OPINION OF COURT.

Such evidence, therefore,
We think that it is some-

other evidence; in which event the jury are told, as in this case, that "good reputation, when proved, should enure to the acquittal of the defendant," the misleading character of which is obvious; and it is coupled with another objection equally misleading and erroneous; it is, "when the testimony is positive and distinct and the offense is clearly and satisfactorily proved, good reputation is of little value." The effect of the instruction is to make character evidence unnecessary and useless under the first branch thereof; and of no avail under the latter part. might as well be excluded altogether. thing more than "a mere make weight in doubtful cases"; and that proof of an unblemished character may under all the facts and circumstances of the particular case create a doubt in the minds of the jury, when, without it, they would have no doubt; and that it is, at least, a circumstance in every case, when proved, to be weighed and estimated by the jury according to the weight of the testimony by which it is supported in connection with that to which it is opposed.

The serious matter of reversing a series of former decisions in order to reach a correct rule of law is our justification for the time and space which we have occupied in our effort to present sound and convincing reasons therefor.

We are unanimously of the opinion that there was error in the instruction as given, and we, therefore, reverse the judgment, aud remand the case to the Court below.

Judgment below reversed.

INDEX.

ABATEMENT.

1. The defendant may by leave of the Court strike out a plea in bar and substitute therefor a plea in abatement; and also may amend a plea in bar so as to make it a plea in abatement, it being in substance a plea in abatement but lacking the proper form. Kirwan Mgf. Co. vs. Truxton, 48.

2. It is not necessary, in order to give the Court jurisdiction, to aver in the information an examination and commitment or holding to bail of the defendant. It is a matter of defense, and defendant may avail himself of the failure to proceed by examination and commitment or holding to bail, by a plea in abatement. State vs. Moore, 299.

ABORTION.

The statute makes the attempt to procure a miscarriage a criminal act, "unless the same be necessary to preserve the woman's life." Held that an indictment framed on such statute is sufficient, although it did not negative such exception or qualification. State vs. Quinn, 339.

ABROGATINC COMMON LAW.-See also COMMON LAW.

The common law right of securing damages by impounding cattle running at large on uninclosed lands is abrogated by the statute of this State passed March 2, 1893-Rev. Code, 482. Hill vs. Ginn, 174.

ACCEPTANCE.-See also Award.

1. An attorney at law has no authority, as such, to accept a less sum of money, or security for a less sum, than is due, without express authority from his client to that effect. Wood vs. Bangs, 435.

2. An acceptance by an attorney of a less sum than is due to his client on an award, will not be binding upon the latter, unless, with full knowledge, he ratified the act. Ratification may be inferred from the distinguishing facts and circumstances surrounding the case, or from acquiescence; and if once deliberately made, it cannot be revoked. Ibid.

ACCIDENT.-See also PERSONAL INJURIES.

If the loss of control of the horse results from the careless driving of the defendant, the plaintiff would be entitled to recover; but if it was not occasioned by any fault of the defendant, then the case would come under the head of unavoidable accident. Ford vs. Whiteman, 355.

ACCOMPLICE.

In order to convict a person who was present, but did not actually commit the assault and battery, the jury must be satisfied beyond a reasonable doubt that he was there present aiding, assisting and abetting the one who did actually commit the offense. State vs. Burton and Johnson, 472.

ADDING ENDORSEMENT TO BILL IN LEGISLATURE.

I. It is a well settled rule that penal statutes are to be construed strictly. The statute must be examined to find out whether the offense charged is within its terms. State vs. Hegeman, 147.

ADDING ENDORSEMENT TO BILL IN LEGISLATURE—Continued.

2. Endorsements placed on the back of a bill of the character specified in the indictment are the minutes of the stage of its progress through the Legislature, usually made for convenience and identification, and are not parts of the bill. The presence or absence of such endorsements, their truth or falsity, do not make the bill in any respect different from what it was when it was first presented to the Legislature. They are not offenses enumerated in the act under which the indictment was framed. Ibid.

3. A bill, according to Webster's definition, is "A form or draft of a law presented to a legislature, but not enacted." Under our Constitution, after a bill has passed both branches of the Legislature and received the approval of the Governor it becomes a law; but until then it is a bill-a draft of a proposed law. The bill in question was precisely the same draft of a proposed law after, as before the endorsements were made. Ibid.

ADDITION TO RECORD OF JUDGMENT.

1. When a judgment d. s. b. has been entered, and sometime thereafter the words "For 60-day forfeiture clause see bond" are added to the record of the judgment without leave of the Court, the words so added will be stricken off, and an execution issued on such judgment set aside. Flach vs. Temple, 129.

2. After a judgment has been entered and completed, no alteration of that judgment should be made changing its character in any way, whether by addition or otherwise, without leave of the Court. Ibid.

ADMINISTRATORS' ACCOUNTS.

The Act of April 9, 1873, entitled "An Act for the protection of women," (14 Laws of Del., 638), as amended by the Act of March 17, 1875 (15 Ib. 289), having made the property of a married woman her sole and separate property, and having enabled her to prosecute and defend suits at law and in equity for the preservation and protection of the same, as if unmarried, or jointly with her husband,-coverture is no longer a disability which prevents or delays the operation of the statute of limitations in respect to exceptions to accounts of executors, administrators or guardians. Larkins and Stites vs. Simms, 543. ADMISSIONS TO MERCANTILE AGENCY.-See MERCANTILE AGENCY. ADVERSE POSSESSION.

Legal title cannot be acquired by the payment of taxes, repairs and improvements, nor by dealing with the property as one's own, except he has the exclusive, adverse and continuous possession for twenty years. Pleasanton us.

Simmons, 477.

AFFIDAVIT.

1. Upon an application based on proper affidavit, the Court will grant an order directing that books and papers pertinent to the issue in the case, be filed in the office of the Prothonotary on a certain date, or their nonproduction accounted for. Thomas vs. Pa. R. R., 411.

2. An affidavit filed in a criminal case at the first term alleging the absence from the State of a material witness, upon which is based an application for a continuance of the case until the next term, must disclose the nature of the evidence which such witness is expected to give, so that the Court may be able to judge whether the facts are sufficient or not. But it is not necessary to go into details; it is only necessary to state the substance of what is proposed to be proved. State vs. Hawkins, 474.

AFFIDAVIT OF DEFENSE.-See also AFFIDAVIT.

1. In a scire facias proceeding upon a mortgage, certain of the defendants were served personally under the original scire facias at the first term of court, but failed to file their affidavit of defense until the return of the alias sci. fa. at the second term. Held: that said parties who were served under the first writ should have filed their affidavit of defense at the first term of the court to which the original process was returnable, and not having so filed said affidavit, it was too late to file it at the second term, upon the return of the alias sci. fa.; and that the plaintiff was therefore entitled to judgment notwithstanding the affidavit of defense. Fisher vs. Wannamacher, 32.

2. Motion for judgment notwithstanding affidavit of defense in a suit on a mortgage will be refused where defendants swear that they have never received any moneys or benefits for $3,000 of the alleged consideration, and "having paid all of the remaining part of the alleged consideration, there is nothing due and payable to the plaintiffs by the defendants, said mortgage (so far as the defendants are bound thereby) having as aforestated been fully paid." Collins' Exrs. vs. Hansen, et al., 155.

3. In such affidavit the defendants substantially set out the obligation, and that they have paid it. This Court has decided again and again that the allegation of payment in an affidavit of defense is sufficient.

Ibid.

4. Under the well settled rules governing the Court in motions for judgment notwithstanding affidavits of defense, where there is a doubt, it will be solved in favor of the defendant, and the Court will not allow what are termed " judgments." May vs. Forbes, 194.

AGENCY.

snap

I. Chap. 153, Vol. 16, Laws of Delaware, as amended, dispenses with the necessity for authority from the master to the servant to receive the money or property, being the subject of embezzlement, to bring the wrongdoer within the terms of the statute. Foster vs. State, 111.

2. Length of employment is immaterial, and a casual as well as a continuous employment of one as servant or agent falls within the contemplation of the statute. Ibid.

3. If an agency be created for the negotiation or disposal of a promissory note, then the endorsement thereof by the agent is a mere incident to the relation or undertaking; and is the result of the extrinsic agreement between the parties with reference to the negotiation of the note. Ibid.

4. When there are facts and circumstances disclosed by the evidence, from which it is competent for the jury to infer the existence of the relation of agency, it is the duty or the Court to submit the question to the jury, under proper instructions. Ibid.

5. An agreement to pay commissions is a fact of great weight tending to prove the existence of the relation of agency within the statute. Ibid.

6. In a letter to defendant the plaintiff agreed to allow him a certain amount per week in cash in consideration of certain services to be rendered by defendant, it being agreed that as collateral security for the repayment of said allowances all commissions and other compensation of the defendant as agent of the plaintiff should be retained by the plaintiff till said allowances were fully paid. Held that any advances made in pursuance of such letter were not as compensation or wages, but were advances to such agent to be repaid; and that the plaintiff might recover such advances in an action on a bond given by defendant, the condition of said bond covering money received by loans or allowances made to the defendant during his present or any future agency, for the purpose of enlarging his busines

AGENCY-Continued.

or otherwise, and whether advanced under the terms of the agency agreement or otherwise, and whether under an express promise to repay or otherwise. Ins. Co. vs. Slesinger, et al., 443.

7. Proof of agency. Frantz vs. Girard Trust Co. 447.

8. Primary duty of the master stated. If he fails to perform such duty and injury results from such failure alone he is liable. And a master may not relieve himself of this duty by delegating it to a fellow-servant of the person injured. Ray vs. D. S. Steel Co., 525.

9. An employee assumes all the ordinary risks of his employment, and such dangers as are patent, but does not assume those risks which may not be seen and known. Where machinery is defective in the knowledge of the employee, yet if the master promises to remedy the defect and the employee, relying upon that promise, continues to use it for a reasonable time he does so at the master's risk. Two or three days would be such reasonable time. Notice of defects given to foreman is notice to the company and the foreman's promise to remedy the defect is the promise of the company. Ibid.

AGREEMENT, CONSTRUCTION OF.

In a letter to defendant the plaintiff agreed to allow him a certain amount per week in cash in consideration of certain services to be rendered by defendant, it being agreed that as collateral security for the repayment of said allowances all commissions and other compensation of the defendant as agent of the plaintiff should be retained by the plaintiff till said allowances were fully paid. Held that any advances made in pursuance of such letter were not as compensation or wages, but were advances to such agent to be repaid; and that the plaintiff might recover such advances in an action on a bond given by defendant, the condition of said bond covering money received by loans or allowances made to the defendant during his present or any future agency, for the purpose of enlarging his business otherwise, and whether advanced under the terms of the agency agreement or otherwise, and whether under an express promise to repay or otherwise. Ins. Co. vs. Slesinger, 443.

AIDING AND ABETTING.-See ACCOMPLICE.

ALTERING BILL IN LEGISLATURE.-See BILL.

ALTERING JUDGMENT.-See JUDGMENT.

AMENDING SHERIFF'S RETURN.-See AMENDMENT.
AMENDING ORIGINAL PROCESS.-See AMENDMENT.
AMENDMENT.-See also PLEADING.

1. Foreign attachment is only to compel appearance, and where the defendant appears by putting in special bail, under the express terms of the statute, the case proceeds as in cases commenced by summons, and the plaintiff will be allowed to amend his original process. Bellah vs. Hilles, 34.

2. Amendment allowed as to the name of the party plaintiff. Collins, 36.

Harmon vs.

3. The defendant may by leave of the Court strike out a plea in bar and substitute therefor a plea in abatement; and also may amend a plea in bar so as to make it a plea in abatement, it being in substance a plea in abatement but lacking the proper form. Kirwan vs. Truxton, 48.

4. When a petition to amend a sheriff's return has been presented to the Court, and an order made thereon, and the petition is subsequently lost, and the