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.
22. 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 exer-
cise 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 deter
mination of the question should generally be submitted to the jury. Ibid.
23. The plaintiff may recover damages for an injury caused by the defendants'
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 pur-
pose of avoiding injury to him. Ibid.
24. If the jury find that the defendant's servant, in charge of the business of
shifting 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 signaling 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.
NONSUIT.
1. If there is sufficient evidence to justify the jury in finding that the defendant
was chargeable with implied or constructive notice, nonsuit will be refused.
Downs vs. Com. of Smyrna, 132.
2. Nonsuit will be granted when plaintiff has failed to connect the accident
with the defendant. Wilcox's Admr. vs. W. C. Ry., 157.
3. Where the plaintiff at the time the writ of replevin issued was in possession
of the property, and nothing had been done by the defendant in respect thereto,
except to have it appraised and advertised as the property of the deceased; held
that such acts of the defendant did not constitute either an unlawful taking or
detention, and a nonsuit should be granted. Reed vs. Wiltbank, 243.
4. Nonsuit granted because proper parties not joined in replevin. Fell vs.
Taylor, 372.
5. Wherever the testimony, taken as a whole, together with all reasonable, law-
ful inferences that could be drawn from it, would not support the verdict of a
jury, if it should find in favor of the plaintiff, a nonsuit will be granted; if it would
support such a verdict, then a nonsuit will not be granted. The Court are always
very reluctant to take a case away from the jury, if there be testimony sufficient
to warrant such a verdict. Frantz vs. Girard Trust Co., 447.
6. 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
Admr. vs. P., W. & B. R. R. 537.
7. Motion for nonsuit refused.
Vincent vs. Ireland, 580.
8. If the conductor of a shifting crew, when about to couple engine and car,
omits to give the proper signal to the engineer when he sees the engine approach-
ing at a dangerous speed, or attempts the coupling when the engine and car are
approaching each other at an unsafe speed, or makes the attempt in an unskillful
manner, he is guilty of such negligence as would defeat recovery. But in the
absence of any direct evidence as to what he did, or omitted to do, the inference
of his negligence from the position in which his body was found after the collision
would not alone be sufficient to justify the withdrawal of the case from the jury.
Creswell vs. W. & N. R. R., 211.
1. If an agency be created for the negotiation or disposal of a promissory note,
then the endorsement thereof by the agent is a mere incident to the relation or
undertaking; and is the result of the extrinsic agreement between the parties with
reference to the negotiation of the note. Foster vs. State, 112.
2. A person who is employed by the maker of two promissory notes for the
purpose of negotiating them and turning the proceeds thereof over to the maker
of the notes, is an agent within the meaning of the statute, and is guilty of em-
bezzlement for fraudulently converting the proceeds, or any part thereof, to his
own use. Ibid.
3. An agreement to pay commissions is a fact of great weight tending to prove
the existence of the relation of agency within the statute. Ibid.
NOTICE.
1. The city has a right to block off a street for the comfort and well-being of
sick residents, but it is the duty of the city when doing so, to so place and mark
the obstruction as to properly guard the public safety, and give reasonable notice
that the danger is there. And in proportion as the character of the obstruction is
not manifest, the duty on the part of the city becomes the more imperative to
plainly make known its existence. Anderson vs. Mayor and Council, 28.
2. 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 de-
fendant in the execution; and although the deed made to him by such defendant
was not recorded till 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 was
denied by the plaintiff in said judgment. Held, that the sale should not be set
aside. Short vs. Short, et al., 62.
3. Courts take judicial notice of the general, public statutes of the State. An
act creating a municipal corporation is such a statute. Downs vs. Com. of
Smyrna, 132.
4. When the action is brought for injuries caused by an obstruction in the
streets of a city, in order to render the defendant liable it must appear that it had
notice or knowledge of the obstruction for such time as would have been suffi-
cient for its removal. But this notice or knowledge need not be express; it may
be implied or constructive. Ibid.
5. If the obstruction existed for a considerable time before the injury, the de-
fendant may be presumed to have had knowledge of it. Ibid.
6. If there is sufficient evidence to justify the jury in finding that the defendant
was chargeable with implied or constructive notice, nonsuit will be refused.
7. The statute (Rev. Code, 482) 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 deten-
tion of his property. But he cannot recover in this action for any injuries to
the stock during the detention thereof. Ibid.
8. 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 risk of the apparatus, he does not as-
sume such risks when the defects are latent, unknown to him, and not discoverable
by the exercise of due care. Whether the servant is chargeable with such knowl-
edge 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 em-
ployment of the servant. The assumption of risk arising from an insufficient
number of men for the conduct of the work rests upon the same grounds as the
assumpstion of risk arising from the use of machinery known to be defective and
dangerous. Creswell vs. W & N. R.R., 210.
9. Where the servant had been engaged in the same kind of work for years
before his injury under like circumstances 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.
10. 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 description in the notice; (3) when the notice is not signed by the peti-
tioners. In re Parker, 336.
II. A person having knowledge of the dangerous character of the place where
he is driving is required to use greater care. Ford vs. Whiteman, 355.
12. 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 de-
fect is the promise of the company. Ray vs. D. S. Steel Co., 525.
NUISANCES.
A Justice of the Peace has no jurisdiction over nuisances committed in the
City of Wilmington. State vs. Greenwood, 379-
OBSTRUCTION IN STREETS.-See STREETS, ETC.
OFFICIAL BOND.-See BOND.
OPTION TO BUY.
Where the defendant had an option to purchase the article for which the writ
of replevin was issued, the statute of limitations would not begin to run against
the action until the expiration of defendant's right or option to purchase, because
until that time the plaintiff's cause of action would not accrue. Sewing Mach.
Co. vs. Frame, 430.
ORDER TO PRODUCE.-See PRODUCTION OF PAPERS.
ORDER OF COURT AS TO LOST PETITION.-See PETITION.
ORDINANCES CONSTRUED.-See also STATUTES CONSTRUED.
Under the statutes of the State and the ordinances of the City of Wilming-
ton, 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,
dealers 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.
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. Amendment allowed as to the name of the party plaintiff. Harmon vs.
Collins, 36.
3. 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 corpora-
tion 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. Kirwan Mfg. Co. vs. Truxton, 48.
4. A rule for writ of possession will be issued where the petitioners for the rule
-the owners of the property-are the grantees of the purchaser at the sheriff's
sale. It would be too narrow a construction of the statute, and defeat its remedial
character, if it were restricted to the purchaser at the sheriff's sale. Kent vs.
Pyle, 242.
5. It is a general rule that all the joint owners of a chattel must join in re-
plevin. One tenant in common of a chattel cannot maintain replevin for it with-
out joining his co-tenant. Fell vs. Taylor, 372.
6. In a scire facias on a mortgage, the only necessary party defendant is the
mortgagor, if he be living, whether he continues to be the owner of the mortgaged
premises or not. If the mortgagor be dead, his executor or administrator, if there
be one, is the only necessary party defendant, whether the mortgaged premises be
owned by heirs, devisees, or assigns subsequent to the mortgage. Seals vs. Chad-
wick, 381.
7. Where the real plaintiff is a child of tender years the father is the proper
person to sign the petition asking for the appointment of a next friend. Flanni
gan vs. W. & N. C. E. Ry., 415.
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 vs.
Thompson & Co., 530.
9. A married woman has the right to make such use of her private property as
will bring profit and benefit to her. And her rights and privileges conferred by
the statute have not been made dependent upon her living separate from her
husband. Although living with her husband she may receive for her own use and
sue for in her own name, the wages of her personal services, provided they are
not rendered for or in connection with her duties in the family of her husband,
and are not inconsistent with the performance of such duties. Vincent vs. Ire-
land, 580.
10. There may be circumstances under which a married woman, although
living with her husband, who has the general management and control of his
house, and is the head of the family, may maintain an action in her own name
for the board and lodging of a person living in the house of the husband, or for
personal services rendered to such person. But if the boarder is under an ex-
press or implied agreement with the husband to pay him for the board, and the
wife's services relate to the usual entertainment of the boarder, the husband and
not the wife would be the proper person to sue for the board, which included
the wife's services. Ibid.
1. 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 of the deceased child. Wharton vs. Stevens, 136.
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 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.
1. In an action where it is sought to hold one as a partner by his own admis-
sions, testimony will be admitted to show that a mercantile agency applied to the
defendant to learn whether he was a partner, and what report it obtained. Then
it may be shown that such report was delivered to the plaintiff. Ellison & Sons
2. The plaintiff's belief that defendant was a partner is not admissible as evi-
dence of an actual partnership, but it is competent to show that the plaintiff gave
the credit by reason of his belief in, and reliance upon statements made by defend-
ant that he was a partner. Ibid.
3. The defendant in support of his claim that he was only a creditor of the
firm and not a partner, will be allowed to show the notes and other securities
given to him by the firm for the loans made. Ibid.
4. A partnership liability to creditors may arise either where an actual partner-
ship really exists, or where the party sought to be held as partner is not so in
reality, but has held himself out to the world or to the plaintiff creditor as such,
or authorized or permitted others to do so, and such creditor has thereby been in-
duced to give, and has given credit to such partnership. Ibid.
5. The mere loan of money to a partnership, and the taking security therefor,
does not make the lender a partner therein. Nor does the lender become a part-
ner by taking profits instead of interest for his loan, if he does not retain control
over the money in the partnership business. Ibid.
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