State of Delaware be amended by adding to the end of said paragraph the following, viz:

If by the return of the commissioner it shall appear that the taking of such oral testimony has not been completed, the Court may remand the commission to the commissioner with like power and authority as were originally granted to such commissioner, returnable at such time as the Court may direct.

(Adopted New Castle County, February Term, 1901.)

AMENDMENTS TO RULE VII.

Upon the filing of a demurrer to any pleading the Prothonotary shall forthwith enter joinder in demurrer, and the cause shall be placed on the trial list, as herein provided.

Any cause at issue on demurrer may be set down for argument at any time during a term of Court, although said cause may not be published upon the trial list, upon ten days' written notice given by the party filing the demurrer, or upon five days' written notice given by the party whose pleadings may be demurred to.

AMENDMENTS TO RULE IX.

22. No Commissioner in cases of divorce shall be appointed before the first Friday of the term to which the summons is returnable.

(Adopted New Castle County, February Term, 1901.)

29. In all actions where a nonsuit shall be granted, the plaintiff shall at that time be entitled, upon motion, to a rule to show cause why such nonsuit should not be set aside. (Adopted February 26, 1897.)

RULE XIV.

RECORDS.

1. No record, document or paper of any kind or description filed in or belonging to the office of the Prothonotary shall hereafter be taken from the said office for any purpose whatsoever, except upon order of Court.

(Adopted January 8, 1896.)

ii

PLEADINGS.

1. A copy of any pleading or other paper, required to be filed in any cause or proceding, shall be filed in the Prothonotary's office together with said pleading or paper, and such copy so filed shall be for the use of the adverse party or his attorney and shall be delivered by the Prothonotary to such party or attorney upon application. The adverse party shall not be required to plead, answer or reply until five days after such copy is filed. (Adopted January 13, 1896.)

ORPHANS' COURT.

AMENDMENT TO RULE XI.

No foreign surety company shall be accepted by this Court as surety for a penal sum exceeding ten thousand (10,000) dollars.

No such company shall be accepted in any case when the liability may continue more than two years.

(Adopted January 22, 1902.)

iii

INDEX.

ABORTION.

1. Procuring a miscarriage, within the meaning and purpose of the act, is the unlawful destruction, or the bringing or causing to be brought forth prematurely of the foetus or unborn off-spring of a pregnant woman, at any time before birth according to the course of nature. State vs. Magnell, 307.

2. In order to warrant a verdict of guilty the State must prove―(1) That the prisoner used an instrument as alleged in the indictment. (2) That he used it with the intent to procure the miscarriage of a person who was at the time pregnant or supposed by the prisoner to be pregnant. (3) That the miscarriage was not necessary to preserve the life of the woman upon whom the instrument was used. Ibid.

3. The date of the alleged offense stated in the indictment is not material, and the crime may be shown to have been committed at any time prior to the finding of the indictment. Ibid.

4. It is not necessary for the State to prove that the prisoner actually caused or accomplished the alleged miscarriage. It will be sufficient to prove that he used the alleged instrument with the intent to procure the miscarriage; and it is immaterial that the woman herself actually caused the miscarriage, or that it was by her consent or entreaty that the prisoner attempted to procure it. Ibid.

5. The intent may be shown by the confession or declaration of the accused, or by his acts, conduct, etc., from which the intent may be reasonably inferred. Ibid.

ACCEPTANCE.

1. Inspection and acceptance of merchandise at the place of delivery by an agent binds the principal. Darby vs. Hall, 25.

2. If after a fair opportunity for inspection the defendant unconditionally accepts the goods, or any part thereof, as in conformity with the contract, he cannot afterwards repudiate such acceptance and refuse to pay the contract price for the goods so accepted. Harper vs. Baird's Admrs, 110.

3. Where the agreement is a single contract, the purchaser of the goods has a right to wait until the entire quantity is ready for delivery, before he is called on either to accept or reject them. It is his right to have the opportunity to see and examine the entire lot, to ascertain whether it altogether complies with the contract and also to such reasonable custody and possession as might be necessary for that purpose. Ibid.

4. If under the usage and custom of the particular trade there is a class or kind of "skins" known to the trade as "Russian goatskins," in such case the term would designate the kind of skins so known to the trade, and would not be merely a geographical description relating to the place of growth or shipment. The seller would have to tender such kind of skins or the buyer would not be bound to accept them. Ibid.

5. Even if the goods are not of the kind, quality and average weight prescribed in the contract, if the defendant unconditionally accepted the same as his own property, or so used and dealt with them, the plaintiff would be entitled to recover. Ibid

ACCEPTANCE-Continued.

6. During the continuance of a contract, the unqualified acceptance by the seller of payments after the time stated in the contract, is a waiver as to time. Barnesville Mfg. Co. vs. Love, 152.

7. If a guaranty is prospective in its character to cover future credits, the party tendering it is entitled to notice of its acceptance, and the party receiving it, and for whom it is intended, is bound to give reasonable notice of its acceptance, or the party offering it will not be bound by it. Wanamaker vs. Benn,

188.

See LANDLORD AND TENANT.

ACCIDENT.

1. The incompetent and careless character of a fellow-servant may be proved by evidence of prior accidents to such servant in employment similar to the present one, occasioned by his incompetence or carelessness; but no weight should be given to evidence of prior accidents unless such accidents are proved by the preponderance of the evidence to have been occasioned by the incompetence or carelessness of such servant. Giordano vs. Brandywine Granite Co., 423.

2. A pure accident without negligence on the part of the defendant is not actionable. It would come under the head of unavoidable accident, and the plaintiff could not recover. Adams vs. W. & N. C. E. Ry., 512; Farley vs. same, 585.

See PERSONAL INJURIES.

ACCOMPLICE.

I. If larceny is committed by another person, and the defendant aided, abetted, procured, commanded or caused such other person to commit it, he is equally guilty as the principal offender. State vs. Deputy, 184.

2.

While a jury may convict upon the unsupported testimony of a participant or confederate in the same crime, the better rule is that conviction should not be had unless such testimony is corroborated in some material part by other testimony or by the circumstances of the case. State vs. Freedman, 403.

3. Where an offense has been committed by one person, and it is shown that others were present at the time abetting, procuring, commanding or counselling him, such other persons are regarded in law as accomplices and equally guilty as the principal offender. State vs. Mills et al., 508.

4. The degree of credit which ought to be given to the testimony of an accomplice is a matter exclusively within the province of the jury. It has sometimes been said that they ought not to believe him unless his testimony is corroborated by other evidence; and without doubt, great caution in weighing such testimony is dictated by prudence and good reason. But there is no such rule of law; it being expressly conceded that the jury may, if they please, act upon the evidence of the accomplice without any confirmation of his statement. But on the other hand, judges in their discretion will advise a jury not to convict of felony upon the testimony of an accomplice alone and without corroboration, and it is now so generally the practice to give such advice, that its omission would be regarded as an omission of duty on the part of the Judge. It may be now regarded as the settled course of practice not to convict a prisoner in any case of felony upon the sole and uncorroborated testimony of an accomplice. State vs. Fahey, 595.

5. The same rules are applicable to the case of a witness who has perjured himself in a former trial; and in cases of this character there should not be a conviction of a felony upon the uncorroborated testimony of such a witness. Ibid.