ATTORNEY AT LAW-Continued.
cumstances, not to be outside of the defendant's privilege as an attorney; the
evidence, moreover, distinctly negativing express malice. Ibid.
5. Service of original process in divorce should be a personal service, and if
such service cannot be made, the Sheriff should make a return of non est. In
other cases, where personal service is not practicable, the return of "service
waived" should be signed by the attorney for defendant. Palmer vs. Palmer,
6. The claim of an attorney for services charged in one item in lump, ren-
dered in one suit extending over seven years, and necessarily embracing many
items, does not come under our statute, and judgment may not be had upon it at
the first term upon an affidavit of demand as a book account regularly and fairly
kept. Where such charge is not itemized, or is incapable of being itemized, it is
not covered by the statute. Taylor vs. Addicks, 411.
ATTORNEY WAIVING SERVICE.-See ATTORNEY AND CLIENT.
ATTORNEY'S CLAIM FOR SERVICES.-See ATTORNEY AND CLIENT.
AUCTION.
I. Where personal property is put up for sale at public auction and knocked
off to the highest bidder, the purchaser, upon complying with the terms of sale,
is entitled to have such property delivered to him, under the implied contract on
the part of the vendor to make such delivery. It is a breach of such implied con-
tract for the vendor to refuse to make such delivery. For such breach the pur-
chaser may sue and recover whatever damages he may have sustained thereby.
Gruell vs. Clark, 321.
2. Where, at a public auction, the terms of sale are that "All sums of ten
dollars and under, cash on day of sale; on sums over that amount, a credit of
eleven months will be given on notes, bearing interest with approved security,"
the option is with the purchaser either to pay in cash the amount due or to take
the credit. Ibid.
3. If the purchaser at such sale offers to settle in pursuance of the terms of
sale, and the seller, or his agent, refuses to permit him so to do, and refuses to
deliver the property purchased, such refusal will constitute a breach of contract
on the part of the defendant. Ibid.
AUTHORITY OF SECRETARY OF B. LOAN.-See BUILDING LOAN.
AUTOMATIC COUPLER.-See Act of Congress respecting.
AWARD OF REFEREES.-See REFerees.
I. A part of a street in the city of Wilmington used for a fruit stand under an
ordinance of said city, may be covered by an awning, if it be a reasonably safe
one for such place and purpose. And, under such circumstances, if the awning
be thrown down by the passing wagon of a third person, and the injuries com-
plained of resulted from that cause only, the city would not be liable. But if the
awning, either in its material or in its construction or maintenance, was of such
a character as to be a menace, and dangerous in itself, to persons using such
street, it would be an unlawful obstruction. Jarrell vs. Wilmington, 454.
2. If such dangerous awning, is suffered to remain on the street for an unrea-
sonable time after notice or knowledge thereof had come to the city, the city
would be liable for any injuries that might result from the falling of the awning,
even though it was struck by the passing wagon of a third person, which thereby
contributed to the accident. Ibid.
3. Whether the awning was dangerous in itself, or was a reasonably safe and
proper one for such place and purpose, is a question of fact for the jury. Ibid.
See PUBLIC HIGHWAY.
BAILEE.-See EMBEZZLEMENT AS.
BAILIFF OF TOWN.-See PUBLIC Peace Officer.
BAILMENT.-See EMBEZZLEMENT As Bailee.
Where the prisoner is under fourteen years of age, it is incumbent upon the
State, before the jury may find a verdict of guilty, to show, (1) that the accused
committed the act charged, and, (2), that he did it with a guilty knowledge
that he was doing wrong. That guilty knowledge may be shown from the ap-
parent intelligence of the accused; from his acts and conduct in connection with
the crime, and any other circumstances that will throw light upon that subject.
State vs. George, 57.
BATTERY.-See ASSAULT AND BATTERY.
The motion of defendants in an indictment for false pretense, for an order
on the Attorney-General to file a bill of particulars refused, the Court being of
opinion that the case did not warrant the making of such an order. The granting
or refusing of such motion rests largely in the discretion of the Court, and is not a
matter to which an exception can properly be taken. State vs. McDaniel et al,
96.
The motion for a bill of particulars should be in writing and filed in court;
and it ought to point out fully all the particulars desired. Ibid.
3. The object of a bill of particulars is to give reasonable notice of the subject
matter involved, and reasonably inform the defendant as to the nature and char-
acter of the claim and the several items thereof, which he may be required to meet.
But the Court has never held to exactness of time between the proof and that con-
tained in the bill of particulars. Devalinger vs. Maxwell, 185.
BOND.-See SUIT ON BOND; PARTNERSHIP.
The claim of an attorney for services, charged in one item in lump, rendered
in one suit extending over seven years, and necessarily embracing many items,
does not come under our statute, and judgment may not be had upon it at the first
term upon an affidavit of demand as a book account regularly and fairly kept.
Where such charge is not itemized, or is incapable of being itemized, it is not
covered by the statute. Taylor vs. Addicks, 411.
BOOK ENTRIES.-See Book ACCOUNT.
BREACHES, ASSIGNMENT OF.-See SUIT ON BOND.
I. Where personal property is put up for sale at public auction and knocked
off to the highest bidder, the purchaser, upon complying with the terms of sale,
is entitled to have such property delivered to him, under the implied contract on
the part of the vendor to make such delivery. It is a breach of such implied
contract for the vendor to refuse to make such delivery. For such breach the pur-
chaser may sue and recover whatever damages he may have sustained thereby.
Gruell vs. Clark, 321.
2. Where a breach of contract on the part of the defendant is proved to the
satisfaction of the jury, and there is no evidence that the plaintiff has sustained
actual damages, the plaintiff is entitled to recover nominal damages only; but the
measure of damages for the non-delivery of goods sold is the difference between
the contract price and the value of the goods at the time the defendant was bound
to deliver them. Ibid.
3. If there was a special contract for lumber as an entire lot, in which the
quantity was specifically set forth, and the lumber actually delivered was deficient
in some material portion, the defendants were not bound to receive it. And, if
the time of the delivery of the lumber was fixed in the contract, and it was not de-
livered within that time, or within any extension thereof, they were not bound to
receive it. Heidelbaugh vs. Cranston L. Co., 464.
BREACH OF WARRANTY.-See WARRANTY.
BREAKING AND ENTERING BUILDING IN DAYTIME.
In an indictment for breaking and entering a building in the day time the words
"wilfully and unlawfully" are essential. State vs. Boggs, 95.
I. A book purporting to contain the by-laws of a loan association, which had
been recognized and used by the defendant and other members thereof, held to
be admissible in evidence.-Star Loan Asso. vs. Moore, 308.
2. It is competent for the stockholders of a loan association, for the purpose of
winding up the business of the association, to make a final estimate of the value of
the shares of stock, and to ascertain the amount to be paid by each borrowing
member, in discharge of his indebtedness, after deducting therefrom the valuation
of the shares of stock so estimated. Ibid.
3. Where the stockholders of a loan association, for the purpose of winding
up its business, make a final estimate of the value of the shares of stock, and
ascertain the amount to be paid by each borrowing member, and such member
pays the amount so ascertained, he is discharged from the indebtedness; while,
if such ascertainment is not final, but subject to modification by the subsequer.t
disposition of the real estate belonging to, and the collection of the outstanding
debts due the association, such payment by the borrowing member will not be a
discharge. Ibid.
1. It is the duty of both master and servant to exercise reasonable care to
avoid accident. Such care must be greater or less, according to the danger.
The burden is upon the plaintiff to show negligence by a preponderance of the
proof. The injury must be the result of the negligence of the defendant. If the
plaintiff contributed proximately, in any way to the accident, he cannot recover.
Karczewski vs. W. C. Ry., 24.
2. If a person suffering with delirium tremens is so far insane as not to know
BURDEN OF PROOF-Continued.
the nature of his acts, he is no more punishable than he would be if he had con-
tracted an habitual and fixed insanity from the use of intoxicating liquors. The
burden is upon the defendant, however, to show that delirium tremens existed
at the very time the act was committed, inasmuch as it is a transient derange-
ment of the mind. The presumption of continued insanity does not apply as in
case of fixed and habitual insanity, and proof of antecedent attacks raises no
presumption that the defendant was suffering from delirium tremens at the time
of the commission of the act. State vs. Kavanaugh, 131.
3. If the accident was not the result of negligence on the part of the defend-
ant the plaintiff cannot recover; and the burden of proving such negligence is
upon the plaintiff. Even though the defendant may have been negligent, yet if
the negligence of the plaintiff contributed to and entered into the accident at the
time of the injury the latter could not recover. Snyder vs. People's Ry., 145.
4. But, although the accused is to be presumed guilty from the mere fact of
having upon his person a deadly weapon out of sight, he may nevertheless show
to the jury that he had put that weapon there and carried it there for a lawful
purpose. It matters not, however, what may have been the intent and purpose
of the accused, unless he shows that it was lawful. In order to convict it is not
necessary for the State to prove that the purpose was unlawful; the burden is upon
the prisoner to prove that it was lawful. State vs. Iannuci, 193.
5. It is an established rule of law that every person of the age of 14 years and
upwards is presumed to be mentally capable of committing crime until the con-
trary is proven; and the burden is upon the accused, after he has reached such
age, to prove that he is not mentally capable of committing the crime charged.
State vs. DiGuglielmo, 336.
6. Where an arrest is made by an officer without warrant the burden is upon
him to show reasonable cause or grounds for the arrest. But a peace officer, such
as a town bailiff, may arrest a person without a warrant if such person commits
an offense in the presence and view of the officer for which he would have the
right to make the arrest with a warrant if committed without his presence and
view. McCaffrey vs. Thomas, 437.
Where an arrest is made without a warrant, the burden is upon the officer
to show reasonable ground for the arrest.
Marshall vs. Cleaver, 451.
8. If the defendants accepted the lumber under an agreement with the plain-
tiff to hold and dispose of it as best they could for his benefit, and not to be paid
for until sold by them, they would not be liable. The burden of proving such
an agreement, however, is upon the defendants. Heidelbaugh vs. Cranston
Lumber Co., 464.
9. Insanity being a matter of defense, the burden of showing it is upon the
defendant. It must be proved as a fact to the satisfaction of the jury. If the
proof does not arise out of the evidence offered by the State, the defendant must
so establish it by distinct evidence. Evidence tending to show the absence of
motive may be considered by the jury in determining the question of the insanity
of the accused. State vs. Jack, 470.
10. The burden is upon the plaintiff to prove negligence, and by a prepon-
derance of the evidence. Where contributory negligence is set up as a defence,
it must be proved by the defendant in like manner. Punkowski vs. N. C.
Leather Co., 545.
BY-LAWS OF B. LOAN ASSOCIATION.-See BUILDING LOAN.
BY-LAWS OF CORPORATION.-See CORPORATION.
1. The tender of a locomotive engine, engaged in interstate commerce, is a car
within the scope of the act of Congress, which uses the general terms locomotive,
car or train. And even though the tender at the time of the accident was
equipped with automatic couplers, but was so connected with the bullnose coup-
ler that the coupling with other cars was not made automatically by impact, but so
equipped that it made it necessary for men to go between the ends of the cars to
couple and uncouple, then such coupling did not comply with the act of Con-
gress and was unlawful. Winkler vs. P. & R. Ry., 81.
The tender used for carrying fuel and water for a locomotive is a car within
the meaning and purview of said act. P. & R. Ry. vs. Winkler, 387.
CARE.-See REASONABLE CARE.
CARRIER.-See COMMON CARRIER.
CARRYING CONCEALED DEADLY WEAPON.
I. A razor is a deadly weapon within the meaning and contemplation of the
act entitled “¡An act providing for the punishment of persons carrying concealed
deadly weapons," Chap. 548, Vol. 16, Laws of Delaware. State vs. Iannucci,
2. Where a jury is satisfied, beyond a reasonable doubt, from the facts before
them that the accused had upon or about his person a deadly weapon, other than
an ordinary pocket knife, put there by him out of view, he is prima facie guilty
under the law of carrying concealed a deadly weapon upon or about his person.
Ibid.
3. But, although the accused is to be presumed guilty from the mere fact of
having upon his person a deadly weapon out of sight, he may nevertheless show
to the jury that he had put that weapon there and carried it there for a lawful pur-
pose. It matters not, however, what may have been the intent and purpose of
the accused, nnless he shows that it was lawful. In order to convict it is not nec-
essary for the State to prove that the purpose was unlawful; the burden is upon
the prisoner to prove that it was lawful. Ibid.
4. The words "lawful purpose" defined and illustrated. Ibid.
CASE STATED.
Offices created by the Legislature are entirely within legislative control;
the gift of such an office is not a contract. Unless there be some constitutional
limitation, such offices may be modified, abridged or abolished, as the Legislature
may see fit. McVey vs. Burris, 3.
Construction of deed and will.
Taxes in city of Wilmington.
Carpenter vs. Webb, 34.
Monaghan vs. Lewis, 364.
Fines due Law and Order Society. Law and Order Society vs. Wilming-
ton, 366.
5. Real property used for school purposes, where the tuition is free, comes
within the Constitutional exemption (Section 3, Article 10, Constitution of 1897,)
and is therefore exempt from taxation. Rettew vs. St. Patrick's Church et al,
CAUSE OF ACTION.-See RIGHT OF ACTION.
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