Volume 28 — Delaware Reports

i Error to Superior Court, New Castle County (Nos. 4 and 5, January Term, 1914 being Nos. 32 and 33, September Term, 1913, court below). Writs of ad quad damnum to assess damages from the condemnation of the property of Samuel G. Elbert were issued on the application of Harlan G. Scott and others, constituting the New Castle County Building Commission, and on the application of said Samuel G. Elbert.

Action of Assumpsit (No. 18, April Term, 1913) by Larnie B. Shaw against Walter M. Newton. The narr. contained several counts; the first count being on a promissory note for fourteen hundred dollars with interest from February 1, 1913. The other counts were common counts. The usual pleas were filed and notice of recoupment for an amount equal to the plaintiff’s claim.

Action of Assumpsit (No. 18, April Term, 1914) by Dora M. Thomas against Charles C. Frankhouser and another to recover amount alleged to be due upon a promissory note. Motion for judgment notwithstanding affidavit of defense; refused.

Assumpsit (No. 45, February Term, 1914) by William M. -Hope and another against George Burton to recover fees for services as attorneys at law, rendered to defendant. The defendant had counsel for pleading to issue, but preferred to conduct his own defense thereafter. The case is stated in the charge of the court.

Action on the Case (No. 78, November Term, 1913), to recover damages for personal injuries to the plaintiff, alleged to have been occasioned by the sudden starting up of a trolley car operated by the servants of the defendant company, at Fourth and Monroe Streets in the City of Wilmington, on the twenty-third day of June, 1913.

Levari Facias, No. 37, March Term, 1914. Action by the Mayor and Council of the City of Wilmington against Nathan Barsky to collect taxes. Application by defendant to set aside a sheriff’s sale under a levari facias issued on a judgment entered on a certificate made and delivered to the city solicitor by the assessor and collector of taxes of Wilmington, pursuant to 17 Del. Laws, c. 207, § 91. Application granted.- The case is stated in the opinion of the court.

Burton F. Donovan was indicted for an offense. On demurrer to the indictment (No. 9, October Term, 1913). Sustained in part, and overruled in part. For trial s. c., see—Boyce—, 95 Atl. 1041. The indictment contains three counts.

Summons Case (No. 14, September Term, 1913), by William Floyd against Metropolitan Life Insurance Company to recover the sum of three hundred and fifteen dollars, under an insurance policy issued by the defendant to Albert Hanlin, deceased, on the twelfth day of August, A. D. 1912, payable to the plaintiff, on the death of the insured.

Action for Divorce (No. 40, October Term, 1913) on the ground of adultery by May F. Carey against Henry C. Carey. Service by publication. The plaintiff was not a resident of the .state at the time the adultery was alleged in the petition, nor had she resided in the state for two years thereafter and up to the commencement of the action. Jurisdiction not being shown the petition was dismissed. See post, Bethard v. Bethard.

Action for Divorce (No. 52, January Term, 1914) on the ground of adultery by Charles R. Bethard against Linnie B. Bethard. Personal service. Question of jurisdiction. Decree nisi. The case is stated in the opinion.

Action of Assumpsit (No. 114, September Term, 1912) by the Union Stone Company against the Wilmington Transfer Company, to recover for damages to a crane and stone planer alleged to have been caused by the defendant company in carelessly and negligently handling the said property while endeavoring to remove the planer for hire. Verdict for plaintiff.

Action of Assumpsit (No. 81, May Term, 1912) by the Peoples National Bank of Middletown, Del., against George B. W. Rhoades to recover from the defendant, a depositor in the plaintiff bank, overdrafts amounting to one thousand four hundred and fifty-seven dollars and forty-three cents. Action on the common counts with bill of particulars filed. Jury disagreed.

Action on the Case (No. 12, April Term, 1913) by Harley J. Conaway against James P. Dukes to recover damages for the loss of a mare, hired by the plaintiff, a liveryman, to the defendant, sheriff of the county, and driven by the latter’s deputy; it being alleged that the mare was driven so much further than she was hired to be driven, and that the defendant’s agent took so little care of her, that she died from exhaustion a short time after being returned to the plaintiff’s…

Action by Hilbert F. Price and Louis E. Lyons, trading under the firm name and style of the Franklin Price Company, against Laura L. Cloud. Verdict for defendant. Summons Case (No. 9, April Term, 1913) to recover the price for goods sold and delivered upon the alleged written order of the defendant. The order was embodied in and made part of the declaration, but was not otherwise filed.

Action of- Replevin (No. 29, September Term, 1913) by the Philadelphia Lamp Manufacturing Company against the Delaware Marine Supply Manufacturing Company to determine the right of possession to certain dies and tools furnished by the plaintiff to the defendant to be used in manufacturing oil lamp burners under a contract which appears in the opinion of the court.

Action between Joshua F. Collins and William T. Brittingham. On appeal (No. 41, October Term, 1913) from a judgment of a justice of the peace to recover penalty for removing a landmark (a wooden post) in Georgetown Hundred, under the statute, Revised Code (1893) Chapter 56, Section 1, page 477.

Action by Fredus Vansant against John Kowalewski. Verdict returned for plaintiff, and motion for new trial refused. Action op Trespass—assault and battery—(No. 87, November Term, 1913) to recover damages for personal injuries alleged to have been occasioned by the defendant on the eleventh day of October, 1913, in forcibly ejecting the plaintiff from the barroom' of his inn or tavern, located at the comer of Maryland Avenue and Chestnut Street in the City of ■ Wilmington.

At a Court of Oyer and Terminer, in and for New Castle County, March 10, 1913, Charles B. Naylor was tried upon an indictment (No. 42 to the March Term, 1913), charging him with murder of the first degree for the felonious killing of EarviL J. Francis by shooting with a rifle on January 19, 1913, in Appoquinimink Hundred, New Castle County. Verdict of guilty of murder of the second degree. Whereupon counsel for the defendant moved for a new trial.

Action of Assumpsit (No. 148, September Term, 1913) by Charles W. Hill against the Lea Milling Company, in which Florence R. Crumlish intervened for the recovery of the sum of four hundred and forty dollars and ninety-six cents, the price of five hundred and twelve and three-quarters bushels of wheat which the plaintiff, who was a tenant of Florence R. Crumlish, sold and delivered to the defendant company.

Bessie I. McKinney was indicted and tried for manslaughter. Verdict of guilty. The questions of fact and of law appear in the charge to the jury.

Amicable Action (No: 128, March Term, 1914) by the Council of Newark, a municipal corporation, against Thomas R. Claringbold, to determine the validity of a tax assessment of defendant’s property. Judgment for plaintiff. On error, post, 94 Atl. 1102.

<p>Action of Trover (No. 17, February Term, 1914) by William J. Baker against Edgar Spruance. Verdict for plaintiff.</p> <p>The facts appear in the charge to the jury.</p>

Action by Annie Y. Draper against the Delaware State Grange Mutual Fire Insurance Company. Demurrer to Declaration (No. 45, February Term, 1914). Demurrer sustained.

Action by James E. Bowden and others, trading in the firm name of J. E. Bowden and Company, against the Philadelphia, Baltimore and Washington Railroad Company. Summons Case (No. 18, June Term, 1913). Demurrer to declaration upon the grounds appearing in the opinion of the court. Demurrer overruled.

Three Summons Cases (Nos. 11, 33 and 34 respectively, February Term, 1914) designated as the Lofiand’s Brickyard Crossing Cases, by Evans Roberts, by David B. Nailer’s administrators, and by Mary A. Nailor, widow, respectively, against the Maryland, Delaware and Virginia Railway Company ■ On demurrers to'the several declarations. Sustained as to some of the counts, and overruled as to others. The facts and questions of law presented appear in the opinion of the court.

<p>1. Intoxicating Liquors—Sale—Regulation—Legislative Power. The state government may regulate the liquor traffic for the purpose</p> <p>of deriving revenue, and also in the exercise of its police power for the benefit and protection of society.</p> <p>2. Intoxicating Liquors—Sale—Regulation—Statutes—Construction.</p> <p>14 Del. Laws, c. 418, provides that no person, directly or indirectly, shall sell any intoxicating liquors, except as provided in the act, which then provides for the sale of liquor in certain and limited ways relating to the quantity to be sold, and the place on which the liquor is to be-drunk, limiting the right to sell liquor to the persons and in the manner described. Held, that such act should not be construed as limited to sales by persons selling liquor as a business, but prohibited sales of liquor without a license by an incorporated club organized and maintained for other and innocent purposes, though the sales were restricted to members.</p> <p>3. Intoxicating Liquors—Wrongful Sale—“Person”—Corporation. An incorporated club, organized to furnish musical and other entertainment among its members, was a "person”, within 14 Del. Laws, c. 418, providing that no person, by himself, his agent, or servant, directly or indirectly, shall sell any intoxicating liquors, except as provided in the act.</p> <p>4. Intoxicating Liquors—Wrongful Sale—“Sale”.</p> <p>An incorporated club, organized for social, literary, and musical purposes, with its own funds purchased a stock of intoxicating liquors, which through its authorized agents and employees were furnished to members in quantities less than a quart, to be drunk on the premises; the member paying an agreed price per drink. Only members of the club were permitted to obtain liquors from the club, and the proceeds of sales were used for the club's general purposes, and not set aside to replenish the stock. Held that, when liquor was so furnished to a member of the club, there was a “sale” of liquorj within 14 Del. Laws, c. 418, providing that no person shall sell any intoxicating liquors, except as therein provided, and declaring that such liquors may not be lawfully sold without a license.</p>

Summons Case (No. 80, January Term, 1913), by the England-Kelch Company against The Evening Journal Company to recover the amount of money paid out and for the reasonable value of the services, alleged to have been paid and performed, under a written contract entered into between the parties, on the twenty-eighth day of June, A. D. 1911, as follows: “ * * * It is proposed to issue on definite dates to be fixed hereafter in the Evening Journal what shall be known as the…

Summons Case (No. 69, March Term, 1914). Action of assumpsit by Willard Saulsbury and others against American Vulcanized Fibre Company to recover compensation for professional services rendered the defendant by the plaintiffs in instituting and conducting for the defendant certain litigation in the Court of Chancery of the State of Delaware.

<p>Summons Case (No. 28, February Term, 1913).</p> <p>Action by Edward T. Heite against Levick P. Cowgill. The facts and contentions appear in the charge of the court. Verdict for plaintiff.</p>

Appeal (No. 6, January Term, 1914) from a judgment of a justice of the peace. Action of assumpsit brought before the justice by William Floyd against the Baltimore Life Insurance Company, to recover under an insurance policy issued to Albert Hanlin in which the plaintiff was the beneficiary. Motion for nonsuit refused. Verdict for plaintiff. See on error,—Boyce—, 94 Atl., 515. . The contentions of the parties appear in the charge of the court.

Action of Assumpsit (No. 100, January Term, 1914) by Frank E. Steckel against James M. Barnes. On motion by plaintiff to amend replications by withdrawing the replications to defendant’s fourth plea, so that he may decline to reply to the said fourth plea until the same shall have been drawn out. Application refused.

Mandamus by the State of Delaware, on relation of James Saulsbury, against Jacob Hadley Lewis and others, as members of the Department of Elections for the City of Wilmington. Peremptory writ of mandamus issued for part of the relief prayed for, and denied for part.

<p>Charles B. Morris was indicted for exhibiting a gaming table. Verdict, guilty.</p> <p>See State v. Panaro, post, 91 Atl. 1000.</p> <p>The accused was tried on an indictment (No. 38, January Term, 1914) under Chapter 454, Volume 11, Laws of Delaware (Revised Code 1852, amended to 1893, page 961), containing four counts. The first count charged that Charles B. Morris, the accused, exhibited a gaming table on December 17, 1913. The second count charged that Morris was concerned in interest in keeping and exhibiting a gaming table on said date. The third' count charged him with keeping a gaming table from November 1 to December 20, 1913; and the fourth count charged said Morris with being concerned in interest in keeping and exhibiting a gaming table between the latter dates.</p> <p>The state proved: That the defendant upon the dates mentioned in the indictment was conducting a cigar store at Fourth and Poplar Streets, in the City of Wilmington. That said business was conducted upon the first floor, from which there were steps leading to a basement which was fitted up with pool tables and also contained two smaller tables about four feet and four and one-half feet in diameter, respectively, covered with green cloth, with playing cards upon them, which basement and paraphernalia were in the possession and control of the accused. At various times on and about the said dates, games of poker, pitch, and pinochle were played with cards for money by various persons and upon the tables furnished by Morris and that the usual amount played for was five cents ante and twenty-five cents limit. That during the course of the games five cents would be taken out of the pot and laid aside and when a sufficient amount had accumulated the players would order cigars, cigarettes, chewing gum, or candy, from Morris or some one representing him, and the amount thus accumulated would be handed to Morris without counting it or without estimating the gross amount of the purchases. That at times the money would be spent for oysters or drinks not furnished by Morris. There was also evidence that at times Morris himself joined in the above mentioned games. There was no evidence, however, that Morris had any direct pecuniary interest in the games, or that he was what is technically known as a “backer". The accused offered no evidence upon his part.</p>

<p>1. Gaming—Statutes—Police Power.</p> <p>Rev. Code 1851, amended to 1893, p. 961 (11 Del. Laws, c. 454) § 1, making it a misdemeanor for any person to keep a gaming table or to be interested in the keeping of such table, is directed against gambling appliances themselves, and is within the police power of the state, being enacted for the protection of the morals of society.</p> <p>2. Gaming—Statutes—Construction.</p> <p>Rev. Code 1852, amended to 1893, p. 961 (11 Del. Laws, c. 454) § 1, making it a misdemeanor for any person to keep or exhibit a gaming table, or to be interested in the keeping of such a table, denounces two offenses, one the “keeping" or maintaining of a table upon which persons are authorized to play games of chance, and-the other being interested in the keeping; hence one who keeps a gaming table is guilty, though he derives no profit from the keeping.</p>

Action by William F. Carroll against Manuel Cohen and another, now or late trading as Cohen and Finkelstein.

James Williams was convicted of assault and battery in the Municipal Court, and appeals to the Court of General Sessions. On motion to quash information for reasons set forth in the opinion of the court. ■ Overruled.

This is a proceeding by petition of Victor S. Thomas against the Mayor and Council of Wilmington for a rule to show cause why a judgment for city taxes, entered against him on a certificate filed by the City Solicitor with the Prothonotary, under Chapter 207, Section 91, Volume 17, Laws of Delaware, should not be set aside. The rule issued, and coming on to be heard, the Court announced the following opinion, citing the case of The City

Action of Trespass on the Case (No. 93, March Term, 1914), brought by the plaintiff against the defendant railroad company to recover damages for personal injuries alleged to have been occasioned through the negligence of the defendant. General demurrer to the seventh count of plaintiff’s declaration. The facts appear in the opinion of the court.

Action on Summons Case (No. 25, April Term, 1914) by Eleanor M. Whittington against the Philadelphia, Baltimore and Washington Railroad Company for personal injuries to plaintiff as a passenger on defendant’s train. On general and special demurrers to each count of the declaration. Overruled. For trial, see post.

Action of Trespass on the Case (No. 23, March Term, 1914) by Joseph S. Reynolds against John A. Clark, to recover damages for personal injuries alleged to have been occasioned through the negligence of the defendant, who was plaintiff’s landlord, in so hanging a small board for-rent sign over plaintiff’s cellar door, that in opening the same the said sign fell from its fastenings upon plaintiff’s head, causing the injuries complained of.

Action op Assumpsit (No. 65, January Term, 1914) to . recover two hundred and fifty dollars for one Rambler automobile sold by the plaintiff to the defendant on May 14, 1913. William E. Carr brought his action against William Buchanan by the name of William T. Buchanan. The defendant has no middle name. The defendant filed a plea in abatement for misnomer. To this plea the plaintiff demurred.

Action of Assumpsit (No. 3, July Term, 1914), brought by George W. Tebo against Elmer D. Weld to recover commissions for services as real estate broker in the sale of defendant’s farm. The facts appear in the charge.

Petition by the Attorney General for rule to show cause (No. 41, May Term, 1914) why the decree nisi granted in the action for divorce (No. 41, May Term, 1914), in New Castle County, by Mary K. Senn v. Lewis Senn should not be vacated, it being alleged in the petition that Mary K. Senn had, under another name, within a year from the entry of the decree nisi, married another, contrary to the act of assembly. The rule coming on to be heard, the court vacated the decree.

Summons Case (No. 78, November Term, 1914). Action on a promissory note given by H. W. Morgan to the International Radiator Company for eight hundred and forty dollars. Receivers of the payee were appointed, and action was brought by them against Henry W. Morgan, the maker. The plaintiffs filed an affidavit of demand to obtain judgment at first term.

<p>1. Criminal Law—Evidence—Presumption of Innocence.</p> <p>Every person charged with a criminal offense is presumed to be innocent until the presumption is overcome by satisfactory evidence.</p> <p>2. Criminal Law—Weight and Sufficiency of Evidence—Reasonable Doubt.</p> <p>Before a conviction, the jury must be satisfied beyond reasonable doubt that the accused is guilty.</p> <p>3. Bastards—Duty to Support—Statutes.</p> <p>27 Del. Laws, c. 262, § 1, making it the duty of the parent of any child under the age of sixteen to provide for its support, and making willful neglect to support any such child in destitute circumstances a misdemeanor, was applicable to a prosecution for neglect to support an illegitimate child born before it was enacted, and thereunder the parentage of the child might be determined, as well as under the bastardy act, which was not repealed thereby.</p> <p>4. Criminal Law—Province of Jury—Credibility of Witnesses.</p> <p>The jury are the exclusive judges of the credibility of witnesses, and when the evidence is conflicting should accept that testimony which it deems worthy of credit, and reject that deemed unworthy of credit, and may believe the testimony which under all the circumstances appeals to it, and disbelieve that which does not appeal to it.</p>

Action on the Case (No. 37, February Term, 1914) by Josiah H. Walls against Charles C. Windsor, to recover damages for the loss of his horse, alleged to have been occasioned by the negligence of the defendant in so driving his automobile on a public street, in the Town of Lincoln, that the horse became frightened and reared and fell upon a hitching post, causing its death two days thereafter.

Action by Anton Schmid against Laura M. Spicer. Verdict for defendant. Action of Assumpsit (No. 21, May Term, 1912, alias No. 2, September Term, 1912), on a promissory note made by George W. Spicer, Jr., now deceased, to McDonnell Stout Company, for one thousand five hundred and seventy-five dollars and twenty-eight cents, with interest from October 1, 1911, subject to a credit of one hundred dollars, brought by Anton Schmid, indorsee, against Laura M. Spicer, indorser.

Action in Assumpsit (No. 128, September Term, 1914) by Beaver Dam Marble Company against William H. Jones and Company, a corporation, to recover agreed price for “broken range stone”, alleged to have been sold and delivered. The facts sufficiently appear in the charge to the jury.

Action on the Case (No. 108, September Term, 1914) by Dixie Guano Company against Alpha Process Company to recover under contract declared upon. After a general demurrer had been filed to certain pleas of the defendant, there was an application to amend by withdrawing the same and substituting therefor a special demurrer. After concluding that a special demurrer would be sustained as to two of the pleas, the court permitted the amendment to be made.

Action on the Case (No. 22, May Term, 1914) by Jesse McGowan against the Wilmington and Philadelphia Traction Company, to recover damages for personal injuries to plaintiff and for injuries to his horse and wagon alleged to have been occasioned by the negligence of the defendant company.

Action by J. Stanford Lecates, Clerk of School District No. 40, before a justice of the peace, against Josiah A. Truitt. There was a judgment for plaintiff, and defendant brings certiorari, (No. 12, June Term, 1913), commanding the justice to send up the record of the judgment. The cause of action was stated on the record to be “Action to recover school tax. Demand two dollars and forty cents.”

Scire facias .sur mechanics’ lien. ■ Exception to statement of claim sustained.

Actions by Mary E. Cecil and others and by David.S. Klair against Patrick J. Mundy. Jury disagreed.

the prisoner, John Harmon, a colored man, was tried upon an indictment charging murdér of the first degree. The facts are stated in the charge.

Harry Dennis was convicted in the City Court of Wilmington of selling intoxicating liquor without a license, and he brings certiorari, (No. 31, November Term, 1914) directed to the Municipal Court for the City of Wilmington, commanding the court to send up the record of the conviction. The questions of law presented appear in the opinion of the court.

Two Summons Cases (Nos. 45, May Term, 1914, and 143, September Term, 1914), one by Frank W. Travers, an infant, by his next friend (and father), Theodore F. Travers, for personal injuries, and the other by Theodore F. Travers, for loss of services of his son, against John G. Hartmann. Verdict for plaintiff in each case.

Theodore Quail was charged with unlawfully carrying concealed a deadly weapon.

Clarence Rothwell was indicted (No. 60, September Term, 1914) for assault with intent to commit' murder. The jury returned a verdict of guilty, and motion for new trial was refused.

Action on Summons Case (No. 106, September Term, 1913) by Gertrude Schagrin, executrix of Abraham Schagrin, deceased, against Charles W. Schagrin, to recover a balance alleged to be due on a promissory note given by the defendant to Abraham Schagrin, deceased, dated December 21, 1909. Verdict for plaintiff. Motion for new trial overruled. Defendant brings error.

Action on the Case (No. 77, January Term, 1914) by Rosie Oppenheim against the Wilmington Gas Company to recover damages for injuries sustained by plaintiff falling through a cellar doorway in the floor of a house on the premises of plaintiff, by reason of the alleged negligence of a servant of the defendant, while engaged ni and about the business of the defendant company.

Peter Krakus, alias Peter Melba, was indicted for murder of the first degree, charging him with killing Francis X. Tierney, a police officer, at Sixth and Market Streets, in the City of Wilmington, on Saturday afternoon, March 6, 1915, while the officer was attempting to arrest the prisoner. Further facts appear in the charge of the court.

Sarah E. Legg was indicted (No. 54, January Term, 1915) for selling intoxicating liquors to a minor. The accused, being a licensee to sell intoxicating liquor, had been convicted on an indictment (No. 4) found at the same term of the court for a like offense. In the first four counts of the present indictment, the first indictment and conviction thereunder were alleged.

Contempt proceedings against William H. Thome, Justice of the Peace. Rule made absolute. Petition for Rule (No. 3, Febmary Term, 1915) to show cause why William H. Thome, a justice of-the peace in and for Sussex County, should not be attached for contempt, for certain omissions, neglects and defaults, the character of which are stated in thé opinion of the court.

Action on the Case (No. 31, June Term, 1913) by Harold H. Chorman against the Maryland, Delaware and Virginia Railway’ Company, a corporation to recover damages for the destructian by fire, on May 2, 1913, of pine and cedar trees growing on the land of the plaintiff adjacent to the right of way of the defendant company, in Broadkiln Hundred, alleged to have been caused by the defendant negligently permitting brush or other combustible matter to accumulate on defendant’s…

Action on the Case (No. 38, May Term, 1914) by Salvatore Pacelli against the Peoples Railway Company, a corporation of Delaware, for personal injuries to plaintiff.

Action on the Case (No. 21, April Term, 1914) by Eleanor M. Whittington against the Philadelphia, Baltimore and Washington Railroad Company, to recover damages for personal injuries and for injuries to her feelings, alleged to have been occasioned by the conductor of the defendant company in rudely, willfully, maliciously and in a rough and insulting manner ejecting Eleanor M. Whittington from the platform and steps of defendant’s passenger coach at the Town of Clayton, in…

Appeal (No. 1, July Term, 1914) from a judgment rendered by a Justice of the Peace in Kent County in an action of debt on what is in effect a judgment entered in the Superior Court of said county. William F. Davis, in his lifetime, recovered a judgment before a justice of the peace in said county against Henry C. Moore.

Action of Trespass (No. 90, September Term, 1914), brought by Charles M. Murden against William A. Russell to recover damages for an alleged assault, and further for pushing and moving a houseboat (occupied by the plaintiff, he being ill) containing certain personal property of the plaintiff, from the beach, at Lewes, Sussex County, to and into the waters upon which the beach abutted, and for other wrongs to the plaintiff.

Summons Case in Assumpsit (No. 23, April Term, 1913) brought by the plaintiff to recover from the defendant corporation damages for breach of an alleged, contract for the sale of two hundred sacks of strictly prime crimson clover seed imported 1912 crop at eight dollars and fifty cents per hundred pounds. Price f. o. b. cars New York, July shipment from Europe; to be delivered in New York as early as possible in August, maybe on the fifth.

Foreign Attachment in Action ex Delicto (No. 6, February Term, 1914) by Earl T. Sirman against George A. Moore. On rule to show cause why judgment in foreign attachment should not be vacated, and petitioner allowed to avoid or disprove the claim under the statute. Rule made absolute, judgment vacated, and defendant allowed time to plead.

Action by Paul C. Igle, by his next friend, Matthias L. Igle, against the Peoples Railway Company. Verdict for plaintiff. Action on the Case (No. 117, September Term, 1913) to recover damages occasioned by a collision between an electric car of the defendant company and an ice wagon on which the infant plaintiff was riding with the servant in charge of the wagon, at the intersection of Second and Franklin Streets in the City of Wilmington, on the twelfth day of October, 1912.

Action by E. F. Houghton and Company against the Alpha Process Company. Verdict for plaintiff, and motion to disallow plaintiff its costs refused. Action op Assumpsit (No. 60, November Term, 1914) to recover the sum of two hundred and thirty-eight dollars and two cents for certain goods and chattels sold and delivered to the said defendant by said plaintiff. The plaintiff had a verdict for twelve dollars and seventy-four cents.

Action by Walter Behen against the Philadelphia, Baltimore and Washington Railroad Company. Verdict for defendant.

Action by Caroline J. Raymond, as executrix against Sarah T. M. Farrell, as administratrix and terre tenant. Judgment for plaintiff. This is an action by scire facias sur judgment (No. 9, October Term, 1914) for the renewal and continuance of the lien upon real estate, and for having execution, of a certain judgment, recited in the agreed statement of facts hereinafter.

Action by Rosa Lamanna, by her next friend, Ferisa Lamanna, against James R. Stevens. Plaintiff nonsuited. Action on the Case (No. 73, November Term, 1914) to recover for personal injuries to the infant plaintiff, alleged to have been occasioned by the negligent operation of defendant’s automobile. When the case was called a witness for the plaintiff was absent and out of the jurisdiction.

Action for Divorce (No. 8, February Term, 1915) by Irene B. Elliott against George Elliott on the ground of extreme cruelty. Decree nisi refused.

Action by Bessie R. Sterling against Leon B. Tantum, with garnishee process to the Equitable Guarantee and Trust Company. Heard on motion to quash garnishee process. Motion granted. Alias Foreign Attachment (No. 78, January Term, 1915) laid in the hands of the treasurer of the Equitable Guarantee and Trust Company for the purpose of summoning it as garnishee.

Action Case (No. 1, February Term, 1914) by Ida Ponder and James W. Ponder against the Maryland, Delaware and Virginia Railway Company, to recover damages for injuries to a large tract of timber of the plaintiffs, alleged to have been caused by fire originating on the right of way of the defendant company. .

<p>1. Insurance—“Warranty” as Distinguished from “Representation”.</p> <p>A “warranty” is an agreement constituting a part of the contract when completed, and which, whether material or not, must be strictly complied with, as distinguished from a ‘ ‘ representation ’ ’, which is a statement incidental or collateral to the contract and a part of the proceedings that propose the contract, and which, though false, does not avoid the contract, unless actually material or clearly intended to be made material by the parties.</p> <p>2. Insurance—Construction—Warranty or Representation—Intention of the Parties.</p> <p>Whether any particular false statement by the insured in his application shall avoid the policy, of which it is made a part, depends upon the intention of the parties respecting such statement.</p> <p>3. Insurance—Construction of Policy—Warranty or Representation—Intention of Parties—Beneficiary.</p> <p>The application, signed by the insured, provided that he declared his representations and answers strictly correct and true in every particular, and agreed that they should become part of any policy issued, and that any untrue answers would avoid the policy, and therein the insured stated that the beneficiary was his uncle, and the policy declared that it was issued upon the condition that the agreements therein were accepted by the assured as a part of the contract, to be construed as if they were recited at length in the policy, and that each agreement was a condition precedent to the contract, and that if, within two years, the falsity of any statement made in the application should be discovered, and notice thereof be given to the insured, the policy should be avoided, and the company should return the premiums, and further declared that the insured at any time might change the beneficiary by designating him upon the company's blank and having the name of the substituted beneficiary entered on its books. Held, that it was not intended by the company that the statement as to the relationship of the beneficiary should constitute a warranty or condition precedent to liability on the policy, since the provision for a change of beneficiary showed that it was not regarded as material or important or in any wise material to the risk.</p> <p>4. Insurance—Construction—Express Warranty.</p> <p>An express warranty, in the absence of legislative enactment, must be strictly complied with.</p> <p>5. Insurance—Avoidance of Policy—Warranties Incorporated from Application—Intent.</p> <p>A condition or agreement in the policy making all the answers and statements in the application warranties, conditions precedent, or representations material to the risk, does not show that the parties intended that an absolutely immaterial and unimportant^ statement should be so considered, but, to make an immaterial statement in the application either a warranty or a representation material to the risk, it must clearly appear that such was the intention of the parties; and hence a statement in the application as to the relationship of the beneficiary to the insured, immaterial to the risk, and not expressly or specifically mentioned in the policy, and made a condition precedent to its performance, which the insurer, within the two years allowed by the policy, discovered to be false, did not avoid the policy.</p> <p>6. Insurance—Construction in Favor of the Insured.</p> <p>Whenever legally possible, a construction favorable to the insured should be given.</p>

Action by the Electric Hose and Rubber Company against the Mayor and Council of Wilmington. Judgment for plaintiff. Amicable Action in Assumpsit (No. 107, May Term, 1915) for the collection of the amount of certain taxes paid by the plaintiff to the defendant under protest. Heard on case stated. The ■ facts and contentions of the parties appear in the opinion of the court.

Appeal (No. 27, February Term, 1915) from the Register of Wills for Sussex County, admitting to probate the will of Luvina Layton, deceased, against a caveat filed by Francis Hudson. Upon application of the parties the Superior Court directed the question of law involved to be heard by the Court in Banc. The opinion of the latter court being certified to the Superior Court, the decree of the Register was affirmed.

Action by Joseph N. Du Ross against the Philadelphia, Baltimore and Washington Railroad Company. Verdict for defendant, and motion for new trial denied.

Action by William H. Jenkins against the Mayor and Council of Wilmington. Verdict for defendant. . Action on the Case (Ño. 38, May Term, 1914) brought by the plaintiff to recover from the defendant corporation for personal injuries to the plaintiff alleged to have been occasioned by slipping and falling upon the flagstone crossing at Fifth and Market Streets, in the City of Wilmington, on the twenty-first day of February, 1914.

Action of Trespass Quare Clausum Fregit (No. 40, February Term, 1914), brought by James N. Conaway against John E. Isaacs, to recover the value of certain timber trees growing upon plaintiff’s land, in Nanticoke Hundred, Sussex County, alleged to have been wrongfully cut and carried away by defendant on the eighth day of July, 1913. Further facts appear in the charge of the court.

Action on the Case (No. 66, September Term, 1914) brought by John W. Moore against Charles E. Anderson and Son, contractors, and Alfred E. Green, owner of adjoining property of the plaintiff, to recover damages to latter’s dwelling house in the City of Wilmington, alleged to have been occasioned by the defendants, in the months of March and April, 1914, by negligently, carelessly and without notice digging along and below the foundation wall of the property of the plaintiff…

Mandamus by the State, on the relation of William Tins-man, against Everett B. Hollingsworth and others, composing the Levy Court of New Castle County, to compel approval of relator’s bond as tax collector. Motion to dismiss denied.

On remonstrance against the application of John J. Ryan for a license to sell intoxicating liquors. License granted. The contentions appear in the opinion of the court.

Ejectment by Able Ableman against George W. Short. Verdict for plaintiff. Action op Ejectment (No- 14, April Term, 1914). At the conclusion of plaintiff’s testimony, counsel for defendant moved for a nonsuit because the plaintiff had not sufficiently identified the twenty acres of land in question as having passed under the deed.

Action op Trespass Quare Clausum Pregit (No. 6, April Term, 1911), brought by Robert T. Spicer against Miranda H. Dashiells to recover damages for alleged cutting and carrying away trees growing on plaintiff’s close. Verdict for plaintiff.

Ejectment by John Doe on the demise of Mary Hitchens against Richard Roe, causal ejector, and Mary C. Ellingsworth, tenant in possession. Verdict for plaintiff. Action- of Ejectment (No. 28, October Term, 1913) by Mary Hitchens, against Mary C. Ellingsworth, to recover a certain lot with a house erected thereon, situate in Georgetown, now in possession of the defendant. The plaintiff relied upon two alleged lost or destroyed deeds to establish legal title to the land.

Action by Ethel W. Taylor against the Dupont Building Corporation. Action for death alleged to have been due to negligence, (No. 88, March Term, 1915). General demurrer to plaintiff’s declaration. It did not appear in what capacity the plaintiff brought her action. Demurrer sustained. For trial, see post, — Atl. —.

Ejectment by John Doe, on the demise of Alphonzo Hazzard, against Richard Roe, casual ejector, and David H. Hazzard, tenant in possession. Judgment for defendant. For s. c. Supreme Court, see 6 Boyce—, 97 Atl. 233.

Error (No. 5, January Term, 1915) to the Superior Court for New Castle County. Action Below (No. 128, September Term, 1914) by the Council of Newark, a municipal corporation, against Thomas R. Claringbold. There was judgment for plaintiff, ante 133, 90 Ail. 1130, and defendant brings error. Affirmed.

John Boyd was indicted for delivering milk in a milk bottle belonging to another and having the name and address of such other impressed upon the bottle. Verdict, guilty. Indictment (No. 45, March Term, 1915) for violation of Section 3594 of the Revised Statutes of the State of Delaware of 1915 (27 Del. Laws, c. 178).

1, January Term, 1915. Action Below in Assumpsit (No. 69, March Term, 1914) by Willard Saulsbury and others against the American Vulcanized Fibre Company to recover for professional services. Judgment for plaintiffs and defendant brings error. Affirmed. The facts appear in the report of the case below, ante 182, 91 All. 536.

Madaline W. L. Curtin was indicted for embezzlement as agent. Verdict, not guilty. Indictment (No. 33, May Term, 1914). At the trial, Edward I. Ripley, the prosecuting witness, was challenged by counsel for the accused on information that he did not believe, in the Bible or in the existence of a Supreme Being.

<p>1. Contracts—Manufacture of Goods—Rescission—Damages.</p> <p>The seller in an executory contract for the manufacture and delivery of goods, injured by the buyer’s rescission, cannot recover additional damages by ignoring such rescission and proceeding with the manufacture and delivery.</p> <p>2. Contracts—Manufacture of Goods—Rescission—Performance.</p> <p>An executory contract for defendant’s manufacture and delivery of goods was terminated upon its rescission by plaintiff, except for the purpose of defendant’s recovery of damages, if any, from the breach; and defendant could not perform under the terms of the rescinded contract, nor did he have such right under a provision that, on the plaintiff's failure to carry out its contract to take over and pay for the goods manufactured, the defendant might sell such goods for the plaintiff’s account.</p> <p>3. Replevin—Action—Damages for Rescission of Contract.</p> <p>The question of damages for a breach of contract cannot be determined in an action of replevin.</p> <p>4. Bailment—Rescission of Contract—Right of Possession.</p> <p>Where an executory contract, under which defendant was to manufacture and deliver goods to plaintiff, and under which the plaintiff was to deliver , to defendant all necessary tools, was terminated by plaintiff’s rescission of the contract, the defendant’s right of possession of the tools was also terminated, and plaintiff was entitled to replevin to recover possession of the tools.</p>

Action In Debt (No. 71, January Term, 1915) by David Cohen against the Home Insurance Company, a corporation of New York. Argument on defendant’s demurrer to plaintiff’s replication, it being contended that in the latter there was a departure from the allegations in the declaration. Demurrer sustained.

Amicable Action in Mechanics’ Lien (No. 100, March Term, 1915), by the J. G. Justis Company against Frank T. Spicer, upon an agreed statement of facts, the same being set out in the opinion of the court.

Action by Alvan T. Fuller against William J. Webster. Judgment entered for defendant. Action of Replevin (No. 94, September Term, 1914) to recover an automobile sold by the plaintiff under a conditional sale to one Duff, who subsequently sold to another. And the latter afterwards sold to the defendant. Writ of error sued out, — Boyce —.

4, January Term, 1915. Action op Ejectment (No. 22, July Term, 1914) in the court below. Amicable Action brought by Nettie S. Moore and others against Ella Scotten to recover certain real estate. By consent, the case was tried by the court, on a case stated, and judgment rendered upon their decision upon the law and the facts. The court found the defendant guilty of the trespass in ejectment mentioned, and entered judgment without opinion for the plaintiffs.

Error (No. 4, June Term, 1914) to the Superior Court in and for New Castle County, the case below (No. 99, May Term, 1914), being an amicable action and heard on a case stated. The questions presented and determined in the court below, sufficiently appear in the opinion here.

Mandamus (No. .110, November Term, 1914). Mandamus by the State, on the relation of Lynwood B. Jacobs, against Samuel B. Herdman, Treasurer of the Council of Newark.

Foreign Attachment, No. 5, March Term, 1914. Action by the Wilmington Trust Company, administrator, by ancillary letters, of Frederico Evaristo Schemel, late of Venezuela, deceased, against Isabel M. R. De Paris, also of Venezuela. Certain property of the defendant in this state was seized. The defendant gave bond, dissolving the attachment, and entered appearance by counsel. Plaintiff filed its declaration upon certain simple contracts, or evidences of indebtedness.

<p>Indictment, No. 12 June Term, 1915.</p> <p>Arthur Lynch was indicted for the unlawful sale of malt liquor, to wit, beer.</p> <p>The accused admitted that he sold “soft or near beer” to the prosecuting witness, but denied that he sold to him malt liquor or lager beer.</p>

Action of Ejectment, No. 30, February Term, 1915. Action by George P. Knight against William K. Knight to recover one equal undivided half interest in certain real estate, situated in Little Creek Hundred, Kent County, and containing about nineteen acres. Verdict directed for defendant. The material facts and contentions of the parties are stated in the opinion.

Action of Replevin, No. 2, October Term, 1915. Action by N. Z. Graves Company against William S. Smith, bailiff of Harry Vane, landlord, who distrained upon certain goods consigned by the plaintiff to Charles Watson Dunham, a retail merchant and tenant of the distrainor. The goods taken under the distress were to be held by Dunham on consignment and to be sold by him for the account of the plaintiff.

Petition by Calvin Miller, defendant in a judgment, entered by confession, in Superior Court for Kent County (No. 13, July Term, 1915) on a warrant of attorney, to vacate it. The judgment was vacated, and the reason therefore is stated in the opinion.

Action of Assumpsit (No. 14, April Term, 1913) on the common counts for goods sold and delivered with bill of particulars annexed. Action by Charles W. Cullen, trustee in bankruptcy of the Delmar Lumber Manufacturing Company, against Mary A. Veasey. Verdict for plaintiff. See, also, 4 Boyes 537, 89 Atl. 741.

Petition and Rule to set aside sheriff’s sale (No. 28, September Term, 1915) on levari facias No. 33, November Term, 1915. Viola D. Marshall, assignee, sued out a writ of. levari facias on a judgment of foreclosure of mortgage against Robert P. Anderson and his wife, directed to the sheriff of the county commanding him to make sale of the lands therein described. Sale was made and the writ returned on the first day of the term of court to which the writ was returnable.

Indictment No. 40, November Term, 1914. Pasquale Aceto was indicted for the embezzlement of the proceeds of a check for three hundred and eight-five dollars, drawn to the order of Maria Santa Conde, the prosecuting’witness, by William H. Heald, Esq., her attorney, which check she delivered to the accused, upon his suggestion, to have the same cashed for her and return to her the proceeds thereof.