Volume 29 — Delaware Reports

Action by the Wilmington Sash and Door Company against William J. Nuttall and others. On exceptions to plaintiff’s statement of claim. Exceptions < sustained, and statement of claim dismissed.

Action by David Cohen against the Home Insurance Company, a corporation of the State of New York. On general and special demurrer to the declaration. The general character of the several counts therein and the contentions of the parties appear in the opinion. The special demurrer was sustained to all the counts.

Action of Assumpsit by Charles Rushie against John Verlengia. The declaration contains a single count on an “account stated” with bill of particulars annexed. On motion for an order on the plaintiff to. file a further bill of particulars. Denied.

Jabez Summers, a young colored man, was indicted for assault and battery upon Mrs. Edith M. Jones, a young white woman, the assault having occurred on the public road leading from Clayton to Duck Creek, about nine o’clock at night, on October 20, 1915.

Action by George B. Reynolds against Edgar Timothy Townsend for damages for death of plaintiff’s wife, alleged to have been occasioned through the negligence of the defendant. Motion for nonsuit granted. Binding instructions for defendant.

Appeal by Joseph Papella from the judgment of the Municipal Court of the City of Wilmington, adjudging him guilty, on information filed in said court, charging him with carrying concealed a deadly weapon. To the information filed by the Attorney General, the accused pleaded not guilty, and was tried before a jury. Verdict, guilty.

Certiorari by John Repinski, commanding “the municipal court for the City of Wilmington” wherein he was charged with and adjudged guilty of nonsupport of his illegitimate child, to send up the record and proceedings against him. Upon the record being sent up, counsel for the accused filed-the following exceptions thereto: First. For that the record discloses that the judgment rendered in said cause was contrary to law. Second.

Writ of Error (No. 1, June Term, 1915), to the Superior Court for New Castle County, on judgment No. 110, November Term, 1914. Mandamus by the State, on relation of Lynwood B. Jacobs, against Samuel B. Herdman, Treasurer of the Council of Newark. Upon return of the rule to show cause, counsel for respondent consented to the issuance of the alternative writ and accepted service thereof.

Morris Checkver was indicted for violation of the above-mentioned statute, that is, for failing to enter in a book provided by the police department of the City of Wilmington, any description of the kind or quantity of certain pieces of brass purchased from one M., on April 27, 1915, and for failing to enter in said book any description of the person from whom the brass was purchased, as required by the statute.

Action by Robert J. Fennemore against Frank M. Armstrong to recover damages for injuries to his property, reputation and feelings, occasioned by an alleged illegal search of his dwelling house and premises. The facts appear in the charge of the court.

Anthony Maida was charged in the indictment for sodomy, alleged to have been committed by the use of the mouth, in the act of copulation. On motion to quash the indictment on the ground that the offense as charged did not constitute sodomy or the crime against nature.

<p>See 5 Boyce 40, 90 Atl. 220, on demurrer to indictment.</p> <p>The indictment charged that Burton F. Donovan, late of, etc., on, etc., with force and arms at, etc., wickedly, unlawfully, maliciously and willfully did solicit, incite and attempt to persuade one Washington Collins feloniously, willfully and unlawfully to set on fire a certain warehouse, then and there the property of “the Smith Manufacturing Company,” situate, etc., with intent of him, the said Burton F. Donovan, then and there and thereby to injure the said “the Smith Manufacturing Company,” against the act, etc.</p> <p>C., the prosecuting witness, testified that in March, 1913, he was going over the railroad in Lincoln, in the locality of the property of the Smith Manufacturing Company, to one of his neighbors, when he was called by the accused, and on going to him, the accused, after inquiring what he knew, said, “I have got no outlet here now.” I said, “If you have got no outlet, the law will allow every man an outlet or is supposed to.” The witness then detailed the following colloquy:</p> <p>Accused: “I thought I could get one in a quicker way, an easier way, than that.”</p> <p>Witness: “I don’t know about that.”</p> <p>Accused: “Would you like to make a little easy money, quick money?”</p> <p>Witness: “I don’t know about that; it is according to what it is.”</p> <p>Accused: “What would you charge me to come down here some night after everybody is abed and asleep and still and burn those two buildings down—that is, the building or warehouse of the Smith Manufacturing Company, that stand out on the road there?”</p> <p>Witness: “I can’t do nothing like that.”</p> <p>Accused: “I will give you twenty-five dollars to burn those buildings down.”</p> <p>Witness: “No, I can’t do that.”</p> <p>“Then he kept on dinging at me, and I said, ‘I am in a hurry and must go’.”</p> <p>Accused:—“Hold on; don’t be in a hurry.”</p> <p>Witness: “I insisted on going, and I went on, saying, ‘I will let you know something about it later on’.”</p> <p>Witness: “I told another person about it the next day, and was told to have Mr. Donovan make me the offer again in the presence and hearing of a witness. So the next night I told Mr. Donovan to come down with me to the buildings, for I did not know anything about firing those buildings, etc.; and he went down there with me and showed me how he could do it, and he told me he would furnish five gallons of oil. There was a man concealed in the building to hear what he said. So after we went in the building, of course I had to ask him some questions to get evidence, and I said to him, ‘ Don’t you think a job like this is worth fifty dollars ? ’ He paused for a moment, and said, ‘ I will split the difference with you.’ It seemed as though he lost his nerve then, and he said, ‘We will go out of here,’ and that was all.”</p> <p>The testimony as to the solicitation on the second night in the building was corroborated by one T., who was concealed in the building and overheard the conversation between C. and Donovan.</p> <p>At the conclusion of the state’s testimony, counsel for defendant asked the court to instruct the jury to render a verdict of not guilty, because the indictment alleges that the accused attempted to procure one Collins feloniously and willfully and unlawfully to set on fire a certain warehouse then and there the property of the Smith Manufacturing Company, with intent of him the said Donovan then and there and thereby to injure the said Smith Manufacturing Company, and the state has not proven who or what the Smith Manufacturing Company is; if it is composed of individuals they must prove the name of the individuals, and if it is a corporation, they must prove the name of the corporation. This is an offense against a third person. The Smith Manufacturing Company does not convey any meaning whatsoever. There must be some proof, however slight, of the corporate character of the third person. State v. Rue, 72 Minn. 296, 75 N. W. 235; Bailey v. State, 116 Ala. 437, 22 South. 918; Braithwaite v. State, 28 Neb. 832, 48 N. W. 247; Burke v.-State, 34 Ohio St. 79.</p>

Application to prove lost contract for the sale of real estate. In the matter of the application of Sarah E. Flowers to prove a lost contract for the sale of real estate, entered into by Joshua Dallas Marvil, deceased, and petition of Sallie L. Marvil and another, executors of the deceased, for authority to execute and deliver the deed. Proof of contract allowed and petition granted..

The Delaware Saengerbund, Incorporated, was indicted (No. 37, January Term, 1914) for, and convicted of selling liquor without a license and it brings error. Affirmed. The facts which were submitted to the jury on a case stated, and the questions of law presented, appear in the report of the case below. See 5 Boyce 162, 91 Ail. 290.

Action by Charles M. Murden against the Commissioners of Lewes, Incorporated, to recover for damages to plaintiff’s houseboat and also for damages to certain personal property therein, as well as personal injuries to himself, alleged to have been occasioned by the defendant in dragging along the beach and pushing off into the water, the plaintiff's houseboat, from the position where it stood on the Lewes beach.

Action brought by the Board of Stewards of the Wilmington Conference of the Methodist Episcopal Church, a corporation, against Robert H.… Held: invested and disbursed by the plaintiff corporation; that the only moneys or property received, held, invested and disbursed by the plaintiff corporation are funds officially and familiarly known as the “Conference Claimant’s Fund,” etc., and that said fund is to provide for the maintenance and'support of retired ministers, and…

Action brought by the Methodist Episcopal Hospital in the City of Philadelphia, a corporation, against Robert H. Williams, executor of Eliza P. Clark, deceased, to recover a certain legacy of five thousand dollars, bequeathed by the deceased in and by her will to the “Methodist Episcopal Hospital of the City of Philadelphia.” Heard on a case stated, the material facts therein agreed upon being substantially these: Eliza P. Clark, late of the Town of Milford, Kent County, and…

Action brought by the Trustees of the Methodist Episcopal Church of Milford, Delaware, a corporation, against Robert H. Williams, executor of Eliza P. Clark, deceased, to recover three certain legacies, one for five thousand dollars, another for one thousand dollars, and the third, being the value of certain bank stock, agreed to be the sum of seven hundred and eighty-seven dollars, each respectively, bequeathed by the deceased, in and by her last will, to the “Trustees of…

Action of Assumpsit before a Justice of the Peace, by William T. Ryan against Cyrus P. Gears for professional services and for goods sold and delivered. Judgment for plaintiff. Defendant brings certiorari. Affirmed.

Replevin by Howard T. Jones against Ralph Savin. There was a verdict for plaintiff, and defendant moved for new trial. New trial granted, and verdict set aside.

The indictment charged Generoso Verderamo, a licensee, with selling, on the twentieth day of April of the present year, thirteen cases of lager beer to one Joseph Le Frieri (in quantity between four and five barrels) while his license authorized him to sell in quantities not less than three quarts nor greater than one barrel. Verdict of guilty.

Action by Hiram H. • Pleasanton and Anna M. Pleasanton, his wife, against Frank Kronemeier and Rebecca Kronemeier, his wife, for alleged slanderous words. Verdict directed for defendants. The declaration contained two counts.

Action of assumpsit, on the common counts, by Harry C. Layton and Robert R. Layton, trading as H. C. & R. R. Layton, against George M. Dickerson, to recover the price or value of certain stable and pound manure, worth from fifty to seventy-five dollars. The manure had been made and was remaining on the farm of the defendant at the time the plaintiffs purchased the farm at sheriff’s sale, under execution process against the defendant.

<p>1. Larceny—Elements.</p> <p>Larceny is the taking and carrying away of the personal goods and chattels of another with the felonious intent of the taker to convert the property to his use without the consent of the owner.</p> <p>2. Criminal Law—Circumstantial Evidence.</p> <p>Larceny may be proved either by direct evidence or by circumstantial evidence strong enough to exclude any reasonable inference or conclusion other than that the accused is guilty.</p>

This was an action of ejectment brought by Alphonzo Hazzard against David H. Hazzard to recover certain lands, situate in Indian River Hundred, Sussex County.

Action1 by Cleaver G. Moore against Samuel J. Speal and Frank R. Mannahan, trading as partners under the name of Speal & Mannahan, to recover for goods sold and delivered. The plaintiff declared specially on a protested check and on the common counts. The defendants filed the usual pleas with notice of recoupment. Verdict for plaintiff. The facts appear in the charge to the jury.

Action by Frederick Krause against Harry Emmons, executor of Henry Blouth, deceased, to recover damages for personal injuries alleged to have been occasioned by the negligence of the defendant’s testate. There was a verdict and judgment for plaintiff, and defendant took a bill of exceptions, subsequently suing out a writ of error. Reversed.

Appeal by defendant from judgment of a Justice of the Peace, No. 28, March Term, 1914. Action of assumpsit by Newark Garage and Electric Company against Thomas R. Claringbold, to recover the sum of one hundred and eighty-five dollars and eighteen cents, with interest, for work and labor done and materials and supplies furnished. Verdict for plaintiff.

Samuel L. Burris, a Commissioner of the Levy Court of New Castle County, was indicted for the violation of Section 5, Chapter 273, Volume 22, Laws of Delaware 574, being Section 1025, Revised Code of 1915 On motion to quash the indictment for the reason set forth in the opinion of the court. Refused. The case was subsequently tried before a jury.

Action for divorce by Richard Jones against Amanda Jones. Decree nisi for plaintiff, incorporating alimony made payable at time of granting final decree.

Action by Emil A. Taylor against Frederick T. Warrington before a justice of the peace. Judgment for plaintiff and defendant brings certiorari, commanding the justice to send up record of judgment. Exceptions filed, the one relied upon being stated in the opinion of the court.

Appeal by Frederick Stellar from a. judgment rendered against him by a justice of the peace in favor of Eugene Long. On motion to dismiss the appeal on the ground that the certificate of the justice to the transcript of the record filed did not meet the requirements of Section 3987, Revised Code of 1915. Lewis v. Hazel, 4 Harr. 470; Barker v. David, 4 Penn. 395, 55 Ail. 334; Peninsula Cut Stone Co. v. Nixon, 3 Boyce 339, 83 Ail. 1081.

Action by Mary A. Nailor, widow, against the Maryland, Delaware and Virginia Railway Company for the death and loss of her husband. When the plaintiff rested, counsel for defendant moved for nonsuit on the ground of contributory negligence on the part of the deceased, claimed to have been shown by plaintiff’s testimony. Motion refused. Verdict for plaintiff. Defendant brings error.

Appeal by George S. Allmon from a judgment rendered against him by a justice of the peace in favor of Crooks and Co., Incorporated, for the use of John T. McWharter. The plaintiff below declared in assumpsit on a special contract and also on the common counts.

Action of assumpsit by the United States Fidelity and Guarantee Company, Incorporated, against Elma E. Gray and others, administrators of Thomas J. Gray, deceased, for money paid by the plaintiff indémnitor for the deceased. The case was submitted to the court on an agreed statement of facts, the defendants relying upon the act of limitations pleaded. The facts and questions of law are stated in the opinions. Judgment for plaintiff.

An information charged Samuel Burris with the violation of Article 5, Section 7, Constitution of the State of Delaware, in that, as alleged, he did cause or attempt to cause certain officers of a primary election, held in the City of Wilmington, to violate their duty to keep the polls open from one to seven o’clock, as required by statue. On special demurrer to the several counts in the information. Demurrer overruled. The facts are stated in the opinion.

Action by William H. Loper against Samuel H. Lingo for breach of warranty, respecting the soundness of a horse at the time of sale. Verdict for plaintiff. The facts are stated in the charge of the court.

Action in assumpsit by Alfred Bloom, trading as the Merchants’ Sales Company, against Alexander Handloff. On motion for judgment notwithstanding affidavit of defense. Denied. Plaintiff filed with his praecipe an affidavit of demand with copy of book entries, attached, in order to obtain judgment at first term of court under the statute.

Antonio Menge is charged on information filed in this court with, carrying concealed a deadly weapon. Verdict of guilty. The evidence introduced in defense, against objection, but subject to be stricken out on motion at the close of the testimony, was to the effect that the accused was the owner of a revolver, and that he lent it to a friend, who was going to Pennsgrove, a few days before he was arrested.

Application by Levy and Glosking for a renewal of a wholesale dealer’s intoxicating liquor license. On motion to strike out the remonstrance filed, on the ground that the allegations therein do not show that the applicants have violated any law of the state, or rule of the court, or disclose such a state of facts as to make it necessary for the applicants to answer the same. Motion prevailed. License was granted.

<p>John Fred Brown was indicted for obstructing a public road. Verdict guilty.</p> <p>The facts appear in the charge to the jury.</p>

Action by Howard T. Jones against Ralph Savin. Verdict for plaintiff. The action is to recover the value of a cow sold by the plaintiff to one Snyder, under a contract of conditional sale, who sold to one Johnson, who sold at public vendue to the defendant. The facts and questions of law are stated in the charge of the court to the jury. Same case on motion for new trial in a former recovery, Ante. 68, 96 Atl. 756.

Action of assumpsit on book account, by the firm of Franklin Photo Engraving House against the Laurel Printing and Publishing Company, for the recovery of forty-nine dollars and forty-eight cents, with interest from August 1, 1913. On exceptions to depositions, and motion to suppress the same on the first day of the next succeeding term of court.

Action by Eugenia Musgrove against the Oklahoma Tribe No. 26, Improved Order of Red Men, begun in justice court, and appealed to the Superior Court. Action by Eugenia Musgrove, widow of George T. Musgrove, deceased, against Oklahoma Tribe No. 26, Improved Order of Red Men, of Lewes, Delaware, to recover balance of funeral benefits after paying funeral expenses, alleged to be due her from the tribe.

The indictment charged Frank H. Thomas with having, on the eighth day of August, 1914, in South Murderkiln Hundred, Kent County, made, forged and counterfeited a certain check for one hundred and eight dollars and thirteen cents, of the Wyoming Fruit Growers’ Association, signed in blank by P. Emerson, treasurer of the association, to the order of Frank George; also that the accused uttered and passed the said check with the knowledge that it was forged. Verdict not guilty.

<p>Action by David Cohen against the Home Insurance Company, a corporation of the State of New York. Verdict directed for defendant.</p>

Ejectment by John Doe upon the demise of William B. Johnson against Richard Roe, casual ejector, and George F. Rust, tenant in possession. Submitted to the Court in Banc upon application of parties. Decision that judgment should be entered for defendant ordered certified to the Superior Court.

Action of trespass by Frederick A. Marker, Jr., against Charles Hanratty for assault and battery, alleged to have been perpetrated June 21,1915. Verdict for plaintiff. The plaintiff contended that the defendant did, on June 21, 1915, at Kenton Hundred, strike, beat and bruise him without justification or legal excuse.

Action by Annie Jessie Maxwell against George T. Satterfield, purchaser of her certain farm, to recover the value of her, the landlord’s share of the com crop growing on the farm at the time of sale, but which was harvested after the sale.

Action by James B. Littleton against John J. West. Judgment for plaintiff, and defendant appeals. Motion to dismiss appeal denied. Appeal by defendant from a judgment of a justice of the peace, No. 13, June Term, 1916. Action of assumpsit before a justice of the peace by James B. Littleton against Joshua J. West “to recover the value of cedar rails removed by defendant from fence of plaintiff. Demand five dollars.” Heard before. referees on application of defendant.

Original petition by Paul Appenzellar 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.

Petition by Julia A. P. Adair for rule directed to Horace G. Eastburn and wife, mortgagors, Allen B. Clement, purchaser at sheriff’s sale, under foreclosure proceedings, and Harry J. Stidham, sheriff, making the sale, to show cause why the sale should not be set aside.

Eugene E. Paxson was indicted for assault and battery. Verdict of guilty.

Action by Myra McClemy against John Frank Brown and others. Verdict for plaintiff. Action brought by Myra McClemy against John Frank Brown, Theodore A. Veasey and Mary A. Veasey for the recovery of the possession of a certain automobile, the property of the plaintiff, she claiming that one A., while having the temporary use of the automobile, before the writ of replevin in this case was issued, unlawfully sold the same to the defendants. Verdict for plaintiff.

Oliver D. Collins was indicted under Section 4712, Rev. Code 1915, for assaulting, striking and beating his wife. It was shown by the prosecutrix that she and the accused were joined together in the bonds of matrimony, .prior to the assault, and that they thereafter lived and cohabited together as husband and wife, and were known as such to their relatives and friends.

<p>1. Process—Privilege—Attendance at Court—Grounds.</p> <p>The tendency has been to enlarge the rule that witnesses in judicial proceedings, while going to the place of such proceedings, and while remaining there as long as necessary, and while returning, are wholly free from the restraint of process in other civil proceedings, on the broad ground of public policy and the general administration of the law.</p> <p>2. Process—Privilege—Witnesses—Character of Testimony.</p> <p>On a rule to show cause why leave should not be granted to file an information in the nature of a quo warranto to inquire into respondents’ exercise of the franchises, offices, and privileges of directors of a corporation, where part of the respondents set up their privilege from service of the rule on the ground of their attendance as witnesses in a pending action against the corporation, it was immaterial that they testified therein for the corporation and in support of their title to the office of director, if they acted in good faith and their testimony was material in that action, and if there was nothing to show that they were seeking to establish an unjust or illegal claim, or were guilty of any fraud, collusion, or improper motive, in coming into the state, or in giving their testimony.</p> <p>3. Quo Warranto—Nature of Proceeding.</p> <p>An information in the nature of a quo warranto is not a criminal action, but, though the state is the nominal plaintiff and the Attorney General the relator, is to all intents and purposes a civil action.</p> <p>4. Quo Warranto—Nature of Proceeding—Parties.</p> <p>While the state is the nominal plaintiff in an action in the nature of a quo warranto, and the Attorney General is the relator in actions where individual directors of corporations are seeking to oust others claiming to be entitled to the office, etc., neither the state, nor its representative, is the real party in interest.</p>

Action by Ethel W. Taylor, widow of Herbert S. Taylor, against Du Pont Building Corporation, to recover damages for the death of her husband, alleged to have been caused by the negligence of the defendant corporation. Plaintiff claimed in her narr. damages for loss of support and for loss of consortium. Directed verdict for defendant. Motion for new trial. Denied. Plaintiff brings error. Affirmed.

Action was brought by Alvan T. Fuller, trading as Packard Motor Car Company of Boston, against William J. Webster to recover the possession or value of a certain motor car, to which the plaintiff claimed he was entitled under a contract of conditional sale. Judgment for defendant (5 Boyce 538, 95 Atl. 336) and plaintiff brings error.

Action by John O’Mallie against the Harlan & Hollingsworth Corporation. On application by defendant for a special jury. Application denied. Application by Harlan & Hollingsworth Corporation for a special jury, after the second general jury for the term had been drawn. Rule 13, § 4, as amended, appendix, 3 Boyce, provides: Applications for special juries shall be made at or before the time the calendar is made.

Action by Annie Potter against Richardson and Robbins Company to recover damages for personal injuries alleged to have been occasioned by negligence of defendant company. General demurrer to the three counts in the declaration. Sustained. The questions on the legal sufficiency of the declaration appear from the opinion of the court.

Action by Laura I. E. Brown against John Bail Pierce to recover balance of purchase price for certain real estate in the City of Wilmington, which the defendant had agreed in writing to purchase from the plaintiff for the price therein mentioned, it being stipulated that the plaintiff would convey to the defendant “a good fee simple and marketable title, clear of all liens and encumbrances of every nature and character whatsoever of record prior to the twenty-fourth day of…

Information on appeal from the said Municipal Court, No. 49, May Term, 1915. Motion to quash refused. Then on demurrer. Sustained in part, and overruled in part. S. c. on the merits, post.

Action by Erving Wolfe against the Baltimore & Philadelphia Steamboat Company. Demurrer to declaration overruled. Mr. Bayard: The first count alleges that the accident occurred “in the Chesapeake Bay,” without stating a fictitious venue in New Castle County, as required by Section 4178, Code 1915. It does not appear whether it was in the jurisdiction of Maryland or Virginia.

Howard D. Lowber was indicted for violation of Rev. Code 1915, § 4709, against using, etc., a female under the age of eighteen years, for immoral purposes. Verdict guilty. Motion in arrest of judgment denied. Accused brings error.

Action by Montray Realty Company against John W. Arthurs on two promissory notes made by the defendant to the order of the plaintiff. On motion at the close of the testimony for binding instructions for defendant. Verdict directed for the defendant.

Action by Curtis G. Bupp against Benjamin R. Veasey. On special demurrer to the declaration. Demurrer sustained. Action to recover double the value of property distrained for rent demanded when no rent was in arrear.

Mary Williams was convicted of larceny, and moved for new trial. Motion allowed, and new trial granted. The defendant was tried on January 5th, 1917, for the larceny of certain goods and chattels laid as the property of Lewis L. Jarrell and Beulah Jarrell.

Action by John Robinson, trading as John Robinson and Company, against Alice Du Pont Ortiz, owner, or reputed owner, and John F. Davies, contractor, for the recovery of a mechanic’s lien. Special amended pleas to the plaintiff’s statement filed. On general demurrer to each of the special pleas.

Mike Gilbert was indicted for disposing of a lottery ticket under Rev. Code 1915, § 3564. Verdict, not guilty. The state was permitted to show another transaction like the one disclosed in this case. The two witnesses for the state on cross-examination, testified without objection, that they did not regard the transaction as fraudulent. The facts in the case and questions of law presented appear in the charge of the court.

Action by foreign attachment in the Superior Court by John Pierpont Morgan, William P. Hamilton, Herbert L. Satterlee and Lewis C. Ledyard, executors of John Pierpont Morgan, deceased, against James A. Ownbey. Entry of appearance by attorneys for defendant on the appearance docket, etc., as in ordinary actions, without giving security required by statute. Motion to strike off. Granted.

Action by Ella C. Zeigrist, widow of William Zeigrist, deceased, against Jacob F. Speer, trading under the firm name of G. I. Speer. On defendant’s motion for nonsuit. Motion granted, and verdict directed for defendant. The plaintiff sued to recover damages from the defendant for the death of her husband caused by the collapse of a scaffold upon which her husband was working as a slater in the employ of the defendant.

Amanda Ray was informed against with another in the Municipal Court for the City of Wilmington, for the sale of intoxicating liquor without a license. She was tried, convicted and sentenced by the court. She brings appeal.

<p>1. Indictment and Information—Duplicity. ,</p> <p>Under Rev. Code 1915, § 3568, penalizing keeping or exhibiting gaming table, etc., a count of an indictment charging accused with abetting another to commit such offense and keeping a gaming table, and being interested in exhibiting it, is not duplicitous.</p> <p>2. Indictment and Information—Rejecting Surplus Words.</p> <p>Where Rev. Code 1915, § 3568, makes keeping a gaming table a misdemeanor, a count of an indictment charging accused with feloniously keeping such table, etc., the word “feloniously” may be rejected as surplusage.</p> <p>3. Indictment and Information—Sufficiency.</p> <p>A count in an indictment charging accused with knowingly and feloniously keeping a gaming table, etc., is defective, because not charging the act was done unlawfully and willfully.</p>

George Morley and Sarah Morley, his wife, were indicted for unlawfully exhibiting, etc., a certain table at which a game of chance, commonly called crap, was played with dice for money. On motion to quash indictment.

Action by George H. Wiggin against Loro H. Lynam, before a Justice of the Peace. Judgment for plaintiff. Defendant brings certiorari. Affirmed. Counsel for the defendant below contended that the requirement of the statute that the justice should appoint “judicious and impartial men of the county” was jurisdictional, and that the fact that the record did not disclose that the referees so appointed were “judicious and impartial men of the county,” was fatal.

Action by Mary C. Reed and Willard S. Reed (husband and wife jointfy as at common law) to recover damages for personal injuries to the wife by negligence. The declaration was filed. The wife subsequently died. An amended declaration was filed, admitted to be in substitution of the first. On special demurrer to the several counts in the amended declaration. Sustained.

Action by William C. Brown against Green & Flinn, Incorporated, to recover damages for personal injuries by negligence. On special demurrer to the first three counts of the declaration. Overruled as to the first two counts and sustained as to the third.

Action by Frank H. Pond against Alex Benzik. On plaintiff’s motion to strike bond from the files. Praecipe and writ amended.

William Prettyman, Adam Hargus, and Webster Purnell were indicted for murder in the first degree. Verdict as to each defendant, guilty of murder in the first degree.

Action by Jacob C. Knowles against Lulu Knowles for divorce. The competency of the plaintiff to testify was objected to on the ground that he did not believe in a Supreme Being, and did not believe in a future state of rewards and punishments. Evidence heard. Plaintiff allowed to-testify. Counsel for defendant asked that he be allowed to put witnesses on the stand to prove the '• plaintiff’s former declarations of disbelief in a Supreme Being.

Action of Assumpsit before a justice of the peace by John P. Hudson against William W. Blodgett, on a book account for goods sold and delivered. Demand thirty-six dollars. Judgment for plaintiff. Defendant brings certiorari. Judgment affirmed. The action was begun by a “forthwith” summons, on the twenty-sixth day of January, A. D. 1917.

Action of Tresspass before a justice of the peace by Robert Wood against William D. Howell. Judgment for plaintiff, and defendant appeals. Directed verdict for defendant. Appeal by the defendant below from the judgment of the justice of the peace in favor of the plaintiff below, in the action of trespass for direct and immediate injuries to plaintiff’s automobile occasioned by a collision of the defendant’s automobile with that of the plaintiff.

<p>Certiorari to the Court of General Sessions, New Castle County. y</p>

Action by Herschel M. Byall, administrator of Amy Young, deceased, against Jay A. Rigdon. On rule to show cause at the instance of J. W. Sparks & Company, interveners. Rule discharged.

Action by Charles W. Jefferson against James I. Padley. Judgment for plaintiff, motion to quash pluries fierie facias. Motion denied. This was a motion on behalf of the defendant, to quash an execution writ of pluries fi. fa., No. 1, to January term, 1917, on' the ground that the writ does not show upon its face that it was issued to recover the residue of the judgment debt.

Action of deceit, begun by foreign attachment, by Henry L. Williams against John Beltz and Francis E. McGillick. Directed verdict for defendants. Motion for new trial and in arrest of judgment denied. The plaintiff seeks to recover damages from the defendants, for alleged fraudulent misrepresentation by the defendants with respect to the sale of stock in a mining company to the plaintiff.

Action brought by the Milford Company, a corporation of the State of Delaware, against Isaac D. Short. On motion at dose of plaintiff’s testimony for nonsuit. Granted. The action was for an alleged breach of contract, entered into between Emil P. Gebhart and the defendant for furnishing lumber by the latter to the former, for the erection of a certain building in the town of Milford, Sussex Count;?.

James Kane was indicted for selling intoxicating liquor, etc. Case heard in the Court in Banc in accordance with the determination of the Court of General Sessions directing that the case be so heard. Opinion certified to Court of General Sessions, wherein nolle prosequi was entered.

<p>Petition for mandamus by the .State of Delaware, on relation of John E. Linihan, against United Brokerage Company, Samuel D. Carnes, J. P. McGehee and James M. Satterfield to compel the production of books. Service on United Brokerage Company and James M. Satterfield, and non-suit as to Carnes and McGehee. Motion to dismiss petition and discharge rule as. to James M. Satterfield, the resident agent, on the ground that he was neither a necessary or proper defendant. Granted. On return of the rule, the alternative writ was on motion issued against the United Brokerage Company. Motion to quash return to alternative writ. Overruled.</p>

Action by Clifton A. Perkins against Anna J. Bringhurst. On defendant’s motion to require the production of papers. Motion granted. Action by Clifton A. Perkins against Anna J. Bringhurst, to recover for work and labor performed and materials furnished, money advanced, etc., in and about the erection and repair of certain buildings for defendant.

Action for divorce on the ground of extreme cruelty by Mollie A. Palese against Andrew J. .Palese. Plaintiff given an opportunity to file an answer, setting up defense sought to be raised by evidence. At the trial, it was sought to introduce testimony to prove adultery on the part of the plaintiff. Objection was made that no answer setting up such a defense had been filed by defendant.

James I. Padley was convicted under Section 4756, Rev. Code 1915, of secreting, destroying and removing from the county certain goods and chattels levied on by the sheriff under execution process and brings error. Affirmed. The facts and questions of law presented appear in the opinion of the court.

Petition and affidavit by Joseph S. Hamilton, President of the Law and Order Society of Wilmington, Delaware, for a rule against Frank C. Pierce to show cause why the license granted to him to sell intoxicating liquors in his house at Summit Bridge should not be revoked. License revoked.

Peter Greco was indicted for embezzlement. Verdict of guilty, and new trial refused. Peter Greco was indicted for the embezzlement of a stick pin, as to which no value was alleged in the indictment or proved at the trial. At the completion of state’s testimony in chief, counsel for defendant asked that the jury be instructed to return a verdict of not guilty, on the ground that the value of the embezzled personal property had not been proven.

<p>Harry S. Lankford was indicted for an assault upon Alice M. Lankford, his wife. Verdict guilty.</p> <p>At the trial, the wife testified that she and the accused were married June 10th, 1916;-that about the first of March following, she began suffering in her private parts, and asked her husband what ailed her; that he told her she had ulcers, and he got some medicine for her but she could not take it. He told her she would get well, if she waited awhile, which she did, but her ailment grew worse; that the latter part of the month or the first of April she consulted a physician and learned that she had syphilis; that from the time of her marriage until she learned that she was infected she had lived with her husband an that he had continued to have sexual relations with her until March after their marriage. A physician testified for the state that he had been .consulted by the accused, the latter part of November or the first of December, 1916, and that, on finding he had syphilis, he informed the accused of the nature of his malady.</p> <p>The husband admitted that his wife contracted syphilis from him and that he did not tell her that he was suffering with the disease until she had learned that she was suffering with it; but contended that he had contracted the disease about nine months before his marriage, at which time he supposed himself to have been cured; that some time in October, following his marriage, he consulted a physician and became aware that he still had the disease; and that from that time he did not have sexual intercourse with his wife.</p> <p>The court was requested on behalf of the state, to instruct the jury that if they should believe that the accused, knowing that he was infected with a venereal disease, syphilis, and without informing his wife of the fact had sexual intercourse with her after such knowledge had been communicated to him, and thereby infected her with the disease, he would be guilty of assault. The fraud practiced upon the wife would abrogate any consent) she might give for sexual intercourse, as it cannot be supposed that a wife would consent to sexual intercourse with her husband if she knew that he was infected with a disease such as syphilis. Reg. v. Williams, 8 C. & P. 286; Trammell v. Vaughan, 158 Mo. 214, 59 S. W. 81, 51 L. R. A. 854, 81 Am. St. Rep. 302; State v. Marks, 140 Mo. 656, 41, 5. W. 973, 43 S. W. 1095; 2 Whart. Crim. Law, 1875; Clark, Crim. Law, 246; and 2 Bish. Crim. Law, § 72b(2).</p> <p>For the accused the court was requested to instruct the jury, first defining an assault, that if the evidence fails to show the alleged act of assault unjustifiable, or leaves that question in doubt, the criminal act is not proved, and the defendant is entitled to an acquittal; that the intent to injure is the essential element of the offense charged, and before the jury can find the accused guilty they must find that he had an intention to injure his wife; that if the accused had syphilis prior to his marriage to the prosecutrix and believed that he had been cured of the disease before his marriage, and that as soon thereafter as he learned that he still had the disease, he ceased to have, and has not since had, sexual intercourse with his wife, though the jury should believe that the wife contracted the disease from him, the verdict should be not guilty.</p>

Giuseppe Li Fieri, alias Joseph Li Fieri, was indicted for unlawfully selling “ intoxicating liquor, to wit, beer, to one Ernest C. Greenley, he the said Giuseppe Li Fieri, alias Joseph Li Fieri, then and there not having a proper license to sell intoxicating liquor according to law,” etc. On demurrer to the indictment. Overruled. The causes of demurrer appear in the opinion of the court.

Joseph D’Amico was placed on trial in the court below, Heisel, J., sitting, under indictment No. 40, January term, 1916, for unlawfully selling intoxicating liquors. Verdict, guilty. Accused brings error. Affirmed.