INDICTMENT-Continued.

ficient to allege the embezzlement to be of money without specifying any particular coin or notes," etc. State vs. Norkewicz, 299.

4. 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. State vs. Magnell, 307.

5. In an application to change the venue in a criminal cause a rule to show cause is not necessary, because the State, being represented, takes notice of the motion. And it is the same with respect to an application to quash the indictState vs. Lynn, 316.

ment.

6. In an indictment charging that the defendant did feloniously receive certain goods, knowing them to be stolen, the following are essential elements of the crime and must be proved beyond a reasonable doubt, viz: (1) That the goods were stolen; (2) that the goods were the property of the person named in the indictment, and (3) that when the defendant received the goods he knew that they were stolen. State vs. Freedman, 403.

7. Where the testimony on the part of the State showed that the defendant received the stolen property on July 19, held sufficient to support the indictment charging it on the 22d of same month; evidence of a transaction on the 22d being admitted to throw light on the question of guilty knowledge. Ibid.

8. In an indictment for cheating it is incumbent upon the State to show that the offense was of a nature not only to deceive the particular individual, but that it was one against which common prudence and care are not sufficient to guard. State vs. Hood, 418.

9. In an indictment for larceny, where the name of the corporation is stated, as owner of the property, there need be no averment that it is a corporation. State vs. Rollo, 421.

See PLEADING; CRIMINAL LAW.

INDUCEMENT.

At the trial of defendant, who was indicted for burning a barn, it was proposed to prove what defendant said at his preliminary hearing before the Justice when the owner of the barn which was burned said to him, the best thing he could do was to tell the truth and he would get out of it better or get through with it better. Held inadmissible. State vs. Jackson, 15.

INFANTS.

1. From the mere fact that the defendant (being a person of tender years) set the barn on fire, the jury may not conclude as a presumption of law, that it was done maliciously. But being over the age of seven years (in this case fourteen) the law presumes that he is capable, and in ascertaining whether the intent existed and whether the act was wilful and malicious, not only the act itself, but all the circumstances surrounding the case may be considered, including the intelligence of the defendant, his conduct before and after setting fire to brush near the barn, and everything relating to or connected with the transaction. State vs. Jackson, 15.

2. A master is not an insurer of the safety of his servant; but it is his duty to give such instruction and warning to his servant, as to the dangerous character of his employment, as may reasonably enable him to understand the peril to which he is exposed. Such instruction and warning should be measured in each case by the youth, inexperience or ignorance of the servant. The measure of such instruction in case of infancy would be modified according to the maturity and capacity of the infant, his ability to understand and appreciate the danger, and

INFANTS-Continued.

his familiarity with all the surroundings and conditions in the particular case, at the time of the injury. Strattner vs. W. C. E. Co., 245.

3. A railroad company must use greater care in the operation of its engines and cars in more populous places, and at points where many persons and especially children, are in the habit of gathering, than in places not much frequented. If the company discovers an infant upon its property it should exercise such care for its protection as would be reasonable, under all the circumstances, including the maturity and capacity of the infant, and his familiarity with the surroundings and conditions. But the company is not bound to become an insurer of the infant's safety, to anticipate his presence on the tracks, or to use any greater care than the circumstances reasonably require. A railroad company has a right to run its trains as usual, without special precaution as to trespassers or licensees. Tully's Admr. vs. P. W. & B. R. R., 455.

4. The conduct of children, in the matter of contributory negligence, should not be governed by the same rule that governs adults. While it is the duty of infants to exercise ordinary care to avoid injury, ordinary care for them is that degree of care which children of the same age, of ordinary care and prudence, are accustomed to exercise under like circumstances. But this is not an inflexible rule, and is to be modified according to the maturity and capacity of the infant, his ability to understand and appreciate the danger and his familiarity with all the surroundings and conditions in each particular case. Ibid. INFORMATION.

1. Where the information alleged that the defendant offered to pay, etc,, and it appeared by the bail bond offered in evidence that the defendant was held for promisi g to pay, etc., held by the Court that the bail bond set out the offense with sufficient precision to sustain the information. State vs. Reiman, 73.

2. Information in nature of writ of Quo Warrant. State vs. Churchman, 167 Ibid, 361.

INJURIES.-See PERSONAL INJURIES.

INSANITY.

It will not be said that a will which makes the same provision for a wife which the law prescribes in the case of intestacy, indicates insanity on the part of the testator. Truitt vs. Cullen, 311.

See ALCOHOLIC DEMENTIA.

INSPECTION.-See EXAMINATION.

INSURANCE POLICY.

I. Certain provisions in an insurance policy, if applicable to the case, held to be binding upon the plaintiffs. Weisman & Dunn vs. Fire Ins. Co., 224.

2. Where the general agents have authority to receive a premium for an insurance company, and it is shown that the premium was paid to one who was the agent, or servant, of the general agents, for effecting insurance and collecting the premium, such payment is as effective as if made to the general agents, or to the company, notwithstanding the fact that the policy provided that “If the premium be not paid to this company upon the delivery of this policy, this policy shall be void and of no effect until such premium shall have been received by this company at its general office." Ibid.

3. The payment of the premium was necessary to give validity to the policy unless such payment was duly waived by the company. Ibid.

INSURANCE POLICY-Continued.

4. If the company, after being notified of the loss, and of the claim for damages under the policy, treated the policy as a subsisting and binding contract of insurance, and objected to payment merely because of alleged defects in the proofs of loss or other similar grounds-and then and afterwards, before the bringing of the action, failed to repudiate the contract as invalid for non-payment of the premium; the jury may infer that the company, or its duly authorized agent, had in fact received the premium, unless there be satisfactory proof to the contrary. Ibid.

5. If the premium was paid to one who by the terms of the policy was not authorized to receive it, and the company, or its duly authorized agent, afterwards received the money so paid, it would be a sufficient payment, without regard to the method or channel through which such money reached the company or its authorized agent. Ibid.

6. If the company, or its duly authorized agent never in fact received the money so paid, and the company subsequently, without qualification, treated the policy as a binding contract, this would be equivalent to an adoption or ratification of such payment, and would be sufficient. Ibid.

INTENT.

1. From the mere fact that the defendant (being a person of tender years set the barn on fire, the jury may not conclude as a presumption of law that it was done maliciously. But being over the age of seven years (in this case fourteen) the law presumes that he is capable, and in ascertaining whether the intent existed and whether the act was wilful and malicious, not only the act itself, but all the circumstances surrounding the case may be considered, including the intelligence of the defendant, his conduct before and after setting fire to brush near the barn, and everything relating to or connected with the transaction. State vs. Jackson, 15. Where a person takes goods under a claim of right, honestly and bona fide believing that he has a claim either in law or in fact, he may not be convicted of larceny, because the felonious intent to convert the goods to his own use is not present. Otherwise, if the intent was to convert them to his own use and the claim of right is a mere subterfuge. State vs. Pullen, 184.

2.

3. In embezzlement it is necessary for the State to prove that at least a part of the property described in the indictment actually came into the custody of the defendant as bailee, and while being so in his custody, he embezzled or fraudulently misapplied or converted it to his own use. In this offiense the intent to defraud-that is, the bad faith-is necessary to be shown before the defendant can be found guilty. The fraudulent intent may be proved either by direct evidence or by circumstances from which the fraudulent intent may be inferred. State vs. Davis. 220.

4. If the defendant improperly broke and entered, but without the intent to steal, he would be guilty of the breaking and entering alone. State vs. Snow, 259.

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. State vs. Magnell, 307.

6. The intent to cheat and defraud is not to be presumed in law, but must be proved, and is a question for the jury to determine from all the acts and representations of the defendant in the transaction, as shown by the evidence. State vs. Lynn, 316.

See CONTRACT; FORGERY; LEGISLATIVE INTENT.

INTEREST.-See WILL.

INTOXICATING LIQUORS.

I. Where an applicant already has a retail license for the sale of intoxicating liquors as hotel keeper he will not be granted a wholesale license for the sale of intoxicating liquors. The law does not contemplate the blending of the two lines of business. In re Mundy, 282.

2. If a party has a license to manufacture beer it means that he has a license to sell it. He has whatever privilege that license grants. The latter part of Section 1, page 76 of the Revised Code seems to remove all doubt as to the right of the manufacturer to sell his product. In re Biederman, 284. INTOXICATION.-See DRUNKENNESS; ALCOHOLIC DEMENTIA. JUDGES.-See COURT.

JUDGE OF MUNICIPAL COURT.-See MUNICIPAL COURT.
JUDGMENT.

I. Upon an application to open a judgment the practice is to take a rule on the defendant to show cause why the judgment should not be opened. In re Levy, 5.

2. Judgment ordered notwithstanding an affidavit of defense, where such affidavit stated that the defendant had a just and legal defense to the plaintiff's cause of action, without stating that the defense was either to the whole or a part of the cause of action. Potts vs. Wells, 11.

3. Judgment below affirmed. Journal Printing Co. vs. Duplex P. P. Co. 12. 4. On a rule to show cause why a judgment should not be set aside because the transcript of the judgment filed in Prothonotary's office does not show that the service of summons was verified, the rule will be discharged. The petitioner has his remedy of certiorari. Wood vs. Dickerson, 23.

5. If it does not sufficiently appear to the Court that a proper statement under the law, was filed before the Justice, the judgment will be overruled on certiorari. Davis vs. Parker, 29.

6. In a sci. fa. under the Mechanics' Lien Law against a municipal corpor ation, in which a motion is made for judgment notwithstanding an affidavit of defense-judgment refused. Emory vs. Com, of Laurel, 67.

7. The warrant of attorney in a judgment note authorized the entry of judg ment in favor of the obligee, his executors, administrators or assigns. Held not to authorize the entry of judgment in favor of the assignee of said note by the initials of his Christian name; and the judgment was reversed. Dickerson vs. Kelley, 69.

8. The action below being a foreign attachment, the judgment will be reversed on certiorari, when the record states (as to notices), "I thereupon issue notices of attachment to Alfred S. Hurlock, constable, to post in five public places in Wilmington Hundred, May 16, 1900, the defendant having no residence in Wilmington Hundred for at least two years," etc. M. W. Scale Co. vs. Edwards, 85. 9. The judgment rendered against the garnishee cannot be for a greater amount than the judgment given the original debtor. Jump vs. Jones, 163

IO. A judgment recovered on mortgage for want of an affidavit of defense, will not be opened and parties let into trial, although it appeared to the Court by the petition and affidavit of defendant, (1) that she had called upon her attorney immediately after she had knowledge of the mortgage, and asked him to appear for her and defend any suit that might be entered thereon; (2) that upon being summoned by the Sheriff she supposed her attorney would know and take care of the same; (3) that she had been since informed by him that without his know

JUDGMENT-Continued.

ledge of suit being brought judgment had been entered at the present term; and (4) that she had a just and legal defense to the whole cause of action, viz., that she never executed the said supposed mortgage. Home Loan Assn. vs. Foard, 165.

II.

The judgment of the Superior Court in the case of The State of Delaware upon the relation of Herbert H. Ward, Attorney-General, vs. Philip Q. Churchman, 3 Pennewill, 167, reversed. State vs. Churchman, 361.

12.

When the cause of action is a promissory note alleged to have been made by a corporation, and it appears from the copy of the note filed with the affidavit of demand, that no corporate seal was affixed to the note, judgment will, on motion, be refused. St. Joseph's Society vs. St. Hedwig's Church, 229.

13. In a scire facias sur judgment against an executor, while it is not necessary, still the devisees may be made parties as terre tenants. But whether they are made parties or not, if judgment is recovered against the executor in the mode the statute provides, this will take the land out of the hands of the devisees. Wilson vs. Furey, 278.

14. If at the time an affidavit of demand is made and filed no action had been brought, judgment will be refused. Miller vs. Hart, 297,

15. The return of the Sheriff in an action of ejectment, as to service can only be attacked under Chapter 102, Section 3, page 775, Rev. Code; and under Rule of Court 9, Section 17, an application to take off a judgment because of want of notice or knowledge of the suit, must be made on or before the last day of the term next after such judgment, Woolley vs. Corbit, 501.

16. In an affidavit of demand the plaintiff deposed that annexed thereto was "a copy of the account sued upon in this action"; and it nowhere appeared that the cause of action sued upon was a "book account," or that the paper attached was a copy of a book entry. Judgment refused. Reybold vs. Denny Bros., 589.

17. An affidavit of demand must show affirmatively upon its face that the plaintiff is entitled to judgment, otherwire judgment will be refused. Hibbert vs. Guardian Savings and Loan Asso., 591.

18. Judgment will be refused when it appears from such affidavit that defendant's liability is "subject to the rules, regulations and by-laws" of defendant association, and it is not known what the conditions are. Ibid.

See APPEAL; MUNICIPAL COURT, II.

JUDGMENT OF COURT.-See Court.

JUDGMENT NOTE.--See NOTE.

JURISDICTION OF JUSTICE.-See JUSTICE of Peace.

JURY.

1. Counsel will be permitted to state in his opening to the jury what he proposes to prove, unless it is manifest on its face that it is not competent proof. It is not evidence, however, and if not supported by proof, the jury should be instructed to disregard it. Pritchdard vs. Henderson, 128.

2. Temporary association or conversation between the jurors and counsel, which is satisfactorily explained, will not require the setting aside of the verdict, if it be shown to have been of a non-prejudicial character, as where there is no conversation in regard to the case on trial. Ibid.

3. When the jury was charged not to regard any statement of counsel not supported by the evidence, and there is nothing to show that any such state