Volume 24 — Delaware Reports

4 June Term, 1909). The record of the Justice set forth the sum demanded as $26.33, and his judgment rendered in the case as follows: “And now, to wit,Saturday the 17th day of April 1909 at two o’clock in the afternoon, both the plaintiff and defendant being present this cause heard and after hearing the allegations and proofs of the plaintiff and defendant and maturely considering the same, judgment is hereby rendered against the said defendant Thomas E. Robinson and in…

<p> Motion to Quash—Scire Facias—Mechanics' Lien—Time for filing Claim—Affidavit. </p> <p>1. The affidavit required to be made and filed with the plaintiff’s statement, in mechanics’ lien proceedings, may be made within 90 days after the completion of the work and labor performed and delivery of materials, and the plaintiff is not required to wait until the expiration of such time before making the affidavit.</p>

<p>Action on the Case (No. 18, April Term, 1908).</p> <p>Demurrer to declaration. Application to amend demurrer.</p>

<p>Proceeds of Sale by Sheriff—Attachment by Creditor of lien Creditor of Defendant in the Execution—Money paid into Court— Petition of the lien Creditor to pay money out of Court.</p> <p>1. Money in the hands of sheriff arising from sale of real estate made by him under execution process, cannot be attached until he has paid all pre-existing liens upon the real estate so sold.</p> <p>2. A surplus or balance in hands of sheriff, arising from a sale under . an execution, after payment of all legal demands upon him, belonging and payable to defendant in execution, may be attached.</p> <p>3. Rights in the proceeds of a sheriff’s sale do not become fixed until after confirmation of sale.</p> <p>4. Proceeds of a sale made by a sheriff, remaining in his hands and belonging to a lien creditor of the defendant in the execution, cannot be attached, it being against public policy to disturb public officers in the discharge of their official duties.</p> <p>5. A sheriff having been garnisheed by a creditor of the lien creditor of the defendant in the execution under which he sold real estate, and having subsequently paid the share of such creditor in the proceeds of the sale into court, the Court will not annul its order authorizing the payment into court, but will hear and determine the rights of the claimants, upon the petition of the lien creditor of the defendant'to draw the money out of court.</p>

<p>Summons Case (No. 24, July Term, 1909).</p> <p>Motion that judgment be refused notwithstanding affidavit of demand.</p>

<p> Murder—Assault with Intent to Murder—Elements—Intent —Self-defense. </p> <p>1. An assault with intent to murder embraces not only an assault but also an intent to commit murder.</p> <p>2. An assault is defined, to be an attempt with force and violence to’do injury to the person of another.</p> <p>3. In order to convict of an assault with intent to murder, the facts must be such that if the person assaulted had died in consequence thereof, the accused would have been guilty of murder.</p> <p>4. The intent to commit murder is an essential element of the crime, and it must be proved.^</p> <p>5. The intent to commit murder may be shown (1) by direct evidence, as by defendant’s confession; (2) by indirect evidence, as by the acts or conduct of the accused, such as the use of a deadly weapon, etc.</p> <p>6. When a person is charged with an assault with intent to commit murder, whether the crime, if it had resulted in the death of the person assaulted, would have constituted murder of the first or second degree, is immaterial. Murder in either degree, in such event, would be sufficient.</p> <p>7. Murder is the unlawful killing of a human creature in being with malice aforethought, either express or implied. Malice may be implied from any unlawful act such as in itself denotes a wicked heart fatally bent on mischief, or a reckless disregard of human life.</p> <p>8. The law recognizes the right of self-defense for the purpose of preventing, but not of revenging an injury to the person of the accused.</p> <p>9. Every one has the right to protect his person from assault and injury by opposing force to force, and he is not obliged to wait until he is struck by an impending blow. If a weapon be raised to shoot or strike, or the danger of personal violence be imminent, the person in such imminent danger may protect himself by striking the first blow for the purpose of repelling and preventing the attempted injury; but the opposing force or measure of defense must not be unreasonably disporportionate to the requirements of the occasion.</p> <p>10. Where one is assaulted upon a sudden affray and reasonably believes himself to be in imminent danger of being killed or of receiving great bodily harm, he may use a deadly weapon in self-defense. But in exercising such right of defense, he must be closely pressed, and must have retreated as far as he conveniently and safely could, in good faith, with the honest intent to avoid the violence and peril of the assault upon him.</p> <p>11. Upon an issue of self-defense, in a prosecution for an assault with intent to murder, the jury should consider and determine whether under the evidence the accused was, at the time of the commission of the offense, in reasonable fear of death or of great bodily harm. And in determining whether the accused was in such reasonable fear, the jury should consider the conduct of the prosecuting witness at the time, the violence of his assault, the character of the weapon employed by him, his superior advantage of youth and strength, as well as the prisoner’s knowledge of his reputation for being quarrelsome and violent.</p> <p>1.2. _ Where testimony is conflicting, it is the duty of the jury to reconcile it, if possible; otherwise they should accept that which they deem worthy of credit and reject that which they deem unworthy of credit, having regard to the character, intelligence, opportunity, and bias of the witnesses.</p> <p>13. A person charged with the commission of a crime is presumed to be innocent, until the contrary is shown. The burden of establishing the guilt of the accused, beyond a reasonable doubt, rests upon the State.</p> <p>14. When the accused introduces a distinct or independant matter of defense, such as an alibi, insanity, or self-defense, satisfactory proof of such defense devolves upon the accused.</p> <p>15. A reasonable doubt of the guilt of the accused upon the whole case entitles him to an acquittal.</p> <p>16. A reasonable doubt is not a vague or speculative doubt, but a substantial doubt remaining in the minds of the jury after a careful consideration of all the evidence, such as reasonable, fair-minded, and conscientious men would entertain under all the circumstances of the case.</p>

<p>Indictment for Pointing a Gun.</p>

<p>-Arson—Attempt to Commit Arson—Elements of Crime—Intent— “ Malice—Statute.</p> <p>1. The gist of the crime of arson is the danger to the lives of persons who may be dwelling in the house set on fire; and the crime is graded by 'the statute according to the degree of danger to human life it involves.</p> <p>2. Like as the elements of murder are ingredients in the crime of an •assault with intent to commit murder, so the elements of arson are ingredients in the offense of an attempt to commit arson.</p> <p>3. To constitute the offense of an attempt to commit arson, there must be the wilful act or attempt to commit that offense though unaccomplished, as distinguished from the accomplishment of the attempt. There must be the intent which directs and the malice which inspires the acts in both crimes.</p> <p>4. In a prosecution for attempt to commit arson, the character of the instrument employed in the attempt is immaterial. If the attempt to burn be wilful, it matters not whether the method be by direct or in.direct means.</p> <p>5. When the attempt to commit arson is established the intent may be proved by direct evidence, as by the admission and confession of the accused, or by indirect or circumstantial evidence as by the acts, conduct and threats of the accused and the attending circumstances of the attempt.</p> <p>6. The element of malice in the offense of an attempt to commit arson intended by the law, signifies not general malevolence but the intent from which flows an unlawful act, committed without legal justification, and when the act constituting the offense is proved toliave been done, and to have been done wilfully, it is then inferred to have been done mal.Iciously.</p> <p>7. When the jury entertain a reasonable doubt of the guilt of the accused, that doubt must inure to his acquittal. But that doubt must, not be a mere fanciful, vague, indefinable or speculative doubt, but a reasonable, substantial doubt remaining in the minds of the jury after a-careful consideration of all the evidence.</p>

Indictment for Murder of The First Degree. h' At a Court of Oyer and Terminer, held at Wilmington, beginning September 30, 1909, Michael Miele, an Italian, was tried upon an indictment charging murder of the first degree for the felonious killing (by stabbing) of one Vincent H. Walker, on East Fourth Street between King and French Streets in the City of Wilmington, on July 14, 1909. The State asked from the jury only a verdict of murder of the second degree.

Demurrer to Indictment (No. 91, September Term, 1909), alleging that the defendant having a license to sell intoxicating liquors according to law only in quantities of not less than one-half gallon, did on the second day of July, 1909, in the City of Wilmington, unlawfully sell intoxicating liquor, to-wit, whiskey, to one Edward H. Williams, in a quantity less than one-half gallon.

Indictment (No. 102 September Term, 1909,) for Unlawfully Selling Intoxicating Liquor, to-wit, whiskey, in quantities less than one quart to be drunk off the premises the defendant having only a license to sell liquors in like quantities to be drunk on the premises. The indictment was as follows: “New Castle County, ss.

Action on the Case (No. 132, SeptemberTerm, 1907), to recover damages for injuries to horses and other personal property of the plaintiff.

<p> Justices of the Peace—Certiorari—Jurisdiction—Splitting Single Cause of Action—Evidence dehors the Record. </p> <p>1. The practice of the Court for many years has been to confíne the review on"certiorari to the record as sent up in obedience to the writ.</p> <p>2. On certiorari to a Justice, the Court will not go behind the record -ior the purpose of establishing jurisdiction, or of proving any other fact, and will not permit evidence of matters aliunde not essential and necessarily a part of the record.</p> <p>3. A Justice cannot legally, split a single cause of action into parts: for the purpose of acquiring jurisdiction of the several parts.</p> <p>4. If a Justice should split a single cause of action into parts for the-purpose of jurisdiction of the several parts, the defendant’s remedy is not by certiorari.</p>

<p>Appeal from a judgment rendered by a Justice of the Peace (No. 145 September Term, 1908).</p>

<p>Petition to open Judgment—Parties—-Wages of Employees— Preference Under Statute.</p> <p>1. Petitioners for a rule to show cause why an issue should not be framed and tried to determine what amount, if any, remains due on a judgment to which they were not parties, they not being even judgment creditors of the defendant in the judgment, having only a claim for services against the defendant, do not possess sufficient interest to entitle them to the rule.</p> <p>2. Debts or claims for services rendered by musicians to a leader of a band who engaged with another to furnish music for a period, are not a first lien upon any balance due the leader by his employer, within the meaning and contemplation of the Act of Assembly, entitled “An Act to prefer wages of employees as in case of execution and assignment.”</p>

<p> Divorce—Necessity of Service—Waiver of Service—Appearance. </p> <p>Petition and affidavit filed October 28, 1909. Summons issued for the defendant’s appearance on the following day, returnable on Monday, the first day of November 1909. The return was “non est inventus.’, On November 13, counsel for the defendant appeared and filed a paper, signed by the defendant, empowering and directing him to appear for the defendant, etc. On November 15, the plaintiff with his counsel appeared for trial, and counsel for the defendant informed the Court that he had no defense to make and made no objection to the trial proceeding.</p> <p>The Court raised the question whether under the Act of Assembly the defendant could appear by counsel, or otherwise, and waive either personal or substituted service.</p> <p>Held that actual or substituted service cannot be waived, and the appearance of the defendant in person or by counsel cannot take the place of the service of the summons.</p>

<p>Summons Case (No. 117, September Term, 1907).</p> <p>Demurrer to replications.</p>

Action on the Case (No. 84, March Term, 1909), brought by the plaintiff, Robert L. Buchanan, to recover damages for personal injuries and for the death of his horse and for injuries to his wagon, occasioned, as alleged, by the negligence of the defendant. Verdict and judgment for plaintiff. Writ of Error sued out of the Supreme Court by defendant. At the trial, the plaintiff testified as to the facts and circumstances leading up to the accident.

Indictment for Rape (No. 52, May Term, 1909). Writ of error sued out of the Supreme Court by defendant . Verdict of guilty.

The application for a license was made under Section 8', Chapter 125, Volume 25, Laws of Delaware. The exception filed was, in effect, that the applicant, being a corporation, was not a person who, within the meaning of the statutes of the State of Delaware, may be licensed to sell intoxicating liquors.

Summons Case (No. 119 September Term, 1908), brought to recover damages for cutting, and mutilating certain shade and fruit trees, growing on the land of the plaintiff, upon the side of a public highway and in front of the dwelling house of the plaintiff, but on the opposite side of the highway from the dwelling. Verdict and judgment for plaintiff. Writ of error sued out of the Supreme Court by defendant.

<p> Foreign Attachment—Special Appearance—Motion to Vacate Sheriff’s Return—Garnishment—Attachment of Shares of Stock—Procedure under the Statute—Formal Statutory Requisites—No Substituted Method—Voluntered'Acts or Waivers No Aid to Legality. </p> <p>1. Prior to the enactment of the statutes relating to 'attachments and garnishments, there was no proceeding known to the laws of Delaware whereby the lands, chattels, debts or shares of stock of a defendant in an action, were subject to preliminary attachment for the ultimate satisfaction of the plaintiff’s demand.</p> <p>2. The statutes of the State of Delaware, relating to processes of attachment and garnishment, are in derogation of the common law, They follow as their original the Custom of London, the essential charteristic of which was the right of the plaintiff, at the initial stage of the case, to attach in the hands of a debtor of the defendant a debt due the defendant, and appropriate it to the satisfaction pf the plaintiff’s demand.</p> <p>3. Process of foreign attachment may issue against any person, not an inhabitant of this State, and against any corporation, not created by or existing under the laws of this State, upon causes of actions and for amounts indicated by the statutes.</p> <p>4. The method of executing process of foreign attachment is dependent upon the character of the property of the defendant sought to be attached. If the possession of the property can be acquired, the attachment is executed by the sheriff taking it into his possession; if actual possession cannot be had, as in the instance of a debt due the defendant, the writ is executed by employing the co-relative process of garnishment; if the thing is neither tangible property nor a debt, such as the shares of stock of the defendant in a corporation, the writ must be executed in the particular manner prescribed by the statute providing the procedure.</p> <p>5. As shares of stock are property of a peculiar character, being in their elemental nature neither debts due by the corporation to the owners of the shares, nor personal property of the defendant, capable of seizure and sale under execution, but being rather the evidence of property, they are not subject to attachment or garnishment under the provisions of Chapter 104 of the Revised Code, relating generally to attachments, or under Chapter 90, Volume 14, Laws of Delaware, providing the method of garnisheeing corporations.</p> <p>6. The general provisions of the General Corporation Laws (Sec. 48, Chapter 167, Volume 22, Laws of Delaware) relative to service of legal process upon corporations, do not supersede or by implication repeal the particular provisions of the earlier law (Sec. 13-17, Chapter 70, Revised Code) relating especially to the attachment of shares of stock in corporations.</p> <p>7. The general provisions of the General Corporation Laws relative to service of legal process upon corporations in actions instituted against them, do not relate to or affect the execution of attachment or garnishment process with respect to which the statutes have made general provisions, or of the attachment of shares of stock in a corporation with respect to which the statute has made particular provisions.</p> <p>8. Service of process in actions instituted against persons or corporations may be made by the alternative methods provided by the statute, as the thing the defendant is summoned to do is to appear and defend the action at some time in the future. Service of process in •attachment or garnishment proceedings is never made upon the defen-dont in the action, but is made, according to the character of the property to be attached, upon a personal garnishee or upon such an officer of a corporation as is particularly named or designated, in the exact manner provided by the statutes, as the attachment or garnishment takes effect :not in the future, but immediately.</p> <p>9. The attachment of shares of stock rests wholly on judicial pro•cess and its legality depends on the due and exact pursuit of the steps prescribed by Secs. 13-17, Chap. 70, Revised Code. No method of procedure may be legally substituted for that provided by the statute directing that “a certified copy of the process shall be left by the officer with the President, Cashier or Treasurer of the Company, who shall give such officer a certificate of the number of shares held or owned by the debtor in such company *******."</p> <p>If such a corporation be one established under the laws of the State of Delaware, and its President, Cashier and Treasurer reside and remain out of the State of Delaware, then under existing law, the shares of stock of such a corporation cannot be attached under foreign attachment process.</p> <p>10. The corporation or the officers cannot waive the formal requirements of the statute in laying the attachment of shares of stock, as the legality of the attachment cannot be aided by the voluntary acts or waiver of technicalities by the corporation.</p> <p>11. The provisions of Chapter 532, Volume 16, Laws of Delaware, apply to an investigation of the allegations in the affidavit upon which attachment process is founded, and do not limit or otherwise affect the right of an inquiry as to the execution of the process and the jurisdiction of the Court to entertain the action.</p>

<p>Quo Warranto (No. 108 June Term-, 1908).</p>

<p> Divorce—Decree Nisi—Death of Plaintiff—Petition and Affidavit of Defendant—Decree set aside. </p> <p>In an action for divorce, the Court will refuse to make absolute a decree nisi, entered November 21, 1908, but will set it aside upon the petition and affidavit of the defendant, filed September 22, 1909, suggesting the death of the plaintiff, on February 22, 1909.</p>

<p>Indictment for Forging an Indorsement Upon a Check, and Uttering the Same (No. 70 September Term, 1909).</p>

<p>Indictment for Assault With Intent to Commit Murder, (No. 16, January Term, 1910).</p>

<p>Attempt by False Pretense—Insurance Against Burglary—Proof of Loss—Pretense that Property Insured had been Stolen— Evidence.</p> <p>1. A false pretense is such a fraudulent representation of a fact, past or existing, by a person who knew it to be untrue as is adapted to induce the person, to whom it is made, to part with something of value.</p> <p>2. In a prosecution for an attempt to obtain money by false pretenses it is incumbent on the State to prove, beyond a reasonable doubt, that the accused knowingly made the false • pretenses with which he may be charged, with the intent to cheat and defraud.</p> <p>3. The gist of the charge of an attempt to obtain money by false pretenses, is the intent to deceive and defraud the person to whom the false pretenses were knowingly made.</p> <p>4. The intent to cheat and defraud is a material element in the crime of false pretense, and it must be proved. It may be proved by direct or circumstantial evidence.</p> <p>5. When the evidence is circumstantial, the iury must be fully satisfied, not only that those circumstances are consistent with the prisoners’ having committed the act charged as constituting the crime, but they must also be satisfied that the facts are such as to be inconsistent with any other rational conclusion.</p> <p>6. It is incumbent upon the State to prove every material element of the crime charged, beyond a reasonable doubt.</p> <p>7. ' An accused is presumed to be innocent until his guilt is clearly established.</p> <p>8. Reasonable doubt defined.</p>

<p>Rape—Using Female under Eighteen Years of Age—Statutes— Repeal—Election by State as to Crime—Elements of Rape— Petit Jury for Several Courts; Summoning—Irregularity—Attendance—“Day Assigned” for Court of Oyer and Terminer—Evdience.</p> <p>1. Section 10, Chapter 127, Revised Code, (1893) page 924, making rape, or the carnal knowledge and abuse of a female child under the age of seven years, a felony, is not impliedly repealed by Chapter 686, Volume. 18, Laws of Delaware, page 951 as amended by Chapter 127, Volume 20,. Laws of Delaware, page 192, making it a .misdemeanor to take, receive, employ, harbor, use, etc., a male or female, under the age of eighteen years, for the purpose of sexual intercourse.</p> <p>2. Rape is the carnal knowledge of a woman by force and against' her will.</p> <p>3. A rape can only be committed against the will of the female and by force, or by putting her in great fear. When the female does not consent the law implies force. The act must be against her will, if from her mental condition she has a will.</p> <p>4. _ In rape, the element “by force and against her will” does not apply in cases of females under the age of seven years. In such cases, sexual intercourse being shown, the law conclusively presumes that there was. force and against the will of such female.</p> <p>5. A man having had sexual intercourse with a woman, under-eighteen years of age, by force and against her will, may be prosecuted under the act for the better protection of female children, being Chapter 686, volume 18, Laws of Delaware, page 951, as amended, or for rape, at. the election of the State.</p> <p>6. The words “day assigned” for holding a Court of Oyer and Terminer, as used in Section 12, chapter 244, Volume 24, Laws of Delaware, page 652, means every day fixed by the Judges for holding that Court,, whether by precept or adjournment from time to time.</p> <p>7. Under Section 12, Chapter 244, Volume 24, Laws of Delaware, page 652, the regular panel of 40 petit jurors in attendance on the Superior-Court or Court of General Sessions at the time a trial is had in theCourt of Oyer and Terminer must serve as part of the panel of the petit jurors of that Court.</p> <p>8. Petit jurors bound to be in attendance upon the Superior Court or Court of General Sessions, and being present at the time a trial is had in the Court of Oyer and Terminer, constitute a part of the panel of the petit jurors for the Court of Oyer and Terminer.</p> <p>9. The object of summoning jurors is to assure their attendance and 'to give the Court jurisdiction over the person of a juror who fails to attend after being summoned.</p> <p>10. Failure to summon jurors in the manner provided by the statute -is available to the juror only in proceedings against him for non-attendance, and does not affect his competency. If he was regularly drawn and attends, the parties cannot object to the irregularity.</p> <p>11. Where, in a prosecution for rape, the prosecutrix, a child of eleven years of age, testified that she was hurt and made to bleed at the time the crime was committed and it appears, that she had submitted to other prior acts of sexual intercourse, it was held, the testimony of a physician that she examined the prosecutrix four months after the offense ■And found a scar, on her private parts made after the other prior acts of Intercourse was properly admitted.</p> <p>12. When, in a prosecution for rape, it is shown that the accused, was living in the same room and sleeping in the same bed with the mother, and the prosecutrix, and that the mother was present aiding and abetting when the crime was committed, it was held that the exclusive evidence, -that the relations of the prosecutrix and the accused were friendly during the week of the offense was not prejudicial.</p>

<p>Sale of Goods—Action to Recover Damages—False and Fraudulent Representations—Opportunity to Inspect—Duty to Inspect— Acceptance of Bill of Sale—Parol Evidence to Impeach— Fraud Must be Proved—Evidence of Breach of Warranty not Admissible under Allegations of Fraud.</p> <p>1. No action for damages can be maintained against the seller of goods and chattels for false and fraudulent representations as to their quality, if the buyer could, by ordinary diligence, have ascertained it for himself; and especially so, if the buyer was given full opportunity for inspection before concluding the transaction.</p> <p>2. An action to recover damages for false and fraudulent representations in the sale of goods and chattels cannot be maintained, in the absence of proof that the seller knowingly made such representations, with intent to deceive, on which the buyer, in ignorance, relied to his damage.</p> <p>3. A bill of sale with schedule of the goods sold annexed, evidencing the agreement reached between the buyer and the seller, and accepted by the buyer, cannot, in the absence of fraud on the part of the seller, be varied or modified by paroi evidence.</p> <p>4. Parol evidence is admissible to attack a bill of sale, if the sale itself was effected by fraud.</p> <p>5. Fraud is never presumed, but must be proved, and the burden of proving it is upon the party alleging it.</p> <p>6. In an action by a buyer against a seller in which all the counts in the declaration allege fraud and deceit, evidence of a breach of warranty is not admissible.</p> <p>7. In order to introduce evidence of a breach of warranty of quality of goods sold, it is necessary to declare upon such breach.</p> <p>8. If a buyer undertakes to recover damages for false and fraudulent representations in the sale of goods, the burden of proof is upon him to establish such fraud by clear and satisfactory evidence.</p>

<p>Appeal (No. 1, June Term, 1909) from the Court of General Sessions in and for New Castle County.</p>

Action on the Case (No. 74, September Term, 1909), to recover damages for personal injuries alleged to have been sustained by the plaintiff, through the negligent operation of an automobile by the defendant Nancy E. Lindsay, on March 24th„ 1909, at Sixth and Tatnall Streets, in Wilmington.

Action on the Case (No. 60 March Term, 1908), to recover damages for personal injuries to the plaintiff, an employee of the defendant, alleged to have been caused through the negligence of the master in not furnishing his servant with a reasonably safe morocco shaving, machine upon which to work, and also in not properly instructing the servant in regard to the proper operation of said machine.

Action on the Case (No. 122, September Term 1909), to recover damages for personal injuries alleged to have been sustained by reason of the negligence'of the defendant in causing the car on which the plaintiff was a passenger to be suddenly moved forward with a jolt or jar, thereby throwing the plaintiff from the running-board of the car while attempting to alight therefrom.

<p>The defendant was tried at this term upon an Indictment for Attempting to Obstruct Public Justice.</p>

Action of Assumpsit (No. 13, February Term 1909), to recover for material and services alleged to have been furnished and rendered in the construction of a cellar for the defendant, under a contract. facts appear in the charge of the Court.

Action of Ejectment (No. 11, October Term 1909). Verdict and judgment for plaintiff. Writ of error sued out by defendant.—See 2 Boyce. At the trial, when the plaintiff rested, counsel for the defendant moved for a nonsuit, which was refused. The defendant not offering any evidence, the Court, at the request of counsel for the plaintiff, instructed the jury to return a verdict of guilty.

<p>Money Delivered to Another for a Specific Purpose—Purpose Abandoned—Right to Recover Back—Evidence— Receipt—Explanation.</p> <p>1. Where money is deposited with another for a certain purpose which is afterwards abandoned, the person receiving it cannot retain it, and an action of assumpsit will lie by the owner against the holder for its recovery.</p> <p>2. If a person deposit money with a trust company for a purpose afterwards abandoned; and it belonged to the depositor individually and not to another company, he may recover it in an action of assumpsit.</p> <p>3. If money is delivered by a person to an officer of a trust company for deposit therein for a specific purpose, afterwards abandoned, and the officer receiving the money receipts for it in the name of the trust company as “on account of first note” of a certain other company, he may explain his receipt and show that the money was given to him as treasurer of the latter company.</p>

<p>Indictment for Selling Intoxicating Liquor, to-wit, whiskey, contrary to the provisions of the local option law.</p>

<p>Indictment for Assault with Intent to Commit Murder, (No. 37, March Term, 1910).</p>

Action of Assumpsit (No. 43, June Term, 1908). General demurrer to special plea. Demurrer overruled, and at the election of plaintiff final judgment entered. Writ of error sued out of Supreme Court by plaintiff. See 2 Boyce.

<p>Action of Replevin (No. 7, May Term, 1909).</p> <p>(See same case, post).</p> <p>Demurrer to defendant’s plea or cognizance, on ground of insufficiency.</p>

<p>Action for Divorce. (No. 39 January Term, 1910).</p>

Action of Assumpsit (No. 84, March Term, 1910). Affidavit of demand filed. Motion that judgment be refused notwithstanding the affidavit of demand.

<p>Sci Fa Sur Mortgage (No. 38, November Term 1908). Demurrer to pleas, and motiop to strike out third plea.</p>

<p>Action op Assumpsit on a Book Account (No. 21, March Term, 1910). Affidavit of demand filed. Motion that judgment be refused notwithstanding the affidavit of demand.</p>

Two Actions on the Case,—the first, being No. 19, March Term, 1909, was brought to recover damages for personal injuries to the plaintiff therein, arising from a collision of a horse and wagon, driven by the plaintiff, with a car of the defendant, on December 8, 1908, at the intersection of Manor Avenue with the Philadelphia Pike, in Brandywine Hundred, New Castle County; and the second, being No. 78, September Term, 1909, was brought to recover damages for injuries to the…

<p> Malicious Prosecution—Phading—Evidence—Variance—Witnesses—Credibility—Weight of Evidence—Elements Necessary to be Proved—Malice—Prodable Cause —Advice of Regular Attorney. </p> <p>1. In an action for malicious prosecution, there was no substantial variance between an averment in plaintiff’s declaration that defendant maliciously and without probable cause procured the arrest of plaintiff and him to be carried before the Justice, who having heard the charge determined in favor of plaintiff and discharged him from custody, and the entry upon the Justice’s record of the case, “I give judgment against the State, and George Plummer, the defendant, is discharged.”</p> <p>2. In an action for malicious prosecution, the finding of the Justice, before whom plaintiff was brought upon complaint of defendant, “I give judgment against the State, and George Plummer, the defendant is discharged” was a determination of the case in favor of accused.</p> <p>3. The jury are the judges of the weight and vlaue of the testimony and of the credibility of the witnesses.</p> <p>4. When there is conflict in the testimony, the jury should reconcile it if they can. If they cannot, they should give credit to the testimony which in their judgment is worthy of belief, taking into consideration the intelligence, apparent truthfulness, bias, if any, and impartiality of the witnesses, and their opportunity for knowing that of which they testified.</p> <p>5. The jury should decide the case in whose favor there is the preponderance or greater weight of the evidence, considered in connection with the law of the case as announced by the Court.</p> <p>6. In an action for malicious prosecution, it is incumbent upon the plaintiff to prove that there was a prosecution instituted against him by the defendant as alleged, that it was malicious and without probable cause, that it terminated in favor of the plaintiff, and that he sustained damages by reason of the prosecution.</p> <p>7. Any unlawful act done wilfully and purposely, to the injury of another, is, as against that person, malicious in a legal sense. '</p> <p>8. Malice, as applied to a malicious prosecution, means ill-will against a person, and is indicated by the disposition or temper of mind with which the party did a particular act, as where he did it with the view to injure a particular individual generally, or in some specific manner, or as where he acted from personal animosity or revenge.</p> <p>9. In an action for malicious prosecution, if it be shown that there was a want of probable cause for the prosecution, the law will imply malice from that circumstance.</p> <p>10. Neither proof of malice on the part of defendant, nor a determination of the prosecution in favor of plaintiff, is sufficient evidence of want of probable cause,</p> <p>11. Whether there1 was probable cause for the prosecution, at the time it was begun, depends upon defendant’s personal knowledge or information communicated to him, of facts and circumstances sufficient to excite in the mind of a reasonably prudent person a reasonable belief in plaintiff’s guilt.</p> <p>12. If the defendant, suspecting the plaintiff of a crime, used due care in acquiring the facts and presenting them to a regular attorney, and relying upon the advice of his counsel, began a prosecution against the plaintiff, there was probable cause and a complete defense to an action for malicious prosecution.</p>

Action of Replevin (No. 18, May Term, 1909), for the recovery of the value of a horse. Said property was claimed by plaintiff, by reason of purchase at a public sale of personal property of one John Evans on March 11, 1909. Narr in detinet. Pleas,—Non cepit; cepit in alio loco; property in the defendant; property in a stranger.

Verdict and judgment for defendant. Writ of error sued out by plaintiff. Summons Case (No. 57, September Term, 1907), brought by widow to recover damages for death of husband, who was, at the time of the accident, employed by the Pullman Company, it being alleged that the death was occasioned by the negligence of the defendant company, while engaged in taking cars to and from the property of the Pullman Company.

Action on the Case (No. 8, September Term, 1909), by a passenger of the defendant company to recover damages for injuries alleged to have been occasioned by the negligence of said defendant. Demurrer to third, fourth and fifth counts of plaintiff’s declaration. (See same case post). The facts and contentions of counsel appear in the following opinion of the Court.

<p>Appeal from a Justice of the Peace (No. 55, January Term, 1909). Demurrer to plea of set-off and to notice of recoupment.</p>

Action of Assumpsit, on the common counts. A bill of particulars was required, and the plaintiff filed, in due form, as a bill of particulars, a copy of an instrument in writing, signed by the defendant, as follows:— “June 3, 1903, Due Francis S. Bradley, Two Thousand Dollars for money borrowed. $2,000. ' J. Edward Addicks.” The defendant pleaded the statute of limitations. There was a special replication to the plea, and the defendant demurred.

Action for Divorce (No. 10, February Term, 1909), wherein Reuben Donovan was plaintiff and Annie Donovan, defendant. On February thirteenth, 1909, after hearing the cause a decree nisi was entered. On March fourth, of the same year, Reuben Donovan,the plaintiff, died.

Action of Trespass Quarb Clausum Fregit (No. 22, July Term, 1908), to recover for injuries to certain peach trees on the demised premises occupied by the… Held: in trespass guare clausum fregit, where the defendant’s sheep trespassed on the plaintiff’s close, and co-mingled with his own, that evidence of a deadly disease, communicated by the defendant’s flock to the plaintiff’s, was admissible, as showing part of the damages which the plaintiff was entitled to recover.

<p> Moving Pictures—Theatrical Performances—Circus—Statute. </p> <p>1. Under Sec. 1, Chap. 117, Vol. 13, Revised Code (1893) p. 56, providing that no person * * * without having first obtained a proper license therefor * * * shall be engaged in * * * exhibiting circuses * * *, Section 4 making a violation thereof a misdemeanor, and Section 5 providing that every building * * * where * * * theatrical performances are exhibited shall be deemed a circus within the meaning of this act, the accused, as shown by an agreed statement of facts, being engaged, without a license, in the business of exhibiting moving pictures * * * in a building * * * and showing stationary pictures when some person employed by the accused would sing songs illustrated by the pictures * * * , was found to be guilty of exhibiting a circus within the meaning of the statute.</p> <p>2. Exhibiting moving pictures upon a screen * * * in a building * * * consisting of pictorial representations of scenes, persons * * * and exhibiting by means of magic lanterns * * * stationary pictures, during the exhibition of which some person in the employ of the company would, sing songs, illustrated by the pictures, for the amusement of spectators for a price of admission, is a circus under Sec. 5, Chap. 117,]VoZ. ÍZ,\Rev. Code (1893)p. 56, which provides that every building * * * where * * * theatrical performances are exhibited shall be deemed a circus within- the meaning of the act; the word theatrical meaning of or pertaining to a theatre or scenic representation, resembling the manner of dramatic performers.</p>

<p>Application of George M. Blackburn for a license to keep an inn or tavern, and to sell intoxicating liquors, etc., at Hare’s Corner, in District No. 48, in New Castle County. Petition withdrawn without prejudice.</p> <p>The certificate and recommendation filed with the petition of the applicant, was signed by fourteen citizens. The existing statute requires that there shall be twelve signers, (respectable citizens), and that at least one-half of such signers shall be substantial freeholders. A remonstrance was filed in which the objection was urged that the certificate filed with said application was not signed by a sufficient number of substantial freeholders.</p>

Summons Case (No. 70, November Term, 1909), by widow to recover damages for death of husband. At the trial, the defendant offered in evidence the record and docket entries of a proceeding in divorce, instituted in the Superior Court for New Castle County, by John W. Wood against Josephine R. Wood, his wife, the plaintiff, which showed that a decree nisi had been entered, and the grounds upon which the proceeding was instituted.

At a Court of Oyer and Terminer for New Castle County, beginning May 16, 1910, Carmela Borrelli, the prisoner, a young Italian woman, was placed on trial upon an indictment charging her with murder of the second degree, for killing one Andrew Nordine, by shooting him, at 216 East Second Street, in Wilmington, on April second, 1910.

Action of Assumpsit (No. 119, May Term, 1907), to recover for work and labor done and services rendered and performed to Thomas McHugh during his lifetime; the total claim of the plaintiff being for 897 days at one dollar per day, or $897, with interest from December 14th, 1906. The pleas were non-assumpsit, payment, statute of limitations and set-off. Writ of Error sued out of the Supreme Court by defendant. Verdict and judgment for plaintiff.

Action of Replevin (No. 7, May Term, 1909), by John E. McLain, tenant, against Harry S. Willey, bailiff of landlord upon distress made for rent in arrear. Special demurrer to cognizance filed. (See same case ante and 2 Boyce—

Writ of Error to Superior Court, for New Castle County. Action by Jabez Frank Megginson, late Collector of Taxes for New Castle Hundred, against the trustees of New Castle Common. Judgment for plaintiff, and defendant brings error. Reversed, and judgment entered for defendant.

<p>Mandamus—Allegations of Alternative Writ; Conclusiveness— Return; Conclusiveness—Stockholders—Right to Inspect Books—Production of Books—Unreasonable By-laws —Sufficiency of Return—Right to Quash Part— Relief in Whole or Part.</p> <p>1. Allegations in an alternative writ of mandamus, not denied in the return, are taken as true, on motion to quash the return.</p> <p>2. If the return to an alternative writ of mandamus does not show a compliance with the mandate of the writ, it must either deny the truth of the allegations in the writ, or state facts sufficient in law to defeat the relator’s right.</p> <p>3. The return to an alternative writ of mandamus is conclusive and must be taken as true for the purpose of the case.</p> <p>4. The officer of a domestic corporation, having the actual possession of the books of the corporation, desired for inspection, is a proper party defendant in mandamus proceedings for the production of the books; but it does not follow that he is the only proper defendant, or that he must necessarily be made a defendant.</p> <p>5. The Superior Court, may, by mandamus, compel the production of the books of a domestic corporation which are in the possession of its officers outside of the State.</p> <p>6. A domestic corporation cannot escape the performance of a legal duty resting upon it by showing that the duty rests primarily on non-resident officers.</p> <p>7. A stockholder has a right to inspect and make extracts of the books of the corporation at a proper time and for proper purposes.</p> <p>8. The right to make copies, abstracts and memoranda of documents, books and papers, by a stockholder, is as full and complete as the right of inspection thereof.</p> <p>9. A by-law which vests the legal right of inspection of a corporation in the discretion of the board of directors, and makes their decision final, is unreasonable and void.</p> <p>10. A by-law which denies a stockholder the right to make extracts of the books or records of the corporation is unreasonable and void.</p> <p>11. When the allegations in the alternative writ show, without postive denial in the return, that the relator is a holder of a large part of the stock of the corporation, which has no market value, which he was forced to acquire to protect himself, that the relator had requested information as to the value of the stock for the purpose of a sale thereof and was refused, he is entitled to a peremptory writ of mandamus to inspect and make extracts of the books of the corporation.</p> <p>12. A return to an alternative writ of mandamus to compel a corporation to permit a stockholder to inspect its books to ascertain the value of his stock, alleging that the relator had never given satisfactory assurance to the board of directors that he did not desire the information requested, or to be obtained by an inspection of the books, for the purpose of communicating it to others, not stockholders, in accordance with the terms of the by-laws; and that concerted action by several stockholders to obtain information regarding the affairs of the company' convinces the management that the information might be communicated to persons hostile to the business of the company, is uncertain and argumentative, and not sufficient.</p> <p>13. A return which fails to show either a compliance with all the mandates of the alternative writ, or a legal excuse for not complying therewith is insufficient.</p> <p>14. It is generally competent for the respondent to set forth in his return several distinct and separate defenses. If he prevails in either, the peremptory writ will be refused; if they be repugnant, the Court may quash the return; but the Court may, in its discretion, quash such portion of the return as may be deemed sufficient and allow the rest to remain.</p> <p>15. A return to an alternative writ which, though sufficient in other respects; disclosed, on the part of the respondent company, a non-compliance with that part of the mandate of the alternate writ to suffer and permit the relator to inspect the books to ascertain, whether particular stock was legally issued, whether unlawful contracts had been made, the value of his stock, no legal excuse for non-compliance being shown, the relator is to that extent entitled to have a peremptory writ of mandamus, under such reasonable regulations as to time and place as the Court may direct.</p> <p>16. A demand, on the part of the relator, for excessive relief does not preclude the granting of the relief to which he is entitled, under the facts found from the alternative writ and the return.</p>

Summons Case (No. 4, October Term, 1909), to recover damages for the death of plaintiff’s husband. Demurrer to pleas overruled, and at the election of the plaintiff, final judgment entered, and exception noted for her. Writ of error sued out of Supreme Court by plaintiff.

Action on the Case (No. 41, March Term, 1909), to recover damages for personal injuries, alleged to have been sustained by the plaintiff on September 26, 1908, through the negligence of the defendant in so operating two of its cars on West Eighth Street in Wilmington as to cause a collision; on one of which cars plaintiff was a passenger.

Writs of certiorari were issued by the Superior Court for New Castle County in the above stated cases (being Nos. 71 and 72, respectively, to the September Term A. D. 1909), to “The Council” of The Mayor and Council of Wilmington, commanding the Council to certify to the said Superior Court (comprising Chief Justice Pennewill and Associate Judges Conrad.and Woolley) true and complete records of their proceedings in said cases. Such records were duly returned to said Court.

At a Court of Oyer and Terminer, in and for New Castle County, beginning February 16th, 1910, the Prisoner Carmine Russo, was put upon trial for murder in the first degree, for the killing of one, William Kidd, at the north west comer of Sixth and Adams Streets, in the City of Wilmington, about three o’clock on Sunday afternoon, January 16th, 1910.

Indictment for Selling Vinous Liquor, the same not being sold for medicinal or sacramental purposes; the description of said liquor in the indictment being,—“a certain liquor, the correct name of which is to the Grand Jurors unknown, but which was then and there called cider.” At the trial, W., a State bacteriologist and chemist, testified that in the quart of cider, alleged to have been bought of the defendant, and delivered to him for analysis, he found four and one-tenth…

<p>Action on The Case (No. 13, October Term, 1909), for the recovery of damages for the death of plaintiff’s wife.</p> <p>(See same case in Supreme Court, 2 Boyce.)</p>

Action of Replevin (No. 82, March Term, 1909), to recover from the defendants the possession of, or the value of five cows, alleged to have been delivered to the defendant Kemether under a contract of conditional sale.

<p>Non Support Case.</p>

<p>Pleading—Common-law Rule] Purpose Of—Declaration Defined— Acts of Negligence and Not Statement of Conclusion—Highways—Wayfarers of Equal Rights and Duties.</p> <p>1. The rules and principles of common-law pleading as they exist- ¡ ed at the time of our independence, excepting so far as they may have i been changed or modified by constitutional or statutory provision, constitute the system of pleading employed by the courts of this State.</p> <p>2. The object of pleading is to reduce the controversy to certain and precise issues of law and fact.</p> <p>3. Pleadings are designed not only to put in issue single points, but to apprise the parties of what they are to come prepared to try. .</p> <p>4. Pleadings possess a double function—-first, to ascertain and present the points in controversy, so that the minds of the Court and jury may not be drawn off upon matters immaterial, irrelevant and unimportant to the issue; and, second, to acquaint the opposing party with the facts intended to be proved in support of the issue tendered. i</p> <p>5. While the plaintiff is not required to set forth in his declaration a j detailed statement of the circumstances of the cause of action, he must { allege the facts, including time, place and circumstances as far as relied J upon with such particularity and certainty as will reasonably inform the 1 defendant what he proposes to prove at the trial in order that the defen- , dont may have a fair opportunity to meet and controvert such facts. ^</p> <p>6. A declaration is defined to be the specification in methodical I and legal form of the circumstances which constitute the plaintiff’s cause ! of action. |</p> <p>7. A declaration is insufficient which, in making specification of j circumstances, (1) states a mere conclusion of law; (2) states the result or j conclusion of fact, arising from circumstances not set forth therein, and > (3) contains a general statement of facts which admits of almost any proof ! to sustain it. Vj</p> <p>8. While an averment of the fact of a collision, without stating the j particular act of negligence that caused it, may be sufficient in those exceptional cases where by reason of the relation of the parties, the law \ places upon one a high duty to prevent injury to another, or where the , act itself bespeaks the negligence of its cause, it cannot be held that from 1 the mere statement of the fact of collision upon a highway, between way- i farers with equal rights and duties, the law will infer the collision to have \ been the result of negligence, or the negligence to have been that of the . defendant. j</p> <p>9. The mere statement of the fact of a collision upon a highway, \ between wayfarers with equal rights and duties, does not disclose a cause ! of action. It is necessary to allege the acts of negligence if any that caused . the fact of collision and which constitute the cause of action. ’</p> <p>10. In an action for personal injuries as the result of a collision between an automobile and plaintiff’s vehicle, it devolves upon the plaintiff to disclose to the defendant the cause of the collision and to "state the acts that contributed to its occurrence.</p> <p>11. An averment in a declaration that the defendant “so negligently and carelessly operated and ran his automobile” states no fact or circumstance that fastens upon the defendant the negligence which must be shown to entitle the plaintiff to recover in that (1) it is a statement of a conclusion of fact, arising from acts or circumstances not set forth in the declaration, and (2) it is a statement so general as to admit almost any proof to sustain it.</p> <p>12. An averment in a declaration “that the defendant is blind, in one of his eyes and of imperfect vision, and is not on account of said blindness and imperfection of vision competent to run and operate an automobile on the public roads with reasonable safety to other users of said public roads * * * that on account of the said premises it was negligence for the defendant to operate and run said automobile * * * that by reason of said blindness etc. said automobile collided with and struck said vehicle,” is well pleaded and traversable.</p> <p>13. Under a count charging negligence, as last above stated, the plaintiff, in order to succeed, must show at the trial that the imperfection of the defendant’s vision extended to the point of rendering him incompetent to safely operate the automobile.</p> <p>14. The following negligence cases, King vs. W. & N. C. E. Ry. Co., 1 Penn. 452 Clark vs. D . S. S. Co., 2 Penn. 522; Jones vs. Peoples Ry. Co., 4 Penn. 201; Kennedy vs. Delaware Cotton Co., 4 Penn. 353; Newton vs. Peoples Ry. Co., 4 Penn. 350; Reidel vs. W. C. Ry. Co., 5 Penn. 572; Hunter vs.P.,B.&W.R.R.Co., IBoyce (expresslydistinguished fromDonahoevs. W. C. Ry. Co., 4 Penn. 55) lay down the rule of pleading adopted by this Court. Other Delaware cases cited: Donohoe vs. Star Pub. Co., 3 Penn. 545; State vs. Collins, 1 Harr. 216; Reading's Heirs vs. State, 1 Harr. 190; Easton vs. Jones, 1 Harr. 433; No. A. 436; State vs. Short, 2 Harr. 152.</p>

<p>Count Averring Negligence—Collision of Street Car With Vehicle— Statement of Facts—Sufficiency.</p> <p>1. In a count which does not show by what acts or in what respect the defendant “negligently and carelessly operated and ran one of its cars” when the car struck the horse and wagon, and does not show by what acts or in what respect “through the negligence and carelessness of the defendant” the car thereafter dragged the horse and wagon into collision with the plaintiff’s cart, it is impossible, in the absence of a statement of any facts of negligence that contributed to either collision, for the defendant to know, or for the Court to determine, first, what act of negligence caused either collision, and second, whether there was one act of negligence that caused the first collision and another act that caused the second collision, or whether the act of negligence that caused the first was continuing and was the same act that caused the second; and such a count is demurrable</p> <p>2. A count averring that the defendant ‘ ‘so negligently and carelessly omitted and neglected to use proper care and caution in operating and running one of its cars” that the first collision mentioned therein occurred, and “thereupon and after the said collision had occurred, did through the negligence and carelessness of the said defendant, carry and drag the said horse and wagon along whereby the said wagon or dearborn was pushed violently against the plaintiff’s cart, etc., is demurrable.</p> <p>The rule announced in Campbell vs. Walker, {ante) was followed.</p>

Application to Tax Costs (No. 20, September Term, 1908) when the suit is terminated by agreement of counsel by entering judgment for a stated sum and the costs.

<p>Action for Divorce (No. 39, January Term, 1910).</p>

Indictment for Larceny (No. 56, September Term, 1910) of a pocketbook containing one hundred and twenty-five dollars, from George P. Fredericks, at Brandywine Springs Park on the eighteenth day of August, 1910. The State proved that, on the date of the alleged larceny, the Butchers and Grocers of Wilmington were holding a picnic at Brandywine Springs Park, and that the Park was filled with people.