36. Neither an action of tort, nor an action ex-contractu, will lie against a
county, or the levy court commissioners who represent the county. There is no
more reason to except from the common law rule the action ex-contractu than the
action of tort. Duncan vs. Levy Court, 493.
37. Narr filed in an action on a bond providing for the construction of certain
sewers, and payment for the labor and materials supplied in the prosecution of
the work; held on demurrer not to assign the breaches with sufficient particu-
larity. Lanham and Bro, vs. Jacoby, 487.
See FIRE INSURANCE POLICY; RESCISSION OF CONTRACT; Sale and De-
LIVERY.
CONTRIBUTORY NEGLIGENCE.-See NEGLIGENCE.
1. To entitle the plaintiff to recover in an action of trover he must prove (1)
property in himself and a right of possession at the time of conversion; and (2) a
conversion of the property by the defendant to his own use. Boulden vs. Gough,
48.
2. In a trial for embezzlement as bailee, before the jury can render a verdict
of guilty against the defendant they must be satisfied from the testimony beyond
a reasonable doubt, first, that such defendant was the bailee of the property in
question, which was the subject of larceny, and second, that as such bailee he
fraudulently converted the same to his own use. State vs. Sienkiewicz, 59.
3. Any exercise of dominion or control over property by one in the possession
of another, inconsistent with the rights of the owner, or with the nature and pur-
pose of the bailment, is evidence of conversion. But in order that it shall amount
to a fraudulent conversion to the bailee's own use, it must be effected with the
intent to defraud the owner. The intent to defraud, that is, the bad faith of the
bailee, is necessary to be shown before the defendant can be found guilty. Such
fraudulent intent may be shown by direct evidence, such as the declarations and
admissions of the defendant, or by any circumstances from which the fraudulent
intent may be inferred. Ibid.
4 It is not necessary for the State to prove the fraudulent conversion by the ac-
cused of all the property described in the indictment. The proof of the fraud-
ulent conversion of any of the articles so described will be sufficient. Ibid.
5. Trover, in substance, is a remedy to recover the value of personal chattels
wrongfully converted by another to his own use. Gam vs. Cordrey, 143.
CONVEYANCE OF REAL ESTATE.
1. Where the owner of real estate executes and delivers a deed of conveyance
therefor to another, without any reservation of the growing wheat crop, the said
crop, and all the interest of the grantor, whether as tenant, owner or otherwise,
passes to the grantee. Gam vs. Cordrey, 143.
2. A conveyance of real estate carries with it to the grantee the ownership of
such articles as were then actually fixed or fastened to the freehold, as for ex-
ample, bakers' tables, trays, etc., fastened to the building by nails; and such
articles so affixed to the freehold were a part thereof, and could not, after such
conveyance, be seized under execution, as personal property of the grantor. Tay-
lor vs. Plunkett, 467.
3. A conveyance of real estate does not carry with it to the grantee the owner-
ship of personal property, which may be on the premises, unless such personal
property is named or referred to in such conveyance. Ibid.
The statute in relation to the punishment of wife-beaters, approved February
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.
Where a mechanics' lien is filed against a corporation which has gone out
of existence, the Court will permit its successor, under certain circumstances, to
appear specially and file an affidavit of defense. Montello Brick Co. vs. P. P.
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 plaintiff's action, if the defendant did actually
receive and enjoy the use and benefit of the money, and has not repaid the same.
Under such circumstances the law, in the absence of a valid express contract,
implies a promise on the part of the defendant to repay the plaintiff. St. Jo-
seph's Society vs. St. Hedwig's Church, 141.
3. The statute which contemplates the attachment of shares of stock, is com-
plied with when a certificate is obtained from the proper officer of the corpora-
tion. The garnishee has answered when it gives the certificate provided for by
law. Mann vs. Peer, 279.
4. A paper purporting to be a certified copy or a private act of incorporation
from the Secretary of State, it not being a certified copy of the recorded act or
the record of such recorded act, is not admissible in evidence. Star Loan Asso.
vs. Moore, 308.
See BUILDING LOAN; COMMON CARRIER; CORPORATION LAW; MUNICIPAL
CORPORATION; RAILROAD; STREET RAILWAY.
1. 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.
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.
Under the provisions of Section 3 of the Ceneral Corporation Law of this
State, every corporation, whether formed under such law or previously formed
under any other law of the State, is subject to the restrictions and liabilities o
Section 48 of said law, so far as the same are appropriate to, and not inconsist-
ent with, the act of incorporation under which the previously existing corpora-
tion was formed. Bay State Gas Co. et al vs. Content & Co., 238.
4. Section 29 of said corporation law is equally as applicable, as Section 48
to corporations previously created. There is no difference in principle. Ibid.
5. 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
payment 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
CORPORATION LAW-Continued.
officers are competent, but not necessary, or the only, parties defendant.
State Gas Co. vs. Content & Co., 497.
6. 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, where-
in a penalty is imposed upon the officers for a failure to make and file the certifi-
cate, does not furnish an adequate remedy, and does not relieve either the corpo-
ration or the officers from the performance of the duty prescribed by Section 23.
Mandamus will lie against the corporation, notwithstanding the penalty upon the
officers. Ibid.
7. 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.
8. The fact that the statute applies to corporations previously existing does
not make the law retrospective or retroactive, if it does not affect or concern the
past acts or conduct of such corporations, but only its future acts and conduct.
Ibid.
9. It was competent for the Legislature to impose upon a previously existing
corporation the duty prescribed in Section 23, notwithstanding the charter of such
corporation had prescribed what its duties should be upon any increase of its capi-
tal stock. While the duty imposed by Section 23 may be an additional one, it is
not an inappropriate or inconsistent one in the present case. Where the charter
of the defendant company provides for a certificate in case of any increase of
capital stock, and Section 23 of the corporation law provides for a certificate in
case of any payments of capital stock, there is no such inconsistency as will make
the latter provision inapplicable. Ibid.
The payment of capital stock since the approval of the General Corpora-
tion Law being a material and essential averment, it must be averred in the peti-
tion and alternative writ with sufficient particularity. An averment "that more
than thirty days have elapsed since the payment of installments or calls of the
capital stock of the said Bay State Gas Company, and upon information and be-
lief that stock has been issued and there have been payments of installments or
calls since March 10th, 1899," held insufficient. Ibid.
11. The peremptory writ which commanded the defendant company "to make
and file a certificate stating the amount of the installments or calls of capital stock
paid, whether paid in cash or by the purchase of property, stating also the total
amount of capital stock, if any, previously paid," etc., held too general.
See CONSTRUction of Statutes.
CORPORATION, NAME OF—See MISNOMER.
CORPORATION, NOTE OF-See NOTE.
1. In an application for security for costs, the affidavit alleged that the nature
and character of the defense was "not guilty." Held that the defense was not
sufficiently set out. Rauche vs. Blumenthal, 521.
2. In a suit by next friend. the next friend is the responsible party in this
court. Ibid.
In a case of changing the course of a public road, the law does not require
that the return shall set out that portion of the costs the persons who enclose the
vacated public road ought to pay, respectively." In re Lee et al., 576.
COUNSEL AND CLIENT.-See ATTORNEY AND CLIENT.
COUNTY CONSTABLE.-See PUBLIC PEACE OFFICER.
COUNTY GOVERNMENT.
State vs. White, 6.
COUNTY, RIGHT TO SUE.
Duncan vs. Levy Court, 493.
COUPLERS OF CARS.-See ACT OF Congress RESPECTING.
COURT IN BANC CASE.
I. The statute in relation to the punishment of wife beaters, approved Feb-
ruary 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, The motion of defendants for an order on the Attorney-General to file a
bill of particulars refused, the Court being of opinion that the case did not war-
rant 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 ex-
ception can properly be taken. State vs. McDaniel, et. al., 96.
3. Whether the Legislature, in passing an act, acted in good faith, and for the
best interest of the public is entirely between the members and their constituents,
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 discharge
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.
4. In considering the provisions of policies of insurance relating to matters
required to be done by the insured subsequent to the loss, which do not alter the
risk of the insurer or increase the liability, it is the prevailing practice of the
courts to give to such provisions a construction favorable to the insured so far
as the same can be reasonably done. Schilansky vs. Merchants and Mfgs.
Fire Ins. Co., 293.
5. It is the duty of the Court to construe written papers which have been
admitted in evidence, and to instruct the jury as to the meaning and effect
of the same. Ibid.
6. The question of negligence is one of law for the Court, only where the
facts are such that all reasonable men must draw the same conclusion from them,
or, in other words, a case should not be withdrawn from the jury unless the con-
clusion follows, as a matter of law, that no recovery can be had upon any view
which can be properly taken of the facts the evidence tends to establish.
Szymanski vs. Blumenthal, 511.
See APPEAL FROM MUNICIPAL COURT; JURISDICTION of Court of GENERAL
SESSIONS; Order of Court; SUPREME Court.
The record of the official Court Stenographer is the best evidence of the declarations of a juror made upon his voir dire. State vs. Harmon, 580.
COVENANT.-See CONTRACTS.
COWS.-See ANIMALS.
CRIMES AND PUNISHMENTS.-See CORPORAL PUNISHMENT; CRIMINAL LAW. CRIMINAL LAW.
In an appeal to the Superior Court from a judgment of the Municipal Court of the City of Wilmington for the violation of a city ordiance against obstructing the streets, the proper paper to be filed in the Superior Court is an information such as was filed in the proceedings below. Pratesi vs. Mayor and Council,
2. Under the statute passed May 26, 1897, the Law and Order Society of the City of Wilmington is entiiled, in cases where evidence to secure the conviction is produced and furnished by said society, not only to one-half of the fines imposed 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, notwithstanding Section 148 of the City Charter. Law and Order Society vs. Wilmington, 366.
3. To exempt a person from responsibility for crime, the insanity must be of such a character as either to deprive him of the capacity to distinguish between right and wrong in respect to the particular act committed, or to deprive him of sufficient will power to choose whether he would do the act or refrain from it. State vs. Jack, 470.
4. So long as a person has capacity to distinguish between right and wrong in the particular act, and has will power to do it, or not to do it, he will be held criminally responsible; even though the mind is subject to hallucinations, melancholy, exhilaration, or is otherwise affected from the use of cocaine, intoxicants, or any other cause. Ibid.
5. 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. Ibid.
6. In an application for continuance on the ground of the absence of a material witness, the affidavit alleged that the witness would testify that he was present at the time of the alleged larceny, and that the defendant "did not and could not" have committed the offense charged. Held sufficient. State vs. McConnell, 520.
7. The principle of law applicable to the case where one suspected of having committed a felony, while being pursued by persons under a hue and cry, is shot by some one with the belief that he could not be otherwise taken; held not to be applicable to the facts in this case. State vs. Scott, 538.
8. A severance refused and joint trial sustained.
State vs. Brinte and Jiner,
When the name of John C. Mitchell was duly and lawfully placed on the jury list for the term, but John W. Mitchell was actually summoned and, on his voir dire examination, accepted by the prisoner as a juror and sworn at the time, and it not appearing that any prejudice or injustice was thereby done to the prisoner, a motion for a new trial was in view of these and the other circumstances of the case, refused. Ibid.
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