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THE

ATLANTIC REPORTER.

VOLUME 55.

(4 Pen. 364)

MONAHAN v. LEWIS, Receiver of Taxes. (Superior Court of Delaware. New Castle. June 9, 1903.)

TAXATION-RURAL REAL ESTATE-RATESTATUTES-REPEAL.

1. Act Gen. Assem. March 22, 1897 (20 Del. Laws, p. 669, c. 555), providing that all of a certain part of the city of Wilmington, between Seventh and Twelfth streets, being unimproved property, should pay for city and school taxes a rate not exceeding one-fourth of the regular rate levied on persons and estates in the remaining parts of the city, was repealed by Act May 20, 1898 (21 Del. Laws, p. 244, c. 106), providing that the lowest tax on any real estate therein was fixed at one-half the highest rate of taxes required to be levied on built-up portions of the city for each year, and repealing acts inconsistent with its provisions.

Action by Patrick Monahan against Thomas S. Lewis, as receiver of taxes, etc. Judgment for defendant.

Argued before LORE, C. J., and GRUBB and PENNEWILL, JJ.

Robert Pennington, for plaintiff. David J. Reinhardt, City Sol., for defendant.

LORE, C. J. From the case stated, it appears: That by the act of the General Assembly of March 22, 1897 (volume 20, Laws Del. p. 669, c. 555), it was provided that all that part of the city of Wilmington between Seventh and Twelfth streets and Greenhill and Woodlawn avenues, being unimproved property, should pay for city and school taxes "a rate not exceeding onefourth of the regular rate levied on persons and estates in the remaining parts of the said city." That the plaintiff was the owner of certain real estate within said limits. That subsequently the act of May 20, 1898, was passed (chapter 106, vol. 21, Laws Del. p. 244), which was entitled "An act to classify real estate for the purposes of taxation, and to exempt certain lands from municipal taxation within the city of Wilmington." Under the last act, all the real estate of said city, other than marsh land, was classified as "rural or suburban, and built up portions," and the lowest tax upon any real estate therein was fixed at one-half the highest rate 55 A.-1

of tax required to be levied on the built-up portions for each year. Section 7 of this act expressly repeals all acts or parts of acts inconsistent with its provisions. The taxes on the plaintiff's real estate for the year 1899 were rated and collected under the act of 1898 at one-half the regular tax rate for that year, and for 1900 at the full rate. That the said taxes were paid under protest by the said plaintiff, as being illegally exacted, and with the avowed intention to sue for their recovery. That the excess of taxes paid by the plaintiff over a one-fourth rate for the year 1899 was $45.22, and for the year 1900 was $150, aggregating $195.22, which, with interest on each sum from the date of payment, plaintiff claims in this action.

One of the questions raised in the case is whether the act of 1897 is repealed by the act of 1898. The act of 1897 fixes the taxes on the lands in question at one-fourth the regular rate for any year. The act of 1898, on the other hand, fixes the lowest rate of taxes thereon for any one year at one-half the regular rate. In this respect, therefore, the two acts are clearly inconsistent, and to that extent the law of 1898 repeals the act of 1897. As this conclusion disposes of the case, it is unnecessary for us to decide the other questions raised and discussed.

Let judgment be entered for the defendant for costs, under the terms of the case stated.

(4 Pen. 366)

LAW & ORDER SOC. v. MAYOR, ETC., OF
CITY OF WILMINGTON.
(Superior Court of Delaware. New Castle.
June 9, 1903.)

MUNICIPAL CORPORATIONS-FINES-DISTRIBU-
TION OF PROCEEDS.

1. Act Gen. Assem. May 26, 1897 (20 Del. Laws, p. 714, c. 597), gives the Law & Order Society one-half of all fines collected in any county where the evidence securing the convic tion is procured by the society, and Wilmington city charter (17 Del. Laws, p. 491, c. 207) provides that all fines shall, except as otherwise provided, be put into the city treasury for the use of the corporation. Held, that the exception in the charter applied to such laws as

might be passed thereafter, and hence the Law & Order Society was entitled to one-half of the fines collected on a prosecution under the city charter, where it furnished the evidence securing conviction.

Action by the Law & Order Society against the mayor and council of the city of Wilmington. Judgment for plaintiff.

Argued before LORE, C. J., and GRUBB and PENNEWILL, JJ.

William S. Prickett, for plaintiff. David J. Reinhardt, City Sol., for defendant.

LORE, C. J. The plaintiff claims in this action one-half of certain fines imposed by the municipal court for the city of Wilmington under an act of the General Assembly passed at Dover May 26, 1897, which gave to the plaintiff "one-half of all the fines, penalties and forfeitures imposed and collected in any county of this state where evidence to secure the conviction shall be produced and furnished by the Law and Order Society of Wilmington, a corporation of the state of Delaware, or its agent or agents." 20 Del. Laws, p. 714, c. 597. A part of the said fines were imposed for the sale of intoxicating liquors without a license, under section 19, c. 418, p. 398, vol. 14, Laws of Delaware. The plaintiff's right to one-half of these fines is not denied by defendant. The residue of the fines claimed were imposed under the charter and ordinances of the said city. The defendant claims that the last-named fines belonged to the city under section 148 of the city charter, which is as follows: "All fines and forfeitures incurred under this act, or under any ordinance of the said city, shall, except in cases otherwise provided for by law, be enforced, collected and paid into the city treasury for the use of the corporation." 17 Del. Laws, p. 491, c. 207. In our judgment, the Legislature was acting within the exception above named in section 148 of the said charter when it gave the one-half of the fines to the plaintiff in the cases named in the act of May 26, 1897; that the exception applies not only to laws then in existence, but also to such as might be passed thereafter in pursuance thereof. Our opinion, therefore, is that the plaintiff is entitled to one-half of all the fines claimed in the case stated.

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2. In an action against a street railway for injuries to a passenger, a narr. averring generally that the company negligently used insufficient and defective brakes and other appliances, by reason of which its servants lost control of the car, aud plaintiff was injured while endeavoring to escape, was demurrable for not specifying the particular appliances that caused the injury, and how the injury was received.

Action for personal injuries by Georgeanna Newton against the People's Railway Company. Demurrer to petition sustained.

The narr. contained five counts. The allegations in the first count of the declaration were, inter alia, as follows: "(1) For that whereas, heretofore, to wit, at the time of the committing of the grievances hereinafter mentioned, of the said People's Railway Company, the defendant above named was, and still is, a corporation existing under the laws of the state of Delaware, in control of and operating, as a common carrier of passengers, a certain line of railway in the city of Wilmington, county and state aforesaid. And the said plaintiff avers that heretofore, to wit, on the 12th day of November, A. D. 1902, at New Castle county aforesaid, the said plaintiff was a passenger, for hire, of the said defendant, on one of the cars then and there being controlled and operated by said defendant on its said line of railway on one of the streets of said city, known as 'Clayton Street,' and that said defendant, in disregard of its duty to said plaintiff, then and there negligently and carelessly suffered and permitted to be used on its said car insufficient and defective brakes and other appliances to stop said car, and by reason thereof the servant or servants of said defendant in charge of said car upon which said plaintiff, passenger as aforesaid, was then and there riding, lost control of said car, and by reason thereof said plaintiff, while in the exercise of due care and caution on her part, to wit, the day and year aforesaid, at New Castle county aforesaid, being in imminent peril of her life, and while endeavoring to escape from the condition of peril arising from said negligence and carelessness of said defendant, was badly hurt, bruised, and injured," etc. The fourth count differed from the first only in that it alleged that the plaintiff, "being in imminent peril of her life, and while endeavoring to escape from the condition of peril arising from said negligence and carelessness, was, by and through the negligence and carelessness aforesaid, badly hurt, bruised, and injured," etc. The fifth count differed from the said first count in alleging that "the said plaintiff avers that heretofore, to wit, on the 12th day of November, A. D. 1902, at New Castle county aforesaid, that the said defendant negligently and carelessly suffered and permitted the bed and tracks of its said railway to be and remain in bad condition, out of order and repair, and that by reason

2. See Carriers, vol. 9, Cent. Dig. 12751.

thereof one of its cars, wherein the said plaintiff then and there was a passenger for hire, became and was upset and overturned, thereby causing great damage and injuries to the said plaintiff, who was then and there in the exercise of due care and caution on her part," etc.

Argued before LORE, C. J., and GRUBB and PENNEWILL, JJ.

Levin F. Melson, for plaintiff. William S. Hilles, for defendant.

Defendant filed the following causes of demurrer, inter alia, to the first, fourth, and fifth counts of plaintiff's declaration, viz.: "(1) Because it does not appear therefrom how the plaintiff was injured; (2) because there is no connection therein stated between the alleged negligence of the defendant and the alleged injuries to the plaintiff."

Mr. Melson, for plaintiff, objected to the demurrer as insufficient in law, because it did not contain the certificate of counsel that he believed the same was good in law, and was not made for the purpose of delay, and asked that the demurrer be dismissed.

Mr. Hilles, for demurrant, contended that the statute providing for such certificate (21 Laws Del. p. 269, c. 126) was found to be an imperfect statute, and in 1899 the statute found in 21 Laws Del. p. 582, c. 303, was passed as a substitute for the original statute, and virtually repealed the first one, and, as the latter statute had no provision relative to the certificate in question, no such certificate was necessary to be made by counsel in filing the demurrer.

Mr. Nelson: The court have held, since the passing of the latter statute, referred to by counsel for defendant, that such certificate was necessary to be filed with the demurrer, and it is virtually established either as a rule of court, or as the settled practice.

LORE, C. J. I have no recollection that the court have ever held that this latter statute relieved counsel from filing this certificate with the demurrer. We fail to see that there is any inconsistency between this act and the former one, as far as the certificate is concerned. The door is now thrown wide open, and counsel may come in and file a demurrer, and in any case may take a judg ment of respondeat ouster. Is there not, therefore, the greater reason why there should be some such certificate that the demurrer is not being filed for the purposes of delay? We hold that you must file such a certificate with your demurrer, viz., that the said demurrer is, in the opinion of counsel, good in law, and is not filed for the purposes of delay.

Mr. Hilles: I ask leave to amend my demurrer by filing such a certificate now.

Mr. Melson: I have no objection.

LORE, C. J. Let the amendment be made and filed by consent.

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1. Where defendant willfully and intentionally drove or forced his horse in contact with a person lawfully walking along a public highway, such act was sufficient to constitute an assault and battery.

2. Where at the time defendant's horse was driven against another, who was lawfully walking along the highway, defendant was present aiding, counseling, or assisting the person who was managing the horse and wagon, he was guilty of an assault, though he did not have the lines or the immediate guidance of the horse.

3. Where defendant, who was traveling in a highway with a horse and vehicle, undertook to pass another who was walking in the highway, he was bound at his peril not to strike the pedestrian in so doing.

Prosecution against Howard Lewis for assault and battery. Acquitted.

The prisoner was indicted for assault and battery. At the trial proof was offered tending to show that on March 14, 1903, while the prosecuting witness, Mrs. Lucy Hallett, with her husband and her sister, were walking along a public road between Middletown and Odessa, a team containing the defendant, a colored man, and five colored women, and being either driven by or under the control of the defendant (the testimony being conflicting upon the point as to who was driving at the time of the accident), came up behind the prosecuting witness, and that the horse's head struck her upon the shoulder. The testimony further showed that the three persons had been, a short time before the collision, walking along a sidepath, but, owing to the wet condition of the same, had stepped out into the road, and were walking along the extreme right-hand side thereof, when the collision occurred; that the road was wide enough at that point for three teams to go abreast; that the horse was in a walk at the time of striking the prosecuting witness; and that the prisoner made no attempt to drive around the persons who were walking, but asked them to get out of the way so that he could pass. This the husband of the prosecuting witness refused to do, and when his wife stepped aside, told her to come back behind him, which she did.

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and immediately the collision occurred. The Attorney General asked the court to charge the jury, first, that, as all the persons had an equal right to the use of the road, and that as the pedestrians were on the righthand side of the road-the proper side-going in the same direction as the team, it was the duty of the persons coming behind them in the vehicle to avoid colliding with the persons walking in front; second, that if the jury believe that Howard Lewis had hold of the lines, or that he had charge of the team and should have had control, he would be responsible for colliding with the prosecuting witness on the ground that he was present, aiding and abetting. Counsel for defendant asked the court to charge the jury: First. That where a loaded wagon and foot passengers are passing along a public highway, and there is a footpath, it is the duty of the foot passenger to keep to the footpath, rather than the wagon road, and, if he goes out of the footpath, on account of the wet condition (as the testimony shows in the present case). into the wagon road, it is the duty of the foot passenger to give the right of way to the loaded wagon, rather than the loaded wagon to drive out of the way to accommodate the foot passenger. If any one has to yield in such case it is the foot passenger, because it is more easy for him to get out of the road than for the loaded wagon. Second. That the jury, in order to convict the defendant, Howard Lewis, must believe beyond a reasonable doubt that he had charge or control of the horse when the collision happened.

Argued before LORE, C. J., and GRUBB and PENNEWILL, JJ.

Herbert H. Ward, Atty. Gen., for the State. J. Frank Ball, for defendant.

LORE, C. J. (charging jury). Howard Lewis, the defendant in this case, is charged with an assault and battery. An assault is an attempt to do violence to the person of another with the means at hand of carrying that intention into execution. The battery is the actual infliction of the injury, however slight that may be. If you should find from the evidence in this case that the horse which was attached to the wagon was willfully or intentionally driven into or forced in contact with the person of Mrs. Lucy Hallett on the occasion which is charged in this indictment by some person, we say to you that that would constitute an assault and hattery in law. If, at the time the horse's head came in contact with the person of Mrs. Lucy Hallett, the horse and wagon were under the control and management of Howard Lewis, the defendant, then he would be the person who would be liable. He would be equally so, gentlemen, although he did not have hold of the lines, or the immediate guidance of the horse and wagon, if he was there present aiding, procuring,

commanding, counseling, or assisting the person who had hold of the lines and who was managing the horse and wagon. We have been asked to charge you with respect to the right of way of a foot passenger and a loaded team upon a public highway. It is conceded that the road between Middletown and Odessa is a public highway. That highway is open, gentlemen, in all its length and breadth to the reasonable, common, and equal use of people on foot and on horseback or in vehicles. The law upon this question has been very clearly laid down in the case of McLane v. Sharpe, 2 Har. 483: "Where one undertakes to pass another, he who passes undertakes to go by at his own peril, if the other carriage leaves him road enough; and even when a horse in a gig has balked or stopped on the highway, the driver of a carriage behind, wishing to pass, is bound to stop if there be not road enough left for both carriages; for, although every man has a right to pass on the public road, yet he must take reasonable care to exercise that right so as not to injure another." Having stated to you what constitutes the offense of assault and battery, and also the law as it relates to the highway, it is now for you, from the evidence before you, to inquire whether the defendant is guilty of assault and battery or not guilty. If, after a careful consideration of the evidence, there is a reasonable doubt in your minds as to the guilt of the defendant, that doubt should inure to the benefit of the accused. Verdict, Not guilty.

(4 Pen. 291)

HAWKINS v. HALL. (Superior Court of Delaware. Kent. April 29, 1903.)

REFEREES' REPORT-FAILURE TO SHOW THAT ALL REFEREES ACTED-AMEND

MENT-REMAND.

1. Where a report of three referees is signed by only two of them, and does not show that the other acted, it will be remanded to the referees for amendment.

Action by Samuel W. Hall against John D. Hawkins, in which certain questions were referred to referees. On application to amend the report. Report remanded.

Application to amend the report of referees. In the above-stated case the referees were duly qualified, and, after hearing the proofs and allegations of the parties, two who favored the report signed the same, but the one dissenting did not sign. The report failed to show that the three referees acted. Mr. Ridgely asked that the report be amended so as to conform to the facts, and show that all of the referees acted.

Argued before LORE, C. J., and SPRUANCE and BOYCE, JJ.

Henry Ridgely, Jr., for plaintiff. Richard R. Kenney and Arley B. Magee, for defend. ant.

LORE, C. J. We understand that the application is to remand the report to the referees, so that they may correct it.

Mr. Ridgely: The motion was to amend, and that can be done by remanding.

Mr. Kenney objected to the report being remanded to the referees, contending that there was no such practice known to the members of the Kent county bar, and inquired whether the court, in a case of this kind, could bring the parties themselves into court and examine them.

SPRUANCE, J. We have not reached that stage yet. We do not know what sort of an amendment they will make to this report.

LORE, C. J. We send it to the persons who are presumed to know. If, when it comes back, it shows that all three referees did not act and hear the allegations, and that two of them only acted and made the decision, you can then except to that. We remand this report to the referees to amend it according to the facts. If there be any exception, we will hear it afterwards.

(4 Pen. 290)

MOORE v. C. H. PEARSON PACKING CO. (Superior Court of Delaware. Kent. April 27,

1903.)

JUSTICES OF THE PEACE-APPEAL-TIME OF

TRIAL.

1. Rev. Code, c. 99, p. 755, § 26, provides that an appeal from a judgment of a justice shall be entered in the superior court on or before the first day of the term next after the appeal, and on delivery of the transcript the prothonotary shall issue summons; that the pleadings shall be as in other cases, but the trial shall be had at the first term, unless the court continue the cause. Held that, where the transcript was filed between adjournment of October term and before the beginning of the April term, the case was properly placed on the trial list for the April term.

Appeal from Justice of the Peace. Action by the C. H. Pearson Packing Company against George W. Moore.. Judgment for plaintiff. Defendant appeals. Application for continuance refused.

The transcript was filed between the adjournment of the October term, 1902, and the beginning of the April term, 1903, and the case was placed upon the trial list for said April term. Counsel for plaintiff contended that the case should not be placed on the trial list, it being the first term after the filing of the transcript, and that, this being the appearance term, the case was not at issue, and they therefore asked that it be continued until the next term. Mr. Ridgely opposed the application, contending that the case was properly on the trial list, and that the first term after the filing of the transcript was the trial term in appeal cases, as provided by the statute.

Argued before LORE, C. J., and SPRUANCE and BOYCE, JJ.

Richard R. Kenney and Arley B. Magee, for appellant. Henry Ridgely, Jr., for respondent.

LORE, C. J. The statute (Rev. Code, c. 99, § 26, p. 755) provides that the trial shall be had at the first term, and the appeal shall be placed upon the trial list at the first term after the filing of the transcript, and be tried then unless continued by the court for cause. As the counsel for plaintiff below (respondent) asks for trial, and no legal ground for continuance has been laid, and it being properly placed upon the trial list, we hold that it

must be tried at this term.

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1. On a prosecution for wife-beating under Act Feb. 22, 1901 (22 Del. Laws, p. 493, c. 204), making it an offense for any husband to beat his wife, the jury must be satisfied from the evidence that defendant is the husband of the woman.

2. A single blow may constitute beating within the statute, though the jury may consider the character of the blow, and whether it amounts to a beating.

3. An assault is an unlawful attempt to do violence to the person of another.

4. A battery is the accomplishment of an unlawful attempt to do violence to the person of another.

5. No mere words, however vexatious they may be, will justify an assault or battery.

6. Where one is assaulted, it is his first duty to get out of the way, but, if he cannot reasonably do so, he may use as much force as is necessary to stay the act of violence against him or protect his person from injury; but, if he uses more force than is necessary, he is guilty of a wrongful assault.

Jeremiah Harrigan was convicted of wifebeating.

JJ.

Argued before SPRUANCE and GRUBB,

Robert H. Richards, Dep. Atty. Gen., for the State. Daniel O. Hastings, for defendant.

SPRUANCE, J. (charging jury): Jeremiah Harrigan stands indicted under a statute passed by the Legislature of this state on February 22, 1901, the material part of which is: "That if any person being the husband of any woman, shall assault and strike or beat his wife he shall be deemed guilty of a misdemeanor." 22 Del. Laws, p. 493, c. 204. The charge in this indictment is "that Jeremiah Harrigan, being then and there the husband of a certain woman, to wit, Elizabeth Harrigan, did then and there assault and beat her, the said Elizabeth Harrigan, she, the said Elizabeth Harrigan, being then and there the wife of the said Jeremiah Har

$95.

6. See Assault and Battery, vol 4, Cent. Dig.

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