Volume 30 — Delaware Reports

Petition by James P. Jones for a rule to show cause why the judgment entered on the bond of Delray C. Brown, with the petitioner as surety, executed on the order of the Court of General Sessions in a nonsupport proceeding against Brown, should not be vacated and set aside. Rule issued, and on hearing it was dismissed.

<p>George L. Dorsey and others were indicted for conspiracy, made unlawful by statute, Rev. Code 1915, § 4797. There were three other similar indictments charging Dorsey and others. On demurrers to the first count in each indictment and to the second count in the third indictment. The demurrers were heard together. Overruled. The causes of demurrers are stated in the opinion.</p>

John M. Richardson was indicted for an assault and battery. On general demurrer to a plea of autrefois convict. Sustained. The questions of law raised appear in the opinion of the court.

Action of assumpsit by Charles W. Barber and another against Robert J. Clendaniel. Plaintiff’s motion to amend the record, declaration, and bill of particulars to show that plaintiffs were partners was allowed, and on application of defendant case continued. The original declaration was on the common counts.

Action op Assumpsit by George H. McGovern, administrator of Isaac J. Gilkey, deceased, against Elizabeth A. O'Donnell, for money had and received from the proceeds of a certain check. Boyce and Conrad, J. J., sitting below. Verdict was directed for defendant, and she had judgment, and plaintiff brings error; affirmed.

Petition and affidavits by James A. McKelvey and Lewis Dickey, Committee, etc., for a rule to show cause why a peremptory writ of mandamus should not issue to John G. Townsend, Jr., Governor of the State. On motion to discharge the rule and dismiss the petition.

Petition with affidavit annexed, by Thomas S. Fouracre and others, Levy Court Commissioners, composing and constituting “the Levy Court of New Castle County, ” for a rule to show cause why a writ of prohibition should not issue to William P. White and others, who had been appointed and commissioned by the Governor to act as and to constitute the “Department of Elections for the City of Wilmington,” under Chapter 111, Volume 29, Laws of Delaware.

Action by Edward F. Burris and another, trading as E. F. Burris and Son, before a justice of the peace, against Roscoe C. Hitch. Judgment for plaintiffs. Defendant brings certiorari. A “forthwith” summons was issued on December 18, A. D. 1917.

Action for divorce by Lafayette David Patrick against Fleta E. Patrick. Answer to the charge of adultery filed by defendant. On motion to withdraw answer, in order to make objections to the petition. Motion allowed.

Action by Perry M. Culver and others, late trading as the George W. Stradley Canning Company, against the Philadelphia, Baltimore and Washington Railroad Company. On motion to strike out plea in abatement after judgment on general demurrer to the declaration. Motion allowed.

Fred Von Burén was indicted and tried for the larceny of two diamond rings. Verdict, guilty. On the morning of November first, 1917, the accused went into the jewelry store of B., in the City of Wilmington, and engaged in conversation with Miss P., a clerk in the store, who was, at the time, arranging certain articles of jewelry in the front show window.

Action before a justice of the peace by Clara Hudson against Moxie Bunting. Judgment for plaintiff, and defendant brings certiorari. On exceptions to the record and proceedings before the justice.

Action commenced before a justice of the peace on complaint of Benjamin F. Melson and Sallie R. Melson, his wife, against James A. Willoughby to recover damages for direct and. immediate injuries to real property of the plaintiffs, situate in North West Fork Hundred, Sussex County, by cutting trees standing thereon.

Action before a justice of the peace by Robert H. Taylor against Walter S. Burris. Judgment for plaintiff, and defendant appeals, and plaintiff moves to strike off the appeal. Motion allowed. The certification of the transcript of the docket of the justice bore his typewritten signature instead of his signature in his own proper handwriting. Counsel for respondent contended that the transcript so certified was not such as is required by the statute.

Action by William F. Allen against the Philadelphia, Baltimore and Washington Railroad Company. On motion of plaintiff to amend name' of defendant after plea in abatement. Amendment allowed. After service of process and plaintiff had filed his declaration, a plea in abatement, based on the misnomer of defendant by the omission of “The” in the corporate name, was filed.

Action brought by Charles L. Terry against Mary J. Parsons and others trading as M. J. Parsons and Sons, to recover damages growing out of a breach of contract. Verdict for plaintiff. Testimony respecting special damages such as are indicated in the following statement of facts was introduced against objections for the defendants.

William M. Roe was indicted for assault and battery upon Samuel Richards. Verdict, guilty with recommendation of mercy. On November 23, 1917, R., being in the-employment of M., accompanied the latter in a two-wheeled sulky to his farm, then in the tenure of the accused, whom they found husking cprn. Seated in the sulky, M. asked his tenant what according to his estimate the landlord’s share of the com crop would be, stating that he wished to have it insured.

Action by Norris N. Doswell against Alice Lee Doswell for divorce; cause adultery. On hearing, the petition was dismissed for want of jurisdiction. The petition was filed January 5, 1918, and it was alleged t.Tip.rp.in that the defendant committed adultery with John Cousins in the town of Coatesville, Pennsylvania, during each and every of the first eleven months of the year 1917. The service of process upon the defendant was by publication.

Action before a justice of the peace by Charles Hillman, School Tax Collector, in the name of the Commissioners for School District No. 6 of Sussex County, against Charles Jester. Judgment for plaintiff, and defendant beings certiorari. Among the exceptions filed to the record was the following: “Second.

Action by the State, for the use of Edgar L. Kinder, County Treasurer of Sussex County, against Joseph W. Beach. On defendant’s motion to file affidavit denying signature after plea filed. Motion allowed. Action by the State against surety on a tax collector’s bond. After the case had been pleaded to issue and on the day preceding the trial, the defendant moved to file an affidavit, denying his signature to the bond sued on, under Rev. Code 1915, §4170.

Action before a justice of the peace by John P. O’Donnell, landlord, against Tony Giandonando, tenant, to recover certain demised premises, after notice to quit. Judgment for plaintiff for damages only. Defendant brings certiorari. The only exception to the record considered by the court appears in the opinion.

Action by Anna White against the Philadelphia, Baltimore and Washington Railroad Company. To plaintiff’s declaration, defendant pleaded not guilty and release. Plaintiff entered general replications and issues. At the trial, plaintiff, after resting and after the defendant had introduced the release in evidence, moved to amend by filing a special plea of non est factum. Motion denied. Directed verdict for defendant.

Harford Robinson and Walter Beddle were indicted for the larceny of com, husked and left in the open field of William Leg'g, the tenant in possession, who shared with his landlord in the crops. Beddle pleaded guilty. Verdict of not guilty for Robinson. The com was stolen in the night time, and there was evidence that the team used in hauling the corn from the field was tracked to the home of the accused the following morning.

At a Court of Oyer and Terminer, in and for New Castle County, beginning March eleventh, 1918, Edward Jaroslowski was tried for murder in the first degree. Verdict guilty. Edward Jaroslowski was indicted for murder in the first degree. Verdict of guilty. The indictment charged the prisoner with the murder of one Waclawa Jaroslowski, by means of strychnine poison, she being his infant child about fourteen months of age.

Action by the Wilmington Gas Company against Harry Annest, before a justice of the peace.' Judgment for less than the demand, and plaintiff appeals. Defendant moved to dismiss the appeal.

Action by Lewis L. Baker and his wife against Sarah J. Green and her husband. On motion of defendants for security for costs. Motion for rule upon plaintiffs for security for costs and affidavit by Sarah J. Green, one of the defendants, under Section 4174, Rev. Code 1915, made and filed the day preceding that set for the trial of the case.

<p>William Wimer was indicted on two counts for an attempt to commit sodomy, and demurred to each count. Demurrer to first count overruled. Demurrer to second count sustained.</p>

Action of assumpsit by John J. Jones against Ernest W. Hinderer, commenced before a justice of the peace. Judgment for plaintiff, and defendant appeals. On defendant’s motion for judgment for want of replication to plea. The facts and questions presented appear in the opinion of the court. •

Action by Daniel C. Spruance against John G. Gray to recover for money advanced by means of a certain check. On motion for judgment. Plaintiff filed an affidavit of demand with copy of cause of action annexed, and moved for judgment at the first term, under Rev. Code 1915, §4169. Defendant moved that judgment be refused notwithstanding no affidavit of defense had been filed.

Savva Lichter was indicted for an assault upon John M. Dobrosielskie with intent to commit murder. Verdict, guilty of assault. It was shown by the evidence that the accused, while standing within a few feet of Dobrosielskie, fired a revolver at the latter, failing, however, to hit him. The defense relied on was one of mistaken identity.

Action by David Cohen against The Home Insurance Company on two certain policies of fire insurance. On demurrer to the eighth and ninth counts of the amended declaration.

Front and Union Street Railway Company was indicted at the February term, 1916, for failing to file with the Secretary of State a copy of its annual report, under section 152, c. 65, Rev. Code 1915 (section 2066) of the General Incorporation Law. On motion to quash the fourth count in the indictment on the ground that the defendant, having been incorporated prior to the passage of the General Incorporation Law, was not bound by the provisions thereof.

Action by Charles Y. Fox and another, trading and doing business as a copartnership under firm name and style of Githens, Rexsamer & Co., against Joshua W. Derrickson and another, trading and doing business as a copartnership under the name, firm and style of Derrickson & Martin. On motion by plaintiffs for the production and inspection before trial of certain books and writings in possession and control of defendants.

Vincenzo Alamanio was indicted for adultery, under Rev. Code 1915, § 4788a, 29 Laws of Delaware, 854, amending Rev. Code 1915, § 4788. On general demurrer to the indictment. It was urged: That the unlawful, voluntary sexual intercourse between two persons of opposite sexes, only one of whom is married, as in this case, the offense of adultery is committed by the married party only and not by the unmarried. State v. Chafin, 80 Kan. 653, 103 Pac. 143; Com. v. Lafferty, 6 Grat.

Action by John Heldmyer, Jr., against Henry Cleaver. Trial by jury. Verdict for plaintiff. The action by the plaintiff was to recover for services which, as a real estate broker, he had rendered the defendant in the sale of a certain farm.

Peter Greco was tried on an indictment charging him with an assault with intent to rape. Verdict of guilty, defendant suing out writ of error, which was dismissed for failure to prosecute.

Foreign attachment by Roy Kemp, an infant, by his next friend, Robert J. Kemp, against the McNeill Cooperage Company. The defendant appeared by giving the required security. The case was pleaded to issue, as in an action on the case for personal injuries. Trial by jury. Verdict for plaintiff.

In the matter of Thomas Killcourse, in custody on a charge of highway robbery. On motion for his discharge. Denied. Motion for the discharge of Thomas Killcourse, in custody on a charge of highway robbery.

<p>William Fitzsimmons was indicted for larceny by trick. The defense was an alibi. Verdict guilty.</p> <p>The proof was that the method employed by the accused was what is known as “switching” diamonds. The accused and another met H. on Market street in Wilmington on the morning of the thirteenth and showed him three unset diamonds which they wished to dispose of. H. took the diamonds into a jewelry store, where he had them tested and found that the diamonds were stones of the first water. He thereupon offered to the accused two hundred and fifty dollars for the three diamonds which was refused by the latter; he remarking that if they were unsuccessful in selling the stones at the price desired they might see H. later. Later in the day H. went to his home and found the accused and his companion waiting for him at a nearby grocery store. The accused after some conversation with H. agreed to accept the offer as made by H. earlier in the day. Thereupon they accompanied him to his home, where he secured the money and after examining the stones and satisfying himself that they were genuine he laid them down and proceeded to pay the accused for the same. After the accused and his companion had left H. became suspicious about the three stones and upon taking them to a jeweler’s for examination found that they were glass. H. claimed that during the process of paying for the stones at his house' the accused had switched or removed the three diamonds which he purchased and had substituted glass for the same. It was also shown that after the arrest of the accused, the two hundred and fifty dollars as restitution money was returned to H. through his counsel, who received the same through counsel for the accused.</p>

Appeal to Superior Court for New Castle County from Order of Board of Public Utility Commissioners. Proceeding by the Wilmington and Philadelphia Traction Company before the Board of Public Utility Commissioners for the City of Wilmington to increase its rates. From an order allowing the increase, James W. Robertson and others appeal. Modified and affirmed.

Action by the Montray Realty Company against John W. Arthurs on two promissory notes. Judgment for defendant. Plaintiff brings error. The Montray Realty Company, the plaintiff in error, was a New York corporation engaged in selling -real estate, in the form of lots, inter alia, at a place called Westbury, on Long Island state of New York. In the summer of 1915, one Samuel E. Underhill was employed by said company as a salesman to solicit purchasers for said lots.

Foreign attachment by the Wilmington Trust Company, administrator against Isabel M. R. de Paris, under which defendant’s shares of stock in a Delaware corporation were seized. The defendant appeared by giving security, thereby dissolving the attachment. The case was pleaded to issue. Trial by jury. Verdict for the plaintiff. Judgment entered. Defendant brings error. Judgment reversed. S. c. on demurrer 5 Boyce 565, 96 Atl. 30.

Action by Joshua Z. Crossland against Caleb J. Freeman, trading as Freeman and Weber, for libel. On demurrer to the declaration.

3784 (November 6, 1918). Proceedings under the Workmen’s Compensation Act by John Earl Palmatory and May Palmatory, to obtain compensation for the death of Earl Palmatory, a son, opposed by the Benjamin P. Shaw Company, a corporation, the employer. There was an award of compensation by the Industrial Accident Board. The employer appeals to the Superior Court. Award sustained.

Action by Minot Curtis Brewer against Walter C. Curtis, executor. The parties by their respective attorneys of record waived the making and filing all pleadings, and submitted the cause to the court on an agreed statement of facts. Judgment for the plaintiff.

Action, on book account, by George Messick, administrator of Maria E. Fleetwood, deceased, before a justice of the peace, against James O’Neal and Sallie O’Neal. Demand seventy-eight dollars and twenty-seven cents. Judgment for plaintiff. Defendants bring certiorari.

Action by Harry Montgomery against Julian C. Morrison before a justice of the peace. Judgment for plaintiff, and defendant appeals. On motion to dismiss the appeal. Special- appearance by respondent’s attorney for the purpose of moving that the appeal be dismissed for the reason that the appellant had neglected to prosecute it. It appeared that the appeal was duly entered on Saturday next preceding Monday, the first day of the succeeding term of court.

Eleanor Handy was indicted and tried for violating the Drug Act, Rev. Code 1915, § 3595. Verdict not guilty. See State v. Rothman, 7 Boyce—105 Atl. 427.

John Rothman was indicted and tried for violating the Drug Act, Rev. Code 1915, § 3595. Verdict guilty. See State v. Handy, ante, 105 Atl. 426.

Action of trespass before a Justice of the Peace by Willard Reed against John W. Guessford for direct and immediate injury to plaintiff’s automobile. Judgment, for plaintiff. Defendant appeals. On special demurrer to second count of pro-narr. Demurrer overruled. Trial by jury. Verdict for plaintiff.

Action in replevin by John E. McCall against Milton Stem, trading as the Auto Transit Company, and Joshua Z. Crossland, Sheriff. Petition by defendant Stern for a writ de. retomo habendo pendente lite.

Same case on error following. John E. Stiegler, George L. Dorsey, Stephen A. Smith, and Alexander Rothwell were jointly indicted for conspiracy to cheat and defraud Speakman Supply & Pipe Company, of certain goods, property, and merchandise. Verdict guilty. Sentences were imposed. Accused bring error.

Action by Avis Dooley, against the Philadelphia, Baltimore & Washington Railroad Company. On application for continuance because of the absence of a material witness. Casé continued.

<p>Joseph Lapista and William Fucello were indicted jointly for highway robbery. Verdict of guilty.</p> <p>The indictment was found under Rev. Code 1915, § 4716, and it charged that Joseph Lapista and William Fucello, of, etc., on, etc., with force and arms; at, etc., in the highway leading from Front street to Second street, commonly called Lombard street, did in and upon Jerome Russell feloniously make an assault, and him the said Jerome Russell did put in bodily fear, and did then and there feloniously take from him one pocketbook of the value, etc., and certain paper money of the aggregate value, etc., being the goods and chattels of the said, etc.</p> <p>There was evidence that the accused came upon the said Russell, he being under the influence of intoxicating liquor, on Lombard street, near Front street in the city of Wilmington at about eleven thirty o’clock on the night of September twelfth, 1918, and that they threw him down upon a cellar door on said street and took from him his pocketbook, containing thirty-two dollars, and that while they were still standing over him, a police officer, coming from behind an ice wagon, arrested both of them. A blackjack was found upon one of them and the pocketbook of Russell was found in the possession of the other.</p> <p>Lapista, admitted his guilt to the jury, and, after proving his previous good character, his counsel requested the jury to return a verdict of guilty against him with a recommendation of mercy. Fucello denied his guilt and introduced evidence to establish an alibi.</p> <p>Mr. Wales, for Fucello, requested the court, after the charge proper in a case of highway robbery, to instruct the jury that they should be governed by their own recollection of the testimony and not by statements of counsel on either side respecting it.</p>

Action by Abraham Vivien against William A. Corbin. Defendant appeared and filed a general demurrer. Action begun by foreign attachment by Abraham M. Vivien against William A. Corbin. Plaintiff filed declaration in covenant for breach of warranty of title to real estate.

<p>1. War—Legislative Power of State.</p> <p>The several states have power to enact legislation to aid the federal government while it is at war with a foreign country; such power not being denied, either expressly or by implication, by Const. U. S. art. 1, § 8, or other constitutional provisions.</p> <p>2. Constitutional Law—Iinvoluntary Servitude—War Measures.</p> <p>Council of Defense Law, §§ 4, 5, requiring men between ages of eighteen and fifty-five to be engaged in some lawful or useful occupation, is not, in view of its character as a war measure in stimulating production of food and war supplies, and its object to preserve order, as expressed in section 1, violative of Const. U. S. art. 13, §§ 1, 2, prohibiting involuntary servitude, except as punishment for crime, or article 14, § 1.</p>

Action by the Voorhees Rubber Company against the Bruns wick-B alke-Collender Company. On motion of defendant for a continuance to the succeeding term. The motion was based upon two affidavits, as stated in the opinion of the court, neither of which was made by the president, treasurer or cashier of the defendant company.

Action of replevin by Irma E. Whiteman against Louis C. Whiteman—the father-in-law of the plaintiff—to recover the possession or value of certain household goods and articles of personal property. Verdict for plaintiff, also for defendant. The declaration contains one count in the detinuit.

<p>Charles B. McCollom was indicted for embezzlement, and he moves for bill of particulars.</p>

Howard E. Larmer was indicted and tried for embezzlement. Verdict not guilty. The indictment charged the accused, who was a conductor of a street car of the Wilmington & Philadelphia Traction Company,. with the embezzlement of certain fares on July twenty-third, 1918.

Action for divorce for habitual drunkenness by Franklin C. Smith against Elizabeth L. S. Smith. Petition dismissed without prejudice. The evidence of the plaintiff and several witnesses was to the effect that the defendant had for a long period of time been addicted to the use of various kinds of drugs and narcotics which produced effects similar to those caused by the excessive use of intoxicating liquors.

<p>Action by Julia C. Morrison against Harry B. Montgomery. On general demurrer.</p>

Action by the Ajax Rubber Company, Incorporated, against Emma S. Gam. On general demurrer to the declaration. Demurrer sustained. The question of law presented appears in the opinion of the court.

Action by John H. Clark against Wilmington Trust Company, Lucius C. Jones, county constable, and the Diamond State Warehouse Company. Verdict for defendants.

Action before a justice of the peace b}1, Pasquale del Campo against Samuel Bell for forcible detainer. Judgment for plaintiff for possession and costs of suit. Defendant brings certiorari.

<p>Action for divorce by Mary Petras against Adam Petras. On objection to the legality of the marriage.</p>

Action by Mary A. Pleasanton against Louis U. Pleasanton for divorce on the ground of extreme cruelty. Request by plaintiff for an order on defendant for maintenance of children. At the trial plaintiff asked the court, in case a decree nisi should be granted and the children awarded to her, to order the defendant to pay the plaintiff a reasonable sum for their maintenance.

Action by Abram E. Frantz in the Court of Common Pleas for New Castle county against Blanche H. David as holding over tenant .Judgment for plaintiff, for possession, damages, and costs. Defendant appeals. On motion to dismiss the appeal.

Action before a justice of thepeace by Samuel Levitón, trading as the Star Wall Paper and Decorating Company, againstjames J. Walsh and Nellie C. Walsh. Judgment for defendants, and plaintiff appeals. On motion to quash alias summons.

Action of Foreign Attachment by John Pierpont Morgan and others, as executors of the estate of John Pierpont Morgan deceased, against James A. Ownbey. Judgment for plaintiffs (6 Boyce, 379, 100. Atl. 411), and defendant brings error. Plaintiffs move that defendant, as plaintiff in error, be required to give additional security in the supersedeas bond and to strike, out certain portions of the record. Motion for further security in supersedeas bond denied.

Warner I. Henry and Joseph Henry were indicted for larceny, and were brought to trial before a jury. During the trial, a nolle prosequi was entered as to Joseph Henry, and a verdict of guilty was returned against Warner I. Henry. Whereupon there was a motion for new trial and in arrest of judgment on the ground of the refusal of the court to continue the case on application, of defendants, supported by affidavits. Motion refused. Warner I. Henry brings error.

<p>Action by Roy B. Hurd, administrator, against the Phoenix Company, a corporation. On general demurrer.</p> <p>The question raised appears in the opinion.</p>

Action by Holmes Jones against Richard Hopkins. Verdict for plaintiff. This was an action begun by foreign attachment. Declaration in assumpsit to recover for granite screenings sold and delivered. Plea of non assumpsit relied on.

Ellcton Adams and Carmine Belascio were jointly indicted for the extortion of twenty-five dollars from one Robert L. Locker-man. Verdict guilty. It was proved by the state that L., induced by certain advertisements bjr Adams, viz. “Spot cash paid for your Liberty Bonds or Payment Cards,” * * * presented a Liberty Bond card to Adams, who, as a real estate agent occupied offices in Wilmington with Belascio, a licensed private detective, stating that he wished to sell the card.

Petition by Elmer H. Lawson, assignee of a judgment by confession before the prothonotary on a warrant of attorney, and by Layton & Layton, Incorporated, holder of a judgment by confession in an action, to draw money out of court. Order for payment to Layton & Layton.

Action by Sarah Matilda Clayton against the Philadelphia, Baltimore & Washington Railroad Company, to recover damages for personal injuries. Verdict for defendant.

Action by William J. Knotts, administrator of Charles Waters, deceased, against Charles Jester and another, trading as Jester and McDaniel. From a judgment by a justice of the peace in favor of plaintiff, defendants appeal. Verdict for defendants.

Action by the Wilmington Turngemeinde, a corporation of the state of Delaware, against Samuel G. Elbert. To review judgment for plaintiff, defendant brings error. This was an amicable action in covenant, docketed in the court below, for breach of contract under seal by and between the parties, for the sale of certain real estate situate in the city of Wilmington.

Writ of Error to Superior Court, New Castle County. Action by Henry L. Williams against John Beltz and another. To review a judgment for defendants, plaintiff brings error. Judgment set aside as to the named defendant, and new trial awarded as to him. See same case below, 6 Boyce 554, 101 Atl. 905.

Action of replevin by William H. Frick, administrator of the estate of Catharine E. Frick, deceased, against William P. Miller. Verdict for plaintiff. Judgment affirmed, post, 107 Atl. 394. Action of replevin by William H. Frick, administrator of Catharine E. Frick, deceased, against William P. Miller to recover either the possession or the value of certain articles of personal property.

Action of replevin by William H. Frick, administrator of the estate of Catherine E. Frick, deceased, against William P. Miller. To review judgment for plaintiff, ante, (107 Atl. 391), defendant brings error. This was an action of replevin brought by the plaintiff to recover certain articles of jewelry and furniture in the possession of the defendant.

Joseph Barino was indicted for murder in the first degree. Verdict of guilty of murder in the second degree. Evidence was introduced to show that Andonio Pietropicalo was shot and killed by Joseph Barino on a public street in the city of Wilmington about 12:30 in the daytime, in the presence of several witnesses.

<p>A. Yes, sir.</p> <p>A. Yes, sir.</p> <p>A. Yes, sir.</p> <p>A. Yes, sir.</p> <p>Q. Are those the signatures and seals of Frank E. Hering and Josephine G. Hering?</p> <p>A. Yes, sir.</p> <p>A. Yes, sir.</p> <p>Q. Did Frank E. Hering acknowledge it to be his hand and seal?</p> <p>A. Yes, sir.</p> <p>Q. Did Josephine G. Hering acknowledge it to be her hand and seal?</p> <p>A. Yes, sir.</p> <p>A. Yes, sir.</p> <p>[Signed] “Herbert L. Rice, J.</p> <p>“T. B. Heisel, J.”</p>

Action on the case by the Morgan Millwork Company against the Dover Garage Company to recover damages for injuries to an automobile, which plaintiff’s agent had stored in the garage of the defendant company for safe-keeping. Verdict for plaintiff.

<p>Nathaniel L. Francis preferred a petition to the court for an order requiring the Elliott-Fisher Company to show cause why it should not issue a new certificate of stock in place of one lost, averring in said petition:</p> <p>The petitioner is informed by the secretary of the said corporation, Charles L. De Gaugue, that the market value of the common stock of the Elliott-Fisher Company is about twelve dollars a share, although sales are very infrequent and said stock has never paid a dividend.</p> <p>Nathaniel L. Francis was sworn as a witness and testified to the facts contained in the petition.</p> <p>And now, to wit this nineteenth day of May, A. D. 1919, the petition of Nathaniel L. Francis for an order requiring Elliott-Fisher Company, a corporation of the state of Delaware, to show cause why it should not issue a new certificate of stock in place of one alleged to have been lost, having been filed in this court on the fifth day of May, A. D. 1919, and a rule issued thereon requiring the Elliott-Fisher Company to appear on the twelfth day of May, A. D. 1919, and show cause, if any, why it should not issue a new certificate of stock in place of the one lost, the petitioner and respondent appearing by counsel, and the rule coming on to be heard, after hearing the proofs and allegations in behalf of the parties in interest, and it appearing to the satisfaction of the court that the petitioner, Nathaniel L. Francis, is the lawful owner of 590 shares of the common capital stock of said Elliott-Fisher Company and that the certificate therefor has been lost and cannot be found, and no sufficient cause having been shown why a new certificate should not be issued in place thereof, and it further appearing that the value of said common capital stock of said Elliott-Fisher Company does not exceed twelve dollars per share, the said rule to show cause is hereby made absolute, and</p> <p>It is further ordered that the petitioner, Nathaniel L. Francis, shall within five days from the date hereof file a bond with the said Elliott-Fisher Company in the penal sum of fifteen thousand dollars with the American Surety Company of New York, a corporation under the laws of the state of New York, as surety, conditioned to indemnify any person who shall hereafter appear to be the lawful owner of such certificate stated to be lost.</p> <p>Herbert L. Rice, J.</p> <p>T. B. Heisel, J.</p>

Action by Frederick T. Warrington against Evin C. Reese, to recover price of tomatoes sold. Verdict for. plaintiff. At the beginning of the trial, the defendant paid into court two hundred and sixty-nine dollars and forty-five cents, the amount admitted to be due in the case, with interest; also the costs of the case, thirty-eight dollars and fourteen cents. The facts appear in the charge of the court.

Action by George W. Padley, administrator, against the Director-General of Railroads. On general demurrer to the first three counts of declaration. The questions raised appear in the opinion.

<p>James F. Long was indicted for manslaughter. Verdict, not guilty.</p>

Communication from the Governor requesting the opinions of the Chancellor and Judges touching the constitutionality of the new School Code, recently enacted by the Legislature. The Legislature, at its regular biennial -session in 1919, enacted Chapter 157, Volume 30, Laws of Delaware, 352, known as the School Code.

James H. Finder, indicted for violating the state Income Tax Law, demurs to the indictment. The indictment contained two counts.

Appeal by Thomas Kennedy and another from a judgment of a justice of the peace against George W. Collins. George W. Collins, the plaintiff, having obtained a judgment by confession before a justice of the peace on-an obligation with a warrant of attorney against Thomas Kennedy and Hattie Kennedy, the defendants, they subsequently filed an affidavit with the justice, denying the obligation, etc., and asked that a trial be granted as provided by Rev. Code 1915, § 4020.

Action of trespass m et armis by Charles M. Murden against the Commissioners of Lewes to recover for alleged damages to houseboat, certain personal property therein, as well as for personal injuries resulting from the removal of the boat from the beach and pushing the same into the bay. Judgment below for defendant, which was affirmed. Same case below, 6 Boyce, 48, 96 Atl. .506. Plaintiff brings error.

Action by Frederick P. Ruhl before a justice of the peace against James H. Thomas. Judgment for plaintiff. Defendant brings appeal. Trial before jury. Verdict for appellant.

<p>1. Larceny—Definition.</p> <p>Larceny or stealing is the felonious taking and carrying away by one person of the personal property of another, with the intention on the part of the taker of appropriating the property to his own use without the owner’s consent.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Larceny.]</p> <p>2. Larceny—Removal of Stock from Owner’s Premises after Claimed Trade.</p> <p>If a trade of a mule by defendant for the prosecuting witness’ mare and colt had been fully agreed upon, and nothing remained to be done but the delivery of the mule by defendant, the mare and colt were his property, .and he had a right to take them from the prosecuting witness’ premises in exchange for the mule, and in doing so by agent was not guilty of larceny.</p>

Henry Willey was indicted for unlawfully having in his possession at one time more than one quart of spirituous liquor, to wit, five quarts of whisky. Verdict of guilty.

Isadore Titleman was indicted for keeping a gaming table under section 3568, Rev. Code 1915. Verdict giiilty. Evidence was introduced on the part of the state to the effect that a game of stud poker was played in a room in the house of the defendant, upon a table belonging to defendant; that the game was played for money and that the defendant shared in the winnings.

Appeal by Byron Salmons from the decree of the register of wills for Sussex county, admitting to probate the will of Asbury Salmons, Jr., deceased, against a caveat. Rosa Salmons, the proponent of the will, was the widow of the deceased and the sole devisee under the will. Byron Salmons, the caveator, was a brother of the deceased.

<p>Criminal law—Admissibility op evidence of other offenses.</p> <p>In prosecution for receiving from A. a watch stolen by him, testimony that A. had delivered to accused other articles of jewelry stolen from the same store was admissible, not to prove the offense charged, but on the question of guilty knowledge of accused.</p>

Biaggio Malvarosa was indicted for receiving stolen goods. Verdict guilty. The accused, a licensed junk dealer in the city of Wilmington, was charged with receiving, on the third day of October, 1918, two boxes of gun shells, the property of the Capelle Hardware Company, of Wilmington, knowing the same to have been stolen.

Action by Patrick Fahey against John B. Niles to recover damages for injury to and destruction of personal property by fire and water. Verdict for plaintiff. Error by defendant to the Supreme Court was subsequently dismissed upon application of the parties.

<p>1. Pawnbrokers and money lenders—Storage charges not part of AUTHORIZED RATE OF “INTEREST.”</p> <p>Defendant, who in addition to demanding and receiving 3 per cent, per month on money advanced on pledged property, demanded and received 3 per cent, per month as storage charges, is not guilty of a violation of Act. Gen Assam. April 10, 1919 (30 Del. Laws, c. 83), amending Code 1915, § 1203, as to pawnbrokers not receiving a greater rate of interest than 3 per cent, per month, “interest” not including “storage” when statute is strictly construed, as it must be, since it imposes a penalty.</p> <p>2. Statutes—Penal Provisions strictly construed. Those parts of statute imposing a penalty must be strictly construed.</p> <p>3. Pawnbrokers and money lenders—Excessive interest; question FOR JURY.</p> <p>Whether storage charges demanded and received by defendant pawnbroker in addition to interest is a subterfuge to evade Acts Gen. Assem. April 10, 1919 (30 Del. Laws, c. 83), amending Rev. Code 1915, § 1203, forbidding under penalty the charging of more than 3 per cent, interest on money loaned on property pledged, is a question for the jury.</p>

Action by Elizabeth Reynolds against Joseph M. Donaway, Sheriff. Verdict for plaintiff. At the beginning of the trial, a disclaimer was entered by counsel for the defendant as to certain articles replevied which were not levied upon.

<p>1. Sales—Jury question; performance of condition precedent.</p> <p>In action of covenant for damages for breach of contract to deliver tomatoes raised, where defendant’s counsel had admitted that tomatoes contracted for were not delivered to plaintiff packer at all, held, nonsuit based on ground that certain conditions precedent, one of which was that packer should have his factory open to receive tomatoes between certain hours had not been proven, would be denied.</p> <p>2. Action—Evidence of fraudulent representation in action of COVENANT INADMISSIBLE.</p> <p>In action of .covenant by packer against lessee, for damages for breach of contract to deliver tomatoes raised on leased premises, evidence that lessee was induced to sign contract by fraudulent representations of plaintiff’s representative that landlord had stated that it was all right for lessee to make the contract was.inadmissible.</p> <p>3. Sales—Failure to deliver; measure of damages.</p> <p>In action of covenant for damages for breach of contract to deliver to plaintiff all tomatoes grown during the season on a plot of land, the measure of damages is the difference between the price at which defendant contracted to furnish the tomatoes and the market price of tomatoes during the season, including any expenses incurred in purchasing tomatoes in place of those not delivered by defendant.</p>

Action by William H. Beck, administrator, against Bethlehem Loading Company to recover damages for the death of plaintiff’s intestate. On demurrer to the fourth and fifth counts of the declaration, on the ground of duplicity; and on demurrer to the special traverse to the first, second, third and sixth counts. Demurrer to the declaration overruled; demurrer to the special traverse sustained.

Action by Sadie G. Lemmon against Luke H. Broadwater to recover damages for the death of her husband, Walter J. Lemmon. Verdict for the plaintiff. The facts sufficiently appear in the charge of the court.

<p>Action by the Ajax Rubber Company, Incorporated, against Emma S. Gam on a written guaranty. On demurrer to defendant’s ninth plea.</p> <p>Same case on demurrer to declaration, ante, 105 Atl. 834.</p> <p>The ninth plea demurred to is as follows:</p> <p>“Actio non: Because this defendant saith that notice was not given to her by said plaintiff within a reasonable time after the last sale of goods had been made by it to the said A. B. Rothacker Rubber Company, Incorporated, under said guaranty, of the total amount then due said plaintiff from said A. B. Rothacker Rubber Company, Incorporated, for the goods purchased by it from the said plaintiff, which said notice the said plaintiff was bound in law to give in order to hold this defendant responsible therefor under said guaranty. And this,” etc.</p>

<p>Information against Andrew Palese, convicted of nonsupport by the municipal court. On appeal by the state.</p> <p>The appeal coming on to be heard, counsel for accused moved for dismissal of the appeal on the ground that the state has no right of appeal.</p> <p>Mr. Speakman:—Apparently, the law under which this appeal was taken does not give the state the right of appeal.</p>

Actions of debt by John H. Brand before a justice of the peace against the Ogden-Howard Company. Judgments for the plaintiff. Defendant brings appeals to the Superior Court (Judges Conrad and Heisel sitting). Verdicts and judgments for plaintiff. Defendant brings errors.

Peter Galliao was informed against in the municipal court for the City of Wilmington, on a charge of assault and battery, and adjudged guilty, and he brings appeal. On motions for second continuance and to dismiss appeal. Peter Galliao was adjudged guilty of assault and battery in the Municipal Court for the City of Wilmington on August 5,1919, and was sentenced to imprisonment for three months and to pay a fine of $100.

Walter Taylor was indicted for larceny. The jury disagreed. Property in the indictment was laid in “William Truxton Boyce and others.” Evidence was introduced by the state to show that B. and his brother were owners of a farm in the tenure of R. and his brother as tenants on shares; that R. and his brother had husked their corn, leaving it in the field overnight, when it was stolen by the accused.

from Industrial Accident Board of the state of Delaware, awarding compensation to dependents of deceased employe, New Castle County Claim No. 5791 (April 8, 1919). Proceeding before the Industrial AccidentBoard under the Delaware Workmen’s Compensation Law (29 Del.

Proceeding before the Industrial Accident Board under The Delaware Workmen’s Compensation Law by Mike Frank, Claimant, against the Deemer Steel Casting Company, the Employer, to obtain commutation of compensation for injuries. The Board awarded commutation of weekly payments agreed upon by the parties and the employer appeals.

1, June Term, 1919, and No. 83, November Term, 1918, in the court below, reported ante, 105 Atl. 420 Action of assumpsit by Minot Curtis Brewer against Walter C. Curtis, executor, for the recovery of a legacy. Submitted to the court on an agreed statement of facts. Judgment for plaintiff for amount conceded to be payable by the defendant. Plaintiff brings error. Judgment affirmed.

Action by William H. West against Robert H. Jones on promissory note. On motion for judgment at first term notwithstanding the affidavit of defense filed. Judgment entered for plaintiff. Plaintiff, on or before the first day of the term to which the process was returnable filed copy of the promissory note, sued on after maturity, with an affidavit of demand, in accordance with Rev. Code 1915 § 4169.

Action before a justice of the peace by Harley J. Conway against Frank T. Pepper. Judgment for defendant. Plaintiff brings appeal. Directed verdict for defendant. On motion for new trial. Motion argued before court in banc, whose opinion was that a new trial should be granted. The pro narr. in assumpsit contained a count for goods sold and delivered and upon this count, the plaintiff relied.

Action by John J. Jones, before a justice of the peace against Ernest W. Hinderer. Judgment for plaintiff. Execution issued with return of no goods. Certified transcript of docket entries of judgment and execution filed with the prothonotary. Judgment (No. 491, May term, 1918) entered thereon, under Rev. Code 1915, § 4033. On rule to show cause why the judgment should not be vacated and stricken from the record. Rule made absolute.

Action by the State of Delaware, to the use of Charles W. Jefferson, against Harry J. Stidham and another. On application of plaintiff for an order to take his deposition in his behalf on commission de bene esse. In the affidavit attached to the application, the affiant deposeth and saith: Laurel Print. & Pub. Co. v. Franklin Photo Engraving House, 6 Boyce, 185, 189, 97 Atl. 601, was cited in support of the application. Heisel, J.

Action by Frank Gardner against the Wilmington and Philadelphia Traction Company. On demurrer to first and third counts of declaration. Demurrer sustained as to the first and overruled as to the third count.

Action by Anna Schilling against William H. Osten for breach of promise to marry. Verdict for plaintiff.

Action by the James Bradford Company against Edward Hill’s Son and Co. On motion for production of books.

Three actions by the Bavarian Brewing Company against Frances Sobocienski, administratrix of Alexander Sobocienski, deceased, and Stanley L. Sobocienski and John Retkowski, severally. On demurrers to pleas in abatement.

Isaac Richardson was charged on information with willful neglect to provide for the support and maintenance of his illegitimate child. On demurrer to the information. The case was brought from the Municipal Court for the City of Wilmington on appeal to the Court of General Sessions. The questions-raised by the demurrer appear in the opinion of the court,

<p>Action by Anna E. Palmer against George Lodge, executor of Orpah P. Pierce, deceased. Verdict for plaintiff.</p>

<p>1. Criminal Law—Evidence of other crimes admissible to show motive.</p> <p>In prosecution for shooting an officer who went to the home of accused to arrest him, evidence that after the shooting there was found in the house property which accused admitted had been stolen by him was admissible as tending show motive.</p> <p>2; Homicide—Duty of court to instruct as to degree.</p> <p>Since jury may find accused guilty of murder in the first degree as charged in the indictment, guilty of murder in the second degree, guilty of manslaughter or not guilty, it is the duty of the court to define murder in the first degree, murder in the second degree, and manslaughter.</p> <p>3. Criminal Law—Proof of guilt beyond a reasonable doubt.</p> <p>If upon the whole case there remains in the minds of the jurors a reasonaable doubt of guilt growing out of the evidence, or founded on the want of complete" evidence and such as would sway the mind of a reasonable man and prevent him from coming to a satisfactory conclusion of guilt, the accused should have the benefit of such doubt.</p> <p>4. Arrest—Officer may arrest without warrant on suspicion of felony.</p> <p>If an officer has reasonable cause to suspect that a person has committed a felony, he has authority to arrest him without warrant.</p> <p>5. Homicide—Self-defense in resisting arrest by known peace officer.</p> <p>If officer shot by accused at the time he attempted to arrest accused had good grounds to suspect that accused had committed a felony, he had authority to make the arrest, and for that purpose had the right to enter accused’s home in a peaceable manner, and use as much force as was reasonably necessary to effect the arrest, and accused had no right to resist, provided he had good reason to know that officer was a peace officer and was given to understand that he was under arrest.</p>

Action by Thomas W. Johnson, Jr., executor of George W: Todd, deceased, against James Crane Higgins and Daniel W. Corbit, executors of Anthony Higgins, deceased. Directed verdict for defendants.

Alexander Weiss was indicted for receiving stolen goods. Verdict guilty, with recommendation to mercy.

Action for divorce by Ella B. Chambers against Floyd H. Chambers. This is an action of divorce on the ground of extreme cruelty.

Petition by Frank H. Day for rule to show cause why the return of the commissioners appointed by the resident associate judge of Sussex county, under Rev. Code 1915, § 1602, to widen a public road through the lands of the petitioner from thirty to forty feet, should not be confirmed. Rule discharged, petition dismissed, and the return of the commissioners confirmed.

Action of assumpsit by John P. Wilson before a justice of the peace against James W. West, on a promissory note. Judgment for plaintiff. Defendant brings certiorari. Motion to dismiss the certiorari denied.

Action by the Bavarian Brewing Company against John Retkowski. On motion to strike off demurrer to declaration. Motion allowed. See ante, 109 Atl. 55. This action was one of several brought severally against the indorsers of a promissory note by the original payee. The declaration was in the usual form on a protested promissory note, a copy of the note being attached to the declaration.

Action by W. F. Potts’ Son & Co., Incorporated, against Fred L. Myers, trading as Fred L. Myers & Co'., to recover damages for an alleged breach of contract of sale.

Action by Tilghman Johnston and Walter Blackson, as trustees under the last will and testament of William G. Ramsey, deceased, against the Director General of Railroads. Verdict for plaintiffs. Evidence was introduced by the plaintiffs to show: That a barn and other adjacent buildings and their contents situated on a farm, in New Castle county, owned by plaintiffs, were completely destroyed by fire on October 9, 1918, shortly after eight o’clock in the evening.

Proceedings under the Workmen’s Compensation Act (29 Del. Laws, c. 233) before the Industrial Accident Board, by Mary E. Nichols, widow, to obtain compensation for the death of Rennie E. Nichols, her husband, against Charles H. Colbourn, employer of Rennie E. Nichols at the time of his death. The board awarded compensation to the claimant. The employer appeals.

Proceeding under the Workmen’s Compensation Act (Rev. Code 1915, §§3101-3193) before the Industrial Accident Board (No. 9026, November 15, 1919), by Fred Rudnick and Lena Rudnick to obtain compensation for the death of Jacob Rudnick, their son, against White Brothers., the employer. The Industrial Accident Board disallowed the claim for compensation, and the claimants appeal.

Action by Isidor Dwarkin against John Johnson. Verdict for plaintiff. This action was brought by the plaintiff to recover damages for personal injuries and for the loss of personal property.

Action brought in the Court of Common Pleas by Joseph Wigglesworth against Harry Brodsky and John Frank Owens, Jr. Judgment for the defendants. Plaintiff appeals. Verdict for appellant. Evidence was produced by the plaintiff below to show: That his house was located at 305 French street, in the city of Wilmington, and that one of the defendants below, Harry Brodsky, owned the adjoining house, 307 French street.

Action by the J. R. Watkins Medical Company against David H. Warrington and two others. On demurrer to the declaration.

Action by James Frank White and Henry C. White, trading as White Bros., against William J. Lokey and another. Directed verdict for plaintiffs. Action by White Brothers, against William J. Lokey and Harry Willis. Lokey did not appear and defend. Directed verdict for plaintiffs.