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CONFLICT OF TESTIMONY-Continued.

2. Instructions as to reasonable doubt and conflict of testimony.
Brinte and Jiner, 551.

See EVIDENCE.

CONSIGNMENT OF GOODS.-See COMMON CARRIER.

CONSTITUTION CONSTRUED.

I.

State vs.

That part of Article 15, Section 4, of the Constitution which prescribes that
no law shall "diminish his salary or emoluments after his election or appoint-
ment " has no application where an office is abolished. It only applies to cases
where an office continues in existence, and during such continuance the attempt
is made to diminish the salary or emoluments. McVey vs. Burris, 3.

2. Sec. 19, Article 4, Constitution, 1897. Tyler vs. Fidelity B. & L. Assn.,

281.

See CONSTITUTIONAL LAW.

CONSTITUTIONAL LAW.

I. Whether the Legislature, in passing an act, acted in good faith, and for the
best interests of the public is entirely between the members and their constitu-
ents, so long as they confine themselves within the limits of their authority. It
is no function of the Court to pass upon the motives of the Legislature in the dis-
charge of their duty. The Legislature represents the sovereignty of the people,
and may pass any laws not inconsistent with the Constitution of the State or of
the United States. McVey vs. Burris, 3.

2.

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. Ibid.

3. When an office is abolished the former incumbent has no right to compen-
sation for the unexpired term. The salary is an incident of the office, and dies
with it. Ibid.

4. The only constitutional limitation as to the term of office is, that "No law
shall extend the term of any public officer." The inherent power of the Legisla-
ture to abridge the term or abolish the office is left untouched. There being no
constitutional inhibition the right to create carries with it the right to abolish; and
when so abolished, there is no office to support a salary, which is a mere incident.
Ibid.

5. That part of Article 15, Section 4, of the Constitntion which prescribes
that no law shall "diminish his salary or emoluments after his election or appoint-
ment” has no application where an office is abolished. It only applies to cases
where an office continues in existence, and during such continuance the attempt
is made to diminish the salary or emoluments. Ibid.

6. The right of free discussion in the public press of the conduct of public
officers, and of candidates for public office, is safeguarded by the Constitution of
the United States and of the several States. Donahoe vs. Star Pub. Co., 166.

7. The act of 1893, known as the lien law, Revised Code, 814, held to be
constitutional and valid-a reasonable time having been given by the terms of the
act to judgment creditors in which to renew and continue their liens. Such stat-
ute merely affects the remedy for the enforcement of the judgment; that is, it
shortens the time for the existence of the lien, without impairing the obligation
of the contract. Devalinger vs Maxwell, 185.

8. It was not error in the Court below to decline to charge the jury that the

CONSTITUTIONAL LAW-Continued.

Act of Congress known as "The Safety Appliance Act," was in violation of the
Constitution of the United States, and unconstitutional and void. P. & R. Ry.
vs. Winkler, 387.

9. 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.,

593.

See CONSTRUCTION OF STATUTES.

CONSTRUCTION OF ACT OF CONGRESS.-See ACT OF CONGRESS.
CONSTRUCTION OF CONSTITUTION.-See CONSTITUTIONAL LAW.
CONSTRUCTION OF STATUTES.

I. A certain contract proved in the case held not to be a contract for the sale
of real estate, and therefore not void under the statute of frauds. Devalinger vs.
Maxwell, 185.

2. The statute of frauds held to apply to contracts which, according to the
intent and understanding of the parties, cannot be performed within one year; or
which, by the special terms thereof, are to continue for more than one year; but
not to such as may be performed within one year, or when the performance rests
upon a contingency which may happen within a year. Ibid.

3. The act of 1893, known as the lien law, Revised Code, 814, held to be
constitutional and valid-a reasonable time having been given by the terms of the
act to judgment creditors in which to renew and continue their liens. Such stat-
ute merely affects the remedy for the enforcement of the judgment; that is, it
shortens the time for the existence of the lien, without impairing the obligation of
the contract. Ibid.

4. 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,

193.

5. An indictment for maiming, framed under Section 9, Chapter 127, Rev.
Code 924, need not aver that the act was not done "without lying in wait.”
State vs. Holmes, 196.

6. Putting out and destroying the eye of another, held to be maiming within
the meaning of said section. Ibid.

7. 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.

8. Section 48 of the General Corporation Law of 1901, which provides for the
service of process upon corporations, is, under the provisions of Section 3 of said
law made applicable to corporations previously created. Content & Co. vs. Bay
State Gas Co. et al, 214.

9. Section 29 of said corporation law, which provides that the original or du-
plicate stock ledger of the corporation shall be kept open at the principal office or
place of business of the corporation in this State, etc., is, by said section 3,
made applicable to corporations previously created. Ibid.

IO. Under the provisions of Section 3 of the General Corporation Law of this
State, every corporation, whether formed under such law or previously formed

CONSTRUCTION OF STATUTES-Continued.

under any other law of the State, is subject to the restrictions and liabilities of
section 48 of said law, so far as the same are appropriate to, and not inconsistent
with, the act of incorporation under which the previously existing corporation
was formed. Bay State Gas Co. et al vs. Content & Co., 238

II. Section 29 of said corporation law is equally as applicable, as section 48 to
corporations previously created. There is no difference in principle. Ibid.

12. Under the statute of this State in relation to a search warrant providing
that "a search warrant shall not authorize the person executing it to search any
dwelling house in the night time, unless," etc (Rev. Code (1893), 737), an ar
rest made under such warrant is not unlawful because made in the night time,
if made without unnecessary violence before entering the house authorized to be
searched. Petit vs. Coimery 266.

13. Under the statute (Rev. Code (1893), 737) authorizing the execution of
a search warrant, by "night time" is meant that space of time during which the
sun is below the horizon of the earth, except that space which precedes its rising
and follows its setting, during which by its light the countenance of a man may
be discerned. Ibid.

14. The statute, which contemplates the attachment of shares of stock, is
complied with when a certificate is obtained from the proper officer of the corpo-
ration. The garnishee has answered when it gives the certificate provided for by
the law. Mann vs. Peer, 279.

15. In one suit of foreign attachment there was issued a writ to each of the
sheriffs of the three counties. A motion made to quash said writs on the ground
that they were issued contrary to the statute, refused. Tyler vs. Fidelity B. &
L. Assn., 281.

16. The jurisdiction of the Justice must affirmatively appear. Although the
case be one of foreign attachment, the jurisdiction of the Justice, in New Castle
County, is confined to the Hundred in which the defendant resides or to the ad-
joining Hundred, or to the Hundred in which the plaintiff has been a bona fide
resident for sixty days before suit. Lewis vs. White Bros., 288.

17. 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 Packing
Co., 290.

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18. To obtain an order of the Court, under the statute, (Sec. 13, Chap. 107,
Rev. Code,) for the production of books or writings in the trial of actions at law,
the issuance of a rule is not necessary. The proper practice is to make the order
upon the presentation of the affidavit and the serving of the notice. At the re-
turn of the order the party upon whom it is made can excuse himself by any
proper excuse. Netter vs. Stoeckle, 345.

19. A foreign attachment proceeding will not be quashed, nor a judgment ob-
tained therein in an action for personal injuries vacated, on the ground that the
action was not commenced within the statutory period of one year from the
time of the happening of the alleged injuries. McDaniel vs. Townsend, 359.
Application to set aside inquisition at bar refused. Ibid.

20.

21. The Act of March 22, 1897 (Chap. 555, Vol. 20, Laws of Del., 660),
which fixes the taxes on certain lands in the City of Wilmington at one-fourth the
regular rate for any year, is repealed by the subsequent Act of May 20, 1898
(Chap. 106, Vol. 21, Laws of Del., 244), to the extent that the two acts are
inconsistent. The latter act fixes the lowest rate of taxes for any one year at

CONSTRUCTION OF STATUTES-Continued.

one-half the regular rate. In that respect, therefore, the two acts are inconsist-
ent. Monaghan vs. Lewis, 364.

22. Under the statute passed May 26, 1897, the Law and Order Society of the
City of Wilmington is entitled, in cases where evidence to secure the conviction
is produced and furnished by said society, not only to one-half of the fines im-
posed for the sale of intoxicating liquors without a license, but also to one-half
of other fines imposed under the charter and ordinances of said city, notwith-
standing Section 148 of the City Charter. Law and Order Society vs. Wil-
mington, 366.

23. The statute (Sec. 34, Rev. Code, 737,) requires that the Justice shall file
a duly certified copy of all the docket entries, and that must affirmatively appear
in order for the Appellate Court to assume jurisdiction. The requirement of the
statute is not met by a certificate that "the foregoing is a true copy of a judgment
against —, as it stands on my docket." Barker vs. David, 395.

24. The statute (Sec. 14, Rev. Code, 734), which provides that a return of no
goods may be made after two days from the date of the execution, is not com-
plied with in a case where the execution is issued on the twenty-first and a return
of no goods made on the twenty-third of the same month. Graves vs. Spry, 396.
25. Section I of the treaty existing between the United States and the King-
dom of Great Britain and Ireland, which was ratified July 28, 1900, contemplates
thd 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 resi-
dents of this State at the time of the death of the intestate. Dockstader vs.
Kershaw, 398.

26.
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 resid-
ing 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
disqualifying statute on the express ground of alienage. Ibid.

27. Under the mechanics' lien law of this State, whenever the word owner or
reputed owner is used, it means the owner or reputed owner with whom the con-
tract was made, and he is therefore the only necessary party defendant, as such
owner or reputed owner. While a subsequent owner may properly be made a
party defendant, it is not indispensable that he should be joined, inasmuch as
he takes title at his peril, and subject to the lien created by the contract owner
whenever such lien is properly enforced. Carswell vs. Patzowski. 403.

28. Under the mechanics' lien law, a person who may file his statement
of claim within thirty days after the expiration of ninety days from the completion
of the work and labor, must be (1) A contractor who made his contract with
the owner or reputed owner of the building; (2) A contractor who has furnished
both work and labor, and material, in and for the building. Every other person
entitled to a lién must file his statement "within ninety days from the completion
of the work and labor performed, or from the last delivery of materials furnished."
Ibid.

29. The Act of May 2, 1903, entitled "An Act in Relation to a Deceased
Person's Interest in Firms and Co-Partnerships," being Chapter 774, Vol. 19,
Laws of Delaware (Rev. Code, 685), was designed to secure the ascertainment
and payment, after the due and final settlement of the partnership indebtedness
and affairs, of the individual share, if any, of a deceased partner in the partner-
ship assets, to any person having an interest in the estate of such deceased part-

CONSTRUCTION OF STATUTES-Continued.

ner as heir, devisee or otherwise. Smith, Kline & French Co. vs. U. S, F. &
G. Co., 428.

30. The bond prescribed in Section 1. of said Act was intended to be speci-
fically and exclusively for the benefit of any person having such interest in such
individual share of deceased partners, and not for the benefit of partnership cred-
itors. Ibid.

31. In an action for damages for false imprisonment the Secretary of the town
council testified that a certain book contained the ordinances of the said town as
regularly adopted at a meeting of the council Held that the ordinance was ad-
missible, and that it was not incumbent upon the defendant to show that the ordi-
nance was authorized by the act of incorporation of said town. McCaffrey vs.
Thomas, 437.

32. Under the provision of the town charter "That said town council shall
have authority to make such regulations and ordinances for the government of the
town as they shall deem proper and necessary," the council has the power to
adopt an ordinance making it an offense for any one "to be drunk, noisy and dis-
orderly within the limits of said town." Ibid.

33. It being provided in the charter of the town of Milford that "the town
bailiff shall have all the power and authority within the limits of said town of a
constable in and for Kent and Sussex Counties, as to the cognizance of all
breaches of the peace and other offenses within said town," the bailiff of the
town has the power and right to arrest any person who is drunk, noisy and dis-
orderly within the limits of the town, without the requisition provided for in Sec-
tion 15 of the charter, provided the offense is committed within the view and pres-
ence of the bailiff; the provision respecting the requisitfon of the alderman or
member of council is merely additional and auxiliary to the power conferred
upon the bailiff in the earlier part of said Section. Ibid.

34. Section 16 of Chapter 646, Laws of Delaware, Revised Code 414, expressly
authorizes arrest without warrant, of any person found drunk or excited by liquor
and noisy, in the street, highway, or other public place of the county. Marshall
vs. Cleaver, 450.

35. In a mandamus to compel the performance of the duty enjoined by Section
23 of the General Corporation Law in respect to making and filing a certificate of
payments of installments of calls of capital stock, the corporation is a competent
party defendant, notwithstanding the statute provides that such certificate shall be
made by the President with the Secretary or Treasurer of the corporation. Such
officers are competent, but not necessary, or the only, parties defendant. Bay
State Gas Co. vs. Content and Co., 497.

36. Where there is any other plain, speedy, specific and adequate remedy at
law, mandamus will not lie. But the remedy is not adequate unless it reaches the
end intended, and actually compels the performance of the duty which has been
neglected or refused. It must apply to the case, and afford the particular right
to which the party is entitled. Section 24 of said Corporation Law, wherein a
penalty is imposed upon the officers for a failure to make and file the certificate,
does not furnish an adequate remedy, and does not relieve either the corporation
or the officers from the performance of the duty prescribed by section 23.
damus will lie against the corporation, notwithstanding the penalty upon the
officers. Ibid.

Man-

37. Section 3 of said Corporation Law makes section 23 thereof applicable to
corporations created by special act prior to the enactment of said law; but such
previously existing corporations can be required to furnish certificates only of pay
ments of installments or calls of capital stock made after the enactment and ap-
proval of the corporation law. Ibid.

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