EVIDENCE-ARGUMENTS. but so far as it appears, you have two distinct and separate offenses not growing out of one transaction; it does not appear that it is one transaction. Mr. White:-We will stand on No. 4. That is the one alleging a promise to pay, and not the one alleging an offer to pay. We will withdraw the bail bond in No. 5 and offer it in No. 4. We withdraw the information in No. 5. Mr. Hayes:-We shall object to the bail bond in No. 4 on the ground that we have already stated to your Honors. Mr. White:-We will abandon or nolle pros. No. 5 and offer the bail bond in No. 4. BOYCE, J.:-Do I understand that the proof that has been adduced in No. 5 applies to No. 4? Mr. Hayes:-The Attorney-General need not go through the formal proof again. That is as to the paper itself; nothing else. Mr. Ward:-We save our exception in this case. LORE, C. J.:-Let a nolle prosequi be entered in No. 5; you had better proceed regularly in No. 4. Mr. Hayes:-We want to save our exceptions. That is the reason we said we objected to the bond. LORE, C. J.:—You had better go along regularly. You will prove this formally in No. 4; go on step by step. Ezekiel V. Cooper, a Justice of the Peace was then sworn and proved the formal execution of the said bail bond, which was then offered in evidence by the Attorney-General and objected to by Counsel for the defendant on the same ground as before stated in No. 5 which had been nolle prossed. OPINION. LORE, C. J.:-We hold that the bail bond sets out the offense with sufficient precision to sustain the information, and order judgment against the defendant. Mr. Hayes:-We desire to note an exception to that ruling; we also note an exception to the decision of the Court that it is sufficient. Mr. Ward here raised the question as to whether said judgment was final, or a judgment of respondeat ouster, and asked, in order that there might be a ruling, that judgment of respondeat ouster be entered. Counsel for State contended it was a final judgment. LORE, C. J.:-We have concluded what judgment we will render, and as giving our reasons better probably than we could state them off-hand, we will quote from Wharton's Criminal Law, Sections 530—a and 537: "DOUBLE PLEADING.-Can a defendant plead simultaneously the general issue, and one or more special pleas? At common law, this must be answered in the negative, whenever such pleas are repugnant; as at common law all the pleas filed in a case are regarded as one. This is the strict practice in England, where the judges in review have solemnly ruled that special pleas cannot be pleaded in addition to the plea of not guilty. And in this country, in cases where not guilty has been pleaded simultaneously with autrefois acquit, the same course has been followed, and the plea of not guilty stricken off until the special plea is disposed of. "In such case, after determining the special plea against the defendant, the present practice in the United States is to enter simply a judgment of respondeat ouster in all cases in which the special plea is not equivalent to the general issue. "This, which is technically the correct practice, is not, however, always pursued. A short cut is often taken to the same OPINION. result, by directing when special pleas and the general issue are filed simultaneously, or are found together on the record before trial, that the special pleas should be tried first, and, if they are found against the defendant, then the general issue. But, under any circumstances, it is error to try the special pleas and the general issue simultaneously. The special plea must be always disposed of before the general issue is tried. "If a special plea is determined against the defendant, is the judgment always respondeat ouster? Unless upon a trial by jury on a special plea which embraces the general issue, this question ought now to be answered in the affirmative. The old distinction taken in this respect between felonies and misdemeanors, being no longer founded in reason, should be rejected in practice. And the only consistent as well as just course is, to harmonize the present fragmentary rulings in this relation into the principle that in all cases the question of guilty or not guilty is one which the defendant is entitled of right, no matter how many technical antecedent points may have been determined against him, to have squarely decided by a jury." And in the latter part of Section 537 of the same work, the learned author says: "In England, the rule is that on a plea of abatement on the ground of misnomer, the judgment, if for the Crown, is final, and that the defendant cannot plead over. It seems otherwise, however, where the plea is to matter of law. In this country the practice is to require the defendant to plead over. "How far errors in the grand jury can be thus noticed has already been considered." The above reasoning commends itself to our judgment, and we will follow it. Let the judgment be a judgment of respondeat ouster. Counsel for State here announce that the State elects to stand on the first count in No. 4, abandoning the other counts. JUDGMENT-SYLLABUS. After hearing the evidence on both sides the Court rendered the following judgment: LORE, C. J.-We have considered this case upon the proof, and a majority of the Court have reached the conclusion that under the proof in this case the guilt of the defendant is not proved beyond a reasonable doubt, which is the rule in all criminal cases. The judgment of the Court, therefore, is a judgment of not guilty. Judgment, not guilty. FRANK H. THOMAS and MARY THOMAS, his wife, vs. THE PENNSYLVANIA RAILROAD COMPANY.* Foreign Attachment-Case-Demurrer-Pleading-Duplicity-Re pugnancy-Corporation-Consignment of Goods-Coun I. 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 according 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 consignee at a certain place; the said counts will be adjudged bad, and a demurrer thereto sustained. 2. 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. (December 15, 1900.) * See also 2 Pennewill, 411. OPINION. LORE, C. J., and SPRUANCE and GRUBB, J. J., sitting. Anthony Higgins for plaintiff, Andrew C. Gray for defendant. Superior Court, New Castle County, November Term, 1900. FOREIGN ATTACHMENT CASE (No. 43, November Term, 1897). Demurrer to amended declaration. The facts, and the contentions of counsel appear in the opinion of the Court. LORE, C. J.:-The demurrer in this case is to the two counts of the amended declaration filed September third, 1900, upon the grounds of duplicity and repugnancy. Both counts are in case, in assumpsit, and set out the contract of the defendant company as a common carrier, to carry three hundred and one-half barrels of pears from Perryville in the State of Maryland, the point of shipment, to Erie, in the State of Pennsylvania, the place of delivery, which were consigned to one M. J. Schabacker, there to be delivered according to the directions of the said Mary H. Thomas. The declaration avers the receipt of the pears by the defendant company, and the delivery of the same by it to Schabacker, the consignee, at Erie; contrary to the order of the said Mary H. Thomas, which order in both counts substantially was "not to deliver the goods and chattels to any person, but to retain the same in the possession of the defendant company subject to the direction of the said Mary H. Thomas as to delivery." Each count sets forth a verbal agreement, that the goods and chattels were to be "delivered according to the direction of the plaintiff Mary H. Thomas," and not to M. J. Schabacker, the consignee; but expressly avers that such verbal agreement was "subject to the terms and conditions" of a written receipt, given by the |