PARTNERSHIP-Continued.

2.

The agreement of dissolution in question, being formally proved on the part of the defendants, is admissible in evidence. Ibid.

3. A partnership is a contract of two or more competent persons to place their money, effects, labor and skill, or some or all of them, in lawful. commerce or business, and to divide the profit and bear the loss in certain proportions. Ibid.

4. The act of each partner, in transactions relating to the partnership and within the scope of its particular business, as a general rule, is considered the act of all. After the dissolution, neither of the former partners can enter into any new contract or obligation to bind his former partner. Ibid.

5. Where a partnership is known to exist, it may be presumed to continue, where no notice of its dissolution has been given to, or knowledge thereof received by those properly entitled to it. Ibid.

6. Knowledge of the dissolution may be proved by express notice to the plaintiff, by the admission of the plaintiff that defendant gave him due notice, and also by any circumstances proved which may reasonably and fairly warrant the conclusion that the plaintiff did receive notice, or have knowledge of the dissolution. Ibid.

7. It is not necessary, in order to convey the knowledge of the dissolution, that notice thereof should be published in a newspaper or be advertised in any way. It is sufficient if such knowledge is actually received by the plaintiff. Ibid. PASSENGER ON ELECTRIC RAILWAY.-See COMMON CARRIER; DAMAGES; PERSONAL INJURIES; PUBLIC HIGHWAY.

PAYMENT.-See IMPLIED PAYMENT; CONTRACT.

PAYMENT OF PREMIUM.-See INSURANCE POLICY.

PERJURY.

1. At common law, perjury is committed when a lawful oath is administered in some judicial proceeding or due course of justice to a person who swears wilfully, absolutely and falsely in a matter material to the issue or point in question. Where the crime is committed at the instigation or procurement of another, it is termed subordination of perjury. State vs. Fahey, 594.

2. In order to convict of this crime the jury should be satisfied from the evidence (1), that the testimony of the witness claimed to have been suborned was false; (2), that it was given by him wilfully and corruptly, knowing it to be false; (3), that the defendant knew or believed that such testimony would be false; (4) and that the defendant also knew or believed that the witness claimed to have been suborned would wilfully and corruptly so testify; (5), that the defendant induced or procured the said witness to give such false testimony. Ibid.

3. In proof of the crime of perjury it was formerly held that two witnesses were necessary, because otherwise there would be nothing more than the oath of one man against another, upon which the jury could not safely convict. But this strictness has long since been relaxed; the true principle of the rule being merely this, that the evidence must be something more than sufficient to counterbalance the oath of the prisoner, and the legal presumption of his innocence. Ibid.

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

PERJURY-Continued.

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. Ibid.

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 felony upon the uncorroborated testimony of such a witness.

PERMISSIVE WAY.

Ibid.

Where persons are using a permissive way without any invitation of the railroad company, and only upon the permission or silence acquiesence of the company, the rule of law is the same as in the case of mere trespassers-that the company will be held liable only for such injuries as arise from its gross negligence or wanton disregard of human life. In such cases the user crosses the railroad at his own risk, and subject to all perils of the way. A naked license, or permission to enter upon one's premises, will not create a duty or impose an obligation on the part of the owner toward the licensee, to provide against danger or accident. Tully's Admr. vs. P., W. & B. R.R., 455.

PERSONAL INJURIES.

I. Damages for: Croker vs. Pusey & Jones Co., I; Strattner vs. W. C. E. Co., 245, 453; Higgins vs. Wilmington, 356; Tully vs. P., W. & B. R.R., 455.

2.

Under the Married Woman's Law of this State a wife may, in her own name, and without joining her husband, bring an action to recover damages for personal injuries to herself. Hatton vs. W. C. Ry., 159.

3. Injuries occasioned by negligence of fellow-servant. Giordano vs. B' dywine Granite Co., 423.

4. The passenger must use the means provided for his safe transportation, with reasonable circumspection and care, and if his negligent act contributes to bring about the injury of which he complains, he cannot recover. It is his duty also to see that the car has stopped, and that he may safely get on or off the car. The care should be in proportion to the risk to be incurred in all cases. Betts vs. Wil City Ry., 448.

5. While it may not be negligence per se for a passenger to alight from a slowly moving street car, yet if from the age, condition of the passenger and all other circumstances surrounding the case, such an act would be rash, dangerous or hazardous; then it would amount to negligence; and if the injury resulted from such act the common carrier would not be liable therefor. Ibid.

6. The person injured was also bound to use ordinary care, prudence and diligence to avoid the accident which occurred to him; and the care and diligence he was bound to use was in proportion to the danger to be avoided. Neal's Admr. vs. W. & N. C. E. Ry., 467.

7. 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 for injuries occasioned thereby. Adams vs. W. & N. C. E. Ry., 512.

PERSONAL INJURIES—Continued.

8. Under Section 2, Chapter 31, Vol. 13, Laws of Delaware (Rev. Code, 788),
which provides that "wherever death shall be occasioned by unlawful violence or
negligence, and no suit be brought by the party injured to recover damages during
his or her life, the widow of such deceased person, or if there be no widow, the
personal representatives may maintain an action for and recover damages for the
death thus occasioned," the widow of one who lost life from an injury occurring
to him whilst actually engaged in our city and State in behalf of one of our indus-
trial establishments may maintain the action, although before and at the time of
the injury, and of the commencement of the suit, she was an alien, and actually
resident in a foreign country. Szymanski vs. Blumenthal, 558.

9. It is the duty of the master to provide for the servant a reasonably safe
place in which to work, reasonably safe tools and appliances with which to work,
and also to keep them in a reasonably safe condition. The care required is in
proportion to the dangerous character of the employment. The place, tools,
machinery and appliances need not be of the best, nor of the latest pattern, nor of
the most improved kind, but must be reasonably safe and adapted to the purpose
for which they are to be used. If the master fails to perform such duty and
injury results from such failure alone, he is liable. Boyd vs. Blumenthal, 564.

IO. To what extent the negligence of the driver of a vehicle may be imputed
to the gratuitous passenger therein, is a question of first impression in this State.
It seems, however, to be now settled both in this country and in England, that
where a person accepts the gratuitous invitation of the owner and driver of a
vehicle to ride with him, and has no other relation to the driver, the negligence
of the driver, if any, cannot be imputed to his guest, so as to defeat the latter's
right of recovery against a third person for injuries resulting from the concurrent
negligence of such driver and third person. Farley vs. W. & N. C. E. Ry.,
581.

II. If the injury results from the concurrent negligence of the driver and com-
pany, without any negligence on the part of the gratuitous passenger, such
passenger would be entitled to recover. In like manner such passenger would
be entitled to recover if the injury resulted from the negligence of the company
alone. Ibid.

See DAMAGES, 15; NEGLIGENCE, 5, 6; PUBLIC Highway.

PETITIONS.

1. 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. The certificate of a Notary Public before whom an offidavit is taken must
bear his official seal. Without such seal there is no proper affidavit, and the
petition which it purports to support will be dismissed. Jones vs. Jones, 14.

3. The statute prescribes certain particular and specific offenses for which a
divorce may be granted, and the petitioner is bound to set out in his petition the
offense in the terms of the statute. "Cruel, barbarous and inhuman treatment
is not a sufficient description or statement of the statutory offense of "extreme
cruelty." Wagner vs. Wagner, 303.

4. An amendment will not be allowed of a petition for divorce, because an
affidavit cannot be amended. The petitioner must proceed anew. Ibid.

PLEA IN ABATEMENT.-See PLEADING.

PLEADING.

I.

Where the allegations of plaintiff's declaration, in an action for damages
to real estate, go to the damage of the person in possession of the premises only,
and the evidence shows the plaintiff not to be in possession of any part of the
premises, there is a fatal variance between the proof and the allegations in the
narr, which should have alleged damage to the reversionary right of plaintiff.
Aspin vs. Cornell, 33.

2. The Court will, in a proper case, and in the exercise of its discretion, per-
mit a defendant to withdraw his pleas after issue joined for the purpose of demur-
ring specially. McFarlane vs. Garrett & Barr, 36.

3. In an action for damages for causing a restraining order to be issued out of
the Court of Chancery against the plaintiff, it is necessary that the narr should
aver that said restraining order was procured maliciously and without probable
cause. If the narr does not contain such an averment, and is demurred to, the
demurrer will be sustained. Ibid.

4. Where a special contract for the sale and delivery of goods has been fully
performed on the part of the seller and nothing remains to be done by him, and
the contract price is due and unpaid, he may sue for the price of the goods, either
upon the special contract or upon the common count for goods sold and delivered.
(See Hurlock vs. Murphy et al., 2 Houst., 556.) Pusey & Jones Co., vs. Dodge,
63.

5. When the property in the goods has passed by sale to the buyer but there
has been no actual delivery to him, the plaintiff may recover the price under a
count for goods bargained and sold. Ibid.

6. 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
promising 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-

7. The judgment on a plea in abatement determined against the defendant is
one of respondeat ouster. Ibid.

8. Where each count of a declaration sets forth a verbal agreement that the
goods and chattels, which are the subject of the suit, were to be delivered accord-
ing to the direction of the plaintiff and not to the consignee; but also expressly
avers that such verbal agreement was subject to the terms and conditions of a
written receipt given by the defendant to the plaintiff at the time of shipment, by
the terms of which the said goods and chattels were to be delivered to the con-
signee at a certain place, the said counts will be adjudged bad, and a demurrer
thereto sustained. Thomas vs. P. R. R., 81.

9. If the two averments relate to the same transaction they are open to the
charge of repugnancy. If they relate to different and separate transactions they
are bad because of duplicity, as joining two separate and distinct causes of action
in one count. Ibid.

10. Upon an application by defendant for leave to amend by withdrawing all
of his pleas, and that the plaintiff be required to file a more specific bill of par-
ticulars, the Court granted the leave to amend, but refused to make the order on
the plaintiff to file a more specific bill of particulars, on the ground that the
defendant had waived his right by pleading after the bill of particulars had been
filed. Mitchell vs. Yerger, 87.

II. Under the Married Woman's Law of this State a wife may, in her own
name and without joining her husband, bring an action to recover damages for
personal injuries to herself. Hatton vs. W. C. Ry., 159.

PLEADING—Continued.

13. Information, plea, demurrer and judgment of Court set out. State ex rel. Ward vs. Churchman, 167.

14. In an affidavit of demand made by the alleged treasurer of the corporation plaintiff, it must be alleged in the body of the affidavit that the affiant is such treasurer. St. Joseph's Society vs. St. Hedwig's Church, 229.

15. In an action of trespass de bonis asportatis the damages must be specifically alleged in the narr. If not so alleged, however, an amendment will be allowed in the discretion of the Court. Coverdale's Admr. vs. Simpson, 269.

16. Where, in such action, a plea is filed alleging that the property in question was not, at the time of the alleged trespass, or at any time since, the property of the deceased, or of the plaintiff, her administrator, such plea amounts to the general issue and will, upon motion, be stricken out. Ibid.

17. As a general principle a trespass cannot be justified under the plea of not guilty. The justification must be pleaded. Ibid.

18. The defendant may, in this action, controvert the possession and title of the plaintiff under the general issue, but cannot prove ownership in someone else to justify the alleged trespass, such ownership not being pleaded. Ibid.

19. Plea set out in action, sci. fa. sur judgment. Wilson vs. Furey, 278. 20. In an indictment for embezzling money, it is not necessary, under the statute, to describe the property any more particularly than as money; but if the indictment does particularize and describe the kind of money, it becomes a material part of the averment, and must be proved as laid. It is made material by the definition of the offense; and having so defined it, the State is not protected by that part of the statute (Rev. Code 942) which provides that "it shall be suffi cient to allege the embezzlement to be of money without specifying any particular coin or notes," etc. State vs. Norkewicz, 299

21. In a trial for larceny, when the property is laid in the indictment as the property of A. B., the averment is sustained by proof showing he had that special property as a constable, and it is not at all necessary for the State to aver in the indictment that it was his property as constable. State vs. Pullen, 184.

22. An amendment will not be allowed of a petition for divorce, because an affidavit cannot be amended. The petitioner must proceed anew. Wagner vs. Wagner, 303.

23. Evidence that the plaintiff, in order to escape threatened injury, jumped from a truck and was thereby injured, will not support an allegation in the declaration that because of a dangerous hole or excavation in the street, the plaintiff was violently hurled or thrown to the ground. Neither will such evidence support an allegation to the effect that the plaintiff was forced from the truck to the ground. Forced in such connection means impelled by physical force acting on the body, and not fear of danger, however imminent. In such cases the variance is material and fatal. Higgins vs. Wilmington, 356.

24.

Where in an action for injuries to the real estate of the plaintiff's intestate, caused by water being drained thereon by the defendant from its right of way, the declaration alleges that the said intestate was in possession of the real estate, and the evidence shows that her husband alone was in possession, there is a fatal variance and a nonsuit will be entered. Chorman's Admr. vs. Q. A. R. R., 417.

25. 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.

26. The defendant in his plea averred that plaintiff's counsel agreed in writ