Volume 26 — Delaware Reports

Writ of Error, to Superior Court for New Castle County.—No. 108, June Term, 1908 below. Information in the nature of a Writ of Quo Warranto. The facts of the case and specifications of the assignments of error fully appear in the opinion.

Action of Replevin to recover from defendants the possession or value of a lot of gas and electric fixtures, to which the plaintiff alleged he was entitled, under a certain assignment for the benefit of creditors made to him by the Warner Company, a corporation under the laws of New Jersey. A verdict was directed for the defendants, and subsequently a new trial was ordered. The facts and questions presented appear in the opinion of the court.

Action on the Case to recover damages for personal injuries to the plaintiff, alleged to have been occasioned by the negligence of the defendant, while plaintiff was walking between the car tracks of the defendant company. The negligent acts complained of are set forth in the charge of the court.

Action on the Case brought by Milton N. Walls for personal injuries alleged to have been received by the said plaintiff while in the employ of the defendant as a motorman on one of its trolley cars running between Brandywine Springs and Wilmington, occasioned by a collision with the rear end of another trolley car, alleged to have been due to the negligence of the defendant. The facts and questions presented appear in the charge of the court.

Indictment for Embezzlement as Bailee The facts were substantially as follows: According to the evidence of the state, William H. Murphy, the landlord of the defendant, as a result of a conversation with the defendant in which he made a suggestion to the latter that there was not enough stock on his farm to make sufficient manure for the enrichment of the farm,—agreed to buy and place upon the farm two cows.

Action of Ejectment brought to recover- possession of a narrow strip of land, in Baltimore Hundred. The facts fully appear in the charge of the court.

<p>1. Replevin—Form and Scope of Remedy.</p> <p>Replevin is a form of action to recover possession of personal chattels that have been unlawfully taken or detained from their owner. The action is founded on the general or special property of the plaintiff, and his consequent right to immediate and exclusive possesion, and the action is therefore one in which the title or property of a chattel is determined.</p> <p>2. Replevin—Plaintiff’s Title and Right of Possession.</p> <p>The issue of property in replevin, notwithstanding defendant’s plea of property in himself, is not whether the property in the chattel is that of the plaintiff or the defendant, but whether the property is in the plaintiff, with a consequent right to its immediate possession, regardless of the title and property of the defendant.</p> <p>3. Replevin—Evidence—Burden of Proof.</p> <p>Plaintiff, in replevin for a horse, must prove by a preponderance of the evidence that at the time the action was brought he had and retained a property; or title in the horse in controversy of a character to give him a right to its immediate and exclusive possession, while the defendant may prevail upon the weakness of plaintiff’s title.</p> <p>4. Replevin—Defenses—Possession in Third Party.</p> <p>Defendant in replevin may set up property and right of possession in himself or in another, in order to disprove title or property in the plaintiff, and in this way meet the issue of property in the plaintiff.</p> <p>5. Replevin—Weight of Evidence—Property.</p> <p>In replevin, property in the chattel, whether that required to be proved by plaintiff or that which may be proved by the defendant, is established by direct evidence, as by contracts of sale, admissions against interest, or by evidence of acts and relation of the parties, from which property and the right of possession in one or the other may reasonably be inferred.</p> <p>6. Evidence—Weight of Evidence—Conflicting Evidence.</p> <p>The jury, when the evidence is conflicting, should reconcile it if it can, and, if it cannot, should accept that which is most worthy of credit, and reject that which is least worthy of belief, having regard to the fairness, intelligence, and interest of the witnesses.</p> <p>7. Replevin—Verdict for Plaintiff—Damages.</p> <p>Where the jury in replevin find the property to be in the plaintiff, and that he was entitled to its immediate possession at the time the writ was ■issued, its verdict should be for the plaintiff, not for the return of the horse, which he already has, but for nominal damages because of its unlawful detention by the defendant.</p> <p>8. Replevin—Verdict for Defendant—Damages.</p> <p>Where the jury in an action of replevin find against the plaintiff’s property and right to immediate possession at the time the writ was issued, a verdict should be for defendant for damages in an amount equal to the value of the chattel, with interest from the day it was replevied.</p>

Sci fa sur Mortgage After giving evidence to prove the execution of the mortgage and the non-payment of the debt secured by it, the plaintiffs rested. Counsel for defendant moved for a nonsuit on the following grounds: First. That it had not been shown by the plaintiffs that James H. Tyre was a member of the Mutual Loan Association. Second.

Action of Ejectment The question of fact involved fully appears in the charge of the court, it being whether the deed of the defendant to the plaintiff, conveying the premises in question, was delivered to the plaintiff to take effect immediately, or was delivered to another to be held until the plaintiff had performed a certain condition, required by the defendant.

Indictment for Malicious Mischief At the trial the state proved that the prosecuting witness, Margaret Chappelle, having previously had trouble with the defendant, left her home on Market Street, in the City of Wilmington, Delaware, leaving in the back yard of the house in which she and Cubberly, the defendant, separately lived as tenants, a cupboard of small intrinsic value which she prized highly as a family heirloom, and that while she was away, the defendant hired a…

Rape At a Court of Oyer and Términer, for New Castle County, beginning May 15, 1911, the prisoner was placed upon trial upon an indictment charging that on the night of January 25, 1911, in Brandywine Park, he did rape or ravish one Laura Clichener.

Action on the Case to recover damages for personal injuries alleged to have been received by the plaintiff on September 6, 1910, while a passenger on a car of the defendant, by being thrown from the car on the street bed on Vandever Avenue near Carter Street, in the City of Wilmington, through the sudden jerking or starting up of the car after the same had been slowed down at or near said street comer. The facts and questions presented appear in the charge of the court.

Action of Assumpsit to recover the sum of two hundred and sixty-six dollars and eighty-six cents with interest from June 1, 1910, for work and labor done and materials furnished by the plaintiff for the defendant, in making alterations in a machine.

from a judgment of a justice of the peace. The plaintiff brought his action before the justice against the defendant for one hundred and seventy-three dollars and twenty-two cents, balance alleged to be due on a contract or agreement entered into with the defendant for cutting and sawing lumber, railroad ties, fence posts, and cord wood.

Mandamus to compel the defendant to permit the relator to examine its books. Motion to substitute Irene Brumley, Executrix of Horace T. Brumley, deceased, as relator in the above cause. (See motion to quash the return to thealtemative writ, (7 Penn. 397) which was refused. Writ of error, and the determination of the court below was reversed in part, and remanded (1 Boyce, 379). Application to amend the return. Denied. Post 160.

Rule to show cause why a judgment entered upon a transcript from a justice of the peace, should not be stricken from the records of the Superior Court and vacated. The facts and questions presented appear in the opinion of the court. '

from a judgment of a justice of the peace. Action of assumpsit for materials furnished and work done under an agreement between the plaintiff and the defendant for making three air pumps containing pursuant to plans a certain number of cylinders of specified dimensions with an air pressure of seventy-five pounds to the square inch, no specific amount or price therefor being agreed upon.

Sci fa sur Mortgage to recover the debt of the mortgage on real estate owned by one who purchased the property burdened by the mortgage. The facts and questions presented appear in the charge of the court.

Writ of Error to the Superior Court for New Castle County. Action by Angelo Cecchi by his next friend, Rafaelo Cecchi, against Nancy E. Lindsay and her husband (No. 74, September Term, 1909) to recover damages for personal injuries alleged to have resulted from the negligent operation of an automobile. Judgment for plaintiff (1 Boyce 185, 75 Ail. 376), and defendants bring error. Reversed. The facts and questions presented appear in the opinion of the court.

<p>1. Sales—Conditional Sale—What Constitutes.</p> <p>Where the terms of a contract for the sale of goods provide that the title is to remain in the vendor until payment is made, and that the goods shall be immediately returned to the vendor or placed at its disposal on the financial embarrassment of the vendee, it is a conditional sale as between the parties.</p> <p>2. Contracts—Construction—Intention of Parties.</p> <p>It is the duty of courts to construe contracts to carry out the intention of the parties, and such intention must govern, when ascertainable from the agreement, unless in contravention of an established principle of law or against public policy.</p> <p>3. Sales—Conditional Sale—Creditors of Buyer.</p> <p>While a provision of a contract for the sale of goods, which are to be resold at retail, that title shall remain in the vendor until payment is made, cannot be enforced by the original vendor against a purchaser in the ordinary course of trade, because of its inconsistency with the express purpose for which the goods were sold, the vendor is estopped from-asserting his title only to that extent; and where the contract of sale, which was entered into in good faith, shows that it is the intention of the parties that title be retained in the seller until the buyer sold the property in the regular course of his business, and until that unsold was paid for, it cannot be construed to allow a creditor of the vendee to levy on the property and sell it for the payment of his debts, and the vendor may assert his title against such creditor, who has previously obtained the goods under execution.</p>

Certiorari directed to a justice of the peace to send up a transcript of his record in an action before him by Granville Matthew against Thomas W. Fleetwood, wherein judgment was rendered for the plaintiff. The defendant brings exceptions which were overruled.

Action for Divorce and a decree nisi was granted March 6, 1911. At the succeeding March Term of the court, before the expiration of one year from the granting of the decree, the attorney for the plaintiff and her next friend joining in the petition, moved for the removal of next friend and the substitution of the plaintiff to prosecute her suit to final judgment. Motion granted.

Isaac Anderson and Amanda Ray were charged by information, filed in the Municipal Court of the City of Wilmington, with selling intoxicating liquors in said city without disclosing the kind of intoxicating liquor that was sold. Judgment against defendants. They bring exceptions to the jurisdiction of the Municipal Court. Reversed.

Mandamus Application for leave to file an amended return after a final judgment by the Superior Court on a motion to quash the return, and after final decree in the Supreme Court on a writ of error reversing the judgment of said lower court and quashing the return. Application denied. See motion to quash the return to the alternative writ (7 Penn. ■ 397). Refused. Writ of error. (Motion to dismiss, post.) Reversed in part and remanded (1 Boyce, 379).

Writ of Error to the Superior Court for New Castle County. Action of assumpsit brought by the Monad Engineering Company against Stewart and Donohue to recover damages for failure to perform a written contract. Judgment for plaintiff. (See 2 Boyce 35, 78 Ail. 598). Affirmed. Statement of Facts.

Indictment for Assault with Intent to Commit Murder. At the trial it was proved that on Sunday afternoon, the third day of March, 1912, one Niglio, the prosecuting witness, rode out from Wilmington, with a companion, to a house in Christiana Hundred where the defendant was; that De Paolo had a grievance against Niglio because of certain things he believed Niglio had said about him; that as soon as Niglio entered the house De Paolo said, “You are the man I am looking for”;…

Action on the Case to recover damages for personal injuries to the plaintiff. At the trial, the plaintiff testified concerning the accident, in substance, as follows: I am twenty-three years of age; will be twenty-four the thirtieth of the coming May. On the twenty-fifth of February, 1910, I was employed by the Harlan and Hollingsworth Corporation in the blacksmith shop as a blacksmith’s helper. My employment there dated from sometime in November, 1909.

Summons Case Special demurrer to certain counts of plaintiff’s declaration. The questions presented appear in the opinion of the court. (For trial, see same case post.)

Indictment for Murder in the First Degree. [1] At the trial, the Deputy Attorney General proved by a witness that, at the latter’s suggestion, when the defendant’s victim realized that he was mortally wounded and could not recover and only four or five days before his death, he dictated to the witness a statement which the witness wrote down and read to the wounded man, who stated that the statement was correct.

Action on the Case to recover damages for death of plaintiff’s intestate, alleged to have been occasioned through the negligence of the defendant company, while employed by the defendant company on a narrowguage railroad of the defendant company for the purpose of carrying stone from its quarry to the wharf. Further facts appear in „opinion of the court on a motion for nonsuit which was granted.

Indictment for impersonation of voters at the Municipal Election. The facts and questions presented appear in the charge of the court. See same case (2 Boyce, 541, and 82 Ail. 223) on motion to quash indictment on the grounds (1) that the law relating to impersonation of voters applies only to general elections, and (2) that no valid city election was held in June, 1911.

Indictment for conducting a place of amusement without a license.

Action in Assumpsit Demurrer to plea, averring a former adjudication in the courts of Tennessee. The questions presented appear in the opinion of the court, sustaining the demurrer.

Action on the Case to recover damages for personal injuries to the plaintiff, engaged in laying a gas pipe, alleged to have been occasioned by the negligence of the defendant company in operating its cars on Second Street between Adams and Monroe streets, in the City of Wilmington, on the fourth day of May, A. D. 1911. , The facts appear in the charge of the court.

Summons Case Demurrer to plaintiff’s replication to certain of defendant’s pleas, for causes which appear in the opinion of the court.

Indictment for Assault with Intent to Commit Murder. Olan Stockley was charged in the indictment with having committed on the twenty-fourth day of September, 1910, in Sussex County, an assault upon John T. Williams, with intent, him to murder, by striking Williams in the forehead, crushing the skull, leaving a large, deep sunken place in the forehead. There was much conflict of testimony as to the identity of the person who committed the assault. The accused was acquitted.

Summons Case This was a general demurrer to defendants’ fifth plea. Motion to strike out said demurrer on the ground that it raises an issue which has been heretofore determined by the court. (See 2 Boyce 489, also 82 Atl. 238. For writ of error, same case, see post, also 85 Atl. 666.)

Action on the Case to recover for personal injuries alleged to have been occasioned by the defendant company, on the first day of March, A. D. 1911, at the intersection of Fourth and Harrison streets at about 2.30 p. m., by car No. 22 of the West Fourth Street line running over left foot or ankle of the plaintiff, who had just alighted from car No. 24 of the West Fourth Street line at Fourth and Harrison streets, and after so alighting walked around the rear end of the…

At a Court of Oyer and Terminer for New Castle County, beginning January 29, 1912, the prisoner, a young colored man, was placed upon trial charged with murder of the first degree. The facts appear in the charge of the court.

Indictment for an Assault with Intent to Commit Murder. At the trial, the prosecuting witness, one Drejko, testified that he lived on a farm in Mill Creek Hundred, and that on October 28, 1911, about eight o’clock in the evening he took a lighted lantern, and with his young son, a boy about eleven years of age, went from his dwelling house to his bam, and that as he opened the bam door and started in he was struck a violent blow upon the head by some one whom he did not see,…

Action on the Case to recover damages for personal injuries to the plaintiff occasioned by his left arm coming in contact with the knives of a fleshing machine in defendant’s morocco plant, where plaintiff was employed at the time as a catcher of skins at said machine, whereby his arm was so injured that it had to be amputated at the elbow. Further facts in charge of court. At the trial, the following questions were objected to and ruled upon.

Action on the Case brought by the plaintiff who at the time was employed as a motorman by the defendant, to recover damages for personal injuries. Said injuries were alleged to have been sustained on account of the negligence of the defendant in not furnishing the plaintiff with reasonably safe appliances, to wit, brakes.

Mandamus Application to the Superior Court for a peremptory writ of mandamus to compel the respondent to allow the relator to inspect and make copies of certain books, etc., in conformity with the opinion of the Supreme Court in reversing the judgment of the said Superior Court in refusing to quash the return to the alternative writ. See motion to quash the return to the alternative writ (7 Penn, 397). Refused.

Certiorari. Willard Lofland was convicted of disorderly conduct, on complaint before a justice of the peace, under Chapter 247, Volume 25, Laws of Delaware, and he brings certiorari. The judgment below was reversed because the record fails to disclose that the misconduct complained of was committed in a “public place within the State of Delaware and outside the limits of any incorporated city or town”, thereby failing to show that the Justice had jurisdiction.

Petitions by J. R. Richardson Company and by Max Cohen to draw money out of court, paid in by the sheriff under the statuté. Both petitioners claimed the proceeds under execution process. No levy of the goods and chattels of the defendant in each execution was made by the officer holding the Richardson Company execution. The sheriff made a levy and sale under the Cohen execution. Cohen was awarded the proceeds of the sale in payment of his execution.

from a judgment of a justice of the peace. Action before a Justice of the Peace against the Peninsula Cut Stone Company. From the judgment of the justice in favor of plaintiff, defendant appeals. On motion to dismiss appeal because of the insufficiency of the justice’s certificate to the transcript. Motion denied.

Indictment for rape. At a Court of Oyer and Terminer, held at Wilmington, New Castle County, January 10, 1912, the prisoner, a colored man, was placed on trial upon the charge of making an assault upon Bettie Bowman, the prosecuting witness, and her the said Bettie Bowman did violently, forcibly and against her will feloniously ravish and carnally know. Verdict, guilty, with recommendation to mercy.

In a hearing before George M. Stengle, Justice of the Peace, in Sussex County, on complaint of the mother of a bastard child, Charles Bowdle was found to be the father of the child of the complainant and he was ordered by the Justice to give bond as provided by the statute.

Sci. Fa. Sur. Mechanics’ Lien The amount claimed by plaintiff was four hundred and fifty-eight dollars for materials furnished and labor expended, in the construction and erection of a building or structure called an incubator and brooding house, on the defendant’s premises in White Clay Creek Hundred, New Castle County.

Indictment for “selling intoxicating liquor without license” Motion to quash indictment because it did not plainly and fully inform the defendants of the nature and cause of the accusation against them in accordance with the provisions of Section 7, of Article 1, of the Constitution of the State of Delaware. The indictment is set out in the opinion of the court.

<p>Action of Trespass de Bonis Asportatis</p> <p>Appeal from a justice of the peace.</p>

Action for Divorce, Personal service upon defendant. Right of an unnaturalized resident of the State of Delaware to maintain an action in this state for divorce, the parties being citizens of and resident in Russia at the time of the marriage. Decree nisi entered.

Action by Administrator for Damages for death of plaintiff’s intestate, alleged to have been occasioned through the negligence of the defendant company.

<p>1. Pleading—Confession and Avoidance.</p> <p>Every justification pleaded must, expressly or tacitly, confess the act which it is intended to justify, and usually one may not plead in avoidance of a fact which the plea does not admit, for it is the object of such plea to confess the truth of the allegations which it proposes to answer and avoid.</p> <p>2. Assault and Battery—Civil Liability—Defenses—Molliter Manus Imposuit.</p> <p>The defense or right molliter manus imposuit does not primarily authorize ¡nor its exercise require, anything more than gentle, moderate force; and while it is a good defense to a civil assault, or to a charge of removing a person unlawfully in one's house or on his premises without unnecessary force or violence, it is no defense to a charge of beating and wounding.</p> <p>-3. Assault and Battery—Civil Liability—Plea in Justification— Molliter Manus Imposuit—Sufficiency.</p> <p>A plea in justification of a right to use gentle and moderate force, which admits as true a declaration charging an immoderate and aggravated use of force, is bad on demurrer.</p> <p>4. Assault and Battery—Civil Liability—Plea in Justification.</p> <p>Where plaintiff, who declared on an unlawful and violent assault, forcibly resisted the defendant in the exercise of his right to remove him from his premises by gentle and moderate force, whereby it became necessary and the defendant became entitled to use more than moderate and gentle force, this fact should be set forth in a plea of justification; and, when this is done, it is not necessary to particularly set forth the nature and extent of the force used by plaintiff to make the plea a sufficient answer to the declaration.</p>

Action of Trespass Upon the Case to recover from the defendant, damages for injuries to his person alleged to have been sustained as a consequence of being unlawfully ejected from the Inn or Tavern known as the “Farmers’ Hotel”, 308 King street, Wilmington,—the property of the defendant—by one of the defendant’s servants. The facts sufficiently appear in the charge of the court. (Same case on demurrer to plea, ante, also 84 Atl. 127).

Mandamus. Rule issued requiring the respondent to show cause why an alternative writ of mandamus should not issue as prayed for. Motion by respondent to discharge the rule and dismiss the proceedings in the cause for certain reasons based upon the alleged insufficiency of the relator’s petition. The court in the following opinion held the reasons insufficient to prevent the issuance of the alternative writ, and the rule was made absolute.

Action on the Case for breach of contract in respect to the sale of real estate. The case was submitted to the court on an agreed statement of facts. Judgment for plaintiff. Writ of error sued out of Supreme Court.

<p>Action of Replevin for property taken under execution process.</p> <p>The facts fully appear in the charge.</p>

Action of Replevin for the recovery of a mare, delivered to the defendant under a conditional sale. The facts appear in the charge to the jury.

At a Court of Oyer and Terminer, in and for New Castle County, held on May 15, 1912, the defendant was placed on trial upon an indictment (No. 35, May Term, 1912), charging murder of the first degree, it being alleged therein that he did, on the thirtieth day of March, 1912, unlawfully and with express malice aforethought, kill one Stanley Pietras in the City of Wilmington, by striking him with a lighted lamp and thereby setting him on fire and so burning him that he died in…

Action of Assumpsit to recover from the administrators of Benjamin Johnson, deceased, for personal services alleged to have been rendered by the plaintiff to the said decedent during his lifetime. The facts sufficiently appear in the charge.

Action for Damages The action was originally brought by George A. Bowen, in his lifetime, to recover for personal injuries alleged to have been occasioned by negligence of the defendant’s servants in so operating one of its steamboats, known as “Lord Baltimore”, in approaching the locks of the Delaware and Cheapeake Canal at Delaware City on the night of December 23, 1910; that it collided with the lock gate which George A. Bowen, a locktender, was at the time opening,…

The defendant was indicted for carrying concealed a deadly weapon, being No. 13, October Term, 1912.

Action Als. sci. fa. sur Judgment to the use of Harriet I. Newlin, administratrix de bonis non with will annexed of James B. Newlin, deceased, and Katie C. Phillips, Executrix of Emma A. Newlin, deceased, who was assignee of Julia A. P. Adair, against Robert Adair, administrator of Christopher B. Naudain, deceased, and others. On motion of defendants, made at the first term, that judgment be not given notwithstanding the affidavit of demand. Refused.

Action of Assumpsit to recover for certain material sold to Samuel C. Derrickson, the defendant, to be used in the construction and operation of a private telephone line. The goods were furnished as per the following order: Copy. Customer’s Order No. 1. Our Order No. 2. Form 456. Nov. 17, 1910. Stromberg-Carlson Telephone Mfg. Co. Chicago, 111. Rochester, N. Y. Kansas City, Mo. Bill to S. C.• Derrickson.

Rule to Show Cause why a sheriff’s sale, returned to the October Term of Court, Sussex County, A. D. 1912, should not be set aside.

Action of Assumpsit Motion that judgment be refused notwithstanding affidavit of demand. The copy of the book account sued upon, attached to the affidavit of demand, was as follows: STATEMENT. Folio Chicago, 111., Sept. 14, 1912.

Foreign Attachment Declaration in debt for rent due on an oral demise. At the trial, Mr. Brockson, counsel for plaintiff, sought to prove the terms of an oral lease or agreement between the plaintiff and the defendant respecting the demise of the plaintiff’s farm to the defendant. Mr. Handy. — I object. It already appears that this original agreement was made in October, 1909, and was for a letting of the farm from March 1, 1910, to March 1, 1911.

Sci. Fa. Sur Mechanics’ Lien The plaintiff performed labor and furnished materials under contracts, not with the owner, but with the contractor for the erection of a building or structure, and ninety-six days after the labor and the furnishing of materials had been finished, he filed his statement of claim.

<p>1. Perjury—False Oath—Knowledge of Falsity—Application for Marriage License—Age of Woman.</p> <p>26 Del. Laws, c. 244, prohibits marriage without a license, fixes the age of marriageable persons, and declares that an applicant for a license shall swear to the age of the parties, and that, if he knowingly or willfully makes false answers to any inquiry, he shall be guilty of perjury. Held, that defendant could not be convicted of perjury in making false answers to a question as to the age of his intended wife on applying for a marriage license, except on proof that he knew her age to be different from that stated by him.</p> <p>2. Perjury—Elements—‘ ‘ Knowledge ’ ’.</p> <p>“Knowledge”, as used in the law of perjury, with reference to the making of a false statement under oath with knowledge of its falsity, is an intangible thing resting in the mind, the possession of which may be admitted by the party, or be shown by proof of circumstances from which it may reasonably be inferred.</p> <p>3. Criminal Law—Good Character.</p> <p>Good character of accused, when proved, is to be taken in connection with all the other evidence in the case, and given such weight under all the circumstances as in the judgment of the jury it is entitled to receive.</p> <p>4. Criminal Law—Evidence—Presumptions—Innocence—Burden of Proof.</p> <p>All the presumptions of law, independent of evidence, are in favor of innocence, every person being presumed to be innocent of crime until proven guilty; and hence it devolves on the state to prove the prisoner’s guilt beyond a reasonable doubt.</p> <p>5. Criminal Law—“Reasonable Doubt”.</p> <p>"Reasonable doubt” is not a mere possible and imaginary or speculative doubt, but is a real and substantial doubt founded in reason, and such as men of intelligence and discernment may entertain, and, if necessary, be able to express or define, after a careful consideration of all the evidence in the case.</p>

The indictment charged the defendant with interfering with the signal lights of the branch of the P., B. & W. R. R., extending from Clayton to Smyrna, by shifting one of the lights along the track of said railroad from red to white, and by breaking and destroying another signal light.

Indictment for Attempt at Subornation of Perjury. It was charged in the indictment in substance that 'the accused had attempted to procure the prosecuting witness to testify falsely in the Court of General Sessions at the trial of him under an indictment (No. 62 found at the said September Term of court) for the sale of intoxicating liquor, to wit, beer, without having a license.

Summons Case Motion that judgment be refused notwithstanding affidavit of demand, on the ground that the affidavit of demand, filed in this cáse, was taken before an officer, to wit, the deputy prothonotary, not authorized by law to administer oaths. Motion denied.

Probate of the will of George Miller, deceased. William H. Miller and another oppose probate. Probate allowed. An issue, directed by the court, on an appeal from the decree of the Register of Wills, for New Castle County, probating the will of George Miller, deceased.

Indictment for Abortion alleging, in substance, that the accused, with the intent to procure the miscarriage of one Mary Tibbett, a young married, pregnant woman, supposed by the accused to be pregnant, did administer and prescribe medicine, and use a certain instrument—a tube or cathetar—the same not being necessary to preserve the life of her. The facts appear in the opinion and the charge. The indict- . ment in substance is stated in the charge.

Indictment of William J. Johnson for selling liquor without a license. Verdict guilty, and motion for new trial denied.

Summons Case Action in tort by plaintiff to recover damages for the alienation of her husband’s affections, alleged to have been occasioned by the defendant, an unmarried woman. The material averments in the declaration and contentions of the parties appear in the charge. Verdict for plaintiff. Motions for a new trial and in arrest of judgment. Upon expression of opinion by the court that the verdict was excessive, the plaintiff consented to a reduction.

Writ of Error to Superior Court for New Castle County. Case below (No. 114, June Term, 1908) in 7 Penn. 397. This was a motion to dismiss the writ of error on the ground that the refusal of the court below to quash the return to the alternative writ .of mandamus which had been awarded by the court below was not a judgment or proceeding reviewable by the Supreme Court on a writ of error.

Original petition by Jehu H. Clendaniel for a writ of prohibition against Henry C. Conrad, Associate Judge resident in Sussex County, and others. On rule to show cause why the writ should not issue. Rule discharged, and petition dismissed.