AGENT-Continued.

agreement, however, is upon the defendants. Heidelbaugh vs. Cranston L. Co.,
464.

AGREEMENT.-See CONTRACT.

AIDING AND ABETTING.-See ACCOMPLICE.

AIR BRAKE.-See MACHINERY; COMMON CARRIER.
ALCOHOLIC DEMENTIA.-See DRUNKENNESS.

ALIENS, NON-RESIDENT.

I. Section I of the treaty existing between the United States and the Kingdom
of Great Britain and Ireland, which was ratified July 28, 1900, contemplates the
elimination of the disqualification of alienage, under the statute of this State, in
the next of kin, so far as it relates to the subject matter of the present case, and
puts non-resident alien next of kin on the same footing as if they were residents
of this State at the time of the death of the intestate. Dockstader vs. Kershaw,
398.

2. The said treaty is paramount to the statute of this State (Sec. 1, Chap. 81,
Rev. Code), which provides that "any such kindred, being aliens and not residing
within the limits of the United States at the time of the intestate's death, shall
be passed by, and the effect shall be the same as if they were dead." The said
statute cannot be justly construed as an enabling statute, but is manifestly a dis-
qualifying statute on the express ground of alienage. Ibid.

ALTERNATIVE WRIT.-See MANDAmus.

AMENDING ACT.-See CONSTRUCTION OF STATUTES.

AMENDING SHERIFF'S RETURN.-See SHERIFF'S RETURN.
AMENDMENT OF AWARD OF REFREES.-See REFEREES.
ANIMALS, INJURIES TO, ETC.

I. The carrier, however, is not to be held responsible 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 infirmity
or tendency to damage, depreciation or decay. If therefore the death of an ani-
mal received by the defendant for carriage was due to an attack of meningitis of
which the defendant was not forwarned, and the defendant did all in his power
to protect the animal after being so attacked, the loss would be due to inevitable
accident and the defendant would not be liable. Klair and Lort vs. Wil. Steam-
boat Co., 51.

2. Driving off horse without consent of owner. State vs. Palmer, 126.

3. Where there is a warranty of the soundness of a cow, any disease, infirmity
or defect which impairs the usefulness or value of the cow, which was not openly
and palpably visible, and which is discoverable only by persons of skill and judg-
ment in regard to the quality of cattle, would constitute unsoundness. If at the
time of the sale the cow was affected with tuberculosis, a contagious disease, such
disease would be unsoundness and constitute a breach of the warranty, and would
make the defendant liable, whether he knew of such disease or defect or not. He
took that risk in making such a contract of unqualified warranty; and the doc-
trine of caveat emptor would not apply. Cummins vs. Ennis, 424.

4. If, at and immediately before the time of the accident, a police officer of the
city, near the suspended wire, gave due and timely warning of the danger to the
driver of the team that was injured, the city would not be liable for injury sustained

ANIMALS, INJURIES TO, ETC.—Continued.

by reason of the disregard of such warning, or other negligence on the part of the
driver. Colbourn vs. Wilmington, 443·

ANSWER OF GARNISHEE.-See GARNISHEE.

APPEAL FROM CHANCELLOR.

Case of Lane, et al., vs. Lane's Admx., 368.

See WILL.

APPEAL FROM JUSTICE OF PEACE.

I. The statute, (Rev. Code, Chap. 99, Sec. 26, page 755,) provides that the
trial shall be had, in appeal cases, at the first term. The appeal should be placed,
therefore, upon the trial list at the first term after filing of the transcript, and be
tried then unless continued by the Court for cause. Moore vs. Pearson Pack-
ing Co., 290.

2. An action for the non-delivery of personal property, although sounding in
damages, purely, is within the jurisdiction of Justices of the Peace, upon a rea-
sonable construction of Section 1, Chapter 90, Revised Code, page 740. Gruell
vs. Clark, 321.

3. What certificate of Justice must contain. Barker vs. David, 395.
Cases of Appeal. Netter Bros. vs. Stoeckle, 345; Hartnett vs. Baker,

4.

431.

See JUSTICE OF PEACE.

APPEAL FROM MUNICIPAL COURT.

city ordinance against obstructing
Superior Court is an information
Pratesi vs. Wilmington, 258.

In an appeal to the Superior Court from a judgment of the Municipal Court of
the City of Wilmington for the violation of a
the streets, the proper paper to be filed in the
such as was filed in the proceedings below.
APPEARANCE.

There may be a special appearance for the purpose of moving to quash the
sheriff's return of service of the rule to show cause. But, after a general appear-
ance to said rule, can there be a special appearance for the purpose of moving
to quash the sheriff's return of the service of the alternative writ? Content &
Co. vs. Bay State Gas Co., et al., 214.

ARCHITECT.

Architect of building filing mechanics' lien. Carswell vs. Patzowski, 403.
ARRESTING UNDER SEARCH WARRANT.-See FALSE IMPRISONMENT.
ARRESTING WITHOUT WARRANT.-See FALSE IMPRISONMENT.
ASSAULT.-See ASSAULT AND BATTERY.

ASSAULT AND BATTERY.

I. The statute in relation to the punishment of wife-beaters, approved Febru-
ary 22, 1901 (22, Del. Laws, 493) gives to the Court the discretion to impose
the whipping or not. The whipping may be imposed, or fine or imprisonment,
in the discretion of the Court. The fine imposed, until some further order of the
Court, is payable to the Clerk of the Peace. State vs. Finley, 29.

2.

An assault is an unlawful attempt to do violence to the person of another,
and a battery is the actual accomplishment of such attempt. No mere words,

ASSAULT AND BATTERY-Continued.

however opprobrious or vexatious they may be, will justify even an assault, much
less a battery. Where one is assaulted it is his first duty to get out of the way.
If he cannot reasonably do so he may use just so much force as is necessary to
stay the act of violence against him, or to protect his life or his person from injury.
If he uses more force than is necessary for the purpose he is himself guilty of an
unlawful assault. State vs. Harrigan, 129.

3. Although it is true that no words merely, whether spoken, written or printed,
however insulting or opprobrious they may be, will justify an assault and battery,
or an assault even; yet such words may be given in evidence under the general
issue in mitigation of exemplary or punitive damages. Such words may not,
however, be given in evidence in mitigation of actual or compensatory damages.
Armstrong vs. Rhoads, 151.

4. In an action for damages for an assault and battery where the defendant
admits that he committed the assault and battery, the plaintiff is entitled, without
further evidence, to recover a verdict for at least a nominal sum of six cents, or
the like, although he may not have made proof of any actual injury; as it must
be presumed in such case that he has sustained some damage. Ibid.

5. In a civil action for the recovery of damages for assault and battery, the
previous conviction and fine of the defendant in a criminal action for the same
assault and battery, is not admissible in evidence to mitigate the damages. Ibid.

6. When one is assaulted it is his duty to retire beyond the reach of danger,
if he can do so without the risk of injury, but if he cannot do so, without expos-
ing himself to the threatened violence of his adversary, he may use such force as
may be sufficient to repel the attack upon him, but such resistance must be no
more than is necessary to protect himself from bodily harm. If his resistance
or retaliation be excessive, or out of proportion to the provocation or the danger
threatened, it will not be justifiable, but will be an unlawful assault. Armstrong
vs. Little, 255.

7.

An assault is an unlawful attempt to do violence to the person of another,
and a battery is the unlawful commission of such violence. Ibid.

8. Mere words, however offensive or insulting, cannot justify an assault and
battery. Ibid.

10.

9. 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. State vs. Lewis, 322.
If a horse which is attached to a wagon is wilfully or intentionally driven
into, or forced in contact with a person, walking in the public highway, by some
person, that would constitute an assault and battery; and the person at the time
having the control and management of the horse and wagon, or who is present
aiding, procuring, commanding, couseling or assisting the person who actually had
hold of the lines and who was managing the horse and wagon, would be guilty
of the offense. Ibid.

11. Assault, the different degrees of murder, and malice, express or implied,
defined. State vs. Di Guglielmo, 336.

12.

Whenever the Court of General Sessions has jurisdiction of a case of as-
sault with intent to commit murder, and the jury are not satisfied from the evi-
dence that there was such an intent, they may nevertheless find a verdict of
guilty of an assault only, if the evidence should justify them in so doing, even
though the assault was committed within the limits of the city of Wilmington.
The general statute (Rev. Code, page 979, Sec. 20,) is not affected by Section
15 of the City Charter page 38. State vs. Scott, 538.

See WIFE BEATING; Trespass Vi Et Armis.

ASSAULT WITH INTENT TO MURDER.

I. To constitute the statutory offense of assault with intent to commit murder, the circumstances must be such as to show that it would have been murder if the assailant had accomplished such intent. State vs. Di Guglielmo, 336.

2. Assault, the different degrees of murder, and malice, express or implied, defined. Ibid.

3. The intent to commit murder may be shown by direct evidence of the intent, that is, by the confession or declaration of the accused; or, if there be no such direct evidence, the intent may be proved by the acts or conduct of the accused, and other circumstances. Ibid.

4. Although voluntary intoxication constitutes neither excuse for nor palliation of crime, yet in cases in which a specific or particular intent or purpose is an essential or constituent element of the offense, intoxication, even though voluntary, becomes a matter for consideration, and is competent evidence on the question whether, by reason thereof, the defendant was incapable of forming or entertaining such an intent or purpose at the time the act was perpetrated. Evidence of intoxication, however, should always be received with great caution, and carefully examined, in connection with the other proven circumstances. Ibid.

5. A person who is intoxicated may be capable of premeditation and deliberation, and a drunken man who commits a wrongful act wilfully and premeditatedly is as guilty in the eyes of the law as if he had been sober. If a person resolves to commit a crime and then drinks to intoxication and commits the act, the fact of intoxication cannot lessen the degree of the offense, because he specifically intended to commit it. When the specific intent is a necessary ingredient of the crime, so long as the defendant is capable of conceiving and entertaining the design, he must be presumed, in the absence of proof to the contrary, to have in-tended the natural and probable consequences of his act. Ibid.

6. In a trial for assault with intent to commit murder, where the defense is insanity, any conversation bearing upon the question of insanity and not detailed by the prosecuting witness in his examination in chief, is admissible in rebuttal to the defense of insanity, but it must be confined to that. State vs. Jack, 470.

7. In order to convict the prisoner charged with an assault with intent to com mit murder, it is necessary for the State to satisfy the jury beyond a reasonable doubt that the assault was committed by the prisoner; that it was committed with an intent to murder the person assaulted, and that if the person assaulted had died from the effects of the injuries received the assailant would have been guilty of murder. State vs. Scott, 538.

8. The intent to commit murder is an essential ingredient of the charge and it must be proved to the satisfaction of the jury just as any other material fact in the case. But inasmuch as such intent can rarely be proved by direct evidence, such as the confession or declaration of the prisoner, and must ordinarily be proved, if proved at all, by indirect or circumstantial evidence, it is the duty of the jury to consider all the other facts proved in order to determine whether such intent existed or not. In determining such fact they may consider the character of the assault, the kind of weapon used, the danger of producing death, the means used to avoid or cause death and all the acts and conduct of the defendant, with the circumstances attending them, as shown by the evidence. Ibid.

9. Whenever the Court of General Sessions has jurisdiction of a case of assault with intent to commit murder, and the jury are not satisfied from the evidence that there was such an intent, they may nevertheless find a verdict of guilty of an assault only, if the evidence should justify them in so doing, even though the assault was committed within the limits of the city of Wilmington. The general statute (Rev. Code, page 979, Sec. 20,) is not affected by Section 15 of the City Charter, page 38. Ibid.

ASSIGNMENT OF BREACHES.-See SUIT ON BOND.

ASSIGNMENT OF FIRE INS. POLICY.

An insurance policy required that the preliminary proof of loss should state "the interest of the insured and all others in the property.' The plaintiff, by a deed of assignment executed after the loss occurred, transferred his interest in tho policy to another. Held that the provision of the policy had no application to the interest which by said deed the assignee may have acquired in the policy, or in the debt which might be due thereunder from the company to the plaintiff. Mauck vs. Fire Ins. Co., 325.

See FIRE INSURANCE POLICY.

ASSOCIATION.-See PERSONAL LIABILITY.

ASSUMPSIT.

I. Even though the note in question was not signed, nor the money borrowed or received, by the corporation defendant in pursuance of a special resolution of the Board of Trustees as provided by the by-laws of the corporation, yet it will not be a sufficient defense to the plaintiffs' action, if the defendant did actually receive and enjoy the use and benefit of the money, and has not repaid the same. Under such cir- cumstances the law, in the absence of a valid express contract, implies a promise on the part of the defendant to repay the plaintiff. St. Joseph's Society vs. St. Hedwig's Church, 141.

2. An affidavit of defence that sets out that the defendant does not owe the amount claimed, but does not state why, so that the Court can judge whether it is a legal defense or not, is insufficient. It should set out, not a conclusion of law, but the facts upon which the conclusion is based. Reynolds vs. Fahey, 264. 3. Action of assumpsit. Schilansky vs. Fire Ins. Co., 293; Heidelbaugh vs. Cranston Lumber Co., 464; Duncan vs. Levy Court, 493.

See CONTRACT.

ASSUMPTION OF RISK.-See MASTER AND SERVANT.

ATTACHMENT.

It is the general rule that the right of the attaching 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 credits in his hands belonging to the debtor for which the latter would have a right to sue. Netter Bros. vs. Stoeckle, 345.

See FOREIGN ATTACHMENT; GARNISHEE.

ATTORNEY AND CLIENT.

1. Where a party to a suit makes an admission to the other party, or to the counsel of the other party, it is competent for the party to whom such admission was made to testify thereto, upon the ground that it is an admission by a party against his own interest.

2. When such admission is made to the counsel of the opposing party it does not come within the rule of privileged communications. Jolls vs. Keegan, 21. 3. In a trial for slander a witness for the plaintiff was asked what the people in and about a certain town understood the phrase "go up the road" to mean when used in connection with a person brought before the Justice of the Peace on a criminal charge. Held inadmissible. Craig vs. Burris, 156.

4. Certain words, alleged to be libellous, held by the Court on a motion for nonsuit, after giving to them their most extended meaning connected with the cir