BANK, AND OFFICERS OF. I. In a suit by the bank against the surety on the official bond of the teller, it is no defense that the defendant was induced to become surety because of the false representations of the cashier "that the teller's accounts were all straight; that there would be no risk on going on his bond, as he was a good, reliable and honest man, and as paying teller could not take anything," etc.; it not appearing that the cashier was authorized by the bank to make any representations in the matter, or that it was in the line of his duty as cashier. Such representations could not bind the bank, and the surety would take them at his own risk as the individual judgment of the cashier. Lieberman vs. First Ntl. Bank, 416. 2. Neither is it any defense that the surety was induced to become such surety by reason of the published report of the bank immediately before he became surety, showing its resources and liabilities, which were false. Such publication has no relation to such suretyship, nor does it disclose whether the teller is honest or dishonest. Ibid. BATTERY-See ASSAULT AND BATTERY. BILL OF PARTICULARS.-See also PLEADING. I. A bill of particulars is insufficient if none of the items therein would be admissible under any of the counts of the declaration. Spruance vs. Myerdirck, 205. 2. Certain items inadmissible under counts for money had and received, or on an account stated. 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 character 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 contained in the bill of particulars. Maxwell vs. Devalinger, 504. BILL IN LEGISLATURE. I. 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. State vs. Hegeman, 147. 2. 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. BILLS AND NOTES.-See NOTES, ALSO PRINTER'S BILL. BOARD OF PILOT COMMISSIONERS.-See PILOT COMMISSIONERS. I. In an action upon a replevin bond for failure to prosecute a replevin suit with effect, where a nonsuit had been entered in the replevin suit and no further proceedings had therein; held, upon the authority of McIlvaine vs. Holland, 5 Harr., 226, that testimony as to the value and ownership of the property replevied was admissible, and that the plaintiff was entitled to a verdict for the amount of BOND-Continued. the costs recovered in the replevin suit, and for such further damages as he may have actually sustained by reason of the failure of the plaintiff in the replevin to prosecute his suit with effect; the whole amount to be recovered not to exceed the penalty of said bond. Harmon vs. Collins, 36. 2. In a suit by the bank against the surety on the official bond of the teller, it is no defense that the defendant was induced to become surety because of the false representations of the cashier "that the teller's accounts were all straight; that there would be no risk on going on his bond, as he was a good, reliable and honest man, and as paying teller could not take anything," etc.; it not appearing that the cashier was authorized by the bank to make any representations in the matters, or that it was in the line of his duty as cashier. Such representations could not bind the bank, and the surety would take them at his own risk as the individual judgment of the cashier. Lieberman vs. First Ntl. Bank, 416. 3. Neither is it any defense that the surety was induced to become such surety by reason of the published report of the bank immediately before he became surety, showing its resources and liabilities, which were false. Such publication has no relation to such suretyship, nor does it disclose whether the teller is honest or dishonest. Ibid. 4. In cases of official bonds, concealed fraud on the part of the principal will deprive both principal and surety of the benefit of the statute of limitations; the statute does not begin to run until the fraud is discovered. Ibid. 5. It is true that equity will not relieve against the bar of the statute in favor of the party who has been in laches in not using the means in his power to discern the fraud, but the rule is that it is good faith and not diligence which is required of the creditor as a condition of his right to hold the surety; the creditor or obligee in a bond is not obliged, for the benefit of sureties, to watch the principal. 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 the 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 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. The liability of a surety is not to be extended beyond the terms of his contract. To the extent and in the manner and under the circumstances pointed out in his obligation he is bound, and no further. Ibid. 8. 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. Trimble, Sides & Co., vs. Dugan, 524. BOOK ACCOUNT. 1. The law, from the mere fact of cohabitation, presumes the authority and BOOK ACCOUNT-Continued. assent of the husband to the wife's contract for such necessaries, and makes him liable if they are supplied on his credit. But if they are supplied to the wife on her credit, and debited to her, and not to the husband, on the books of the plaintiff, the husband is not liable. Ibid. 2. A book account regularly and fairly kept, and not contradicted by other evidence in the case, when unimpeached, goes before the jury for what it shows, and is to be taken just as any other uncontradicted and unimpeached testimony. Clark vs. Clements, 499. BRIBERY. I. Bribing, Member of Legislature. State vs. Davis, 139. 2. Bribery of the kind charged in the indictment in this case is a crime not defined upon the statute books of this State, and under a general provision of our statute, resort must be had to the common law, not only for the definition of the crime, but also for the punishment. 3. Bribery at common law defined. BURDEN OF PROOF. I. Burden upon plaintiff to prove negligence of defendant. H. ở H. Co., 190. Donavan vs. 2. When the respondents justify under a charter, the burden is on them to show the incorporation, and they have the right to open and close. State vs. Hancock, et. al., 252. 3. Insanity being matter of defense, the burden of showing it lies on the prisoner. It must be proved as any other fact to the satisfaction of the jury. Exhibitions of mere eccentricity of mind, manner or conduct will not excuse him; and insanity should not be confused with drunkenness, anger, wrath or revenge. Ibid. 4. If a person who is able to read signs his name to a paper, the presumption is that such person understood the meaning of the instrument, or by the exercise of reasonable care might have done so. In order to avoid the contract the burden is placed on the defendant to show that she was so ignorant that she did not, and could not, understand what she signed. If she was able to understand it, or by the exercise of reasonable diligence might have understood it, the contract is valid and binding. Sewing Mach. Co. vs. Frame, 430. 5. Ordinarly 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 the 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. Pusey vs. Webb, 490. CAPIAS AD RESPONDENDUM. I. When a defendant in an action for libel has been arrested under a writ of Capias ad Repondendum, 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 permitied on grounds of public policy. Hartman vs. May, 512. CARE. See also REASONABle Care. I. Care required in driving on highways and crowded streets. Whiteman, 355. Ford us. CARELESS DRIVING ON HIGHWAY.-See DRIVING, ETC. I. Wharton vs. Stevens, 136; Gould vs. News Pub. Co., 548; Pritchard 2. Questions of laws arising on a case stated in an action of ejectment. 3. Action of Debt. Smith vs. Simmons, 462. CERTIFICATE OF JUSTICE.-See also JUSTICE of Peace. I. Under Section 16, Rule 9, of Superior Court, the Justice is allowed to 2. It appeared by the record of the Justice (1) that the appeal bond con- 1. In a proceeding under the statute (Chap. 101, Sec. 6, p. 770, Rev. 208. 2. The statute is mandatory, and prescribes in terms what the judgment shall 3. A Justice of the Peace has no jurisdiction over nuisances committed in the 4. When it appears from the record of the Justice that the case was postponed, 5. While it is very bad policy for Section 5 of Rule 1 of this Court, relative CHALLENGE.-See JURY. CHARACTER EVIDENCE.-See also EVIDENCE. 1. In cases of doubt, good character avails. If the case is clearly and satisfac- CHARACTER EVIDENCE-—Continued. 2. The question respecting the proper relation of character evidence to the other evidence in the case does not involve any of those essentially important rights and interests favored by the doctrine of precedents. Daniels vs. State, 586. 3. While character evidence is not a defense, it is a circumstance in the antecedent conduct and habits of the accused, its purpose being to strengthen the legal presumption of innocence. Ibid. 4. Character evidence is 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. Ibid. CHARGING JURY.-See JURY. CHILDREN. 1. The general rule is that the care required of an infant in avoiding danger in any case is that which children of the same age of ordinary care and prudence would exercise in like circumstances, yet this is not an inflexible rule, but is to be modified according to the maturity and capacity of the infant, his ability to understand and appreciate the danger, and his familiarity with all the surroundings and conditions in each particular case; and it is for the jury to say whether under all such circumstances the infant exercised reasonable care. Weldon vs. P., W. & B. R. R. Co., 1. 2. In the application of the doctrine of contributory negligence to children the rule governing adults is greatly modified. A child is held only to the exercise of such degree of care and discretion as is reasonably to be expected from children of his age. The care required of a child is to be ascertained by his maturity and capacity, and the particular circumstances of the case, and the determination of the question should generally be submitted to the jury. Tully's Adm'r. vs. P., W. & B. R. R., 537. CITY CHARTER.-See also ORDINANCES. 1. In the case of Coyle vs. McIntyre, 7 Houst., 44, it was decided that a municipal corporation may be controlled and its constitution altered and amended by the government in such manner as the public interest may require, and that such legislative interference cannot be said to impair the contract by which the corporation was formed because there is in reality but one party to it; and that there is in fact no contract in any just sense of the word for the reason that public municipal corporations are not founded on contract. In view of such decision it is difficult to see how the consent of the city to an amendment to the charter could be of any consequence; such consent is not material. Mayor and Council vs. Ewing, 66. 2. In general, but not uniformly, it has been held that where the duty of control over the streets is imposed upon a municipal corporation, there is an implied liability arising from default in the performance of such duty. Such has been the construction given by the courts of this State to the charter of the City of Wilmington prior to the act of April 24, 1889. But if the statute either expressly or by necessary intendment, enacts that the corporation shall not be subject to liability, there is an end of the matter. The power to alter, modify or take away the liability of municipal corporations for injuries sustained from defective streets and sidewalks has been frequently exercised by State legislatures and sustained by courts. Ibid. 3. 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. |