trust, his Court will not vacate the judgment. In such a case the injured
parties have an adequate remedy only in Chancery, where all persons interested
may be made parties to the proceeding, and where the complainant proceeds at
his own risk, gtving proper security for any costs and damages that may be sus-
tained by the person or persons rightfully entitled to the money. Woodward,
Baldwin & Co., vs. Arlington Mills, 188.
8. This Court has jurisdiction of its own judgments in all proper cases, but
such a case does not come within the well settled practice in relation thereto.
Ibid.
9. Under the well settled rules governing the Court in motions for judgment
notwithstanding affidavits of defense, where there is a doubt, it will be solved in
favor of the defendant, and the Court will not allow what are termed "snap
judgments." May vs. Forbes, 194.
10. In a proceeding under the statute (Chap. 101, Sec. 6, p. 770, Rev. Code),
to recover possession of demised premises after the expiration of the term, a ver-
dict for the plaintiff and that he is entitled to the possession of the premises
named and mentioned in said statement, and that there be a stay of execution for
ten days on the same from the third day of January, A. D. 1899, is not in ac-
cordance with the statute, and the judgment will be reversed. Crow vs. Cann,
208.
II. The statute is mandatory, and prescribes in terms what the judgment shall
be—that is, that the plaintiff shall have judgment for the possession of the prem-
ises, and for his costs. The verdict is in direct violation of the provisions of the
Ibid.
12. Form of judgment rendered by the Court on the finding of the jury. State
vs. Hancock et al., 253.
13. When it appears from the record of the Justice that the case was post-
poned, but not to a day certain, and it does not appear that the defendant below
had any knowledge of any further day of hearing, the judgment will be reversed.
Boggs vs. Arthurs, 401.
14. There is a presumption of payment of a judgment after twenty years or
more from the recovery thereof, without any payment or process upon it or recog-
nition or acknowledgment of it, within twenty years, as a subsisting debt. But
such presumption may be rebutted by evidence of some acknowledgment or other
recognition. Maxwell vs. Devalinger, 504.
15. The act of 1893, known as the lien law, Revised Code, 814, held to be
constitutional, a reasonable time having been given by the terms of the act to
judgment creditors in which to renew and continue their liens. Such statute
merely affects the remedy for the enforcement of the judgment; that is, it
shortens the time for the existence of the lien, without impairing the obligation of
the contract. Ibid.
16. One of the defendants in a judgment had died more than a term of court
before the issuance of a writ of attachment against both defendants. Held that
the writ was properly and legally issued. While the officer in executing the writ
could not seize or attach any property which belonged to the deceased defendant,
the process properly followed the judgment on which it was issued. Forbes vs.
Thompson & Co., 530.
17. An attaching creditor stands in no better position than the defendant in the
judgment, as to the collection of a debt due to the latter from the garnishee. The
right of such creditor to recover against the garnishee depends upon the subsisting
rights between the garnishee and the debtor in the attachment; and the test of
the garnishee's liability is that he has funds, property or credit in his hands be-
longing to the debtor, for which the latter would have a right to sue.
nishee stands in every respect in the same position as he would have been had
the suit been brought by his own debtor. Ibid.
18. The act for the protection of women," Chap. 350, Vol. 14, Laws of
Delaware (Rev. Code, 600), does not authorize the husband to maintain an action
at law against his wife, and inasmuch as the attaching creditor has no greater
power in the collection of the debt from the garnishee than the judgment debtor
would have, it follows that the wife cannot be summoned as garnishee of her
husband. Ibid.
19. The Justice's Court is a court of record, and has been so held by this
Court, and the statute of this State with reference to the docket entries required
to be made by the Justice expressly requires, that the return of service shall be
made a part of the record. And in a case of a judgment by default the statute
also requires that the service of process shall be verified by the officer making the
service. In matters over which the jurisdiction of the Justice extends under the
statute clothing him with authority in the premises, a safe rule is to make no dis-
tinction in the conclusiveness of presumption between recitals contained in the
records of this Court and courts of justices of the peace. Stidham vs. Thatcher,
567.
JUDICIAL NOTICE.-See also NOTICE.
Courts take judicial notice of the general, public statutes of the State. An
act creating a municipal corporation is such a statute. Downs vs. Com. of
Smyrna, 132.
JURISDICTION.-See COURTS.
JUROR.-See JURY.
1. When there are facts and circumstances disclosed by the evidence, from
which it is competent for the jury to infer the existence of the relation of agency,
it is the duty of the Court to submit the question to the jury, under proper in-
structions. Foster vs. State, 112.
2. The Court cannot charge the jury "that there is no evidence at all before
them connecting the defendant with the larceny," because they are not per-
mitted to charge upon the facts. State vs. Spencer, 225.
3. Where a party produces a witness who takes him by surprise by making
statements different from those made elsewhere, such party will be permitted to
call witnesses to contradict the witness; and it will be for the jury to say which
testimony they will believe. State vs. Wright, 228.
4. In a trial for receiving stolen goods, in order to convict, the jury must be
satisfied from the evidence beyond a reasonable doubt, first, that the goods were
stolen; second, that they were the property of the person laid in the indictment,
and, third, that the defendant, when he bought and received them, knew that
they were stolen. Such knowledge may come from declarations made at the
time, or from the circumstances surrounding the transaction.
5. In empaneling the jury in a civil case a failure to challenge is a waiver of
the right as to that one, but not as to the remainder. It is unlike a criminal
case where the State has three challenges and the defendant six, for there the
State has the right to wait until three jurors are challenged by the defendant, and
reserve its three challenges to meet the remaining three of the defendant. Smith
vs. Smith's Admr., 245.
6. Form of judgment rendered by the Court on the finding of the jury. State
vs. Hancock, et al., 253.
7. A juror is not disqualified on account of having said to counsel for the
prisoner just before being called, that he had better not take him on the jury, if
he did not want his client convicted, or words to that effect. State vs. Sole, 368.
8. The discharge of a jury when the Court is satisfied that a verdict cannot be
reached, rests in the discretion of the Court. The case of State vs. Carberry is
decisive of the question. State vs. Gamble and Fitzpatrick, 368.
9. A case was put on trial, and after progressing for one day counsel for de-
fendant stated that he was unable to go on owing to the sickness of a material
witness, and asked that the case be continued until such time later in the term
as the witness might be able to attend, but stated that he could not agree that
the same jury should try the case at the subsequent hearing. Counsel for plain-
tiffs asked that the same jury be continued. The Court held (under Chapter
520, Vol. 20, p. 707, Laws of Delaware) that unless counsel consented to try
the case with the same jury a new jury would have to be empaneled to try the
case. A juror was thereupon withdrawn, and the case continued until February
23, 1900. Wood vs. Bangs, 435.
10. If there is no evidence of negligence on the part of the defendant, in a suit
for damages for personal injuries, or no evidence from which the jury could
reasonably infer such negligence, it is the duty of the Court to withhold the case
from their consideration, as a verdict for the plaintifts under such circumstances
would be set aside. But it should not be forgotten that it is the province of the
jury to determine doubtful questions of fact, and that where the evidence or the
reasonable inferences that the jury might draw from it would be sufficient to sup-
port a verdict for the plaintiff, the case should be submitted to the jury. Tully's
Admr. vs. P., W. & B. R. R., 537.
II. In the application of the doctrine of contributory negligence to children
the rule governing adults is greatly modified. A child is held only to the exer-
cise of such degree of care and discretion as is reasonably to be expected from
children of his age. The care required of a child is to be ascertained by his
maturity and capacity, and the particuler circumstances of the case, and the de-
termination of the question should generally be submitted to the jury. Ibid.
12. If the jury find that the defendant's servant, in charge of the business of
shifting cars, saw the boy who was injured in a place of danger on one of said
cars, and failed to make any effort to prevent him from exposing himself to such
danger, or any effort to avert such danger; and that the signaling brakeman saw,
or should have seen the boy in a place of danger on one of the cars he was
approaching, in time to avoid the danger or give warning of it, and that he
made no effort to avoid the danger or warn the boy, the jury would be justified
in finding the defendant guilty of such negligence as would render it liable. Ibid.
13. It is not error for the Court to refuse to instruct the jury under a request
which assumes the existence of a fact to be established by evidence. Daniels vs.
State, 586.
14. Character evidence is to be weighed and estimated by the jury according
to the weight of the testimony by which it is supported in connection with that
to which it is opposed, Ibid.
I. A Justice of the Peace has no jurisdiction over nuisances committed in
the City of Wilmington. State vs. Greenwood, 379.
JUSTICE OF PEACE-Continued.
2. When it appears from the record of the Justice that the case was postponed,
but not to a day certain, and it does not appear that the defendant below had any
knowledge of any further day of hearing, the judgment will be reversed. Boggs
vs. Arthurs, 401.
3. Under Section 16, Rule 9, of Superior Court, the Justice is allowed to
amend his certificate on or before the first Friday of the term to which the appeal
is entered; and such amendment will not be allowed after the time stated in
said rule. Trimble, Sides & Co. vs. Dugan, 524.
4. It appeared by the record of the Justice (1) that the appeal bond contained
the word "successors' instead of "executors"; and (2) that the certificate of
the Justice did not set out that the transcript was "a true copy of all the docket
entries," but simply certified that it was a "true copy and truly copied from the
records," etc. Held that the appeal should be dismissed. Ibid.
5. The Justice's Court is a court of record, and has been so held by this Court,
and the statute of this State with reference to the docket entries required to be
made by the Justice expressly requires, that the return of service shall be made a
part of the record.
And in the case of a judgment by default the statute also
requires that the service of process shall be verified by the officer making the
service. In matters over which the jurisdiction of the Justice extends under the
statute clothing him with authority in the premises, a safe rule is to make no dis-
tinction in the conclusiveness of presumption between recitals contained in the
records of this Court and courts of justices of the peace. Stidham vs. Thatcher,
It is true that equity will not relieve against the bar of the statute in favor of
the party who has been in laches in not using the means in his power to discern
the fraud, but the rule is that it is good faith and not diligence which is required
of the creditor as a condition of his right to hold the surety; the creditor or
obligee in a bond is not obliged, for the benefit of sureties, to watch the principal.
Lieberman vs. First Natl. Bank, 416.
LANDLORD AND TENANT.-See also DISTRESS; ATTACHMENT.
1. In a proceeding under the statute (Chap. 101, Sec. 6, p. 770, Rev. Code),
to recover possession of demised premises after the expiration of the term, a ver-
dict for the plaintiff and that he is entitled to the possession of the premises
named and mentioned in said statement, and that there be a stay of execution for
ten days on the same from the third day of January, A. D. 1899, is not in accord-
ance with the statute, and the judgment will be reversed. Crow vs. Cann, 208.
2. The statute is mandatory, and prescribes in terms what the judgment shall
be, that is, that the plaintiff shall have judgment for the possession of the
premises, and for his costs. The verdict is in direct violation of the provisions
of the statute. Ibid.
3. A distress will lie for rent in arrears without any prior demand of payment.
It may be made by the landlord personally, or by his bailiff-who is not required
to be a public officer-but if he is, the landlord is responsible for his acts as
though he were a private person. Weber vs. Vernon, 359.
4. A tenant may lawfully sell and deliver to a bona fide purchaser for a valuable
consideration his goods and chattels on the demised premises, and they will pass
to such purchaser having the bona fide possession of them on such premises, free
from any lien or liability for rent due or growing due, unless they be lawfully
LANDLORD AND TENANT-Continued.
attached or levied upon under execution process, prior to such sale and delivery,
or duly levied upon prior or subsequent thereto under a distress warrant. Lupton
& Co. vs. Hughes, 515.
1. A dog registered under she charter of the town of Dover, is not the subject
of larceny; but would be if registered with the Clerk of the Peace for Kent
County, under the act of February 25, 1897 (Rev. Code, 399), which expressly
makes any dog so registered personal property and the subject of larceny. State
vs. Butler, 127.
2. An indictment for larceny which contained the following language in rela-
tion to the value of the property-" of the $5.00 lawful money of the United
States," held not to be defective because the words "value of" were omitted.
State vs Spencer, 225.
3. Such an indictment describing the property alleged to have been stolen as a
"mileage book on the Philadelphia, Wilmington and Baltimore Railroad Com-
pany," without any averment that the book was stamped, held sufficient. Ibid.
4. The general rule governing cases of lost property, where larceny is charged,
is this: if the finder knows who the owner is, from any marks on it, or if from
the circumstances under which the property was found the owner could reason-
ably have been ascertained, then the fraudulent conversion to the finder's use is
sufficient evidence to justify the jury in finding a felonious intent. State vs.
Stevens, 486.
5. The jury should take into consideration the circumstances attencing the
finding of the property, and say whether or not at the time of the alleged finding
the prisoner intended to convert it to his own use. Ibid.
6. Indictmeut for larceny. State vs. Gamble and Fitzpatrick, 368.
If a person who is able to read signs his name to a paper, the presumption is
that such person understood the meaning of the instrument, or by the exercise of
reasonable care might have done so. In order to avoid the contract the burden
is placed on the defendant to show that she was so ignorant that she did not,
and could not, understand what she signed. If she was able to understand it,
or by the exercise of reasonable diligence might have understood it, the contract
is valid and binding. Sewing Mach. Co. vs. Frame, 430.
LEGAL TITLE.-See TITLE.
LEGISLATIVE BILL.-See BILL.
LEGISLATURE, MEMBER OF.-See BRIBERY.
LIBEL.-See also CRIMINAL LIBEL.
When a defendant in an action for libel has been arrested under a writ of
Capias ad Respondendum, and the words alleged as libelous were used in the
pleadings in a suit still pending in another Court of this State, said defendant
will be discharged on common bail. For this Court to dispose of the question
here, as to whether such words were libelous or not libelous, would be interfering
with the due administration of justice in another Court, and this cannot be per-
mitted on grounds of public policy. Hartman vs. May, 512.
LICENSE,-See also PERMISSIVE WAY.
A license to cross a railroad growing out of the mere passive acquiescence of
the company, will be strengthened by any act of the company which amounts to
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