26. 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.
Hancock, et. al., 252.
27. Where an act of incorporation provides "that before any organization
shall be effected at least ten thousand dollars of the capital stock subscriptions
therein authorized shall be fully paid in cash, such subscriptions must be in writ-
ing as provided by the act, and proof thereof by parol will not be permitted to
vary such writing. Ibid.
28. 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.
29. A recital in such bond that defendant was held to bail for attempting to
influence to register "certain persons," is not sufficient io 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 informa-
tion. Ibid.
30. In an application for the appointment of commissioners to lay out a public
road the Court will refuse to make an order. (1) When there is no proof of
service of the notice by affidavit, and there has been no proof made in open
Court; (2) when the description of the road in the petition does not correspond
with the descriptton in the notice; (3) when the notice is not signed by the
petitioners. In re Parker, 336.
31. A party will be permitted to introduce testimony in contradiction of his
own witness, on the ground of surprise. State vs. Quinn, 339.
32. Statements made by a witness in the presence of public officers are admis-
sible no improper influence on the part of the officers being shown. Ibid.
33. 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 excentricity of mind, manner or conduct will not excuse him;
and insanity should not be confused with drunkenness, anger, wrath or revenge.
State vs. Cole, 344.
34. During the taking of testimony by the commissioner in a divorce proceed-
ing, a government official-letter carrier-was asked certain questions about
delivering letters to the respondent. The witness refused to answer on two
grounds: (1) Because the knowledge received as such official was privileged
and it would be against public policy to disclose it. (2) Because answers to the
questions would incriminate the witness and subject him to penalty under the
postal regulations. Smith vs. Smith, 365.
35. Application was made to the Superior Court for an order to compel the
witness to answer; whereupon the Court made an order that the witness answer
the questions before the commissioner. Ibid.
36. The right of a witness to refuse to answer a question on the ground that he
may incriminate himself, is one personal to the witness, and can be claimed by
himself alone. If he says, in reply to a question by the Court, that he does not
decline to answer because he fears it would make him liable to the penalty of the
law, he will be compelled to answer. Knopf vs. P. W. & B. R. R., 392.
37. A question asked a witness as to his schedule time between a given point
and the place of accident, about a mile apart, held to be irrelevant. Ibid.
38. Every person is presumed to be innocent till proven guilty. It is incum-
bent on the State to prove every material element of the crime charged.
In mur-
der, malice is a material element and must be proved. It may be proved, how-
ever, by any and all circumstances surrounding the case which show that the act
complained of was the outcome of a cruel, wicked and depraved heart and was
wilfully and recklessly done. State vs. Wallace, 402.
39. Sufficiency of Evidence. P. W. & B. R. R. vs. Sharpe, 407.
40. 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.
41. If a person who is able to read signs his name ro 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
by the exercise of reasonable diligence might have understood it, the contract is
valid and binding. Sewing Mach. Co. vs. Frame, 430.
42. Where a person has contracted with a corporation, such person is estopped
from denying that the corporation was authorized by its charter to make the con-
tract. Ibid.
43. 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.
vs. Bangs, 435.
44. Insufficiency of proof in an action of deceit. Frantz vs. Girard Trust
447.
45. 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 evi-
dence 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.
46. In an action for 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.
47. Bills for lumber found in possession of the person under whom the plaintff
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.
48. 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.
49. 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 conveyance was made. A mere equitable or beneficial title is not sufficient to
maintain an action of ejectment in a court of law, a legal title being essential.
50. 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.
51. Statements or admissions made by one having the legal title adverse to or
inconsistent with such title, cannot operate to divest such title, although such
statements or admissions are proper for the consideration of the jury in deter-
mining who in fact had or has the legal title. Ibid.
52. The plaintiff in an action of ejectment must recover, if at all, on the
strength of his own title, and it is not enough for such recovery that the defendant
has failed to prove that he has a good title. The legal title of the plaintiff must
be proved by a preponderance of the evidence. Ibid.
53. 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.
Black vs. Clements, 499.
54. There is a presumption of payment of a judgment after twenty years or more
from the recovery thereof, without any payment or process upon it or recognition
or acknowledgment of it, within twenty years, as a subsisting debt. But such
presumption may be rebutted by evidence of some acknowledgment or other
recognition. Maxwell vs. Devalinger, 504.
55. 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 proxi-
mately in any way to the accident, he may not recover. Ray vs. D. S. Steel Co.,
525.
56. What jury must do when testimony is conflicting. Ibid.
57. 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 rea-
sonably 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 the
reasonable inferences that the jury might draw from it would be sufficient to sup-
port a verdict for the plaintiff, the case should be submitted to the jury. Tully's
Adm'r vs. P., W. & B. R.R.,537.
58. A trespasser may recover for injuries resulting from the gross negligence or
carelessness of the defendant. The mere fact that a plaintiff, where he suffered
the injury complained of, was a trespasser on the defendant's premises, and would
not have been injured if he had not so trespassed, is not conclusive evidence of
contributory negligence. Ibid.
59. If the jury find that the defendant's servant, in charge of the business of
sifting cars, saw the boy who was injured in a place of danger on one of said cars,
and failed to make any effort to prevent him from exposing himself to such
danger, or any effort to avert such danger; and that the signalling brakeman saw,
or should have seen the boy in a place of danger on one of the cars he was
approaching, in time to avoid the danger or give warning of it, and that he made
no effort to avoid the danger or warn the boy, the jury would be justified in find-
ing the defendant guilty of such negligence as would render it liable. Ibid.
60. While the statute of this State makes a duly verified copy of a will proved
in another State and probate, or the record thereof, "sufficient evidence," in
courts of this State where such evidence is pertinent to the issue, it does not
make such evidence conclusive, and the statements contained in such copy
or record may, in an action in his State in relation to the title of land here situ-
ated, be contravened. Pritchard vs Henderson, 553.
61. The probate in another State of a will devising land here not being con-
clusive, it follows that the refusal of court of another State to admit such a will
to probate is not conclusive, for in both cases the reason is the same. Ibid.
62. 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, sec-
ondly, that he committed the assault with intent to murder. The intent is as
materiel and essential to be proven as any other ingredient in the offense. State
vs. Jones, 573.
63. The intent to commit murder may be shown by direct evidence of the in-
tent, that is, by the express confession or declaration of the accused; or, if there
be no such direct evidence, the intent may be proved by the acts or conduct of
the accused, and other circumstances, from which the jury may naturally and
reasonably infer the intent charged. Ibid.
64. By the act of 1873 a married woman's personal property, acquired from
any person other than her husband, is made her sole and separate property.
Where it is proved that personal property belongs to a married woman, it is not
necessary for her to prove that she did not acquire it from her husband. In such
case the general rule should prevail, that he who asserts an affirmative should
prove it.
Where there is no direct proof upon the point, the jury may draw their
own conclusions from such proof as they have, at to the ownership of the prop-
erty and how it was acquired. Vincent vs. Ireland, 580.
65. It is not error for the Court to refuse to instruct the jury under a request
which assumes the existence of a fact to be established by evidence. Daniels vs.
State, 586.
66. 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. Ibid.
67. While character evidence is not a defense, it is a circumstance in the ante-
cedent conduct and habits of the accused, its purpose being to strengthen the
legal presumption of innocence. Ibid.
68. 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.
EXCEPTIONS TO ADMINISTRATOR'S ACCOUNT,
In this case neither of the plaintiffs resided in the State at the time of the
settlement of the account, or at any time since; and therefore is different, in the
facts, from the case of Allen, et. al., vs. Leach, 7 Del. Ch., 83, in which the
Chancellor held that until the notice required by the Constitution is given, the
statute of limitations does not begin to run. Larkin and Stites vs. Simms, 543.
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. 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 distribution of such proceeds, and he does it
at his peril. Smith vs. Simmons, 462.
3. 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.
4. 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 vs.
Thompson & Co., 530.
EXEMPTION FROM LIABILITY.
I. In general, but not uniformly, it has been held that where the duty of con-
trol 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 Wil-
mington 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. Mayor and Council vs. Ewing, 66.
2. The act of April 24, 1889, is valid and constitutional in so far as it relieves
the city of liability, even though that part of the act should be unconstitutional
which purports to make property owners responsible for damages resulting from
the defective condition of footways. Ibid.
3. The great burden imposed upon municipal corporations by their unrestricted
liability for injuries occasioned by defective streets and sidewalks, has doubltless
been the cause of the frequent modification or removal of such liability. Ibid.
4. While the maxim, "That where there is a wrong there is a remedy," is in
general true, it is subject to qualifications and exceptions. If injuries have been
sustained by reason of defective footways in a city, the party injured has no
vested right to sue the city. The liability of the city arises not from any implied
contract between the city and the person injured, but in the absence of statutory
exemption, is implied by law from the duty imposed upon the city. Ibid.
5. The act entitled "An Act to Exempt Wages from Attachment Process"
(Chap. 542, Vol. 16, Laws of Delaware, Rev. Code 841), held to be constitu-
tional and valid. P. W. & B. R. R. vs. Sharpe, 407.
FALSE REPRESENTATIONS.-See FRAUD.
Under the statutes of the State and the ordinances of the City of Wilmington,
adopted in pursuance thereof, the Mayor and Council of Wilmington, and not
the Board of Directors of the Street and Sewer Department, are entitled to have,
receive and dispose of the fees and charges collected from farmers, traders, deal-
ers and hucksters using the street markets in said city. The said The Mayor and
Council of Wilmington are also entitled to receive the taxes on electric light poles
in said city, and the rents collected from lessees of wharves along the river front
at the end of streets owned by said city. St. and Sewer Dept. vs. Connell, 571.
FELLOW-SERVANT.-See also MASTER And Servant.
1. The rule of law which makes the master liable when the injury is caused by
the negligence of a fellow servant combined with the negligence of the master
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