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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.

LORE, C. J. We think these counts averring “insufficient brakes and other appliances to stop said car" are too general. The narr. must specify the particular appliance that caused the injury, and especially how the injuries were received-by falling, jumping, being struck, or otherwise, which is within the plaintiff's knowledge. We sustain the demurrer.

Upon the election of plaintiff's counsel, let judgment of respondeat ouster be entered.

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 p. 582, c. 303, was passed as a substitute for the original statute, and virtually repealed the first one, and, as the latter statute had no provision relative to the certificate in question, no such certificate was necessary to be made by counsel in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 hare 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 de. murrer 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, an 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.

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

(4 Pen. 332) STATE v. LEWIS. (Court of General Sessions of Delaware. New

Castle. Maỹ 18, 1903.) ASSAULT AND BATTERY - HIGHWAYS USE

VEHICLES-PASSING PEDESTRIANS. 1. Where defendant willfully and intentionally drove or forced his horse in contact with a person lawfully walking aloug a public highway, such act was sutlicient 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.

1. See Assault and Battery, vol. 4, Cent. Dig. $8 1, 68.

If any

and immediately the collision occurred. The commanding, counseling, or assisting the Attorney General asked the court to charge person who had hold of the lines and who the jury, first, that, as all the persons bad was managing the horse and wagon. We an equal right to the use of the road, and have been asked to charge you with respect that as the pedestrians were on the right- to the right of way of a foot passenger and hand side of the road-the proper side-g a loaded team upon a public high

ay. It in the same direction as the team, it was is conceded that the road between Middlethe duty of the persons coming behind them town and Odessa is a public highway. That in the vehicle to avoid colliding with the highway is open, gentlemen, in all its length persons walking in front; second, that if the and breadth to the reasonable, common, and jury believe that Howard Lewis bad hold equal use of people on foot and on horseof the lines, or that he had charge of the back or in vehicles. The law upon this team and should have had control, he would question has been very clearly laid down in be responsible for colliding with the prosecut- the case of McLane v. Sharpe, 2 Har. 483: ing witness on the ground that he was pres- “Where one undertakes to pass another, he ent, aiding and abetting. Counsel for de- who passes undertakes to go by at his own fendant asked the court to charge the jury: | peril, if the other carriage leaves him road First. That where a loaded wagon and foot enough; and even when a horse in a gig passengers are passing along a pụblic high- has balked or stopped on the highway, the way, and there is a footpath, it is the duty driver of a carriage behind, wishing to pass, of the foot passenger to keep to the foot. is bound to stop if there be not road enough path, rather than the wagon road, and, if he left for both carriages; for, although every goes out of the footpath, on account of the man has a right to pass on the public road, wet condition (as the testimony shows in the yet he must take reasonable care to exercise present case), into the wagon road, it is the that right so as not to injure another.” Havduty of the foot passenger to give the right ing stated to you what constitutes the offense of way to the loaded wagon, rather than the of assault and battery, and also the law as it loaded wagon to drive out of the way to relates to the highway, it is now for you, accommodate the foot passenger.

from the evidence before you, to inquire one has to yield in such case it is the foot whether the defendant is guilty of assault passenger, because it is more easy for him and battery or not guilty. If, after a careto get out of the road than for the loaded ful consideration of the evidence, there is a wagon. Second. That the jury, in order to reasonable doubt in your minds as to the convict the defendant, Howard Lewis, must guilt of the defendant, that doubt should believe beyond a reasonable doubt that he inure to the benefit of the accused. had charge or control of the horse when the collision happened.

Verdict, Not guilty. Argued before LORE, C. J., and GRUBB and PENYEWILL, JJ.

(4 Pen. 291) Herbert H, Ward, Atty. Gen., for the State.

HAWKINS v. HALL, J. Frank Ball, for defendant.

(Superior Court of Delaware. Kent. April 29,

1903.)

REFEREES' REPORT-FAILURE TO SHOW THAT LORE, C. J. (charging jury). Howard

ALL REFEREES ACTED AMENDLewis, the defendant in this case, is charged

MENT-REMAND. with an assault and battery. An assault is

1. Where a report of three referees is signed

by only two of them, and does not show that an attempt to do violence to the person of

the other acted, it will be remanded to the ref. another with the means at hand of carrying erees for amendment. that intention into execution. The battery Action by Samuel W. Hall against John is the actual infliction of the injury, however | D. Hawkins, in which certain questions were slight that may be. If you should find from referred to referees. On application to the evidence in this case that the horse

amend the report. Report remanded. which was attached to the wagon was willfully or intentionally driven into or forced

Application to amend the report of refer

ees. in conts ct with the person of Mrs. Lucy

In the above-stated case the referees Hallett on the occasion which is charged in

were duly qualified, and, after hearing the this indictment by some person, we say to proofs and allegations of the parties, two you that that would constitute an assault

who favored the report signed the same, but and hattery in law. If, at the time the

the one dissenting did not sign. The report horse's head came in contact with the per

failed to show that the three referees acted. son of Mrs. Li Hallett, the horse and

Mr. Ridgely asked that the report be amendwagon were under the control and manage.

ed so as to conform to the facts, and show

that all of the referees acted. ment of Howard Lewis, the defendant, then he would be the person who would be liable.

Argued before LORE, O. J., and SPRU. He would be equally so, gentlemen, although

ANCE and BOYCE, JJ. he did not have hold of the lines, or the Henry Ridgely, Jr., for plaintiff. Richard immediate guidance of the horse and wagon, R. Kenney and Arley B. Magee, for defend. t he was there present aiding, procuring, ant.

LORE, C. J. We understand that the ap- Richard R. Kenney and Arley B. Magee, for plication is to remand the report to the ref- appellant. Henry Ridgely, Jr., for respond. erees, so that they may correct it.

ent. Mr. Ridgely: The motion was to amend,

LORE, C. J. The statute (Rev. Code, c. 99, and that can be done by remanding.

$ 26, p. 755) provides that the trial shall be Mr. Kenney objected to the report being had at the first term, and the appeal shall be remanded to the referees, contending that placed upon the trial list at the first term aftthere was no such practice known to the er the filing of the transcript, and be tried members of the Kent county bar, and inquir- then unless continued by the court for cause. ed whether the court, in a case of this kind, As the counsel for plaintiff below (respondcould bring the parties themselves into court ent) asks for trial, and no legal ground for and examine them.

continuance has been laid, and it being prop

erly placed upon the trial list, we hold that it SPRUANCE, J. We have not reached that

must be tried at this term. 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

(4 Pen. 129) who are presumed to know. If, when it

STATE v. HARRIGAN. comes back, it shows that all three referees

(Court of General Sessions of Delaware, New did not act and hear the allegations, and

Castle. Nov. 20, 1902.) that two of them only acted and made the

ASSAULT AND BATTERY-STATUTES-WIFEdecision, you can then except to that. We

BEATING remand this report to the referees to amend 1. On a prosecution for wife-beating under it according to the facts. If there be any ex

Act Feb. 22, 1901 (22 Del. Laws, p. 493, c.

204), making it an offense for any husband to ception, we will hear it afterwards.

beat his wife, the jury must be satisfied from the evidence that defendant is the husband of

the woman. (4 Pen. 290)

2. A single blow may constitute beating with

in the statute, though the jury may consider the MOORE v. 0. H. PEARSON PACKING CO. character of the blow, and whether it amounts (Superior Court of Delaware. Kent. April 27,

to a beating.

3. An assault is an unlawful attempt to do 1903.)

violence to the person of another. JUSTICES OF THE PEACE-APPEAL-TIME OF 4. A battery is the accomplishment of an unTRIAL.

lawful attempt to do violence to the person 1. Rev. Code, c. 99, p. 755, 26, provides of another. that an appeal from a judgment of a justice 5. No mere words, however vexatious they shall be entered in the superior court on or be. may be, will justify an assault or battery. fore the first day of the term next after the 6. Where one is assaulted, it is his first duty appeal, and on delivery of the transcript the to get out of the way, but, if he cannot reason. prothonotary shall issue summons; that the ably do so, he may use as much force as is pleadings shall be as in other cases, but the necessary to stay the act of violence against trial shall be had at the first term, unless the him or protect his person from injury; but, if court continue the cause. Held that, where he uses more force than is necessary, he is the transcript was filed between adjournment guilty of a wrongful assault. of October term and before the beginning of the April term, the case was properly placed on the

Jeremiah Harrigan was convicted of wifetrial list for the April term.

beating. Appeal from Justice of the Peace.

Argued before SPRUANCE and GRUBB, Action by the C. H. Pearson Packing Com

JJ. pany against George W. Moore. Judgment Robert H. Richards, Dep. Atty. Gen., for for plaintiff. Defendant appeals. Applica- the State. Daniel 0. Hastings, for defendtion for continuance refused.

ant. The transcript was filed between the adjournment of the October term, 1902, and the

SPRUANCE, J. (charging jury); Jeremiah beginning of the April term, 1903, and the Harrigan stands indicted under a statute case was placed upon the trial list for said

passed by the Legislature of this state on April term. Counsel for plaintiff contended

February 22, 1901, the material part of that the case should not be placed on the which is: “That if any person being the hustrial list, it being the first term after the band of any woman, shall assault and strike filing of the transcript, and that, this being or beat his wife he shall be deemed guilty the appearance term, the case was not at is- of a misdemeanor.” 22 Del. Laws, p. 493, c. sue, and they therefore asked that it be con

204. The charge in this indictment is “that tinued until the next term. Mr. Ridgely op

Jeremiah Harrigan, being then and there the posed the application, contending that the husband of a certain woman, to wit, Elizacase was properly on the trial list, and that

beth Harrigan, did then and there assault the first term after the filing of the transcript

and beat her, the said Elizabeth Harrigan, was the trial term in appeal cases, as provid

she, the said Elizabeth Harrigan, being then ed by the statute.

and there the wife of the said Jeremiah Har. Argued before LORE, C. J., and SPRU

16. See Assault and Battery, vol 4, Cent. Dig. ANCE and BOYCE, JJ.

$ 95.

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rigan." You will notice that this offense is was filed: "In the Superior Court of the not an ordinary case of assault and battery. State of Delaware, in and for New Castle It is a statutory offense, and to convict, you County.

City of New York, Counmust be satisfied from the evidence that this ty of New York-ss.: Personally appeared man is the husband of the woman who is before me, Mortimer S. Brown, a.notary puballeged to be his wife, and that he did as- lic in and for the state and county of New sault and beat her.

York, residing in the city of New York, The counsel for the defendant has asked Charles De K. Townsend, the defendant in us to say to you that, if you are satisfied the above-stated suit, who, being by me from the evidence that Jeremiah Harrigan solemnly sworn, deposes and says that the struck his wife but a single blow, that you above action is brought for the recovery of cannot convict him under this indictment. damages upon a claim for alleged personal inWe cannot so instruct you. You have heard juries to said plaintiff; that the said alleged the evidence, and you may find him guilty personal injuries were received by said plainif you find from the evidence that he struck tiff on the 23d of September, A. D. 1900; her only a single unlawful blow. Of course, that the said action was brought and the said you are to consider the character of the suit of foreign attachment was issued out of blow and whether it comes up to the mea- the said superior court on the 20th of Jansure of beating. As you have often been uary, A. D. 1902; and that the said action told, an assault is an unlawful attempt to was brought after the expiration of one year do violence to the person of another, and a from the date upon which it is claimed that battery is the actual accomplishment of such such alleged injuries were sustained. attempt. No mere words, however opprobri. On motion of Alexander B. Cooper, rule ous or vexatiòus they may be, will justify granted upon plaintiff that the proceedings even an assault, much less a battery. Where be stayed or dismissed, or the action stricken one is assaulted it is his first duty to get out from the record, and property attached be of the way. If he cannot reasonably do so, discharged. Plaintiff's counsel accepts servhe may use just so much force as is neces- ice of said rule May 28, 1902. June 26, 1902, sary to stay the act of violence against him, after argument by respective counsel, rule or to protect his life or his person from in- discharged. March 4, 1903, amount ascerjury. If he uses more force than is neces- tained by inquisition at bar, $5,000. March sary for the purpose, he is himself guilty of 7, 1903, petition and affidavit filed, and, on an unlawful assault. If you find that Jere- motion of Alexander B. Cooper, rule granted miah Harrigan did assault and beat his upon plaintiff to show cause why the inquisiwife, it is your duty to find a verdict of tion in the above case should not be set aside, guilty. If, on the contrary, upon all the evi- and a new trial had. May 28, 1903, affidavit dence, you are not so satisfied, you are filed, and, on motion of Alexander B. Coopbound to find a verdict of not guilty.

er, rule granted upon plaintiff to show cause

why the judgment in the above case should Verdict: Guilty.

not be stricken off and vacated on the ground that the action was not commenced within one year, as required by 20 Laws Del. p. 712,

c. 594. Plaintiff claimed that failure to plead (4 Pen, 359)

limitations waived the bar of the statute. McDANIEL V. TOWNSEND.

Argued before LORE, C. J., and GRUBB (Superior Court of Delaware. New Castle.

and PENNEWILL, JJ. June 2, 1903.) JUDGMENT-VACATION-LIMITATIONS

William S. Hilles, for plaintiff. Alexander FAILURE TO PLEAD.

B. Cooper (special appearance), for defend1. A judgment by default for plaintiff in an ant. action for tort will not be vacated because suit was not brought within one year, as required by 20 Laws Del. p. 712, c. 594, as such defense

LORE, C. J. The court are unanimous must be pleaded.

that both of these rules ought to be discharAction by Henry McDaniel, by his next

ged, and so order. friend, against Charles De K. Townsend. On rule to show cause why a judgment for plaintiff should not be stricken out and va

(4 Pen. 319) cated. Rule discharged.

In re WARTHMAN. Cause of action was for damages for in- (Superior Court of Delaware. Kent. May 8, juries occasioned on September 23, 1900, to

1903.) the plaintiff by reason of the collapsing of a JUDGMENTS-DEFAULT-APPLICATION TO

OPEN-FOREIGN ATTACHMENT brick building owned by defendant in the

-DISSOLUTION. city of New Castle, Del. Writ issued Jan

1. Where a judgment has been rendered uary 20, 1902. Lands attached. Narr. filed

against defendant in foreign attachment, and same day, and, on motion of plaintiff's attor- he alleged in an application to open the same ney, judgment for want of an appearance.

and for permission to defend that he had had no

notice of the proceedings, and had not, thereMay 28, 1902, the following petition in said

fore, appeared, and that he was not indebted to case, supported by affidavit of defendant, the plaintiff, and had a just and legal defense to the whole cause of action, his application to what is due thereon, if anything. The judg. open the judgment will be granted.

ment is opened for that purpose, but the at. 2. Where defendant was sued by foreign attachment, and a judgment recovered was sub

tachment remains. It is not dissolved. Un. sequently opened to permit defendant to de til we dispose of this question, the property fend, the attachment would be retained, sub- is held by the attachment, subject to the ject to the further order of the court.

judgment of the court. Application by John Warthman to open a judgment in an action against him by foreign attachment. Application granted.

(4 Pen. 353) The petition was in the following form,

KENNEDY V. DELAWARE COTTON CO. to wit:

(Superior Court of Delaware. New Castle. “The petition of John Warthman, of the

June 1, 1903.) town of Port Norris, and state of New Jer- MASTER AND SERVANT-DEATH OF SERVANT

-DECLARATIONS-ACTS OF NEGLIsey, respectfully represents: That at the

GENCE-SPECIFICATIONS. October term, A. D. 1902, of this court, a 1. In an action for the death of a servant, a judgment upon foreign attachment proceed- narr. averring that deceased was employed by ings at the suit of Hezekiah Harrington was

defendant, and stationed at a machine knowu as

a "calender," and that the appliances connected recovered against your petitioner for the sum

therewith, which were dangerous to life, were of two hundred and ninety-two dollars and unprotected, and moved by steam power, and ninety-six cents, said judgment being of rec- that by means of the premises such deceased ord in the office of the prothonotary of this

was caught, bruised, and instantly killed by court in continuance docket No. 18, page 29.

such machine and appliances, was not demurra

ble for indefiniteness. That the writ of foreign attachment upon 2. Counts in a narr, to recover damages for which said judgment was obtained was is

the death of a servant. alleged to have been

caused by defendant's negligence in failing to sued out of this court on the 18th day of

keep a particular machine in repair, and in March, A. D. 1902, the same being No. 39 omitting to provide sufficient instrumentalities to the April term, 1902, of this court. That and guards for the protection of such servant, your petitioner had no notice or knowledge

were demurrable, where they did not specify

in what respect defendant omitted to repair the of the said proceedings, nor the issuance of

machine, or what appliances defendant omitthe said writ of foreign attachment, nor the ted to provide. recovery of the said judgment, and that he

3. A count in a narr, for the death of a serpwas not present in person or by attorney

ant, alleging negligence in carelessly starting

a certain machine without notifying deceased, at the rendition of the judgment aforesaid, was insufficient, where it did not designate the nor at any stage of the proceedings. That particular machine claimed to have been negliyour petitioner was never informed by the

gently started. said Hezekiah Harrington, nor by anyone Action by James Lea Kennedy against the for bim, of any claim against him, nor did Delaware Cotton Company. On demurrer to be know that any such existed until after

Sustained, except as to first count. the rendition of the said judgment and the

Action on the case by the father of the holding of the inquisition thereon. That to

plaintiff for damages by the latter's death, the best of his knowledge and belief he is not

alleged to have been occasioned by the neg. now, nor was he at the time of the issuance ligence of the defendant. The narr, consistof the said writ of foreign attachment, in

ed of seven counts, all of which were dedebted to the said Hezekiah Harrington in

murred to by the defendant, except the secany amount whatever. That your petitioner

ond count. has a just and legal defense to the whole

Argued before LORE, C. J., and GRUBB of the cause of action in the said suit. Your

and PENNEWILL, JJ. petitioner therefore prays that the said judgment may be opened, and that he may be

Levin F. Melson, for plaintiff. William permitted to appear in this court, and dis

S. Hilles, for defendant. prove or avoid the said debt or claim; and he will ever pray,” etc. The above petition

The allegations contained in the first count was duly signed and sworn to. The prop

of the narr, were, inter alia, as follows: "(1) erty attached was stock of the First Na

For that whereas, heretofore, to wit, at the tional Bank of Harrington.

time of the committing of the grievances Argued before LORE, C. J., and SPRU

hereinafter mentioned, the said the Delaware ANCE and BOYCE, JJ.

Cotton Company, the defendant above named,

was, and still is, a corporation existing unJames H. Hughes, for plaintiff. George

der the laws of the state of Delaware, in M. Jones, for defendant.

control of and operating a certain factory at

the city of Wilmington, in the county of New Mr. Jones asked that he be allowed to en.

Castle aforesaid, and the said plaintiff's son ter into a recognizance, appear in court, and James Lea Kennedy was then and there a move to dissolve the attachment.

minor hired and employed by the said deLORE, C. J. Your application is to open

fendant to work for it in its said factory. the judgment for the purpose of ascertaining

And the said plaintiff avers that heretofore,

to wit, on the 25th day of October, A. D. 2. See Attachment, vol. 6, Cent. Dig. $ 752. 1901, at New Castle county aforesaid, the .

narr.

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