiah Hasten; and that neither the said sum nor any part thereof has ever been paid by the present or any other personal representative of said Sallie A. Hasten, since her death, either unto the said Hezekiah Hasten, in his lifetime, or unto his personal representatives since his death; and that neither the said sum nor any part thereof has ever been paid either unto the said Hezekiah Hasten or his personal representatives by any other person or persons for either the said Sallie A. Hasten or her personal representatives.</p> <p>“(8) That there are assets undistributed now remaining in the hands of the defendant, belonging to and forming a part of the estate of said Sallie A. Hasten, sufficient to pay either all or a part of any judgment that may be rendered against the defendant herein.</p> <p>“(9) That any judgment that may be rendered against the the defendant shall be binding only upon the estate of said Sallie A. Hasten, deceased, and shall not bind the defendant personally.</p> <p>“If, upon the above statement of facts, the Court should be of the opinion that the said paper purporting to be a bond, a copy of which is hereto annexed and marked ‘Exhibit A’, upon its execution and delivery by said Sallie A.Hasten unto said Hezekiah Hasten became and was a valid obligation legally binding upon the said Sallie A. Hasten and that the present suit to recover the amount claimed to be due thereon can be maintained by the personal representative of said Hezekiah Hasten against the personal representative of said Sallie A. Hasten, then judgment shall be rendered for the plaintiff for the sum of Three Hundred and Fifty Dollars with interest thereon from the twenty-third day of October, A. D. 1897; but if the Court should be of the opinion otherwise than as above stated then judgment shall be rendered for the defendant for costs.”</p> <p>The bond above referred to as “Exhibit A” was in the usual form, the consideration of $350 mentioned therein being money borrowed by Sallie A. Hasten, wife of Hezekiah Hasten, from the latter, “for the purpose of building and completing the house I am now building, situated on the S. E. Corner of Washington and Fourth Streets in South Milford, Delaware, and further if I fail to pay the amount during my lifetime it shall be collectible out of my real estate, from my executors, administators or assigns and paid to my said husband if he should survive me, if not to be paid to his executors, administrators or heirs or assigns, without defalcation” etc.</p>

<p> Warranty—Breach—Evidence-Hearsay—Memorandum—Objections to Testimony—Admissibility of Testimony; Conditionally Relevant. </p> <p>1. In an action for breach of warranty of a machine for the manufacture of ice, etc., slips showing the amount of ice used in the business, embracing the ice made by the machine and the ice bought, were offered in evidence. The entries on the slips were made by the plaintiff's bookkeeper, in one instance, on information from plaintiff's ice cream man, who received all of the ice made and bought, and in the other instance on information from the plaintiff’s soda man, who was supplied with ice by the ice cream man, verified by the ice cream man; held that the slips were admissible as auxiliary to the testimony of the bookkeeper and the ice cream man.</p> <p>2. Entries made on slips of paper by a bookkeeper, on information furnished him by the ice cream man and the soda man as to the amount of ice used, were entries made in the usual course of business by a person who had no interest to misstate what had occurred, and were admissible in evidence, though the entrant was called to testify, if verified and adopted by him, as auxiliary to his testimony, as exceptions to the rules excluding acts, declarations, etc., of third persons.</p> <p>3. Where the issue is one concerning the capacity of a machine to conform to the warranty under which it was sold, entries made on slips, in the usual course of business, were admissible to show the amount of ice used and bought, so that the amount of ice actually made by the machine could be shown by the difference between the ice used and the ice bought.</p> <p>4. Slips containing entries not strictly pertinent to the issue—the capacity of a machine sold under a warranty—were offered in evidence and properly admitted for the purpose of showing the amount of ice used by the plaintiff in its business—the ice having been derived from two sources, namely, that made by the machine and that bought—under the promise,at the time of the offer, that the amount of ice bought would be shown so that the ice made by the machine could be shown by the difference between the ice used and the ice bought.</p> <p>5. An irrelevant fact, standing alone,may be conditionally relevant in connection with other facts, necessary to its admissibility; and in such case counsel may offer to introduce such irrelevant fact for a specific purpose, coupled with a statement of and promise to introduce other facts necessary to show the relevancy of the fact offered.</p> <p>6. Where conditionally relevant testimony is admitted, if opposing counsel does not make application to the Court to strike out such provisional evidence upon failure to introduce other testimony necessary to its materiality, the Court may reasonably conclude that such provisional evidence is regarded as, at least, harmless—and it will not constitute error should the Court fail to withdraw it from the jury.</p> <p>7. In an action for breach of warranty of a machine, an objection that it was not operated in accordance with defendant’s instructions,during the period covered by the plaintiff’s evidence of the incapacity of the machine, not made at the trial and before such evidence is admitted,will be too late.</p>

<p>Writ of Error to the Superior Court of the State of Delaware in and for New Castle County.</p>

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

Indictment for Larceny. At the trial the State proved that on the morning of the 30th day of April, 1907, when George F. Betts, trading as George F. Betts and Company and doing business as a leather manufacturer on the northwest comer of Conrad and Adams Streets in the City of Wilmington, went to his place of business, he missed certain brass parts from the machinery in his plant, among them being a pump dome, several valves and two lubricators, all brass, and which when he…

to recover from the defendant damages for the loss of services of his minor son, and expenses incurred on account of personal injuries received by said minor in an accident which happened in the manufacturing plant of said company upon a planing machine, and alleged to have been caused by the defendant’s negligence. Demurrer to plea.

<p> Criminal Law—Indictment—Violation of Election Law—Statute —Constitution—Delay in Prosecuting—Motion to Discharge —Endorsement on Indictment—Jurisdiction of Court; Not Lost by Failure of State to Move for a Continuance —Ballots; Misreading; Destruction or Alteration of —Circumstantial Evidence—Perjured Witness; Testimony of—Character Evidence. </p> <p>1. An indictment having been found at the May Term, and the State having had the case continued at the September Term, the defendant is not entitled to be discharged under the statute.</p> <p>2. An indictment will not be quashed because an endorsement made on the back thereof by the Attorney-General states a violation of a certain section, when all the counts charge a violation of another section of the act.</p> <p>3. The Court does not lose jurisdiction'of a case by the mere ending of a term of court and the failure of the Attorney-General to formally move for a continuance.</p> <p>4. Although the indictment in each of the counts, charges the unlawful act therein described in respect to fifty ballots, it would be sufficient to warrant conviction if the evidence showed the defendant to be guilty in respect to any less or greater number.</p> <p>5. Ballots cast at a primary election are papers or evidence within the meaning of the Act, and required to be delivered to the Sheriff. Any person stealing, wilfully destroying of etc., such ballots or any part of them or fraudulently making any entry, erasure or alteration in them would be guilty under the Act.</p> <p>6. If at the time of the counting of the votes at the close of the polls the inspector wilfully read the name of a candidate other than the one voted for, that would constitute a violation of the Act, and so would any wilful changing or destruction of the ballots.</p> <p>7. The law relating to circumstantial evidence stated. ■</p> <p>8. The degree of credit which ought to be given to the testimony of a witness who has perjured himself in a former trial stated.</p> <p>9. The rule as to character testimony stated.</p>

<p> Injuries to Horse—Hole in Street of City—Negligence—Duty of City and of Driver—Damages. </p> <p>1. It is the duty of those having control of the streets of a town or city to exercise due care in keeping them in a reasonably safe condition, free from holes, pits, excavations or obstructions, so that they may be safe for the traveler on foot or otherwise, who may use them in a lawful and careful manner.</p> <p>2. While the city is not an insurer against all injuries which may result from holes, or obstructions in the public streets, it is liable for such injuries as are the result of its negligence or default, or the negligence or default of its duly authorized agents, in the performance of a duty imposed upon it by law.</p> <p>3. In the absence of any knowledge to the contrary the traveler has a right to assume that the streets are in a reasonably safe condition, and in such case he is not bound to look or search for holes or obstructions. But he must use due care, and not disregard any warning of danger.</p> <p>4. In order that the plaintiff may recover he must satisfy the jury that his injuries were caused in the manner alleged in his declaration.</p> <p>5. Measure of damages.</p>

<p> Writ of Error—Personal Injuries—Pleading—Custom—City Railway—Much used Place—Stopping Cars to let Funeral Processions Pass; Need not be Pleaded; Admissible as Bearing on Contributory Negligence—Striking out Count; No Evidence to Support; Not Error—Variety of Counts—Same Cause of Action. </p> <p>1. Certain instructions of Court below on the question of negligence held to be proper.</p> <p>2. In every action for negligence two things are requisite to entitle the plaintiff to a recovery; (1). negligence on the part of the defendant; and (2) due care on the part of the plaintiff. In every such action, the question “Whose negligence was the proximate cause of the injury com plained of?” is one which must be determined from the evidence, under all the facts and circumstances of the particular case. If there is any evidence of negligence on the part of the defendant, upon which the jury can properly find a verdict, or if the conclusion to be drawn therefrom is debatable, or rests in doubt, though the facts are undisputed, or if the evidence is conflicting in regard to any particular fact, the case should be submitted to the jury.</p> <p>3. The practice of the defendant company to stop its cars and permit a funeral procession to pass without interruption was not a custom or usage which had the force and effect of a law, binding upon the company. It was a course of conduct, if it existed,in the nature of an accommodation indulgence or courtesy, prompted doubtless by considerations of respect, and if known among drivers in funeral processions to exist, it was competent to prove it, though it was not pleaded. If the plaintiff knew of the existence of such custom or usage, it was admissible in order that the jury might determine from all the facts and circumstances surrounding the case whether the plaintiff was at the time of the accident in the exercise of due care and caution.</p> <p>4. Testimony showing that the street at the place where the accident occurred, was much used about the time of the day when the injury happened, is admissible, although not pleaded.</p> <p>5. A variety of counts may be used in respect of the same cause of action.</p> <p>6. Various counts upon which issue has been taken and respecting which no evidence is introduced, is harmless to the defendant,and it is not error for the trial court to refuse to strike it out, the jury having been instructed to disregard it.</p>

for the recovery of damages arising from the destruction of a spring of water on the farm of the plaintiff in Mill Creek Hundred, alleged to have been caused by the defendant company in negligently and unnecessarily using dynamite or other explosive in making a hole near said spring for the purpose of settling one of its telephone poles.

<p>Petition to take Money out of Court—Costs—Sheriff—Dollarage, On Sale of Real Estate—Statute; Repeal of by New Act of March 29, 1907.</p> <p>There is now no authority in law permitting the Sheriff to demand or receive, as an item of cost, collectible through his office, dollarage to the extent of two per centum of the amount derived from the sale of real estate by such Sheriff, or any other commission or dollarage upon the amount derived-from the sale of real estate by such Sheriff. The statute which authorized the Sheriff to receive such aollerage has been repealed by the act entitled "An Act to amend Sections land 10 Chap., 125, Rev. Code' Laws of Delaware,” approved March 29, 1907.</p>

<p> Criminal Law—Indictment for Practicing Medicine Without a License—Statute; Construction of—Prescribe Remedies; Meaning of—Treatment by one or by another under his direction,—For fee or Reward. </p> <p>I. The defendant, under indictment for practicing medicine without a license, relied on the defence that he treated his patients personally by hypnotism and massage, without prescribing any remedies, and that such treatment was not in violation of the statute. Held that to “prescribe” remedies is to write or to give medical directions, to indicate remedies. It is not necessary that such prescription should be in writing. It may be given or indicated verbally. Any direction given to the patient for drugs, medicines, or other remedies, for the cure of bodily diseases, directing how they are to be applied to or used by the patient, is a prescription within the meaning of the statute. And it makes no difference whether the direction is given by the defendant himself, or by another person, even though such other person be a licensed physician engaged by and acting under the control and direction of the defendant.</p>

The above named defendant was indicted at this term for the larceny of certain goods laid in the indictment as the property of “Joseph Bancroft’s Sons’ Company”. At the trial, the first witness produced by the State testified that he was not sure whether the corporate name of the owner of the property alleged to have been stolen was “Joseph Bancroft’s Sons’ Company” or “Joseph Bancroft and Sons’ Company”.

Indictment for obtaining money by false pretenses from The Wilmington City Railway Company, a corporation of the State of Delaware.

<p>May Term, 1907.</p> <p>upon a certain agreement in writing called a “promissory note.”</p> <p>Demurrer to declaration.</p>

to recover damages for personal injuries alleged to have been sustained by the plaintiff while in the act of leaving a car of the defendant company, as a passenger, at Hillcrest, near Wilmington, on October 1, 1906.

to recover damages for personal injuries alleged to have been received on the twenty-third day of March, 1906, by being run into by one of the cars of the defendant company while the plaintiff was standing by the hind wheel of a furniture wagon which he was helping to load with furniture in front of his residence, No. 213 West Second Street in the City of Wilmington.

The defendant was indicted at this term under Sec. 2, Chap. 454, Vol. 11, Laws of Delaware (Rev. Code, 961), for being “concerned in interest in keeping and exhibiting a certain floor, the same being then and there a device at which a game of chance then and there commonly called crap was played with dice for money.” At the trial, David Anderson, a witness on behalf of the State, after testifying that he swore out the warrant for the arrest of the defendant Hamilton charging…

Indidtment for Larceny. At the trial the State offered proof, chiefly of an accomplice, one Oliver Stewart, connecting the defendant with the larceny of about 160 bushels of wheat from the farm of Charles Megginson of New Castle Hundred,' on August 10th, 1907.

Motion by defendant for leave to file an answer and cross bill was made and argued at the May Term, 1907. Opinion handed down denying motion on September 18th, 1907.

Indictment for the Larceny of ten dollars, the property of one Louis Echrich. At the trial, the State produced evidence to the following effect; That on the evening of May 27th, 1907, while returning from the plant of the Davis Pressed St.eel Company, where he was employed, Louis Echrich lost his pay envelope, upon the outside of which was written in typewriting his name, the number of hours he had worked during the week and the amount enclosed, ten dollars.

to Israel A. Harmon, J. P., in custody of the dockets of Thomas Bratton, late J. P. Brockson for the defendant in error, moved that the certiorari be dismissed on the ground that no final judgment was rendered below, in that the Justice, Thomas Bratton, neglected to sign the proceedings purporting to be a judgment. y The judgment of a Justice of the Peace should be signed, i 2 Bouv. Law Did., 523; 1 Tidd’s Practice, 568; 18 Ency. P 1. & Pr., 440; 1 Woolley On Del.

Indictment for larceny. The defendant was indicted and placed on trial at this term for the larceny of a bag of com, laid in the indictment as the property of John S. Purnell. Said Purnell testified that he thought it was his corn, although he would not swear to it.

<p> Criminal Law—Indictment—Intoxicating Liquor—Selling Unlawfully—What constitutes a Sale—Pleading—Conflicting Evidence. </p> <p>1. In the trial of a person indicted for selling intoxicating liquor unlawfully the burden is on the defendant to show that he was licensed, and therefore not selling illegally. The indictment will not be quashed because it fails to aver the sale without a license.</p> <p>2. A sale is the delivery of an article to another for a consideration either money or other valuable thing. If the jury believe that the prosecuting witness got the whiskey in question and laid down the money on the table in the defendant’s presence and house as payment for it, then the verdict should be guilty, whether the defendant accepted the money then or afterwards, unless he had a license to sell.</p> <p>3. The rule governing conflicting evidence stated.</p>

<p>to George S. Parks, a Justice of the Peace in and for Sussex County.</p>

<p> Justice of Peace—Certiorari—Statute—Works of Necessity and Charity. </p> <p>When the record of the J ustice does not negative the exceptions contained in the statute, and show that the worldly business which it is alleged was performed was not a work of necessity or charity, the judgment below will be reversed.</p>

<p> Justice of Peace—Certiorari—Forthwith Summons—Affidavit, Made by Agent of Plaintiff; Sufficiency of—Practice. </p> <p>The affidavit upo-n which a forthwith summons was issued was made by the agent of the plaintiff. Held to be insufficient.</p>

<p>Exceptions to petition for new road in Cedar Creek Hundred, Sussex County.</p>

<p>Appeal—Sale of Machine; To be Returned if Not Satisfactory; Must be Reasonably Adapted to Its Purpose; When to be Returned if Not Satisfactory—Reasonable Time— What to be Determined by the Court and What by the Jury.</p> <p>1. Where an action is brought for the price of a machine which was sold under an agreement that it might be returned if not satisfactory, it is incumbent on the defendant to show that the machine was so defective as not to be reasonably adapted to the uses for which it was sold; and also that he returned it within a reasonable time, unless the plaintiff induced delay by waiving the rule requiring a return within a reasonable time.</p> <p>2. When the facts are in dispute the question of reasonable time should be submitted to the jury. What constitutes a reasonable time may be determined by the nature of the article sold, the usual course of 'the particular business or trade, and other circumstances relevant to the time of the rescission of the sale or return of the articles sold. Reasonable time means without undue delay and with as much promptitude and despatch as the circumstances of the case will admit.</p>

<p>Attachment Case—Corporation Garnishee—Certificate Given— Application for Leave to Supplement its Answer or Certificate—Order of sale.</p> <p>A corporation having been summoned as garnishee, and having given a certificate showing the number of shares of stock held by the defendant,applied for leave, when an order of sale was asked for, to supplement its answer. Held; that under the circumstances the garnishee should have an opportunity to produce testimony on the point in question.</p>

<p> Criminal Law—Statute—Indictment—Minor—Selling Intoxicating Liquors to—Diligence to be Used by the Seller in Ascertaining Age of Customer—Sale to Two at Same Time; Distinct Offenses. </p> <p>1. In cases where it is not perfectly manifest that the person seeking to obtain intoxicating liquor from a licensed dealer is twenty-one years of age, such dealer, his agent or servant, is bound to use all reasonable means to ascertain whether the person desiring the liquor is in fact twenty-one years of age.</p> <p>2. In many cases a liquor dealer would not meet the requirements of the act by simply asking a person applying for intoxicating liquor if he or she is twenty-one years of age, and relying upon an affirmative answer, make a sale to one under twenty-one years of age.</p> <p>3. A person may be prosecuted by the State as often as he may be charged with the commission of a specific offense. And an unlawful sale of intoxicating liquor to two or more minors would constitute as many distinct offenses notwithstanding such sale was at the same time. A sale to two minors could not properly be charged in the same indictment no more than could the murder of two persons be charged in the same indictment.</p>

to recover damages for personal injuries to one of the plaintiffs, Alawilda White, the wife of Thompson F. White, the other plaintiff.

to recover damages for personal injuries to plaintiff, and also for injuries to his horse, by reason of the alleged negligence of the defendant. At the trial, when the first juror residing in the City of Wilmington was called, Hastings, for plaintiff, objected to said juror as incompetent to serve, on the ground that he was a citizen of Wilmington and therefore interested as a taxpayer in any verdict that might be rendered against the city.

the prisoner, a colored man, was tried upon an indictment charging murder of the first degree, for the killing of one Hester Nelson, on November 10th, 1907, in the town of Newark in said county.

<p>Criminal Law—Assault—Intent to Commit Murder—Malice— Intent—Deadly Weapon—Trespasser—Arrest—Warrant—Protection of Life or Person—Defence of Dwelling House and Property.</p> <p>1. Murder, Malice, Assault and Intent defined.</p> <p>2. Although a police officer does not have a warrant for the arrest of the person charged, yet as a public police officer he would have lawful authority to arrest without a warrant any-person whom he found engaged in a breach of the peace, or any criminal offense, within his view or within his hearing.</p> <p>3. But even though the officer has authority to make an arrest within the defendant’s house and without a warrant, he must make the arrest in a lawful manner. He must use no more force and violence than is reasonably necessary to secure the arrest of the prisoner and convey him to a place of custody.</p> <p>4: Although every man has the right to defend both his person and</p> <p>his dwelling house against imminent danger of unlawful injury to either, yet he cannot use a deadly weapon in that behalf unless there is a reasonable necessity and ground for doing so.</p> <p>5. When a person is assailed within his own dwellin g house he need not retreat, but may make his stand there, even though he can retreat with safety; but he has no right to kill his assailant unless it reasonably appears to be necessary to prevent the felonious destruction of his property or habitation, or the commission of a felony therein, or to defend himself or his family therein against a felonious assault upon life or person.</p>

<p>Appeal from Chancellor—Will; Construction of—Rule in Shelley’s Case—Personal Property—Intention of Testator—Trust— Life Estate—Executor.</p> <p>1. The rule in Shelley’s case governs the transmission of real property in this State in cases which come within its terms. The rule, however, is an arbitrary one. It is strictly a rule of law and not of construction or intention. Where the language used in the instrument brings the case within the rule, the fact that it was the intention of the grantor or devisor that the rule should not operate, is of no importance.</p> <p>2. This arbitrary feature has induced courts of law and equity to construe the rule most strictly, and when practicable, to take cases out of its operation.</p> <p>3. Courts are not inclined to extend the rule to personal property. Both reason and authority are against such extension. The trend of modern decisions and legislation is altogether the other way.</p> <p>4. Under the will the trustee is directed to “apply the income as received, to the maintenance and support of my daughter Ann Jane during her lifetime, and from and after her decease, it is my will and I direct that all the said property, money, stock,’’ etc. * * * *. “shall be held by the said Thomas A Rees free and discharged from the aforesaid trust, to and for the use of the heirs and assigns of the said Ann Jane forever.” Held, that Ann Jane took only a life estate in the trust property, and that the corpus of the funds after her decease went to her heirs, and not to her executors.</p>

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

Demurrers to indictments and information. The first two defendants above named were indicted at this term, respectively, for illegally registering as a voter, and illegally offering to vote at the Local Option Election held in Delaware on November 5th, 1907.

Plaintiff's declaration contained one count, which alleged that shortly after a certain trial between the plaintiff and the defendant before John W. Phillips, a Justice of the Peace in the town of Newport, the defendant, Singles, stated that the plaintiff, Smith, in his testimony at said trial “swore to a damned lie.” The plaintiff asked for punitive damages. The pleas were the general issue and the truth of the words uttered.

<p> Debt—Note under Seal—Evidence—Presumption of Payment; Evidence to Rebut—Compromise; Evidence of—Admissions. </p> <p>1. In an action to recover the amount of a note under seal more than twenty years old, upon which endorsements of payments had been made by the holder of the note; held that while the notes were admissible in evidence, the endorsements were not.</p> <p>2. Certain testimony tending to rebut the presumption of payment, including an offer of compromise and settlement, admitted; but subsequently stricken out by order of the Court, leaving, however, any acknowledgment of the defendant that the debt was not paid.</p> <p>3. An admission upon the part of the defendant of the existence of the debt sued for, in order to dispose of the presumption of payment from the lapse of twenty years after maturity, must be an express acknowledgment of an existing debt.</p> <p>4. In order to exclude distinct admissions of facts, it must appear either that they were expresely made without prejudice, or at least that they were made under the force of a pending treaty, and into which the party might have been led by the confidence of a compromise taking place. Admissions made expressly for the purpose of effecting a compromise of a matter under controversy, if not accepted, cannot be proved against the party making them. But admissions of independent facts are receivable in evidence, though made during negotiations for a compromise.</p>

Action on the Case to recover damages for personal injuries. Demurrer. Plaintiff’s declaration consisted of four counts. The first count was as follows: “1.

to recover damages for personal injuries to the plaintiff occasioned by reason of the alleged negligence of the defendant.

Indictment for selling spirituous liquor, the same not being sold for medicinal or sacramental purposes, in violation of Chapter 65, Volume 24, Laws of Delaware.

The defendant was indicted and tried at this term .upon a charge of attempting to persuade another to swear falsely at the trial of a certain suit of divorce then pending in the Superior Court for New Castle County, wherein Israel Eisenman was plaintiff and Bessie'Eisenman was defendant.

<p> Writ of Error—Bank—Depositor—Care required of Each—Negligence—Altered Check—Principal or Agent; Authority of—Ratification—W aiver—Evidence—N onsuit—Binding Instructions. </p> <p>1. In the absence of either prior or subsequent negligence or misleading conduct on the part of a depositor, a bank or banker cannot charge the depositor with any payments except such as are made in conformity with his order, for the relation of a bank and its depositors is one simply of debtor and creditor, and it matters not what care is exercised and what precautions are taken by the bank, no payments made otherwise can be charged against the depositor.</p> <p>2. Where the erasure of the words "or order” or "the order of’ and the insertion of the words "or bearer” in a check without the authority of the depositor making it, results in its payment by the depositor’s bank to a person other than the payee, such payment is not payment to the payee—is not payment in conformity with the orders of the depositors and, therefore, the depositor cannot be charged with it.</p> <p>3. The object of the depositor’s bank-book or pass-book is to inform him from time to time of the condition of his account as it appears on the books of the bank. The sending of his pass-book to be written up and returned with the vouchers is in its effect a demand to know what the bank claims to be the state of his account, and the returning of the book with the vouchers is the answer to the demand, and imports in effect a request by the bank that the depositor wdll in proper time examine the account so rendered and either sanction or repudiate it. The depositor cannot, therefore, without injustice to the bank omit all examination of hi-account when rendered at his request. His failure to make it or have is made within a reasonable time after opportunity given for the purpose it inconsistent with the object for which he obtains and uses his pass-books</p> <p>4. Where a suit is brought by a depositor to recover from the bank money deposited by him, which the bank has paid out otherwise than in conformity with his orders, and the bank sets up the defense that it is nevertheless entitled to charge the depositor with such payments because of the conduct of the depositor subsequent to such payment, the preliminary question to be determined is whether the bank was or was^ not guilty of negligence in making the payment. If it were negligent, if it officers be found to have failed to exercise due and reasonable care in de tecting the forgery, or fraud, then the negligence of the depositor, his failure to perform his "duty in examining his pass-book and vouchers with reasonable care and report to the bank within a reasonable time any errors or mistakes would constitute no defense.</p> <p>5. Where a suit is brought by a depositor to recover from a bank payments made on forged or fraudulently altered checks, which constitute a series of successful forgeries, held; that after the depositor’s pass-book has been balanced and returned to him with any of the forged or fraudulently altered checks, and it appears that there was no negligence or want of due and reasonable care on the part of the bank in paying the said forged or fraudulently altered checks, the failure of the depositor to notify the bank within a reasonable time that such checks have been forged or fraudulently altered, will, if the delay be caused by his negligence in not using due care and diligence in examining the pass-book and vouchers, or in giving notice, if he had discovered the forgeries, constitute a defense for the bank to the depositor's suit for money subsequently paid out on similar checks.</p> <p>6. With respect to the payments made before such settlement, however, where a depositor has failed in his duty in respect to the examination of his pass-book and vouchers with reasonable care and diligence, held; that in the absence of negligence or want of due and reasonable care on the part of the bank in making such payments, the depositor becomes liable to the bank for all damages sustained by the bank in consequence of such omission of duty. The extent of the liability of the depositor is commensurate with the loss sustained by the bank in consequence of his neglect of duty, no more, no less.</p> <p>7. Neither the doctrine of ratification nor estoppel can be invoked, but the damages sustained by the bank as a result of the neglect of duty by the depositor are susceptible of proof and measurement as in any other case of breach of duty imposed by contract.</p> <p>8. As to all the subsequent payments, the bank is entitled to invoke the equitable doctrine of estoppel. As to these it may be fairly said the bank was induced to pay and did pay in consequence of the silence of the plaintiff when it was his duty to speak. The bank was misled to its injury by the fault of the depositor.</p> <p>9. Where the acts and conduct and methods of conducting business, or filling up of checks on the part of a depositor were such as to warrant a bank in paying forged or fraudulently altered checks, held; that such conduct on the part of the depositor was the proximate cause of the loss and the bank is not liable for payments made on such checks.</p> <p>10. Where forged or fraudulently altered checks have been paid and charged in the account returned to a depositor, he is under no duty to the bank so to conduct the examination that it will necessarily lead to the discovery of the fraud. If he examines the forgeries personally and he is himself deceived by the skillful character of the forgery, his failure to discover it will not shift upon him the loss which in the first instance is the loss of the bank.</p> <p>11. Where the fraudulent alterations of the checks, for the payment of which suit is brought by the depositor, were apparent, and it is obvious that if the treasurer of the depositor, a dredging company, had at anytime looked over the checks or vouchers returned with the pass-book, their alteration to “or bearer” would have stared him in the face and disclosed the fraud at once; and where it is admitted that he did not look over them, but assigned the duty to the secretary of the company, depos-i tor, who was himself the perpetrator of the fraud, held) that no question of fact arises in regard to what amount of diligence was exercised or required by the plaintiff in order to detect the forgeries, and that inasmuch as it is apparent that any, even a cursory examination by an honest clerk or employee would have discovered the alterations, therefore, although the knowledge of the forgeries possessed by the secretary, from the fact that he himself was the forger, to whom the examination was entrusted, is in no respect to be attributed to the dredging company, yet it is chargeable with such knowledge as an examination of the checks would have imparted'to an honest clerk or employee previously unaware of the forgeries. And as it would have been chargeable with negligence or failure of such clerk or employee to discover and report such palpable alterations.it must be equally chargeable with the default of its secretary. Its position may be no worse because of the knowledge possessed by the forger, qua forger, but it can be no better off.</p> <p>12. Where the depositor, a dredging company, whose business was conducted in different parts of the United States, widely remote from each other, had its chief place of business and office in the city of Wilmington, Delaware, where was situated the bank which was its sole depository and banker, and the secretary of the dredging company made all the deposits and filled up all the checks of the company, which the treasurer signed, and, under a by-law of the company, was alone authorized to sign, which by-law was known to the bank; and the secretary fraudulently altered checks filled up and sent by him to the treasurer, who signed and returned them to him for distribution, by striking out the words “or order” or “to the order of” in the checks, and inserting the words “or bearer” in such a manner that the alterations were plain and palpable, so as to indicate that they were made after the checks were made out and signed, and got the cash on those checks; and where there was furthermore evidence that such alterations excited the suspicions or curiosity of the bank officers sufficiently to cause them to ask why they were made, and the only reason given by the secretary who got the money was that “The payee desired the currency,” held) that it was not for the Court to say whether the evidence bearing upon the question of the negligence or want of due and reasonable care on the part of the bank in the payment of the altered checks was strong or weak, when taken in connection with other evidence tending to show that the method in which the business of the dredging company was conducted was such asto justify the officers of the bank in believing that the secretary was authorized to so alter checks and get the money on. them was such conduct as was calculated to mislead the bank, and so facilitate the perpetration of the fraud and constituted-the proximate cause of the loss, but that the evidence should go to the jury under careful instruction from the Court.</p>