BREAKING AND ENTERING STORE.-Continued.
2. In order that an inference of guilt may be drawn from the un-
explained possession of goods recently stolen, it must be an exclusive
personal possession on the part of the accused. This does not mean
that the goods must be actually in the hands of the accused, or on his
person; but possession of the requisite character may be established
by the fact that the goods were found on premises, or in a place, of
which the accused was in the exclusive occupancy and control. If,
however, the place where the goods were found was accessible to
others capable of stealing, the inference cannot be drawn, though the
fact is entitled to consideration in connection with the other facts in
the case. Id.
3. If the stolen goods were found upon the premises of which the
accused was the tenant, and it is proved that he was on said premises
the morning next after the alleged offense was committed, the jury
may infer that the goods were upon the premises with the knowledge
of the accused, and that they were in fact in his posssesion, unless the
evidence warrants the jury in inferring the contrary. Id.
4. If shortly after the commission of the alleaed offensei the stolen
goods or any part of them, were found in the joint possession of the
accused and another who was indicted with him, the jury may
draw from such possession the same inference of guilt as to the ac-
cused, as if they had been found in his sole possession. Id.
BUILDING MATERIAL.-See ESTIMATE FOR BUILDING MATERIAL
BURDEN OF PROOF.
1. When the killing was done with a deadly weapon, malice is pre-
sumed in the absence of evidence to the contrary, and the burden of
showing the contrary is on the accused. A deadly weapon is such a
weapon as is likely to produce death when used by one person against
another; such, for example, as a knife or piece of wood of suicient
size to cause death to one who may be struck with it. State vs.
Cephus, 160.
2. Áll homicides with a deadly weapon are presumed to be malic-
ious until the contrary appears from the evidence, and the burden
of proof to the contrary lies on the accused, as the natural and prob-
able consequences of the act are presumed by law to have been in-
tended by the person using a deadly weapon. State vs Johns, 174.
3. No presumption of negligence on the part of the defendant
company arises from the mere fact that the plaintiff or his property
were injured by the car of the defendant. The burden of proving it
rests upon the plaintiff. Heidelbaugh vs. Peoples Ry., 209.
4. Where the defendant claims right by adverse possession of
twenty years against the legal title of the plaintiff, the burden of es-
tablishing it is upon the defendant; and if in such case the defendant
fails to prove such adverse exclusive possession for twenty years,
and the plaintiff has proved a legal title, the verdict should be for the
plaintiff. Nevin vs. Disharoon, 278.
5. The burden is upon the State to prove to the jury by competent
and satisfactory evidence every essential ingredient of the crime of
larceny. State vs. Wolf, 323.
In the trial of a person indicted for selling intoxicating liquor
unlawfully the burden is on the defendant to show that he was
BURDEN OF PROOF.-Continued.
licensed and therefore not selling illegally. The indictment will not
be quashed because it fails to aver the sale without a license.
vs. Polk, 456
7. Express malice must be proved, but may be proved by direct or
indirect evidence. The jury should consider all the facts and circum-
stances which tend to show the motive or spirit which actuated the
words complained of Where the truth is pleaded and the defendant
has clearly established that the plaintiff did, at the time referred to,
and upon a matter material to the case, knowingly swear falsely, the
defense is complete. Under such plea the burden is upon the defen-
dant to satisfy the jury that the defendant's words were true. If the
jury is not so satisfied, the plaintiff would be entitled to some dam-
ages because the law presumes malice ftom the character of the
words uttered. He would be entitled also to any damages which the
evidence shows he actually sustained by reason of the slanderous
words; and also to exemplary damages if the words were uttered
maliciously and with intent to injure the plaintiff. Smith vs. Singles,
BY-LAW OF BENEFICIAL ASSOCIATION.
Where a member of a fraternal benefit association, upon applying
for membership designates as his beneficiary a person in no wise re-
lated to him, as he might properly do under the act of incorporation
and by-laws then in force, a change of the by-laws or act of incor-
poration requiring that each member shall designate a beneficiary,
who shall bear a specified relation to him, is prospective only, and
has no effect on a contract theretofore made, notwithstanding such
member upon joining the association had agreed to conform in all
respects to the laws, rules and usages of the order then in force or
which might there after be adopted by the same." Emmons vs.
Supreme Conclave I. O. H., 115.
BY-LAW OF DREDGING CO.-See BANK AND DEPOSITOR.
CANNER'S CONTRACT FOR CORN.-See CONTRACT, 11, 12, 13.
Knowles vs. Morris, 76; Masten vs. Herring, 282.
CASTLE OF DEFENSE.-See DEFENSE OF DWELLING.
1. The record certified to by the Justice disclosed that the referees
reported, that having heard the allegations of the parties and their
proofs, and maturely considering the same, they rendered their ver-
dict as a judgment against the plaintiff for a certain sum. There
was, however, no entry of judgment by the Justice.
certiorari should be dismissed on the ground that no
entered by the Justice on the report of the referees.
Held that the
judgment was
Ruhl vs. Coop-
2. Exceptions to the record of the Justice were.(1) that the Justice
had no evidence before him upon which to render judgment; and (2)
that the record failed to show that the defendant claimed a nonsuit at
the trial. Emory vs. Wagon Co., 70.
3. Held that although it appeared from the record that the plain-
tiff was not present at the trial, it did appear that he had at the trial
an affidavit and other papers and letters as evidence, and the record
says that "after hearing and examining all the allegations of the
parties and their proofs," etc.: held also that while there may be cir-
cumstances under which this Court will allow the record to be supple-
mented, they are not present in this case. Diminution could have
been alleged if the Justice did not put down all that the record should
show. Judgment affirmed. Id.
4. The court will not take judicial notice of the fact that a person
who was appointed by a Justice as one of the referees in a case, was a
constable of the county. Jacoby vs. Bolen, 240.
5. The record of the Justice failed to state that the referees ap-
pointed by him were judicious and impartial men of the county.
Held that although irregular it was not jurisdictional to fail to state
such fact. The presumption is that the Justice did his duty unless it
appears to the contrary from the record. Id.
6. Judgment below reversed. King vs. Tyler, 287.
7. On motion to dismiss certiorari, because the Justice failed to
sign the alleged judgment held that within his statutory jurisdiction
the authority of a Justice of the Peace is just as complete, for all
purposes of hearing such cases, determining or deciding them, and
making up his record, as is the authority of this Court. While the
better practice would be for the Justice to sign his record, yet it is
not essential to the validity of a judgment rendered by him that he
should sign it, in the absence of a statutory provision requiring his
signature. While our statute sets out what is essential to constitute
a valid docket entry, it is silent upon the matter of signing it. John-
son vs. The State, 450.
8. If the record of the Justice fails to show that the defendant
was charged with having willfully committed the tresspass, the
judgment will be reversed upon exceptions filed. The case of Van-
dever vs. State, 1 Marv. 209, approved and followed. Id.
9. A cause of action stated to be "An action brought for compen-
satory damages for neglect of an agreement for labor or work to be
performed by the defendant," is not within the jurisdiction of the
Justice. Colbourn vs. Moore, 460.
10. When the record of the Justice does not negative the excep-
tions contained in the statute, and show that the worldly business
which it is alleged was performed was not a work of necessity or
charity, the judgment below will be reversed. Wright vs. State, 461.
11. The affidavit upon which a forthwith summons was issued was
made by the agent of the plaintiff. Held to be insufficient. Dickerson
vs. Legore, 462.
CHARACTER TESTIMONY.-See REPUTATION.
CHARGING ILLEGAL RATE OF INTEREST.
1. The act entitled "An Act Licensing Brokers or other persons to
CHARGING ILLEGAL RATE OF INTEREST -Continued
make small loans and charge interest in excess of the present rate,"
being Chapter 149, Vol. 23, Laws of Delaware, is constitutional and
valid.
State vs. Wickenhoefer, 120.
2. The averment in an indictment of the violation of the provisions
of a statute by the defendant, acting at the time as the agent of the
company, is a sufficient averment, within the meaning of the act, of
the violation of the law by the company he represents.
CHATTELS.-See PERSONAL PROPERTY.
1. Chattels bound by a chattel Mortgage were moved to the farm
of A. B. by the mortgagor, the tenant of said farm, and subsequently
distrained by A. B. for rent. They were sold by the Constable under
the distraint and the proceeds applied to the landlord's claim for rent.
Held that such application of the proceeds was proper and legal, under
the ruling made by the Court in the case of Ford vs. Cleuell, 9 Hous.
179. State use of Davidson vs. Frick, 26.
2. But even if such a contract could be regarded as a conditional
sale if the vendor has agreed, under the terms of a mortgage given to
him by the vendee, that the property in question should become
fixtures, and as such a part of the realty, covered by the lien of the
mortgage under which the property was subsequently sold by the
sheriff he cannot maintain an action of replevin therefor. Knowles
Loom Works vs. Knowles, 185.
CHECK.-See BANK AND DEPOSITOR.
CIRCUMSTANTIAL EVIDENCE.
1. Evidence is none the less effective because it is circumstantial,
if it be consistent, connected and conclusive. But circumstantial
evidence to warrant conviction must be entirely satisfactory and of
such significance, consistency and force as to produce conviction in
the minds of the jury of the guilt of the accused beyond a reasonable
doubt. Where the evidence is circumstantial, the jury must be fully
satisfied, not only that those circumstances are consistent with the
prisoner's having committed the act charged as constituting the crime,
but they must also be satisfied that the facts are such as to be incon-
sistent with any other rational conclusion than that the prisoner was
the party. They must be such as to exclude any other reasonable
hypothesis or conclusion. State vs. Samuels, 36.
2. Where the evidence relied upon to prove the guilt of the accused
is circumstantial, it is essential, first, that such circumstances be prov-
ed to the satisfaction of the jury beyond a reasonable doubt; second,
that such circumstances be in all respects consistent with the theory
of guilt, and third, that such circumstances be inconsistent with any
other reasonable theory than the guilt of the accused. State vs.
Tilghman, 54.
3. The rule in respect to circumstantial evidence stated. State
vs. Wolf, 323; State vs. Tyre, 343.
1. A common carrier is one who undertakes and exercises, as a
public employment, the transportation or carriage of goods for persons
generally, from place to place, whether by land or water and to deliver
them at the place appointed, for hire or reward, and with or without
a special agreement as to price. He is bound to exercise the strictest
care, and to deliver safely at their place of destination, the goods en-
trusted to him. He is regarded by the law in the light of an insurer.
Carpenter vs. B. and O. R. R., 15.
2. The carrier, however, is not held responsible for loss or injury,
occasioned by bad or imperfect packing, or other carelessness or neg
ligence of the shipper; or for ordinary wear and tear and chafing of
the goods in the course of their transportation, or for their ordinary
loss or deterioration in quantity or quality, or for any inherent natural
infirmity or tendency to damage, depreciation or decay, etc. Id.
3. Where goods are injured during transportation, under such cir-
cumstances as to render the carrier liable, the measure of damage is
the difference between the value of the goods in their damaged state
and what would have been their value if delivered in good order, un-
less there was a special agreement between the parties fixing some
other mode for the ascertainment of such damages. Id.
4. Where there is a contract fairly made between the shipper and
common carrier, whereby, in consideration of a reduced rate of freight,
it is agreed, that in case of loss or injury, the carrier shall be liable
only to the extent of an agreed valuation of the goods, such contract is
valid and will operate as a limitation upon the liability of the carrier.
But it is incumbent on the carrier to prove such special agreement to
the satisfaction of the jury, and upon failure so to do, the said common
law rule prevails. Id.
5. If such special agreement is in writing it must be expressed in
such manner and form as to be understood by a person of ordinary in-
telligence; or if not so expressed, it must be shown to have been ex-
plained to the person to be bound, unless such person himself had
such knowledge of the subject as would enable him to understand the
meaning of the writing. Id.
6. Save under very exceptional circumstances, before a shipper
can be bound by a condition or regulation in the bill of lading limiting
liability, of which he has not actual knowledge, it must positively and
particularly be brought to his attention. Id.
7. There can be no recovery for any injury to the property after
its arrival at destination and refusal to accept. Id.
8. The jury may allow interest on the amount assessed as damages
from the time the property arrived at place of destination and was
tendered to the plaintiff. Id.
9. The law imposes upon common carriers of passengers the duty
of providing safe cars, and of keeping them in good repair and safe
condition; and of doing all and every the things with respect to these
matters that may be reasonably necessary to secure the safe trans-
portation of their passengers from place to place, and their safe de-
parture from the cars when they have reached their destination.
Smithers vs. The Wil. City Ry., 422.
10. A railway company in letting its passengers on and off its cars
is bound to use all reasonable care to secure their safety. Id.
11.
The platforms and steps, or running-boards, of a railway car
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