DAMAGES-Continued.

15. The driver of a horse upon a public highway must use ordinary care in its management, and is liable for all damages occasioned by his careless driving. Greater care is required in driving along a crowded street or thoroughfare. Ford vs. Whiteman, 355.

16. If the distress is unreasonable and without malice, the measure of damage is the loss sustained; but if unreasonable and malicious, exemplary damages may be recovered. Weber vs. Vernon, 359.

17. 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. Ibid.

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

19. 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. Pusey vs. Webb, 490.

20. 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.

21. 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 plaintiff cannot recover. Ibid.

22. The declaration in an action for damages for personal injuries alleged that the defendant negligently and carelessly omitted to provide for the repair and keeping in repair of a certain machine, whereby it became dangerous, unsafe and improper, and the plaintiff was injured, etc.: Held that it should have been alleged in what respect the defendant omitted to provide for the repair and keeping in repair of the said machine. Clark vs. D. S. Steel Co., 522.

23. In order that the plaintiff may recover in an action for personal injuries he must show by a preponderance of proof that they were caused by the negligence of the defendant, and of the defendant only; for if the plaintiff contributed proximately in any way to the accident, he may not recover. Ray vs. D. S. Steel Co., 525.

24. If the plaintiff at the time of the accident was acting outside of the scope of his employment, without the order of the defendant, he cannot recover, and much less if he disregarded the warning of defendant. Ibid.

25. If there is no evidence of negligence on the part of the defendant, in a suit for damages for personal injuries, or no evidence from which the jury could reasonably infer such negligence, it is the duty of the Court to withhold the case from their consideration, as a verdict for the plaintiffs under such circumstances would be set aside. But it should not be forgotten that it is the province of the jury to determine doubtful questions of fact, and that where the evidence or

DAMAGES-Continued.

the reasonable inferences that the jury might draw from it would be sufficient to support a verdict for the plaintiff, the case should be submitted to the jury. Tully's Adm'r vs. P., W. & B. R.R, 537.

26. The plaintiff may recover damages for an injury caused by the defendant's negligence, notwithstanding the plaintiff's own negligence exposed him to the risk of injury, if such injury was more immediately caused by the defendant's omission, after becoming aware of the plaintiff's danger, to use ordinary care for the purpose of avoiding injury to him. Ibid.

DEADLY WEAPON.

If death is produced by a deadly weapon, great must be the provocation to reduce the homicide from the grade of murder to the grade of manslaughter. State vs. Wallace, 402.

DECEASED PARTY.-See PARTIES.

DEBT.

1. Action of. Harmon vs. Collins, 36; Lupton & Co. vs. Hughes, 515; Gould vs. News Pub. Co. 548.

2. 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 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.

DECEIT.

Action of. Frantz vs. Girard Trust Co., 447. DECLARATION.-See PLEADING.

DEED.

1. The petitioner for a rule to show cause why a sheriff's sale should not be set aside declared that the land which was sold was his, and not that of the defendant in the execution; and although the deed made to him by such defendant was not recorded until after the entry of the judgment upon which the execution was issued, the plaintiff in the judgment had full knowledge and notice of said deed at the time the judgment was entered. Such knowledge and notice were denied by the plaintiff in said judgment. Held, that the sale should not be set aside. Short vs. Short et al., 62.

2. The usual receipt or acknowledgment of the consideration in a deed is not of itself a sufficient release in law to discharge the payment of the consideration, if, in fact, a less sum was paid, which may be shown by parol testimony. Wood vs. Bangs, 435.

DEMISED PREMISES, RECOVERY OF POSSESSION OF.-See LANDLORD AND TENANT.

DEMURRER.

1. Demurrers to pleas overruled. Kirwan Mfg. Co. vs. Truxton, 48.

2. Where there are several counts in a declaration, and the defendant has filed
separate special demurrers, assigning in each special and different causes of
demurrer, he has a right to have an issue in law upon each one of the separate
demurrers; if instead of joining issue upon each of the special demurrers the plain-
tiff treats them as one general demurrer to the declaration, it is irregular and not
consistent with the practice or general rules of pleading. In the latter case the
joinder in demurrer will be stricken off and the case stricken from the trial list
because it was not at issue on the demurrer when it was put upon the list.
cox's Admr. vs. W. C. Ry., 157.

Wil-

3. When a defendant corporation which at one time had a legal existence, has
contracted with the plaintiff as such corporation, and in the apparent exercise of
corporate franchises and powers, and from time to time thereafter reaffirmed its
existence and powers by the acceptance of premiums due and owing on the pol-
icy, is sued on such policy, it will not be permitted to deny its own existence, and
thus escape liability for its contract. It will be estopped from denying its cor-
porate liability, and pleas setting up such defense will be held bad and insufficient
in law. Brady vs. Del. Mut. Life Ins. Co. 237.

4. When the matter which operates as an estoppel appears by the record, the
plaintiff may demur to the pleas by which the defendant attempts to set up such
matter as a defense. Ibid.

5. It is sufficient if it be averred in the plea that certain persons are officers
and directors of a corporation. It is not necessary to set out the manner in which
they were elected. State vs. Hancock et al., 252.

6. What is necessary to be averred in the plea, and with what particularity. Ibid.
7. Demurrer to Information. State vs. Moore, 299.

8. The declaration in an action for damages for personal injuries alleged that
the defendant negligently and carelessly omitted to provide for the repair and
keeping in repair of a certain machine, whereby it became dangerous, unsafe and
improper, and the plaintiff was injured, etc.: Held that it should have been alleged
in what respect the defendant omitted to provide for the repair and keeping in
repair of the said machine. Clark vs. D. S. Steel Co., 522.

DESCRIPTION OF PROPERTY.-SEE INDICTMENT.

DISCRETION OF COURT.

1. The discharge of a jury when the Court is satisfied that a verdict cannot be
reached, rests in the discretion of the Court. The unreported case of State vs.
Carberry is decisive of the question. State vs. Gamble and Fitzpatrick, 368.

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. Smith vs. Simmons, 462.

3. Mandamus is a prerogative writ, and may be withheld or granted by the
Court in the exercise of a reasonable descretion. If a reasonable doubt exists it
will be refused. Road Com, vs. New Castle, 466.

4. Under the law and practice in this State, although a recognizance which
was entered into for the appearance of the principal at the next term of Court
may at such term be declared forfeited, yet such forfeiture may, in the discretion
of the Court, be taken off at the following term. Collins vs. Hutchins, 496.

DISTRESS.

1. A distress will lie for rent in arrears without any prior demand of payment.
It may be made by the landlord personally, or by his bailiff—who is not required
to be a public officer-but if he is, the landlord is responsible for his acts as
though he were a private person. Weber vs. Vernon, 359.

2. The property distrained may remain on the premises, or be impounded
there, or elsewhere in the county. Ibid.

3. If a reasonable distress is made in a lawful manner it is a lawful act, and
malice will not make the defendant liable for a malicious distress. Ibid.

4. An unreasonable distress is such that a reasonable man—taking into con-
sideration a sale of the property-would know to be materially more than enough
to satisfy the rent and expenses.

Ibid.

5. If the distress is unreasonable and without malice, the measure of damage
is the loss sustained; but if unreasonable and malicious, exemplary damages may
be recovered. Ibid.

6. A person holding goods as a distress must use such care as a prudent man
would use with regard to his own property of like character. The care to be
used when the property consists of cattle, horses, milch cows, etc. As a general
rule, the party holding goods distrained has no right to use them for his own
benefit. If the property is injured while in his custody, the burden is on him to
rebut the presumption of negligence. Ibid.

7. 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. Ibid.

8. A tenant may lawfully sell and deliver to a bona fide purchaser for a valuable
consideration his goods and chattels on the demised premises, and they will pass
to such purrchaser having the bona fide possession of them on such premises, free
from any lien or liability for rent due or growing due, unless they be lawfully
attached or levied upon under execution process, prior to such sale and delivery,
or duly levied upon prior or subsequent thereto under a distress warrant. Lup
ton & Co. vs. Hughes, 515.

DIVORCE.

Witness compelled to answer a question before the Commissioner. Smith vs.
Smith, 365.

DOGS.-See also ANIMALS.

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.

DOUBT.-See REASONABLE Doubt.

DOWER.

When a man seized of real estate dies intestate, leaving to survive him a widow
and two children as his only heirs-at-law, and said real estate is sold by order of
the Orphans' Court for the payment of his debts-the widow having waived the
assignment of dower-and a mortgage is given to secure the interest of the widow
in accordance with the statute in that behalf; held that a child of the deceased
who dies prior to the death of the widow has such an interest in the principal of
the said mortgage as will, upon the death of the widow, belong to the estate o
the deceased child. Wharton vs. Stevens, 136.

DRIVING UPON HIGHWAY.

1. The driver of a horse upon a public highway must use ordinary care in its
management and is liable for all damages occasioned by his careless driving.
Greater care is required in driving along a crowded street or thoroughfare. Ford
vs. Whiteman, 355.

2. If defendant drives his horse in a run, and races with a bicycle at a dan-
gerous and unnecessary speed on one of the streets of the city, that would con-
stitute negligence; and if injuries were received by the plaintiff as the direct result
of such negligence, he would be entitled to recover.

Ibid.

3. A person having knowledge of the dangerous character of the place where
he is driving, is required to use greater care. Ibid.

4. 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 una-
voidable accident. Ibid.

5. If the jury believe from the evidence that the defendant did all that a
reasonably prudent man should have done under the circumstances to avert the
accident, the plaintiff cannot recover.

DUE PROCESS OF LAW.

Ibid.

A prosecution by information and trial by the Court without the intervention of
a jury, is due process of law under the 14th Amendment to the Constitution of
the United States. State vs. Moore, 299.

DURESS.

Statements made by a witness in the presence of public officers are admissible,
no improper influence on the part of the officers being shown. State vs. Quinn,
339.

EJECTMENT.

I.

Questions of law arising on a case stated in an action of ejectment. Seals
vs. Chadwick, 381.

2. In an action of ejectment the plaintiff cannot put in evidence declarations
of the person under whom he claims, which were not against interest but in sup-
port of title. Pleasanton vs Simmons, 477.

3. Bills for lumber, found in possession of the person under whom the plaintiff
claims title, will not be admitted in evidence to show that such person treated
the property as his own, unless it clearly appears that he bought the lumber, and
also that it was used in the repair and improvement of the property in question.
Ibid.

4. Papers purporting to be tax receipts for taxes upon the property in question,
paid by the person under whom plaintiff claims title, will not be admitted in evi-
dence in the absence of proof of their genuineness. Ibid.

5. When the question to be determined is to whom a certain conveyance was
made, it may be shown who paid the consideration money, and it may also be
shown how, after said conveyance, the respective claimants treated or dealt with
the property, and who paid the taxes, repairs and improvements on the property,
etc. But such testimony is material only as it tends to prove to whom the con-
veyance was made. A mere equitable or beneficial title is not sufficient to main-
tain an action of ejectment in a court of law, a legal title being essential. Ibid.
6. Such 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.
Ibid.