Volume 25 — Delaware Reports

Action on the Case by Hattie Eliason against Lillie C. Draper for alienation of the affections of plaintiff’s husband. Both the plaintiff and the defendant were married women living apart from their husbands. And the action was brought as above without the joinder of their husbands. The defendant demurred generally to the declaration. The demurrer was over-ruled. (Same case on motion for a bill of particulars before filing pleas, post 64.)

Indictment for breaking and entering a railroad freight car with intent to commit larceny under Chapter 206, Volume 23, Laws of Delaware.

Action of Assumpsit to recover architect’s fees for furnishing plans and specifications for alterations to a dwelling house of the defendant in Brandywine Hundred.

Indictment for Perjury, At the trial the state proved by certain witnesses that the defendant had made the specific statements, as charged in the indictment, in the Attorney General’s office a short time before the trial of one Edward Primrose upon the charge of murder of the first degree, to the effect that Primrose pulled Frisby’s (the man who was killed) head down and shot him in the back of the head.

Action for Divorce Decree nisi. Heard on defendant’s petition to have the decree nisi set aside, and the original petition for divorce dismissed. The decree nisi set aside, and petition dismissed.

Writ of Error to the Court of Oyer and Terminer of the State of Delaware, in and for New Castle County. The defendant was convicted of rape in the Court of Oyer and Terminer, the case being reported in 1 Boyce 96, 75 Ail. 616. Affirmed. The case is stated in the opinion.

Action of Assumpsit to recover damages for breach of a contract for the delivery to the plaintiff of certain stone called riprap. Judgment for plaintiff and defendant brings error. (See 3 Boyce — ). The facts and contentions of the parties appear in the charge of the court to the jury.

Action on the Case to recover damages for personal injuries alleged to have been sustained by the plaintiff through the negligent operation of an automobile by the defendant, on the twentieth day of August, A. D. 1909, on a public highway leading from Newark to Marshallton in New Castle County. The allegation being that the plaintiff was thrown from the wagon in which she was riding by the said automobile colliding with the same. The case is stated in the charge to the jury.

<p>Indictment for assault with intent to commit murder.</p> <p>The case is stated in the charge to the jury.</p>

Action on the Case to recover damages for personal injuries to the plaintiff, alleged to have been occasioned by the negligent running off their tracks of a car of the defendant at a curve at Fourth Street and Cleveland Avenue, while the plaintiff was a passenger in said car.

Action of Replevin of property taken upon distress by bailiff of landlord for rent in arrear. Case stated. The facts of the case are stated in the opinion.

<p>1. Action on the Case — Pleading—Allegations of Time.</p> <p>In an action on the case, the wrongs or injuries complained of may be charged to have been committed on a day certain and “on divers other days and times between that day and the day of the commencement of this suit."</p> <p>2. Pleading — Bill of Particulars — Judicial Discretion.</p> <p>While a bill of particulars may be ordered when justice requires, the practice is largely confined to contracts, and in Delaware does not extend to actions of tort.</p> <p>3. Husband and Wife — Alienation—Pleading—Bill of Particulars.</p> <p>In an action for alienating a husband’s affections, by wrongs committed on a day certain and on divers other days and times between that day and the commencement of the suit, defendant is not entitled to a bill of particulars.</p>

Writ of Error to the Superior Court of the State of Delaware, in and for New Castle County. This action was brought in the court below to recover damages for cutting and mutilating certain shade and fruit trees, and the plaintiff had a verdict (see 1 Boyce 107). A writ of error was sued out. Judgment affirmed. The case is stated in the opinion.

Indictment for embezzlement as bailee, it being charged that the defendant, as the bailee of the property of the person therein named, embezzled and fraudulently converted the same to his own use. It was shown that the prosecuting witness gave $5.00 to the defendant to have it changed for her; that he, having accepted the money for that purpose, kept it and fraudulently converted it to his own use.

Indictment for Perjury. The state offered evidence tending to prove that the defendant on the eleventh day of November, A D. 1908, at Laurel, made statements under oath to the then Deputy Attorney General, charging one Howard Whaley, with attempting by the use of money, at Laurel, on the third day of November, 1908, to influence the vote of the said defendant at the general election then and there held.

Action of Assumpsit upon a promissory note. General Demurrer to the four special counts of plaintiff’s declaration. The case is stated in the opinion.

Indictment for conspiracy to commit larceny. Verdict of guilty. Writ of Error sued out of Supreme Court by defendant. (See report of case in Supreme Court, 3 Boyce — ). The statement of the prosecuting witness, at the trial, as to the facts and circumstances constituting the alleged conspiracy, was in substance as follows: ' “I live at 217 West Second Street, Wilmington, and my business is that of a baker. I have lived in Wilmington fourteen years.

<p>Costs — Right to Costs — Actions “Cognizable Before a Justice of the Peace.”</p> <p>Rev. Code, 1852, amended to 1893, p. 852, c. 114, § 7, provides that if one sue in any court upon a cause of action cognizable before a justice of the peace under chapter 99, and shall not recover more than $50, besides costs, he shall not recover costs, unless he shall have previously filed with the prothonotary a written affidavit that plaintiff had a just cause of action against defendant exceeding in amount $50. Rev. Code, p. 813, c. 110, § 22, provides that the real estate of a decedent shall not be bound by a judgment against his executors or administrators, unless such judgment be rendered upon a verdict or referee’s report or a rule of reference. Held, that the purpose of section 7 was to compel creditors to resort to justices' courts to collect small debts, so that where the maker of a note was dead,, and it was impossible to satisfy the note out of his personal estate, and the executor had not sold the realty for the payment of debts, so that the only remedy was to obtain a judgment, which would be a lien upon the realty, a suit on the note to obtain such judgment was not one “cognizable before a justice of the peace,” within that section, though the amount recovered was less than $50 and no affidavit was filed as provided, and hence plaintiff was entitled to costs.</p>

Mandamus Application for leave to amend the alternative writ so as to conform to the petition which had been amended by leave of court.

Action on the Case to recover damages for personal injuries alleged to have been sustained through the negligence of the defendant. On demurrer to second and third counts of plaintiff’s declaration. Overruled.

<p>Appeal from a Judgment of a Justice of the Peace in an Action of Debt for rent.</p> <p>Case Stated.</p>

Petition for Rule to show cause why James E. Tull, Alderman of the town of Laurel, should not be attached for contempt for certain omissions, neglects and defaults; the character of which appear in the opinion of the court.

<p>Action upon a Contract for the Sale and Delivery of Goods and Wares</p> <p>The facts appear in the charge of the court.</p>

<p>1. Pleading — “Special Traverse” — Requisites.</p> <p>A “special traverse” must always consist of an inducement, which is the affirmative part of the pleading, and a negative, which is called the absque hoc, and a conclusion to the country.</p> <p>2. Pleading — Special Traverse — Requisites.</p> <p>The opposite party may not traverse the inducement of a special traverse.</p> <p>3. Pleading — Special Traverse — Replication.</p> <p>The special traverse may be employed in a plea, as well as in a replication.</p> <p>4. Pleading — Special Traverse.</p> <p>A plea in replevin, which defends the wrong and says that plaintiff ought not to maintain his action, because the chattels were in a stranger and not in plaintiff, is a special traverse; the averment that the property was in a stranger being the inducement, and only argumentatively denying the allegation in the declaration that the property was in plaintiff, and the part of the plea averring that the property was not in plaintiff being the absque hoc.</p> <p>5. Pleading — Special Traverse — Absoue Hoc.</p> <p>To constitute a special traverse by the absque hoc, it is not necessary that the words “without this” should be employed, and it is the same if the words “and not” are used.</p> <p>6. Replevin — Pleading—Replication.</p> <p>Where, in replevin, defendant filed a special traverse, alleging the ownérship of the chattels in a stranger, and averring that the property was not in plaintiff, a replication, averring that the property was at the time of the taking in plaintiff as alleged in the declaration, was proper.</p>

the prisoner having been indicted upon two indictments for the murder of Ann ,M. Casey and ¡Robert Casey, Jr., respectively, pleas of not guilty were entered, and on motion of his counsel, leave was granted the prisoner to withdraw his pleas, in order to make the motions as set out in the following opinion of the court. Verdict of guilty, and writ of error sued out of Supreme Court by defendant.

Indictment for Larceny of certain cloth the property of Joseph Bancroft and Sons Company.

Foreign Attachment. Assumpsit, to recover for services rendered and materials furnished by plaintiff to defendant in connection with the storage of and repairs to a certain boat owned by the defendant.

the prisoner was placed upon trial upon an indictment charging him with murder of the first degree, being No. 90, September Term, 1910; it being alleged that on Sunday, the seventh day of August, 1910, he did kill one August Frisby in Appoquinimink Hundred, New Castle County, by shooting him with a pistol in the head, inflicting a mortal wound from which the said Frisby soon thereafter died.

1 and 2, Chap. 100, Revised Code (1893), giving to justices of the peace original, and to the Superior Court, appellate “jurisdiction of actions of trespass * * * for direct or immediate injuries to real property, when the damages claimed in such action do not exceed one hundred dollars.” The case is stated in the charge of the court.

Summons Case Rule to show cause why the service of summons made upon D. M. Wilson as president of The Sentinel Printing Company should not be vacated, issued upon motion supported by the affidavit of the person served to the effect that he is not and was not president of the defendant company at the time said process was served upon him.

Action on the Case based upon the alleged negligence of the defendant in setting fire to grass and brush on his land, to recover damages for injuries to timber growing on adjacent land of the plaintiff. The facts appear in the charge of the court.

<p>Indictment for Breaking and Entering a Dwelling House in the Nighttime with Intent to.Commit Larceny.</p> <p>The case is stated in the charge to the jury.</p>

Action of Replevin This action of replevin was brought by the plaintiff who was tenant of certain farm lands and marsh, in this county, against the defendant, bailiff of the landlord, who had caused a distress to be made of certain personal property of the plaintiff for rent in arrear for the years 1907 and 1908. The plaintiff (tenant) replevied the property distrained upon, and upon giving bond retained it.

Action on the Case to recover damages for personal injuries to plaintiff, also for injuries to his milk wagon and contents from colliding with a trolley car of the Peoples Railway Company, at Ninth and Orange streets, in the City of Wilmington, on September 6, 1908. The case is stated in the charge of the court.

Action of Ejectment by John Doe, on the demise of Madison Willin and others, Trustees of St. John Methodist Episcopal Church of Seaford, Sussex County, Delaware, against Richard Roe and Jesse A. Wright, tenant in possession. Verdict for plaintiffs. A motion for nonsuit was denied by the court.

Writ op Error to Superior Court for New Castle County below). Action by Robert L. Buchanan against the Philadelphia, Baltimore and Washington Railroad Company, to recover damages for personal injuries to plaintiff, death of his horse, and injuries to his wagon, from an accident at a crossing. Judgment for plaintiff below affirmed. The facts of the case and the assignments of error relied upon fully appear in the opinion.

Action of Assumpsit by David D. King, Jr., against Wynema Council, No. 10, Daughters of Pocahontas, Improved Order of Red Men, to recover funeral benefits alleged to be due under the general laws and by-laws of the defendant order. Demurrer to certain pleas overruled.

Action on the Case to recover damages for personal injuries alleged to have been sustained by the plaintiff, while in the act of boarding a trolley car of the defendant company at Eighth and Market streets, in the City of Wilmington. The case is stated in the charge to the jury.

Action by Mary C. Keatley against The Grand Fraternity. Demurrers to certain pleas and replications. Demurrers to pleas sustained, and to replications overruled. The case is stated in the opinion.

Action on the case to recover damages alleged to have been sustained by the plaintiffs to certain shipments of cattle from Chicago, while being transported over the defendant’s line of railroad to Price’s, Millington, Barclay, and Centreville, in the State of Maryland. The damage complained of was alleged to have been caused by improperly caring for and handling said cattle while in transit to said destinations. The facts are sufficiently stated in the charge to the jury.

Action on a joint promissory note. When the case was called to trial, having been pleaded to issue, Mr. Richardson, for respondent, moved to dismiss the appeal, on the ground that one of the defendants took the appeal and gave surety as follows: “On the twenty-eighth day of September, 1908, the said Mary A. Gray appeals and C. P. Swayne and John T. Records become sureties * * * in the sum of * * * that the said appeal shall be prosecuted with effect, and also that any…

Action of Assumpsit by Belle Langrell against James D. Wright, administrator of George W. Moore, deceased, for services rendered the deceased during his lifetime by the plaintiff.

Writ of Error to the Superior Court of the State of Delaware, in and for New Castle County. Actionby Henry M .White against Charles B. Dougherty, Executor of Thomas McHugh, deceased, to recover for work and labor done and services performed for the deceased during his lifetime. Judgment for plaintiff (1 Boyce 355). Reversed — The facts and questions presented appear in the opinion of the court.

Indictment for assault with intent to commit rape upon a girl seventeen years old in her dwelling in the town of Dover, at about eleven o’clock in the forenoon, of January 30,1911. The prosecuting witness swore that the prisoner came to the house, entered the front door and asked where her father was. She told him he was away from home at work, and closed the door.

Action of Assumpsit to recover from the defendants the price of a seasoning machine to be used in defendants’ business for finishing leather, alleged to have been sold to the defendants by the plaintiff, the property in said machine being laid in the plaintiff. Narr. in common counts, with bill of particulars. Pleas, non-assumpsit, payment, release and statute of limitations.

Indictment for assault and battery. At the trial it was proved by the state that on May 21, 1910, while the prosecuting witness was digging up a fence post on or near the boundary line separating his land from the defendant’s at the outskirts of Georgetown, and while in a stooping position, he was struck from the rear upon the side of the head with a brick in the hands of the defendant and knocked unconscious.

<p>Certiorari to Edwin F. Wood, a justice of the peace, in and for Kent County.</p> <p>The facts appear in the opinion of the court.</p>

Summons Case Motion to refuse judgment notwithstanding affidavit of demand.

Action on the Case by an infant through next friend, to recover damages for personal injuríes received while attempting to get on a merry-go-round while in motion.

Writ of Error to Superior Court, for Sussex County Action by John Doe, on the demise of the Town of Seaford, a corporation and trustee of Boachim Burial Ground, against Richard Roe, casual ejector, and Jesse A. Wright, tenant in possession Judgment for plaintiff (1 Boyce 216). Affirmed. Thef acts and questions presented appear in the opinion of the court.

Writ of Error to the Superior Court for New Castle County. Action by Frances Theresa Gatta against Philadelphia, Baltimore and Washington Railroad Company (No. 57, September Tenn, 1907) to recover damages for death of plaintiff’s husband. Judgment for defendant (1 Boyce 293, 76 Ail. 56), and plaintiff brings error. Reversed. The facts and questions presented appear in the opinion of the court. (See trial of same case, post 551.)

Writ of Error to Superior Court for Kent County. Action by Edward W. Evans against Philadelphia, Baltimore and Washington Railroad Company (No. 13, October Term, 1909), for the recovery of damages for the death of plaintiff’s wife. Judgment for the defendant (1 Boyce 562, 77 All. 831) and plaintiff brings error. Affirmed; Curtis Ch., dissenting. The facts and questions presented appear in the opinion of the court.

Action of Assumpsit to recover for the value of a tomato crop alleged to have been sold by John Price, the plaintiff, to Caroline E. Speakman and others, trading as Mrs. Peterson Speakman and Son, the defendants. The facts and questions presented appear in the charge of the court.

<p>Action of Assumpsit to recover for services in nursing and attending to deceased in her lifetime.</p>

<p>1. Witnesses — Contradictory Statements — Accused as Witness.</p> <p>Where accused is a witness, the grounds ordinarily necessary for contradiction by prior statements need not be laid, the statements^ being received in the nature of admissions and when material, they are admissible, whether the party appears as a witness or not.</p> <p>2. Criminal Law — Evidence—Admissions—Contradiction.</p> <p>Where the admission of accused that he told another that he was without money was in evidence, the state might, if such evidence was material, show the falsity of the statement.</p> <p>3. Criminal Law — Evidence—Order of Proof — Rebuttal.</p> <p>Where, in a murder trial, defendant on cross examination gave evidence tending to relieve him of the incriminating circumstances of the possession of a large amount of money, and to that extent tended to prove that he was not at deceased’s house on the night of the crime, the falsity of his statement might be shown in rebuttal, though such rebuttal evidence further tended to strengthen the case first set up by the state in chief.</p> <p>4. Criminal Law — Evidence—Rebuttal—Discretion of Court.</p> <p>It is in the discretion of the court to admit evidence in reply which should properly have been given in chief.</p> <p>5. Criminal Law — Trial—Contradiction of Testimony — Materiality.</p> <p>Where there was evidence that a wallet belonging to deceased, in which he usually kept his money, was missing, that a lock of his safe had been knocked off, that a check was found on the floor by the safe, and that footprints made by shoes belonging to accused led toward deceased’s house from, a cherry tree, from which a limb used in the killing was broken, testimony of accused on cross examination that he had stated after the murder he had no money was material, and the state was properly allowed to show by a witness, in contradiction, that after the murder accused had a considerable amount of money in his possession.</p>

<p>1. Malicious Mischief — Nature and Elements of Offense.</p> <p>“Malicious mischief,” in the absence of statutes, is a common-law offense, and is an indictable offense under the statute by which all offenses, indictable at common law and not specially provided for by statute, are deemed misdemeanors. It is any malicious or mischievous injury, either to the rights of another or to those of the public generally. It embraces all malicious physical injuries to the rights of another,-and malice is an essential element of the offense.</p> <p>.2. Criminal Law — Trial—Province of Jury in General — Weight and Sufficiency of Evidence.</p> <p>The jury in a criminal case is the sole judge of the weight of evidence, and when the evidence is conflicting it should be reconciled, if that can be done; if not, so much of it as is deemed worthy of credit should be accepted as true, and any which is deemed unworthy of credit, should be rejected.</p> <p>3. Malicious Mischief — Nature and Elements of Offense — “Malice.”</p> <p>Malice, as an element of malicious mischief, is not restricted to ill will or revenge against the owner or possessor of the property injured; but a willful or wanton injuiy to property, under circumstances indicating a malignant spirit or mischief, is sufficient to constitute malicious mischief, and such malice may be either expressed or implied.</p> <p>4. Malicious Mischief — Elements—Malice—Evidence.</p> <p>Express malice, as an element of malicious mischief, may be shown by the declarations or confessions of the accused in connection with the unlawful act, and implied malice by the doing of a willful or wanton unlawful act.</p> <p>5. Malicious Mischief — Defenses—Bona Fide Claim of Right.</p> <p>Where the act complained of in a prosecution for malicious mischief is done under a bona fide claim of right, such claim repels the presumption of malice and, if proved, is a good defense; but, if the accused does more damage than is reasonably necessary for the assertion or protection of such claim of right, he is without defense.</p> <p>6. Criminal Law — Evidence—Weight and Sufficiency — “Reasonable Doubt.”</p> <p>“Reasonable doubt” means a substantial and well-founded doubt arising from a candid and impartial consideration of the evidence, or want of evidence; and such a doubt in the minds of the jury as to the guilt of the accused entitles him to an acquittal.</p>

Rule to show cause why Sheriff’s Sale should not be set aside. The facts and questions presented appear in the opinion of the court.

Case Stated The essential portions of the agreed statement of facts are set forth in the opinion of the court. The amount of the tax claimed for the state was one thousand four hundred and ninety-four dollars and forty-four cents, with interest at the rate of one per centum per month from the first day of May, A. D. 1910. The contention of the defendant was that it owed the state one hundred and fifty dollars with interest as aforesaid.

The accused were indicted jointly for murder of the first degree.

Action of Ejectment Case stated; filed April sixteenth, 1907.

Action on the Case for damages alleged to have resulted from the negligence of the defendant company. Demurrer to a count in the declaration overruled.

Action of Assumpsit on the common counts, to recover the price of a second-hand threshing machine.

Indictment for driving off a horse. At the trial the facts adduced were briefly as follows: The defendant had certain negotiations with the prosecuting witness, one Elias J. Taylor, which resulted in an offer on the part of the defendant to exchange a horse owned by him for the horse of the prosecuting witness (mentioned-in the indictment) and promised to give the latter a horse rake in addition.

Indictment for false pretenses in misrepresenting the age of a horse, which was exchanged with the prosecuting witness for a pair of oxen, as twelve years old when in fact it was from fifteen to seventeen years old.

Indictment for Murder of the First Degree for shooting with a shot gun one John Curry on Lockerman Street in Dover, between eleven and twelve o’clock on the night of October 12th, Í910. The facts and questions presented appear in the rulings and charge of the court.

Summons Case brought to recover the sum of three hundred and forty-eight dollars and ninety-three cents for work and labor and for the use of a machine, alleged by the plaintiffs to have been performed and used by the defendant in making concrete building blocks for the erection of a building for the defendant. See further facts in the charge of the court.

<p>Intoxicating Liquors — License to Sell — Application—Sufficiency.</p> <p>That one of the signers of a recommendation of an applicant for a license to sell intoxicants did not read or have the same read to him, as required by Rev. Code 1852, amended to 1893, p. 413 (14 Del. Laws, c. 418) § 4, is not ground for refusing the license, where there were sufficient signers who complied with the requirement.</p>

<p>Criminal Law — Continuance—Affidavit—Absence of Witness.</p> <p>An affidavit for a continuance, alleging that deponent is unable to secure the attendance of B., a nonresident witness, at that term of the court, but believes he will be able to secure the witness at the next term, and that the nature of the testimony of such witness is that deponent did not commit the act charged, and that witness was in deponent’s company at the time the act was alleged to have been committed, is not objectionable for failure to clearly state what facts the absent, witness will testify to, or because the allegation as to the time when the alleged act was committed is insufficient.</p>

Indictment for Engaging in a Lottery. The prisoner was indicted for a violation of the statute against lotteries and was charged with the particular offense of conducting a baseball pool, the plan of which was as follows: On or before Saturday of one week, a person who desired to take a chance in the play of the next week, paid the prisoner thirty cents, and in return received from him a ticket upon which were printed the names of the baseball clubs of the National and…

Scire Facias Sur Mortgage Rule to show cause why a judgment and the execution issued thereon should not be vacated. The judgment was moved for and entered for want of an affidavit of defence. The only service of process attempted to be made on the defendant was, as shown by the sheriff’s return, endorsed thereon: ‘ ‘ Service accepted (signature of attorney), attorney for William E. Dyer, May 18, 1907.”

Writ of Error to Superior Court for New Castle County. Action by the Model Heating Company against Thomas Magarity (No. 43, June Term, 1908). Judgment for defendant (1 Boyce 240, 75 Atl. 614), and plaintiff brings error. Reversed and demurrer to special plea in abatement sustained.

<p>Motion to Quash Indictment</p> <p>Augustus Ferschke was indicted for violating an act for the registration of persons composing partnerships, etc. The indictment was quashed, the court holding that the act is in contravention of Section 16, Art. 2 of the Constitution of the state. The facts and the questions presented appear in the opinion of the court.</p>

Indictment for selling spirituous liquor, to wit, Jamaica ginger, the same not being for medicinal or sacramental purposes.

Summons Case Motion that judgment be refused notwithstanding affidavit of demand, the claim sued upon being for money loaned or advanced, which is not properly chargeable in a book of original entries. Judgment was refused.

Summons Case This was a general demurrer to the replication of the plaintiff to a special plea of the defendants. The said plea was in the following language: 5.

the prisoner, a colored man, was placed upon trial upon the charge of murder of the first degree. At the trial the state produced evidence to the following effect: That on the sixteenth of July, 1911, at Lewes, the prisoner shot and wounded one Charles L. Wilson, who as a result of said wound died within two days.

Indictment por Abortion; the charge relied upon being that the defendant unlawfully, feloniously and with the intent to procure the miscarriage of Maggie E. Blades, she being a pregnant woman, then and there supposed by the defendant to be pregnant, did use a certain instrument upon the said Maggie E. Blades with intent to procure the miscarriage of her, the same not being necessary to preserve her life.

Action on the case to recover damages to wheat and straw from fire caused by sparks emitted from a traction engine alleged to be owned and operated by the defendant. The wheat and straw were destroyed at the time of the threshing.

Summons Case Application for judgment at first term, before the last day of the term, on affidavit of demand, for the amount admitted to be due by the plaintiff in his affidavit of defense; the motion for judgment by default not having been made until after the second Friday of the said term, as provided by statute and Rule 27 of the Superior Court.

Action of Covenant (Same case heard on demurrers to pleas and replications, ante 267, 78 Atl. 874, also writ of error to judgment in this case, 3 Boyce — .) This action was brought by the plaintiff, who was the widow of William J. Keatley, deceased, to recover the sum of two thousand dollars insurance, under a death benefit certificate of membership issued by the defendant to the plaintiff’s husband in which she was named as the sole beneficiary.

<p>Action of Assumpsit for use and occupation, it being an Appeal from a judgment rendered by a justice of the peace.</p>

Summons Case Motion that judgment be refused, notwithstanding affidavit of demand. The affidavit' of demand, omitting the caption, accompanied by bill of particulars, was in the following form: State of Delaware, 1 - ? SS.

After disposing of the demurrer to the pro narr, the case was put to issue and left upon the trial calendar. The facts fully appear in the charge to the jury. The defendant demurred to the plaintiff’s declaration upon the following.grounds, viz.: 1.

<p>Demurrer to the whole declaration for misjoinder in an action for false imprisonment</p>

<p>Indictment for Assault With Intent to Commit Murder</p> <p>At the trial it was proved on the part of the state that on Sunday, October 15, A. D. 1911, in Blackbird Hundred, New Castle County, the defendant after having a dispute with one W. over a crap game in which they were engaged, went to his own house a short distance away; that W. shortly after also went to defendant’s house, and as he opened the door saw the defendant standing in the corner with his shot gun aimed at the door and pointing directly at W.; that W. advanced toward him and pushed the gun aside; that the defendant pulled the trigger and the gun was discharged, shooting and wounding one John Spencer, who was sitting in the room, but who had had no altercation or trouble with the defendant.</p> <p>The prisoner in his defense claimed that he picked his gun up from the corner of the room to put it away, when a woman named Mary Waters, grabbed his arm and the gun was accidentally discharged.</p>

Indictment, impersonation of voter at municipal election. (For trial of same case, see 3 Boyce—and 82 Atl. 528.) Motion to quash indictment. The grounds upon which the motion was based were as follows: First. Because the law relating to impersonation of voters applies only to general elections. Second. Because there was no valid city election held in Wilmington in the month of June, 1911.

The defendant below was found guilty by the justice of the charge of “having in his possession, on January 3, 1911, after the same had been killed, six quail and five rabbits,” and fined fifty-five dollars and costs. Information filed by the Attorney General March 2, 1911, charging the appellant as above.

Action for Divorce Petition dismissed for defective averments therein.

Action for damages for death of plaintiff’s husband, alleged to have been occasioned through the negligence of the defendant company. At the trial, after the jury had been sworn and before proceeding to hear any testimony in the case, counsel for the plaintiff stated to the court that they relied wholly upon the amended declaration heretofore filed.

This was a motion to strike out a plea to the jurisdiction in an action brought to obtain a mechanics’ lien, being The questions presented appear in the opinion of the court.

Summons Case Demurrer to pleas in bar to the counts in the amended declaration, filed by the plaintiff. (The facts and questions of law presented appear in the opinion of the court.)

Action of Trespass on the Case to recover damages for injuries alleged to have resulted to the plaintiff by reason of the negligence, etc., of the defendant, in setting fire to brush, etc., on the lands of the latter. (The facts and contentions of the parties appear in the charge of the court.)

Action on the Case by administrator of Anina Gismondi, deceased, — a child two years old — to recover damages for the death of said deceased alleged to have been occasioned by the negligence of the defendant. (The facts and contentions of the parties appear in the charge of the court.)

Petition for Divorce. The sheriff made return of non est on the summons — alias summons issued and return thereon of personal sendee, and publication was not made as required by the statute. The case is stated in the opinion.

Summons Case Motion that judgment be refused notwithstanding affidavit of demand.

Indictment for Wife Beating One of the issues was whether the accused was the husband of the prosecutrix who was unable to make formal proof of their marriage. They had lived together as husband and wife, and seven children had resulted from the relation. The question of marriage was submitted to the jury to be determined by them from the evidence and instruction of the court upon the law.

Indictment for selling spirituous liquor, to wit, whiskey, the same not being sold for medicinal or sacramental purposes At the trial of the case, the prosecuting witness, John R. Reed, was asked by Mr. Jones, on direct examination, the following question: “Q. Did you want that whiskey for medicinal or sacramental purposes?

Warrington, Sr., deceased, and the codicils thereto, the court sustaining the rulings and decree of the Register. Application for allowance to counsel for petitioner was denied except for expenses.

Anthony, a justice of the peace for Kent County. The facts and contentions of the parties appear in the opinion of the court.

Action for Divorce on the ground of extreme cruelty, the character of which, without any alleged acts of violence, is set out in the petition, filed by the plaintiff and quoted in the opinion of the court.