FELLOW SERVANT-Continued.
must be limited to cases where there has been negligence on the part of the
master in the selection of the negligent fellow-servant, or some other negligence
of the master for which he would be responsible if it had been the sole cause of
the injury. Creswell vs. W. & N. R. R., 210.
2. 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 dis-
coverable 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 insufficient 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. Ibid.
3. 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.
4. 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.
FELONIOUS INTENT-See INTENT.
FELONY.-See also CRIMINAL LAW.
During the trial of a felony the prisoner must remain in the dock.
Quinn, 339.
1. The general rule governing cases of lost property, where larceny is charged,
is this: if the finder knows who the owner is, from any marks on it, or if from the
circumstances under which the property was found the owner could reasonably
have been ascertained, then the fraudulent conversion to the finder's use is suffi-
cient evidence to justify the jury in finding a felonious intent. State vs. Stevens,
486.
2. The jury should take into consideration the circumstances attending the
finding of the property, and say whether or not at the time of the alleged finding
the prisoner intended to convert it to his own use.
FOREIGN ATTACHMENT.-See also ATTACHMENT.
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. 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.
3. Case, foreign attachment. Maxwell vs. Devalinger, 504.
4. One of the defendants in a judgment had died more than a term of court
FOREIGN ATTACHMENT-Continued.
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.
FOREIGN CORPORATIONS.
1. Where receivers of a corporation have been appointed by a court in
another State, it is to be presumed that the court had jurisdiction of the cause,
and that the appointment was valid. Kirwan Mfg. Co., vs. Truxton, 48.
2. The powers conferred by the laws of one State can have no operation in
another State except by comity, and therefore a corporation cannot as of right sue in
any other jurisdiction than that from which it derived its corporate powers. The
practice, however, is now universal in this country to permit by comity corpora-
tions of one State, having the right to sue there, to sue in the courts of another
State unless the exercise of that privilege is repugnant to the interests or policy of
such State. Ibid.
3. By comity receivers are now generally permitted to maintain suits in other
states for the protection of the interests, and the enforcement of the claims, of the
corporations for which they were appointed, provided it would not be contrary to
the policy of such states, or detrimental to the interests of their citizens, or of
others who have acquired rights there. Ibid.
4. When the laws of the State in which receivers of a corporation are ap-
pointed provide that such receivers shall be vested with all the estate and assets
of every kind belonging to the corporation, and that suits may be brought and
carried on by them, either in their own names and capacities as such receivers, or
in the name of the corporation for which they shall have been appointed, such
corporation will not be permitted to sue in this State in its own name unless it
appears that the suit is brought by the authority of the receivers. To permit it to
do so would be an unwarranted disregard of the laws of a sister State, instead of
an act of comity. Ibid.
5. When by the laws of the State creating the corporation it has been deprived
of the right to the possession or control of its assets, and the right to sue in the
courts of such State for the recovery of any of its debts or rights of action, it
would be unreasonable to ask the courts of another State, upon grounds of
comity, to permit such corporation to sue there, or to exercise any of the powers
of which it had been deprived by the laws of the State of its creation. Ibid.
6. A State may prevent foreign corporation from doing any business in the
State until they have fulfilled all the requirements imposed by the Legislature.
Advantage of the plaintiff's failure to comply with such requirements, however,
is generally taken in other states by plea in abatement, other special plea or by
answer. Where there is nothing in the pleadings or evidence showing that
plaintiff had not complied with the requirements of the statute, held the statute
was not applicable. Sewing Mach. Co., vs. Frame, 430.
FOREIGN COURT.-See also COURTS.
1. Titles to land can be acquired and lost only in the manner prescribed by the
law of the place where such land is situated. The provision of the United States
Constitution, which requires full faith and credit to be given in each State to the
records and judicial proceedings of every other State, applies only to the records
and proceedings of courts, so far as they have jurisdiction. The courts of a State
being without jurisdiction as to the title to lands in another State, this provision
of the Constitution does not make conclusive the probate proceedings in one State
in respect to a will devising lands in another State. Pritchard vs. Henderson,
553.
2. 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 issued, it does not
make such evidence conclusive, and the statements contained in such copy
or record may, in an action in this State in relation to the title of land here
situated, be contravened. Ibid.
3. As to immovable property the law of the place where it is situated governs
both as to capacity of the testator and the requisites to the will's validity. The
validity of a will of lands situated in Delaware made by a non-resident, and not
proved here, may be tried in ejectment, if the will be given in evidence, by one
claiming under it in an action by the heir. And where such will of lands here
has been proved abroad the foreign probate is not conclusive here, but may be
controverted. Ibid.
4. The probate in another State of a will devising land here not being conclusive,
it follows that the refusal of a Court of another State to admit such a will to
probate is not conclusive, for in both cases the reason is the same. Ibid.
5. While the Court of another State has jurisdiction to find that an alleged will,
so far as it relates to personal property and lands in that State, was procured by
fraud and undue influence, and that the testator was not of sound and disposing
mind and memory, it has no jurisdiction to make a conclusive determination as to
these facts or any other facts touching the validity or invalidity of the paper, so
far as the same relates to land in Delaware. The defendant in an action of eject-
ment in this State would not be estopped from denying any or all of said findings
of fact by the courts of such other State. Ibid.
At common law the intent to defraud is a necessary averment, and must be in
the indictment. It is also unquestionably the law, where an indictment is framed
under a statute, that if the intent to defraud is expressed in the statute, such
intent must be averred in the indictment. State vs. Hegeman, 143.
FORMER JEOPARDY.-See Jeopardy.
1. Where a judgment is regularly recovered and no exception is taken to any
process or paper filed in the case or any record proceeding, but the objection is
outside of the record and grows out of the alleged violation of a duty that some
of the members of the plaintiff firm owed to the stockholders and creditors of the
defendant corporation in a fiduciary relation, and is based clearly on a breach of
trust, this Court will not vacate the judgment. In such a case the injured parties
have an adequate remedy only in Chancery, where all persons interested may be
made parties to the proceeding, and where the complainant proceeds at his own
risk, giving proper security for any costs and damages that may be sustained by
the person or persons rightfully entitled to the money. Woodward, Baldwin &
Co. vs. Arlington Mills, 188.
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
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 Natl. 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. Allegation of fraud in action of deceit. Frantz vs. Girard Trust Co., 447.
FUNERAL EXPENSES.
In an action by an administrator for damages for the death of the plaintiff's,
intestate, alleged to have been caused by the negligence of the defendant's serv-
ants in running a street car, the question, "Was the estate of the deceased put
to any expense because of funeral expenses," held inadmissible.
Wilcox's
Admr. vs. W. C. Ry., 157.
GARNISHEE.-See also GARNISHMENT.
1. State Treasurer summoned as garnishee.
Farmers Bank vs. Ball, 374.
2. 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. Forbes vs. Thompson & Co., 530.
3. The "act for the protection of women," Chap. 350, Vol. 14, Laws of Del-
aware (Rev. Code, boo), 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.
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.
HARMLESS ERROR. See also ERROR.
No judgment should be reversed in a court of error when it is clear that the
error could not have prejudiced the rights of the party against whom the ruling
was made. Creswell vs. W. & N. R. R., 211.
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 Orphan's 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 decased
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 of
the deceased child.
HIGHWAY, PUBLIC.-See also STREETS.
Driving upon highway. Ford vs. Whiteman, 355.
HOMICIDE.-See also CRIMINAL LAW.
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.
1. In an action by an administrator for damages for the death of the plaintiff's
intestate, which is alleged to have been caused by the negligence of detendant's
servants in running a street car, a witness cannot be asked whether the deceased
was a good woman or bad woman, but may be asked, "What was the health of
the deceased?" And it is competent to inquire as to her industry, if tending to
show that the deceased woman's life had a value as a life independent of her
husband, but not if the industry referred to had reference to decedent's work
around her house-her own home. Wilcox's Adm'r vs. W. C. Ry, 157.
2. The husband may be asked whether the deceased received any money per
week independent of himself, as it goes to show the value of the life of the de-
cedent independent of the husband, but the plaintiff will not be permitted to
show what the deceased received from her husband per week and what she saved
from that amount after paying household expenses. The question will be limited
to what was the value of the life independent of the husband and his relations to
her. Ibid.
3. When husband and wife live together, he is bound to provide her with
necessaries suitable to his condition and circumstances in life; and medical atten-
tion and services needful and appropriate to the wife's illness and invalid con-
dition are such necessaries. Black vs. Clements, 499.
4. The law, from the mere fact of cohabitation, presumes the authority and
and 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.
5. If the articles purchased by the wife are such as cannot be considered as
strictly necessaries, he is not liable, without showing his express authority or assent
to such purchase. Ibid.
6. At common law, in this State, before the passage of what are called the
married woman's acts, a married woman might not be suable in her own name
alone during the life of her husband and during their marriage. But under Sec.
2, Chap. 550, Vol. 14, Laws of Delaware, the wife may be sued alone in her
own name if the circumstances and evidence bring the case within the meaning
of said sections. Ibid.
7. The "act for the protection of women," Chap. 350, Vol. 14, Laws of Del-
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