AMENDMENT-Continued.

record has not been made up nor the proper entries made on the records in accordance with the order, the Court will order, with the consent of the attorney for defendant in the judgment, that a new petition be filed as and for the original, and that the order previously made be duly entered upon the records of the Court. In re Layton, 64.

5.

When an information is filed charging the defendant with influencing certain persons to register, the State will be permitted, without terms, to amend the information by inserting the names of the persons alleged to have been influenced. State vs. Moore, 299.

6. Under Section 16, Rule 9, of Superior Court, the Justice is allowed to amend his certificate on or before the first Friday of the term to which the appeal is entered; and such amendment will not be allowed after the time stated in said rule. Trimble, Sides & Co., vs. Dugan, 524.

ANIMALS.

I. A dog registered under the charter of the Town of Dover, is not the subject of larceny; but would be if registered with the Clerk of the Peace for Kent County, under the act of February 25, 1897 (Rev. Code, 399), which expressly makes any dog so registered personal property and the subject of larceny. State vs. Butler, 127.

2.

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.

3. The said statute provides that a written notice shall be given to the owner of the stock, and it must be proved at the trial that such notice was given, otherwise the plaintiff must recover such loss as he sustained by the detention of his property. But he cannot recover in this action for any injuries to the stock during the detention thereof. Ibid.

4. The delivery by the plaintiff to the defendant of a horse for the purpose of being shod constitutes in law a bailment, and in such case the skill, care and prudence required on the part of the defendant is such as a reasonably careful and prudent man would exercise under like circumstances. Pusey vs. Webb, 490.

5. If a horse which was left with defendant for the purpose of being shod was restless and would not stand quietly, and the injury complained of resulted from an unavoidable accident caused by the horse jumping suddenly at the time of the trimming of his hoofs, and while the defendant was using reasonable care, the plaintift cannot recover. Ibid.

APPEAL.

1. Appeal from Justice of Peace. P. W. & B. R. R. Co. vs. Sharpe, 407; Collins vs. Hutchins, 496; Black vs. Clements, 499; Trimble, Sides & Co. vs. Dugan, 524.

2. Appeal from Chancellor. cent vs. Ireland, 580.

Liberman vs. First Natl. Bank, 416; Vin

3. Under Section 16, Rule 9, of Superior Court, the Justice is allowed to amend his certificate on or before the first Friday of the term to which the appeal is entered; and such amendment will not be allowed after the time stated in said rule. Trimble, Sides & Co. vs. Dugan, 524.

4. It appeared by the record of the Justice (1) that the appeal bond contained the word "successors" instead of "executors;" and (2) that the certificate of the Justice did not set out that the transcript was "a true copy of all the docket entries," but simply certified that it was a "true copy and truly copied from the records," etc. Held that the appeal should be dismissed. Ibid.

APPEAL BOND.-See BOND,

APPEARANCE, SPECIAL.-See also PRACTICE.

Although leave to appear specially has been granted without the reasons
being set out in writing, yet it has been where there was no objection. The
better practice is to embody the reasons in a petition, for then there is a specific
question before the Court. McLaughlin & Bro. vs. Sentman, 565.

APPLICATION OF PROCEEDS, SALE OF LANDS.

I. It is the duty of the sheriff to distribute the proceeds of sale among the
parties legally entitled. The burden is upon him as a part of the duties of his
office to make a proper and legal destribution of such proceeds, and he does it
at his peril. Smith vs. Simmons, 462.

2. The Court has no option to remit the 20 per cent. interest fixed by Sec. 3,
Revised Code, 259, in cases where sheriff neglects to apply money according
to the condition of his recognizance. Ibid.

APPLICATION TO SET ASIDE EXECUTION.-See EXECUTION.
APPRENTICES.-See MASTER AND Apprentice.

ARSON.

If an indictment for arson distinctly sets out that the house which is alleged to
have been set on fire by the defendant was in the possession of a certain person
as tenant, it is sufficient. State vs Barrett, 297.

ASSAULT.

I. The Municipal Court of the City of Wilmington, its Judge and its jurisdic-
tion of assaults and batteries, and other offenses specifically enumerated in Sec-
tion 15, Article 6 of the late, and in Section 30, Article 4, of the present
Constitution, are continued and still exist under and by virtue of the provisions of
the present Constitution. Forbes and Hartman, vs. State, 197.

2. Assault and battery defined. State vs. Burton and Johnson, 472.

3. 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. Ibid.

4. Under the law of this State no words, however opprobrious, disgraceful, an-
noying or vexatious they may be, will justify an assault or battery. Ibid.

5. The law as to self-defense, stated. Ibid.

6. In a trial for assault with intent to commit murder, it is necessary for the
State to satisfy the jury from the evidence in the case, beyond a reasonable doubt,
first, that the prisoner committed the assault on the prosecuting witness, and,
secondly, that he committed the assault with intent to murder. The intent is as
material and essential to be proven as any other ingredient in the offense. State
vs. Jones, 573.

ASSAULT WITH INTENT TO COMMIT MURDER.-See Assault.

ASSUMPSIT.

Action of: Ellison & Sons vs. Stuart & Co., 179; Spruance vs. Myer-
dirck, 205; Brady, et al., vs. Del. Mut. Life Ins. Co., 237; P., W. & B. R.
R. Co. vs. Sharpe, 407; Collins vs. Hutchins, 496; Black vs. Clements, 499;
Vincent vs. Ireland, 580.

ASSUMPTION OF RISK.

I. If it was the duty of the plaintiff to erect, or arrange, his own scaffold, its
safety would be his own risk, and it would be immaterial whether he took the
scaffold materials and placed them in position himself at the time he began his
work, or adopted and used for his scaffold the materials as they had been placed
in position by other of his fellow-workmen for their convenience. Donovan vs.
H. ở H. Co., 19o.

2. It is unquestionably true that a servant may assume the construction of the
place in which he works; and if the conditions of his employment are of that
character, the master is relieved of such duty. Ibid.

3. While the servant by entering into a hazardous employment assumes its
ordinary risks, and while by the continued use, without complaint, of apparatus
known to him to be defective, he assumes the risks of the apparatus, he does not
assume such risks when the defects are latent, unknown to him, and not discover-
able by the exercise of due care. Whether the servant is chargeable with such
knowledge and consequent assumption of risk, depends upon the facts of each
case. Direct proof of such knowledge is not always necessary. It is often to be
inferred from the character of the apparatus or defect, or from the age, experience
or employment of the servant. The assumption of risk arising from an insuf-
ficient number of men for the conduct of the work rests upon the same ground as
the assumption of risk arising from the use of machinery known to be defective
and dangerous. Creswell vs. W. & N. R. R., 210.

4.

Where the servant had been engaged in the same kind of work for years
before his injury under like circumstance and conditions as at the time of injury,
and made no complaint, he must be presumed to have known the character of
the apparatus and to have assumed the risk. Ibid.

5. 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. Ray vs. D. S. Steel Co., 525.
ATTACHMENT.-See also FOREIGN ATTACHMENT.

I. 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. There can be no distraint for rent until it is due. The landlord's remedy as
to rent not yet due is under the statute which provides for an attachment. Weber
vs. Vernon, 359.

3. If the attachment was both unlawful and malicious, the plaintiff might re-
cover exemplary damages; and malice could be inferred from the want of good or
probable cause to believe the allegations of the affidavit. Ibid.

4. If the attachment is taken without probable cause, it is unlawful, and the
plaintiff is entitled to recover for loss of the use of the property, etc.
The party
taking the attachment must, on good grounds, have believed, that the tenant had
intended to remove his effects, etc. If he did believe it, and had good grounds
for believing it, the attachment was lawful, no matter what his motives may have
been; good grounds would be such as would justify a reasonable man in such belief.

ATTACHMENT-Continued.

5. It has been quite uniformly held in this State that money held by a public officer or other person in a fiduciary capacity is not liable to attachment while so held-Decisions reviewed. Farmers' Bank vs. Ball, 374.

6. The State Treasurer is not liable to attachment in a case where a certain sum of money is due from the State to the defendant in the judgment as salary or pension. Ibid.

7. The act entitled "An Act to Exempt Wages from Attachment Process" (Chap. 542 Vol. 16, Laws of Delaware, Rev. Code, 841), held to be constitutional and valid. P., W. & B. R. R. vs. Sharpe, 407.

8. One of the defendants in a judgment had died more than a term of court before the issuance of a writ of attachment against both defendants. Held that the writ was properly and legally issued. While the officer in executing the writ could not seize or attach any property which belonged to the deceased defendant, the process properly followed the judgment on which it was issued. Forbes us. Thompson & Co., 530.

9. An attaching creditor stands in no better position than the defendant in the judgment, as to the collection of a debt due to the latter from the garnishee. The right of such 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 credit in his hands belonging to the debtor, for which the latter would have a right to sue. The garnishee stands in every respect in the same position as he would have been had the suit been brought by his own debtor. Ibid.

10. The "act for the protection of women," Chap. 350, Vol. 14, Laws of Delaware, (Rev. Code, 600), does not authorize the husband to maintain an action at law against his wife, and inasmuch as the attaching creditor has no greater power in the collection of the debt from the garnishee than the judgment debtor would have, it follows that the wife cannot be summoned as garnishee of her husband. Ibid.

ATTORNEY AT LAW AND CLIENT.

1. When in an affidavit of defense filed in a suit on a mortgage, it is stated that A, acting as attorney in fact for and with due and lawful authority from the holder of the mortgage, agreed with the mortgagor by an instrument in writing duly executed under seal, that the mortgagor should have at least one year's notice before he should be called upon for the principal of the mortgage, the words "with due and lawful authority" imply an instrument under seal; that is, that A was appointed attorney in fact by an instrument of as high a grade as the one he executed under seal. May vs. Forbes, 194.

2. 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.

3. 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.

4. While it is very bad policy for Section 5 of Rule 1 of this Court, relative to attorneys becoming surety, to be violated, yet it did not authorize the Court to quash the writ. McLaughlin & Bro., vs. Sentman, 565.

5. Although leave to appear specially has been granted without the reasons being set out in writing, yet it has been where there was no objection. The

ATTORNEY AT LAW AND CLIENT-Continued.

better practice is to embody the reasons in a petition, for then there is a specific question before the Court. Ibid.

AUTHORITY TO EXECUTE SEALED INSTRUMENTS.--See Mortgage. AWARD.

I. A naked promise to accept a less sum than the amount of an award in full payment thereof, if made gratuitously, is void for want of consideration. Wood vs. Bangs, 435.

2. If at the time of part payment of the award, the residue is released under seal; or if, in addition thereto, something else, which the law regards of value, is received in discharge thereof, it will be a good discharge. Ibid.

3. After an award is made, it is competent for the parties to enter into an agreement respecting matters outside of the submission, whereby a less sum than the amount of the award is to be received in full payment thereof. Ibid.

4. 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 acquiesence; and if once deliberately made, it cannot be revoked. Ibid.

BAIL.

When a defendant in an action for libel has been arrested under a writ of

Capias ad Respondendum, and the words alleged as libelous were used in the pleadings in a suit still pending in another Court of this State, said defendant will be discharged on common bail. For this Court to dispose of the question here, as to whether such words were libelous or not libelous, would be interfering with the due administration of justice in another Court, and this cannot be permitted on grounds of public policy. Hartman vs. May, 512.

BAIL BOND.

1. In the prosecution of offenses mentioned in Section 7, Article 5 of the Constitution of this State, it must appear by the bail bond that the defendant was held to bail for the offense charged in the information. State vs. Moore, 299.

2. A recital in such bond that defendant was held to bail for attempting to influence to register "certain persons," is not sufficient to show that he was held to bail for attempting to influence to register A. B.; and the State will not be permitted to show by the complaint and warrant before the Justice of the Peace, that "certain persons" in the bail bond means the person named in the information. Ibid.

BAILMENT.

1. The delivery by the plaintiff to the defendant of a horse for the purpose of being shod constitutes in law a bailment, and in such case the skill, care and prudence required on the part of the defendant is such as a reasonably careful and prudent man would exercise under like circumstances. Pusey vs. Webb, 490.

2. If a person receives property as bailee, and such property is injured while in his possession, and while in the exercise of ordinary care, he is not liable for such injury; but if it be occasioned by the negligence or carelessness of the bailee, his servant or agent, he is liable for such injury. Ibid.

3. Ordinarily negligence is never to be presumed, but must be proved like any other substantive fact; and the burden of proof is upon the plaintiff. But where the property is injured whilst in the exclusive custody of a bailee, his servant or agent, it is incumbent on the bailee to show that the injury was not occasioned by the negligence of himself, his servant or agents. Ibid.