tiff in a position of danger, standing with his back to the car, in time
to stop the car and avoid the accident, it was his duty to do so, and if
he failed to do so the company would be liable. Id.
35. But such construction of the railway is the exercise of a vital
part of the company's franchise, and even if the work is done by such a
contractor in the employ of the company, whether he be called an in-
dependent contractor or otherwise the company would be liable for
injuries resulting from the negligence of such contractor and any and
all of his servants and employees. White vs. Peoples Ry., 476.
36. The law will not permit the company to shield itself from lia-
bility for such negligence behind any such alleged independent con-
tractor. In such work, in law, he would be the agent of the com-
pany. Id.
The law in respect to negligence stated, and the duty of the
ccity and also of the traveler defined. Anderson vs. Wilmington, 485.
38. The statement of the law by the trial Court as to contributory
negligence and unaviodable accident affirmed. MacFeat vs. P. W.
& B. R. R., 513.
39. An averment of negligence contained in the plaintiff's declara-
tion, being simply that the employee, who was an Italian, did not
understand English, and was put under the charge of people who did
not undertsand Italian, held insufficient. Valente vs. American
Bridge Co., 556.
40. The servant assumes no risk as to the primary duties of the
master, but does assume all the ordinary risks incident to the employ-
ment, including the negligence of a fellow servant. Id.
41. The Court delivered the usual charge on negligence; and the
duty of the railway company, and also of the passenger.
Elliott vs.
The Wil. City Ry., 570.
See BANK AND DEPOSITOR, 1, 5, 6, 8, 12.
The Court intimating that it would set aside the verdict as ex-
cessive and order a new trial, counsel for plaintiff agreed to have
verdict entered for a reduced amount. Poole vs. Greer, 220; Todd vs.
Every Evening Printing Co., 233.
1. The fact that a father as next friend sought to recover for his
minor child damages for which he might otherwise have maintained
an action in his own name, will amount to a waiver or relinquishment
of the father's right in favor of the son, or to an emancipation of the
son by the father, so as to preclude the father from maintaining an
action in his own name. Bowring vs. Wil. Mal. I. Co., 332.
2. But the next friend of an infant plaintiff is not a party to the
action in such a sense that the judgment therein rendered could be
pleaded in bar of any cause of action he might have against the same
defendant growing out of the same transaction. The actions would
be different-the parties not the same. A verdict against a person
serving in one capacity will not estop him when he sues in another
distinct capacity, and is in fact a different person in law.
1. In an indictment for larceny, the property alleged to have been
stolen was stated to be the property of, "Joseph Bancroft Sons' Comp-
any." At the trial it appeared from the States evidence that it was
the property of "Joseph Bancroft and Sons' Company." The State
permitted to enter a nolle prosequi. State vs. Dougherty, 398.
2. The State allowed to enter a nolle prosequi, and motion to in-
st'uct the jury to render a verdict of not guilty, refused. State vs.
Hamilton, 433.
1. A count of the declaration which no evidence has been offered
to support will not be stricken out before all the evidence is in, nor will
the Court at any time direct a nonsuit or binding instructions as to
such count. White vs. Wil. City Ry., 105.
2. Where it is a condition of a fire insurance policy that if the sub-
ject of the insurance is a manufacturing establishment and shall
cease to be operated for more than ten conseuctive days, the policy
shall become void; the plaintiff, in an action on such policy, cannot
recover if it appears from the testimony presented by him that the
property insured was a manufacturing establishment which ceased
to be operated for more than ten consecutive days immediately pre-
ceding the fire. Nonsuit ordered, which being refused by plaintiff;
binding instructions were given to find for the defendant. Downs
vs. German Alliance Insurance Co., 166.
3. When the vendor delays for about ten years to exercise the right
of repossessing himself of the property sold by him a waiver and aban-
donment of such right against the holder of the mortgage and those
claiming thereunder, should be presumed. Knowles Loom Works vs.
Knowles, 185.
4. Nonsuit ordered, which being refused by plaintiff, the Court
instructs the jury to find for the defendant. Id. Taylor vs. Bush
& Sons Co., 306; National Dredging Co. vs. Farmers Bank, 580.
5. In refusing a motion for a nonsuit the trial Judge said; "We
have considered the motion for a nonsuit in this case, and while we
have very grave doubt of the plaintiff's right to recover upon the
evidence presented, we think the case should go to the jury. There-
fore we decline to order the nonsuit." Held, that with the very clear,
forcible and accurate statement of the law given by the trial Court in
its charge to the jury, no reasonable juror could have had any doubt
that it was his duty to determine the facts from the evidence, without
any regard to what was said by the trial Judge in refusing the non-
suit.
MacFeat vs. P. W. & B. R. R., 513.
1. It is of no consequence when, of for what purpose, the note was
originally made, if both parties agree that it is the note referred to in
the agreement. The jury should treat it precisely as if it bore even
date with, and was made at the same time as the agreement,and for
the sole purpose stated therein. Staunton vs. Smith, 193.
2. It is for the jury to say, under the evidence, whether another
note given by the defendant to the plaintiff was given and accepted in
payment or renewal of the note originally given. Id.
3. Note given for price of a horse. Ellison vs. Simmons, 200.
An obligation, under seal, for the payment of money, imports or im-
plies a valid consideration until the contrary appears from the evi-
dence; and a man of sound mind and lawful age may bind himself by
such an abligation to pay money to another without any valuable
consideration whatever. Rogers vs. Rogers, 267.
4. If the jury are satisfied from the evidence that the obligor, by
reason of old age, was mentally unsound and incapable of transacting
business before the execution of the note, they may presume that such
unsoundness and incapacity continued until, and existed at the time
when the note was executed, unless the contrary is shown by the evi-
dence. Id.
5. If the obligor at the time that he executed the note was capable
of exercising thought, reflection and judgment, knew what he was
doing and had sufficient memory and understanding to comprehend
the nature and character of the transaction, he was capable of making
the note. Id.
6. In determining whether the obligor was prevailed upon by
deception and deceit to execute and deliver the note, fraud is not to be
presumed but must be proved by the party alleging it. And it must
be shown that the fraudulent influence alleged was such that the ob-
ligor was too weak to resist, such as deprived him of his free will, and
such as substituted the will of another for his own. The degree of in-
fluence necessary to control the will of the obligor would depend upon
his mental and physical conditionat the time. Id.
7. Action on promissory note. Wrong party plaintiff. King
vs. Tyler, 287.
8. The defendant had given to the plaintiff a certain promissory
note, with an agreement which provided that if the said defendant
should pay to the plaintiff, on account of said note, at least one-fourth
of his interest in the net profits of the business of the incorporation
during the year the note had to run, the plaintiff would renew the
note. On demurrer to the declaration filed in an action on said note,
held;-(1) That it was not necessary for the plaintiff to set out what
the amounts of the net profits were, the dividends that were declared,
or the interest of the defendant in said net profits. (2) That it was
sufficient if the nature and character of the agreement declared on
was set out generally and in substance. (3) That plaintiff's declara-
tion sufficiently set out a legal cause of action. Pyle vs. Gallaher,
9. On demurrer to defendant's pleas in said action, held;-(1)
That conceding the defendant had the right to have the note renewed
yet he made no effort to demand or procure a renewal, and the
demurrer should therefore be sustained. (2) That the demurrer
should be likewise sustained because the new contract set up by the
defendant was nudum pactum;-void for want of consideration. Id.
10. A promissory note, such as sued upon, although the proviso
annexed thereto destroys its negotiability, purports a valuable con-
sideration. But the consideration may, as between the original
parties, be attacked; and if a total failure of consideration be shown
as between them a recovery cannot be had upon the note.
11. If there was a valuable consideration given for the note, then
the legal effect of the proviso, annexed to the note, upon the defen-
dant's liability on the note, was to secure to him a renewal of the
note by the plaintiff from year to year until the debt represented by
the note should be fully paid. But if the defendant failed to con-
form to the terms upon which the note was to be renewed, the plain-
tiff in that event was not legally bound to renew the note, and might
in his discretion institute legal proceedings for the recovery of the
amount secured by the note at the end of the year after the note was
given. Id.
12. The only way to renew a note is by making and tendering a
new note for the old. It must be shown by the evidence that the de-
fendant made or tendered a renewal note to the plaintiff for the first
note given and sued upon, or that the plaintiff waived the making
and tendering of such note by the defendant. Id.
13. In an action to recover the amount of a note under seal more
than twenty years old, upon which endorsements of payments had
been made by the holder of the note; held that while the notes were ad-
missible in evidence, the endorsements were not. Hudson vs. Will-
iams, 550.
14. Certain testimony tending to rebut the presumption of pay-
ment, including an offer of compromise and settlement, admitted;
but subsequently stricken out by order of the Court, leaving, how-
ever, any acknowledgment of the defendant that the debt was not
paid. Id.
15. An admission upon the part of the defendant of the existence
of the debt sued for, in order to dispose of the presumption of pay-
ment from the lapse of twenty years after maturity, must be an ex-
press acknowledgement of an existing debt. Id.
16. In order to exclude distinct admissions of facts, it must appear
either that they were expressly made without prejudice, or at least
that they were made under the force of a pending treaty, and into
which the party might have been led by the confidence of a com-
promise taking place. Admissions made expressly for the purpose
of effecting a compromise of a matter under controversy, if not ac-
cepted, cannot be proved against the party making them. But ad-
missions of independent facts are receivable in evidence, though made
during negotiations for a compromise. Id.
Where notice is given of crippled cars by placing upon them
what is known as shop cards, which denote that they are injured and
to be taken to the shop for repair, such notice is sufficient and the de-
fendant is not negligent in failing to give notice. Shuster vs. P. B.
& W. R. R., 4.
2. Under Sec. 17 of the Act entitled "An Act in relation to the col-
lection of taxes for New Castle County," the collector is required, in
making a sale of real estate, to give notice to any person having an in-
terest therein, other than the person to whom the taxes are assessed,
provided such interest appears upon the records of said county.
The words "records of New Castle County" embrace only the records
of said county and not the records of the City of Wilmington. They
have a definite and well settled meaning, commonly known and ac-
cepted, and that isjust what the words themselves express-county
records, the records of the county and not all the records in the county
Knowles vs. Morris, 76.
![[ocr errors]](https://books.google.co.id/books/content?id=vdwUAAAAYAAJ&hl=id&output=html_text&pg=PA707&img=1&zoom=3&q=trial&cds=1&sig=ACfU3U01ftNrAeHZiyzS8IB_gx7JJDFFeA&edge=0&edge=stretch&ci=134,332,7,9)
3. Where a suit is brought by a depositor to recover from a bank
payments made on forged or fraudulently altered checks, which con-
stitute a series of successful forgeries, held; that after the depositor's
pass-book has been balanced and returned to him with any of the
forged or fraudulently altered checks, and it appears that there was no
negligence or want of due and reasonable care on the part of the bank
in paying the said forged or fraudulently altered checks, the failure
of the depositor to notify the bank within a reasonable time that
such checks have been forged or fraudulently altered, will, if the delay
be caused by his negligence in not using due care and diligence in
examining the pass-book and vouchers, or in giving notice, if he had
discovered the forgeries, constitute a defense for the bank to the de-
positor's suit for money subsequently paid out on similar checks
National Dredging Co. vs. Farmers Bank, 580.
See PRESUMPTION OF KNOWLEDGE; SALE OF REAL ESTATE.
NUDUM PACTUM.-See NOTE, 9.
OBLIGATION UNDER SEAL.-See NOTE.
OBTAINING MONEY BY FALSE PRETENSES.
1. The Wilmington City Railway Company is a corporation of this
State created by public act, and it is not necessary to prove that it is a
corporation. And although in the statute in respect to "false pre-
tense" the word corporation is not used, it is nevertheless a person
within the meaning of said act. State vs. Briscoe, 401.
2. In order to convict the defendant of obtaining money by false
pretenses the State must prove, (1) that the defendant knowingly
made the false pretense; (2) that he made such pretnese with intent
to cheat and defraud the company; (3) that by such pretense he act-
ually did cheat and defraud the company, and did obtain from it
hereby the money, it being the property of said company. Id.
3. A false pretnese is such a false representation of a fact, past or
existing by a person who knows it to be untrue as is adopted or cal-
culated to induce the person to whom it is made to part with some-
thing of value. It may consist in any act, word, symbol or token
calculated to deceive another, and knowingly and designedly em-
ployed with intent to defraud another of money or other personal
property. The intent is an essential element of the offense, and may
be proved either by direct or circumstantial evidence.
4. The pretense must not only be false, but also of such a nature
as is calculated to deceive. It must have enabled the defendant to
obtain the money, and have influenced or induced the company to
part with the same. Id.
OBSTRUCTING PUBLIC ROAD.-See ROADS.
OBSTRUCTING RIGHT OF WAY.-See RIGHT OF WAY.
OPTION.-See SALE OF REAL ESTATE.
A corporation having been summoned as garnishee, and having
given a certificate showing the number of shares of stock held by the
defendant, applied for leave, when an order of sale was asked for, to
|